Spears v South Australian Wine Group Pty Ltd

O'SULLIVAN J: 1 The respondent, the South Australian Wine Group Pty Ltd (SAWG), is a wine broker which sells wine on behalf of grape growers who have had grapes processed by Riverland Vintners Pty Ltd. In early 2016, it employed the applicant, Ms Spears, as Training and Compliance Manager. By the end of December 2019, Ms Spears was employed as sales manager by SAWG. 2 As a result of the impact of COVID-19, Ms Spears commenced working four days per week from in or about June 2020. As from 29 July 2020, at her request, Ms Spears worked a seven-day fortnight. 3 On 13 August 2020, Ms Spears was issued with a letter (August letter) by SAWG in relation to her conduct in speaking to an outside person about the Company. 4 Following receipt of that letter, Ms Spears obtained a medical certificate for workplace stress indicating she was unfit for work, initially from 13 to 23 August 2020, then from 23 to 30 August 2020, and then from 31 August to 8 September 2020. 5 On 14 August 2020, SAWG advertised a position for a full-time Wine Broker and Sales Assistant for the purposes of obtaining sales in the Australian Supermarket sector in which it had no real presence. The position advertised was a new position and different from that occupied by Ms Spears. 6 At that time, an Anti-Dumping Inquiry into the Australian Wine Industry by the Chinese Government had been foreshadowed. SAWG's sales into China comprised approximately 80% of its total sales, such that a potential consequence of the Inquiry was that SAWG's sales into China might drop to virtually nothing overnight. 7 Between 20 and 25 August 2020, Mr David Harris the Managing Director of SAWG and its Chief Financial Officer, Mr Peter Hourigan, formulated a strategy (Business Impact Analysis) to deal with the potential consequences of the Inquiry on SAWG's business and its possible effects on the Australian Wine Industry generally. 8 The mere prospect of the Inquiry also had consequences, in that there was an immediate reduction in trading income from SAWG's Chinese clients who deferred wine purchases and shipments pending an answer as to whether there would be any tariffs imposed on Australian Wine being imported into China. 9 On 2 September 2020, Ms Spears was advised by letter that her position had been made redundant, and by a further letter dated 11 September 2020, SAWG advised Ms Spears that her position would be made redundant that day. 10 The Inquiry named SAWG as a company allegedly dumping Australian Wine into China and on 7 November 2020 Australian Wine Exports to China had tariffs imposed of 212%. For all intents and purposes, that had the effect of stopping exports of Australian Wine to China. 11 Ms Spears commenced proceedings in Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA) making various claims under the Fair Work Act 2009 (Cth) (FWA) in which she alleged that SAWG had engaged in adverse action and had contravened the general protections provision of the FWA. 12 Ms Spears also alleged that SAWG failed to: (a) Make a redundancy payment to her in accordance with s 119 of the FWA; (b) Consult with her concerning her redundancy contrary to the terms of the Wine Industry Award; (c) Provide her with a Fair Work Information Statement pursuant to s 125(1) of the FWA; and (d) Provide her with payslips within one working day of paying an amount to her, contrary to s 536(1) of the FWA. 13 On 10 November 2023, save for in respect of s 125(1) of the FWA, the FCFCOA dismissed Ms Spears claims: Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031 (Decision). 14 Ms Spears was self-represented before the primary judge.

Extension of time 15 On 8 December 2023, Ms Spears applied for special leave to appeal from the Decision to the High Court of Australia. At that time, Ms Spears was not aware that an appeal from Division 2 of the FCFCOA lies to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1)(d). 16 A notice of appeal must be filed within 28 days after the date of which the judgment appealed from was pronounced or the order was made: Federal Court Rules 2022 (Cth) (FCR) 36.03(a)(i). The application for special leave to appeal to the High Court was made within the 28 day time limit prescribed for the filing of a notice of appeal to this Court. 17 Since the Decision was pronounced on 10 November 2023, any notice of appeal was due to be filed by Monday 11 December 2023, such that the application was made 12 days out of time. 18 On 22 December 2023, Ms Spears filed an application in this Court for an extension of time within which to file a notice of appeal from the Decision: FCR 36.05. The application was supported by an affidavit sworn 21 December 2023. 19 Accordingly, the issue for determination is whether Ms Spears should be granted an extension of time within which to file a notice of appeal. 20 At the first case management hearing Ms Spears was self-represented. SAWG appeared by counsel. The parties agreed that the application for an extension of time could be considered on the papers.

Principles 21 The Court has jurisdiction to hear and determine an appeal from the Federal Circuit and Family Court of Australia (Division 2) pursuant s 24(1)(d) of the Act. That appellate jurisdiction may be exercised by a single judge: s 25(1AA)(a) of the Act. Further, s 25(2)(a) and (b) of the Act provides that the exercise of jurisdiction encompasses applications for leave to appeal or for an extension of time within which to institute an appeal. 22 An application for an extension of time within which to file a notice of appeal needs to be accompanied by, amongst other things, a draft notice of appeal that complies with FCR 36.01(1) and (2). In considering the application, the Court considers the reasons for the delay in filing the notice of appeal but may also consider the merits of the appeal at a reasonably impressionistic level, and if the circumstances warrant, the Court may engage in a more than impressionistic assessment of the merits: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 23 In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]-[21], Perram, Farrell and Perry JJ said: 20. The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and are underpinned by a consideration of where the best interests of justice lie. Those principles may be summarised as follows. (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. (See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.) 21. As to the fifth of these matters, the proposed grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). See also SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (Cowdroy J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ); AYB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 442 at [30] (Markovic J). 24 In Quach v RU [2024] FCAFC 32, [24]-[25], the Full Court (Perry, Meagher and Shariff JJ) said: 24. An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. The discretion to extend time under r 36.05 of the Federal Court Rules is not confined by express criteria. However, there are a range of considerations which may appropriately be taken into account in the exercise of discretion, and which are of varying weight depending on the circumstances of the particular case, namely: (1) the length of the delay; (2) whether the applicant has demonstrated an acceptable explanation for the delay; (3) whether the respondent would suffer prejudice if the extension of time were granted; and (4) the merits of the substantive appeal, if the extension of time was granted. See, eg, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J). 25 With respect to the last of these factors, it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionist manner. Thus, in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 178 ALD 573, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [17] that: "[I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Migration Act 1978 (Cth) ] (or s 477(2)) [powers to extend time], it will often be appropriate to assess the merits of the proposed grounds of review at a 'reasonably impressionistic level'. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant." (Citations omitted)

Submissions on extension of time AND CONSIDERATION 25 Ms Spears attached a draft notice of appeal to her application for an extension of time. The application is supported by an affidavit sworn 21 December 2023 and filed 22 December 2023 to which she annexed her application for special leave to appeal to the High Court. She also relies on her written submissions which were filed under cover of an affidavit sworn and filed on 30 May 2024 (written submissions). 26 SAWG relies upon its written submissions filed 29 April 2024.

Length of the delay 27 The delay is 12 days which the respondent submits is significant. 28 I do not accept that submission. In the circumstances, a delay of that magnitude is not significant.

Explanation for the delay and that it is fair and equitable in the circumstances to extend time 29 Ms Spears submits it is fair and equitable to extend the time because she lacked the resources to obtain legal representation and therefore had to represent herself. In addition, due to her lack of legal knowledge, she filed an application for special leave to appeal with the High Court by mistake not knowing that pursuant to s 155(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that was not the appropriate procedure and she must exhaust all appeal options in this Court first. 30 Ms Spears also submits that there were further delays due to her confusion with processes, as well as her anxiety and stress, both of which were outlined in her email to the High Court Registry dated 13 December 2023 (which is annexed to her affidavit sworn 30 May 2024). 31 Ms Spears submits that after learning the High Court would not accept her application, she was unable to file an application with the Federal Court immediately as she had to complete the correct Federal Court of Australia documents and was only able to do that when she was feeling well enough to do so. 32 Albeit to the wrong jurisdiction, she submits further that she attempted to file the application for special leave to appeal in the High Court within the 28 day period. The application for special leave to appeal is annexed to her affidavit filed on 22 December 2024. 33 The respondent submits: at [10]-[11] of its submissions, that as the special leave application was filed within the 28 day period, that establishes Ms Spears was aware of FCR 36.03 but chose to file in the High Court instead of the Federal Court. 34 At the time the respondent filed its written submissions, it claimed Ms Spears had not provided supporting evidence or emails from the High Court Registry, such that Ms Spears had not demonstrated an acceptable reason for the delay. 35 Subsequently, Ms Spears filed reply submissions under cover of an affidavit wherein she provided further evidence in relation to the reasons for the delay. 36 I do not accept the respondent's submissions. Although Ms Spears attempted to file the application for special leave to appeal within time, it seems her health operated to preclude her from filing a notice of appeal in this Court within time. In all the circumstances, I am prepared to accept her explanation for the delay.

Any prejudice to the respondent 37 Ms Spears does not address any prejudice that may or may not affect the respondent. 38 The respondent submits that they have not suffered any prejudice due to any delay.

The draft notice of appeal 39 The draft notice of appeal which accompanied Ms Spear's application filed 22 December 2023, identifies two grounds of appeal: (a) Improper admission of evidence; and (b) Ineffective legal counsel (in effect seeking to adduce more evidence to support her claims). 40 However, in her affidavit filed on 22 December 2023, to which Ms Spears annexes the special leave application, and upon which she relies, there are nine grounds asserted. In her written submissions filed on 30 May 2024, Ms Spears refers to five grounds of appeal, to which the respondent has responded in its written submissions. 41 In the circumstances, I will proceed on the basis there are five proposed grounds of appeal relied upon.

Ground one - Improper admission of evidence 42 Ms Spears contends that the Business Impact Analysis was undated and therefore unreliable so that the primary judge erred in receiving it into evidence. She contends that during the trial she made repeated requests to the respondent for evidence of the creation date. 43 In her application for special leave to appeal, Ms Spears relies on provisions of the Evidence Act 1929 (SA) to support her contentions. 44 Ms Spears submits that if the Business Impact Analysis is found to have been created on a date that differed to the evidence provided at the trial, a full review of her claims should ensue, including the addition of new claims she seeks. 45 The respondent submits, correctly, that the Evidence Act 1929 (SA) does not apply to proceedings before the Federal Circuit and Family Court (Division 2) and therefore, that Act cannot be relied upon by Ms Spears. 46 The respondent submits further that this ground fails as it does not identify any error made by the primary judge. 47 The receipt into evidence of a document that is inadmissible may be a basis upon which to appeal but that will depend on a myriad of circumstances. 48 The Business Impact Analysis is at annexure DH-5 to the affidavit of David Harris, affirmed 27 September 2021, which was taken as read and received into evidence before the primary judge. No objection to Mr Harris' affidavit, nor to annexure DH-5 being received into evidence was made by Ms Spears before the primary judge. Ms Spears cross-examined Mr Harris on the document at trial. 49 A consideration of the transcript of the trial before the primary judge reveals that in cross-examination, in answer to a question from Ms Spears about when the Business Impact Analysis was created, Mr Harris said between 20 and 25 August 2020. 50 Whereas the Evidence Act 1929 (SA) did not apply to the proceedings before the primary judge, the Evidence Act 1995 (Cth), which did apply, provides for the admission into evidence of business records: s 69. 51 On the basis of the matters deposed to by Mr Harris in his affidavit at [18] and annexure DH- 5 to that affidavit, the Business Impact Analysis was admitted properly into evidence. 52 I accept the respondent's submission that this ground does not identify an error made by the primary judge. Accordingly, there is no merit in this ground. 53 For completeness, I note that on 5 February 2024, Ms Spears attempted unsuccessfully to file a subpoena in this Court for the respondent to produce a dated copy of the Business Impact Analysis. She now applies to the Court for leave to issue a subpoena to the respondent seeking production of "computerised evidence of the creation date". 54 I note further that Ms Spears also raises in her submissions mixed matters of evidence and a submission that an inquiry should be made on appeal as to whether Mr Harris has committed perjury. 55 To the extent these matters are raised, they do not alter my view that there is no merit in this ground.

Ground two - Full review of claims 56 Ms Spears contends that the respondent breached laws in three separate jurisdictions: Fair Work Act 2009 (Cth); Work, Health & Safety Act 2012 (SA) and Protection for Public Participation Bill 2008 (SA), and she is aggrieved by the fact that she is required to "initiate legal proceedings in three different jurisdictions with regards to the same workplace legal matter". 57 Ms Spears submits that due to her lack of experience, health issues and financial hardship, a full review of each of the claims should be carried out in one jurisdiction. 58 The respondent submits that no error is identified in this proposed ground. 59 I accept the respondent's submission. There is no merit in this ground.

Ground three - Ineffective legal counsel 60 Ms Spears seeks to add new claims and submits that her legal representatives at the time of filing her initial claim failed to include particular complaints and thus "did not provide effective counsel" which jeopardised her initial claim. 61 Ms Spears asserts three alleged failures, the first being the omission of a complaint she made in relation to her pay in December 2019. Ms Spears contends that that resulted in her suffering mental and emotional shock, thereby causing a psychological injury as a consequence of the respondent's actions. Second, the omission of a bullying complaint she made about Mr Harris' aggressive behaviour towards her. Third, the omission of a bullying complaint she made about Mr Hourigan. 62 The respondent submits that this ground fails as it does not identify any error made by the primary judge but is a complaint about advice and representation she had received by her then legal representatives. 63 I accept that submission. This ground has no merit.

Ground four - Work Health and Safety Act 2012 (SA) 64 Ms Spears seeks to add yet new claims to her action in relation to the WHS Act. She claims that ineffective counsel had the consequence that these claims were not included in the initial general protections claim. Ms Spears submits that the respondent breached provisions of the WHS Act in failing to consult, identify and minimise risks regarding a work place injury. Ms Spears also contends that there was discriminatory conduct. 65 The respondent submits that this claim was not raised at the trial but in any event, it does not identify an error made by the primary judge. 66 I accept those submissions. This ground has no merit.

Grounds five (a) and (b) - Abuse of process 67 Ms Spears seeks to add yet two further claims, the first in relation to alleged breaches of the Protection for Public Participation Bill 2008 (SA) and, the second an abuse of process. 68 As to the first, Ms Spears submits that this Court should refer the appeal to the High Court. No basis is put forward for that course and I reject it. 69 As to the alleged abuse of process, Ms Spears submits that Mr Harris, via his solicitors, sought to initiate two separate legal actions against her in relation to defamatory comments he alleges she had made about him in two separate instances. Once in a text message to an ex-colleague and the other in affidavits she had prepared for the proceedings before the primary judge. 70 Ms Spears asks the Court to address these complaints and in the event the Court does not have jurisdiction to do so, Ms Spears asks the Court to refer her complaints to the High Court "as these particular matters are of significant public importance". 71 Again, the respondent asserts that neither of these assert any error made by the trial judge. 72 I accept those submissions. There is no merit in these grounds.

CONclusion 73 There is no merit in any of the proposed grounds of appeal. Accordingly, the application for an extension of time within which to file a notice of appeal is refused. 74 There is no reason why the applicant should not pay the respondent's costs of the application. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.