FEDERAL COURT OF AUSTRALIA
All Districts Coating Pty Ltd v Barhoum [2008] FCA 1757
PRACTICE AND PROCEDURE – application for extension of time in which to file and serve notice of appeal – whether special reasons exist justifying a grant of leave
Workplace Relations Act 1996 (Cth), ss 659, 663, 664, 665
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Workplace Relations Regulations 2006 (Cth), reg 2.12.8
Federal Court Rules (Cth), O 52 r 15ALL DISTRICTS COATING PTY LTD, ALL DISTRICTS COATING (AUST) PTY LTD AND CARLOS HABIBEH v EAD BARHOUM
NSD 1647 OF 2008MOORE J
24 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1647 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
ALL DISTRICTS COATING PTY LTD
First ApplicantALL DISTRICTS COATING (AUST) PTY LTD
Second ApplicantCARLOS HABIBEH
Third ApplicantAND:
EAD BARHOUM
Respondent
JUDGE:
MOORE J
DATE OF ORDER:
24 NOVEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve a notice of appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1647 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
ALL DISTRICTS COATING PTY LTD
First ApplicantALL DISTRICTS COATING (AUST) PTY LTD
Second ApplicantCARLOS HABIBEH
Third ApplicantAND:
EAD BARHOUM
Respondent
JUDGE:
MOORE J
DATE:
24 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The third applicant runs a painting business. The respondent was employed in that business and was injured. The respondent successfully claimed, against the third applicant and two companies controlled by the third applicant, that his employment was terminated in contravention of provisions of Part 12 Division 4 of the Workplace Relations Act 1996 (Cth) (WR Act). A Federal Magistrate accepted there had been a contravention of the WR Act and imposed a penalty, ordered the payment of compensation, ordered the payment of amounts referable to superannuation and redundancy and ordered that the respondent be paid his costs. These orders were made against the first, second and third applicants. The Federal Magistrate made no express finding as to who was the employer of the respondent.
The applicants wish to appeal against these orders. For reasons that I will explain shortly, they are out of time. They have made an application for an extension of time in which to appeal. This judgment concerns that application.
It is convenient, at this early stage, to set out some of the relevant statutory provisions. They are ss 659, 663, 664 and 665 of the WR Act together with reg 2.12.8 of the Workplace Relations Regulations 2006 (Cth). They provide:
659 Employment not to be terminated on certain grounds
...(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more…
Keep reading for free
Create a free CaseChat account to read All Districts Coating Pty Ltd v Barhoum and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2008] FCA 1757
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the appellants had demonstrated special reasons to extend the time in which to file and serve a notice of appeal. The court considered the applicable test, which was embodied in O 52 r 15 of the Federal Court Rules, that time can be extended for special reasons. The court also considered the decision of the Full Court in Jess v Scott (1986) 12 FCR 187, which is still viewed as an authoritative discussion on how the discretionary power should be exercised. The court also considered the explanation for the delay, the issues sought to be raised in the appeal, whether the appeal was bona fide, and whether the judgment appealed against had been complied with by the appellant. The court found that the appellants had not demonstrated special reasons to extend the time in which to file and serve a notice of appeal.
The court dismissed the application for an extension of time in which to file and serve a notice of appeal. The court found that the appellants had not demonstrated special reasons to extend the time in which to file and serve a notice of appeal. The court also found that the appellants' submissions did not provide a clear explanation for the delay in bringing the appeal. The court noted that the appellants were entitled to not comply with the orders but on the footing that the respondent could exercise rights of enforcement.
Orders
Orders of the court
1. The application for an extension of time in which to file and serve a notice of appeal be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MOORE J
The draft notice of appeal accompanying the application for an extension of time was cast in the following terms: 1. The learned Federal Magistrate erred in holding that the Respondent was terminated from his employment with any of the Appellants by reason of, or for any reason including, temporary absence from work by the Respondent because of illness or injury within the meaning of the regulations to the Workplace Relations Act.2. The learned Federal Magistrate erred in failing to determine the identity of the employer of the Respondent. 3. Alternatively, the learned Federal Magistrate erred in failing to find that the Second Appellant was the sole employer of the Respondent. 4. Further, the learned Federal Magistrate exceeded his jurisdiction in making orders against persons who were not the employer of the Respondent. 5. The learned Federal Magistrate erred in holding that any of the Appellants should be liable in costs. 6. An order staying the orders of the learned Federal Magistrate pending determination of this appeal. 7. An order that the appeal be expedited. 8. An order that the time for the institution of this appeal be extended to 16 October 2008. 9. Such further or other grounds as the Court consider appropriate. Consideration It was common ground that the applicable test was that embodied in O 52 r 15 of the Federal Court Rules, namely, that time can be extended for special reasons. The decision of the Full Court in Jess v Scott (1986) 12 FCR 187 is still viewed as one of the more authoritative discussions on how the discretionary power should be exercised, although I note that O15 r 15 has been amended since that decision. In Jess v Scott, the Full Court observed (at 188) that leave to appeal out of time is to be determined by the Court's view of the demands of justice in accordance with the broad judicial discretion. Other authorities have pointed to matters that might inform the exercise of that discretion as including the explanation for the delay, the issues sought to be raised in the appeal (including the strength of the putative appellant's case), whether the appeal is bona fide and whether the judgment appealed against has been complied with by the putative appellant (on the assumption that no stay has been ordered). In his submissions, counsel for the applicants submitted that, having regard to the history of the proceedings in this Court, there was a clear explanation for the delay in bringing the appeal. He also submitted that the Federal Magistrate was bound to determine who the employer was and, assuming contravention of the WR Act, could only make orders against the employer. The Federal Magistrate had failed to make the relevant finding as to who the employer was and, according to the applicants, had made orders that were, impermissibly, cast too widely. Counsel for the applicants contested the submission made on behalf of the respondent that the failure of the applicants, or one of them, to satisfy the monetary orders made on 11 July 2008 was a relevant consideration militating against extending time. Counsel for the applicants submitted, in effect, that the applicants were entitled to not comply with the orders but on the footing that the respondent could exercise rights of enforcement.