Jovcic v Coopers Brewery Limited

BESANKO J: 1 This is an application for an extension of time within which to appeal from orders made by a judge of this Court on 5 April 2023 (Jovcic v Coopers Brewery Limited [2023] FCA 423). Rule 36.03 of the Federal Court Rules 2011 (Cth) provides as follows: An appellant must file a notice of appeal: (a) within 28 days after: (i) the date on which the judgment appealed from was pronounced or the order was made; or (ii) … (b) on or before a date fixed for that purpose by the court appealed from. 2 A party may apply for an extension of time within which to file a Notice of appeal under r 36.05. 3 In this case, oral reasons were given and orders pronounced by the primary judge on 5 April 2023 and written reasons for judgment were published by her Honour on 5 May 2023. The application for an extension of time was filed on 23 May 2023. The time within which to appeal from the orders ran from 5 April 2023, not 5 May 2023. The applicants require an extension of time. They are 19 days "out of time". The last day to file a Notice of appeal was 4 May 2023. 4 The primary judge described the course she adopted in her written reasons published on 5 May 2023 as follows (at [1]-[3]): 1 This is an application for orders under s 39B of the Judiciary Act 1903 (Cth) quashing a decision of the Fair Work Commission made on 22 July 2022 and ancillary relief: Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931. 2 The Court conducted a hearing of the application on 20 March and 5 April 2023. At the conclusion of the hearing, I made an order dismissing the originating application and gave oral reasons for doing so. 3 The parties were informed that written reasons would follow and I now publish those reasons. The written reasons that follow should not be understood as containing any findings or conclusions inconsistent with those delivered orally. They have been re-ordered and revised from the transcript to remove repetition and improve expression. Some statutory provisions have been included, together with some uncontroversial background. 5 The applicants are former employees of the first respondent, Coopers Brewery Limited (Coopers). They were dismissed from their employment on 21 January 2022 on the ground that they had failed to comply with a policy requiring employees to be vaccinated against the COVID-19 virus. The applicants commenced proceedings in the Fair Work Commission (the FW Commission) under the Fair Work Act 2009 (Cth) (the FW Act) alleging that their dismissal was unfair. They relied on expert evidence concerning the transmission of the COVID-19 virus and the efficacy of COVID-19 vaccines. 6 The FW Commission concluded that the applicants' dismissal was not unfair within the meaning of the FW Act because Coopers' policy constituted a reasonable direction to the applicants and they failed to comply with that direction. The applicants brought an application for judicial review in this Court alleging jurisdictional error on the part of the FW Commission. That application was dismissed. Her Honour did not consider the merits of the grounds of judicial review, but rather she dismissed the application in the exercise of the Court's discretion on the basis there was an alternative statutory procedure for resolving the controversy between the parties, namely an appeal with permission to the Full Bench of the FW Commission, and no reason was proffered as to why that procedure had not been followed. 7 The applicants for an extension of time rely on two affidavits of their solicitor, Mr Parambir Singh Sekhon. Those affidavits describe the course of the proceedings before the primary judge. 8 The proceedings before the primary judge were commenced on 1 September 2022. Mr Sekhon was not acting for the applicants at that time. He filed a Notice of acting on 21 May 2023. Her Honour delivered oral reasons on 5 April 2023 and published written reasons on 5 May 2023. 9 Mr Ower KC appeared on behalf of the applicants on 20 March 2023 which was the first day of the hearing of the matter and, according to Mr Sekhon, had appeared for the applicants with Mr David Blyth throughout the proceedings. On 20 March 2023, the primary judge heard oral submissions from Mr Ower KC for the applicants. Orders previously made about the filing of written submissions by the parties were extended and the first respondent filed its written submissions on 30 March 2023 and the applicants filed their written submissions in reply on 4 April 2023. The proceedings were adjourned to 5 April 2023 and senior counsel for the first respondent made oral submissions on that date. The written submissions in reply had been settled by Mr Ower KC. Mr Ower KC was not present during the afternoon of 5 April 2023 when her Honour delivered her oral reasons. The applicants were represented by Mr Blyth and Mr Stuart Lindsay during the afternoon of 5 April 2023 when the oral reasons were delivered. 10 Ms Polson of Polson Legal advised the applicants on 5 April 2023 that she would cease to act for them upon the delivery of written reasons. She had been acting on a pro bono basis for the applicants since at least January 2023. Ms Polson delivered the written reasons to all counsel electronically on 8 May 2023. Mr Sekhon sought advice from Mr Ower KC as to the merits of an appeal from her Honour's decision on 16 May 2023 "after discussions with Mr Lindsay with whom the first Applicant had been in discussion from time to time since 5 April 2023 and who had discussed the merits of the appeal with Mr Ower KC late in the week commencing 8 May 2023". To that point, the applicants had been considering proceeding with an application for permission to appeal to the Full Bench of the FW Commission pursuant to s 604 of the FW Act and an application for an extension of time within which to bring such an application and "had consulted another solicitor in relation thereto". No application had been filed and the time for permission to appeal had expired in August 2022. Mr Sekhon comments that the application for permission to appeal under s 604 of the FW Act was subject to the additional "thresholds" prescribed by s 400 of that Act of satisfying the Full Bench of the FW Commission that it was in the public interest to grant permission and the appeal "as it related to factual disputes involved significant factual disputes". 11 The first applicant was made aware by Mr Lindsay on 15 May 2023 that Mr Ower KC was of the view that an appeal from her Honour's judgment was reasonably arguable and, on the following day, the applicants' solicitor received instructions to proceed with an appeal and an application for an extension of time. 12 As required by the Rules, the applicants have provided a Draft Notice of appeal. In that document, they contend that the primary judge erred in dismissing the Originating application on discretionary grounds. They rely on the following three grounds: a. Her Honour ought to have held that the right to seek permission to appeal to the Full Bench of the Commission pursuant to ss 604 and 400 of the Fair Work Act 2009 (Cth) was only a basis to refuse relief in the present matter where that right was a more convenient and satisfactory remedy than judicial review to this Court. b. Her Honour ought to have held that the right to seek permission described above was not more convenient and satisfactory, given (i) the requirement to obtain permission, (ii) the nature of the condition on granting permission, (iii) the nature of the review (appeal by way of rehearing), and (iv) the restriction under s400(2). c. Further or in the alternative, Her Honour erred in holding that refusing relief on discretionary grounds on such grounds [sic] was effectively excluding the jurisdiction of this Court under s 39B of the Judiciary Act 1903 (Cth) as: i. this Court has held that, in the event that permission to appeal to the Full Bench was sought and refused, orders made in the exercise of this Court's jurisdiction under s 39B in relation to the Commission's decision at first instance should not issue unless the refusal of permission by the Full Bench was itself affected by jurisdictional error (Dalfallah); ii. the Full Bench's jurisdiction to grant permission to appeal was conditioned on the "public interest", a broad discretionary value judgment that was not readily susceptible of being the subject of jurisdictional error; iii. in the circumstances, and if the proposition in paragraph (i) above be correct, the effect of Her Honour's reasoning in dismissing the Originating Application was to effectively create an "island of [executive] power immune from supervision and restraint" in the Commission contrary to s 75(v) of the Constitution. 13 An affidavit of the solicitor acting for the first respondent (Ms Emily Nicole Haar) makes it clear that the primary judge provided oral reasons at or about 4 pm on 5 April 2023. At that time, the applicants were represented by Mr Blyth and Mr Lindsay. They were in the courtroom. The primary judge also said that she did not propose to extend any time for appeal even though written reasons would not be delivered on the same day. 14 The matter came on for mention before me on 20 June 2023. At that time, the first respondent opposed the application for an extension of time. I made programming orders for the filing of submissions. 15 On 27 June 2023, I was advised that the first respondent "no longer seeks to oppose the extension of time application, acknowledging that whether the extension of time should be granted is a matter for the Court to determine". In those circumstances, the first respondent did not file any submissions. 16 The principles governing an application to extend time within which to file a Notice of appeal are well known. They were recently stated by the Full Court of this Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (BQQ) as follows (at [33]): (a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. (b) There must be some acceptable explanation for the delay. (c) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension. (d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension. (e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to "assess the merits in a fairly rough and ready way": Jackamarra v Krakouer (1998) 195 CLR 516 at [7] - [9]. (f) The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13]. 17 The length of the delay in this case is not significant. It is 19 days. 18 The explanation for the delay is not entirely clear and, to that extent, it is unsatisfactory. The applicants' solicitor does not state that the explanation for the delay is a misunderstanding as to the commencement of the 28 day period within which to appeal. He does not suggest that the applicants or their advisers believed that they had 28 days within which to appeal commencing on 5 May 2023, rather than 5 April 2023. If that was the explanation for the delay, then one would expect to see that clearly stated. Nor is it clearly stated that the explanation for the delay was difficulty the applicants experienced in obtaining legal advice. Again, if that was the explanation for the delay, then one would have expected to see that clearly stated in the solicitor's affidavit. In their written submissions, the applicants submitted that it was not unreasonable for them to await written reasons. Whatever might be said of that explanation in other circumstances, the point is not a strong one in this case when it is borne in mind that there were oral reasons and more significantly, no one on the applicants' side said expressly in evidence that they had made a conscious decision to await written reasons. 19 As far as I can discern, the explanation for the delay appears to be that at some point the applicants intended to make an application to the Full Bench of the FW Commission for permission to appeal under s 604 of the FW Act. At some point not long after the appeal period had expired, Mr Ower KC gave advice that an appeal against the primary judge's decision in this Court was reasonably arguable. The inference is that the decision below was accepted for a time and then there was a change of heart by the applicants when they received advice from senior counsel. Despite the confused nature of the explanation, it is clear the applicants were taking steps with a view to challenging the original decision of the FW Commission. 20 As far as any prejudice to the first respondent is concerned, the first respondent has not advanced any evidence of prejudice and has not advanced any submissions in opposition to the extension of time. 21 The merits of the appeal are to be taken into account in that an extension of time will not be granted where there are no reasonable prospects of success. As the Full Court of this Court said in BQQ15, by reference to Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [7]-[9], the Court in the ordinary case does not go into much detail in assessing the merits because in the ordinary case it will have only limited materials and argument. That is certainly the case here where there are no submissions from the first respondent as to the merits of the appeal. The applicants set out their arguments as to the merits of the appeal in their written submissions at paras 11 to 25. I will not repeat what is set out in those paragraphs. It is sufficient for me to say that on the submissions made to this point, it cannot be said that the appeal has no reasonable prospects of success. 22 In my opinion, having regard to these matters as a whole, the time within which to appeal should be extended and I will make an order to that effect. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.