Elvin v Fair Work Ombudsman

ABRAHAM J: 1 The applicant, by an application dated 9 December 2021, applies for an extension of time to seek leave to appeal. That application is supported by an affidavit explaining the relevant delay and annexing the proposed notice of appeal in relation to Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242. 2 The applicant also sought that the matter be heard on the papers, a position which the respondent eventually agreed. Although the respondent filed a notice of objection dated 17 February 2022 contending that the hearing of the application should proceed orally, after the filing of written submissions, chambers was informed that it was content for the application for an extension of time and leave to appeal to be determined without an oral hearing. 3 On that basis, it is my view that it is appropriate to determine the application on the papers. 4 The proposed notice of appeal stated that the applicant appeals from the "interlocutory judgment" of the Federal Court on the following grounds: A. The denial of procedural fairness in the trial. B. Apprehended bias. C. The orders made by Justice Katzmann with the Liability Decision 10 months after the trial concluded did cause the denial of procedural fairness. D. The predetermination by Justice Katzmann of her decision to grant the Respondent leave to amend the pleadings to include Skill Level 1 of the Health Professionals and Support Service Award 2010 (Health Award) 10 months after the trial concluded did cause actual bias. E. The reasons relied upon by Justice Katzmann to find that Skill Level 1 of the Health Award was the correct award and categorisation were illogical and were not supported by the evidence. F. The reasons relied upon by Justice Katzmann to find that the Respondent was not a creditor for the purposes of a deed of company arrangement were illogical and were not supported by the law. G. The foreseeable risk of a miscarriage of justice due to the Respondent's forensic choice to not claim for compensation for cashbacks for Mr Benting in the pleadings but to rely on evidence from Mr Benting including serious allegations he paid cashbacks. H. Based on A. to G. above it would be unsafe to rely upon the conclusions reached by Justice Katzmann. 5 The applicant's affidavit annexing the notice details the basis of these complaints. 6 For the reasons below, I refuse the application for an extension of time and leave to appeal.

Legal principles 7 The applicant applies for an extension of time and leave to appeal. 8 The power to extend time in which to appeal is unfettered; however, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters identified in that judgment to which the Court will usually have regard are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally: see for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17]-[19] per Spender, O'Loughlin and Dowsett JJ. 9 As to leave to appeal, the discretion is also an unfettered one, with each case being determined on its merits. Nonetheless, the discretion is informed by well-established principles including that generally an applicant must establish: (1) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. This Court must exercise the power to grant leave in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [2]; Bellamy's Australia Limited v Basil [2019] FCAFC 147; (2019) 372 ALR 638 at [6]. As with the extension of time, the evaluation of the prospects of success of the proposed appeal grounds is conducted "at a reasonably impressionistic level" and enquires whether a ground "is sufficiently arguable" or "has reasonable prospects of success": EBT17 v Minister for Home Affairs [2019] FCA 200 at [4] citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63]; Snowside Pty Ltd as trustee for the Snowside Trust, in the matter Boart Longyear Ltd [2019] FCA 2159 at [58].

Consideration 10 A consideration of the basis of the grounds reflects that all but one of the grounds (which is Ground C) is directed to the conduct of the proceedings up until and including the trial, and the reasons for judgment. Orders reflecting the outcome of the hearing are yet to be made. Rather, on 14 October 2021, the primary judge made orders which in effect set a timetable for further steps to be taken by the parties. These steps included the filing of an amended defence by the applicant, the filing of evidence and submissions with respect to the alleged underpayments and the referral to a Registrar to conduct an inquiry and provide a report on questions concerning the alleged underpayments. 11 On the basis that no relevant order has yet been made by the primary judge, the respondent contends that seven of the eight grounds are incompetent because this Court does not, at this time, have jurisdiction. The applicant challenges that submission and contends that the primary judge has made a judgment. 12 The respondent's submission must be accepted. 13 Section 24(1) of the Federal Court Act provides, inter alia, for "appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court": s 24(1)(a). Judgment is relevantly defined in s 4 to mean, "a judgment, decree or order, whether final or interlocutory": s 4(a). 14 A "judgment" is a formal order by which the court disposes of the matter before it, and reasons for judgment are not themselves a "judgment". The relevant principles were recently summarised in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 at [12]: A "judgment" is defined in s 4 of the Federal Court of Australia Act 1976 (Cth), relevantly, as a "judgment, decree or order". A "judgment" is a formal order by which the court disposes of the matter before it, and reasons for judgment are not themselves a "judgment": see, for example, the judgments of the Full Court in Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-286; Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 at 399; Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 at 99; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378; Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 at [35]; and Harmer v Oracle Corporation Australia Pty Limited (2013) 299 ALR 236 at [21]-[22] and [33]; Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197 at [46]; Ashby v Slipper (2014) 219 FCR 322 at [49] and [309]; Letten v Templeton [2014] FCAFC 131 at [17]. 15 It follows that as no relevant orders have been made, there is no judgment in this case as to the liability hearing. An appeal does not lie from reasons for judgment. 16 The Court does not have jurisdiction, as the appeal is incompetent. 17 Therefore there is no basis to consider granting an extension of time in respect to seven of the eight grounds. The appeal is premature. 18 As a consequence, it is unnecessary and inappropriate to consider the merits of those seven grounds. 19 That said, after orders as to the liability hearing have been made, the applicant will have a right of appeal from a single judge, provided it is filed within time. At that stage, the applicant will not face the issues which currently arise and require an extension of time. 20 That leaves the consideration of Ground C, which as explained in the applicant's affidavit, relates to the following: C. THE ORDERS MADE BY JUSTICE KATZMANN AFTER THE TRIAL CONCLUDED CAUSED DENIAL OF PROCEDURAL FAIRNESS. (i) Ten months after the trial concluded on 14 October 2021 Justice Katzmann simultaneously published her Liability Decision and made orders 1 to 12 (the orders) for further steps to be taken by the parties. I appeal against those orders on the grounds that in effect they deny me procedural fairness. In particular, the right to be heard. That is because the orders provide for me to file an amended defence but make no provision for me to file evidence to support my defence, or submissions to address my defence, and no provision was made for my defence to be considered by the Court. (ii) Conversely, the orders make provision for the Respondent to file an amended pleading, further submissions, and an affidavit including calculations evidence. (iii) The orders provide only for me to file evidence in reply to the Respondent's calculations evidence. This order limits me to addressing only the figures in the calculations evidence and does not contemplate me addressing and challenging how the conclusions in the calculations evidence were reached. (iv) The orders make provision for the parties to use their best endeavours to agree on orders giving effect to Justice Katzmann's reasons, including the amount of the underpayments. And if agreement cannot by reached by 16 December 2021 then the Senior National Judicial Registrar is appointed a referee and empowered to decide the matter of the underpayments and report to Justice Katzmann who will then make a penalty decision. (v) My amended defence which I was ordered to file does include and rely upon substantive factual matters, and my affidavit in reply to the Respondent's calculations evidence does include and provide an evidential basis to challenge the accuracy and integrity of the instructions received by the calculations witness, Mr Wong, the methodology used by him, and the conclusions he reached. (vi) The unfairness of the orders to me is further illustrated by the fact that in the Liability Decision paragraph 427 to 446 Justice Katzmann refers to the underpayment calculations carried out by Mr Wong. Using Mr Wong's methodology she reaches an underpayments total that is substantially different than that reached by Mr Wong. This issue was not resolved by the Applicant's further submissions, and in Mr Wong's final affidavit including calculations evidence he says that the total underpayments is a different figure than he previously arrived at and substantially different than the figure Justice Katzmann arrived at in the Liability Decision. 21 That is, Ground C is directed to orders as to the grant of leave for the respondent to file an amended originating application and statement of claim and for the applicant to file an amended defence. 22 The test for determining whether a judgment is final or interlocutory is whether the judgment finally determines the rights of the parties: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [25]; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [42]; Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8 (Plaintiff S164/2018) at [11]. This depends upon the legal and not the practical effect of the judgment: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248, 256; Plaintiff S164/2018 at [11]. The legal effect of a judgment is not final, where it would be open to a party to bring a second application, even if it would be doomed to fail: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248, 256; Plaintiff S164/2018 at [11]. 23 I accept the respondent's submission that these orders are interlocutory in nature, and therefore the applicant requires leave of the Court to appeal: s 24(1A) of the Federal Court Act. The onus is on the applicant to establish leave should be granted. This is in addition, in this case, to requiring an extension of time. 24 As explained above at [9], the principles are well settled and it is incumbent on the applicant to establish that the decision is attended by sufficient doubt to warrant it being reconsidered by a Full Court and that substantial injustice would result if leave were refused. These considerations are cumulative. 25 The orders made relate to an argument that arose as to whether the respondent (in this application) had pleaded the correct classification of Massage Therapists. This issue appears to have been raised during the closing submissions of the respondent. However the primary judge would not entertain the submissions on the proposed new classification unless the respondent sought leave to amend her pleadings. On 11 December 2020, procedural orders to the following effect were made: (1) by 18 December 2020, the applicant was to file supplementary written submissions addressing issues to do with the Deed of Company Arrangement (order 1); (2) by 23 December 2020, the respondent was to file and serve an interlocutory application seeking leave to file a second further amended statement of claim, an affidavit in support of the interlocutory application, a further affidavit annexing underpayment calculations and any submissions supporting the interlocutory application (order 2); (3) by 20 January 2021, the applicant was to file any submissions in response to the respondent's interlocutory application (order 4); (4) by 29 January 2021, the respondent was to file any submissions in reply to the applicant's arguments on liability (order 5); (5) any interlocutory application was to be determined on the papers (order 7); and (6) the question of penalty, if any, was to be determined after the Court determined the question of liability (order 8). 26 On 19 January 2021, pursuant to order 4 made on 11 December 2020, the applicant filed a written submission (28 pages in length), in response to the interlocutory application filed by the respondent. The primary judge determined the respondent's interlocutory application at the same time as her decision on liability on 14 October 2021. Her Honour made an order granting the respondent leave to file an amended originating application and statement of claim. Having done so, her Honour allowed the applicant to file an amended defence. 27 It may be accepted that there were no orders for the filing of evidence or submissions with respect to the amended defence. It is unclear what evidence or submissions the applicant sought to advance given the nature of the amendment made. I note that given the stage of the proceeding, the applicant had already filed his evidence and submissions. There is no material before me to suggest that the applicant sought to adduce further evidence at that time. In any event, the applicant in his affidavit attests to having put on the material in reply. There is no proper basis identified of any prejudice. I note also in this context that the applicant complains of reasoning by the primary judge, but it is unclear how this can relate to the claim of procedural unfairness. Moreover, as noted above, no orders have yet been made as to liability. 28 It is not readily apparent from the applicant's affidavit or the submissions he advances that the decisions complained of in respect to these orders are attended by sufficient doubt to warrant them being reconsidered. In any event, leaving that issue to one side, I am not satisfied that substantial injustice would result if leave were refused. As observed above at [9], the exercise of the power to grant leave should be in a way that best promotes the overarching purpose in s 37M, namely, to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The matters complained of in this ground are discrete procedural complaints in the context of a matter which has not yet completed. They are interlocutory matters which could be the subject of further applications to the primary judge. 29 I would therefore refuse leave to appeal on this ground. 30 It is therefore not necessary to separately consider an extension of time. That said, I observe, given the nature of this ground, that the interests of justice are best suited if this matter is not interrupted at this time for the discrete complaint to be heard.

Conclusion 31 I refuse the extension of time and leave to appeal in this case. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.