FEDERAL COURT OF AUSTRALIA
Chen v Birbilis [2023] FCA 1644
Appeal from: Application for extension of time to seek leave to appeal: Chen v Birbilis [2016] FCA 661 File number(s): VID 172 of 2023 Judgment of: MCEVOY J Date of judgment: 20 December 2023 Catchwords: PRACTICE AND PROCEDURE – primary judge summarily dismissed proceedings – applicant sought an extension of time for leave to appeal over six years later – whether extension of time should be granted to seek leave to appeal primary judge’s decision – application dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1D)(b), 31A, 37M
Sex Discrimination Act 1984 (Cth) ss 47A, 94(2)
Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth)
Federal Court Rules 2011 (Cth) rr 26.01, 35.13 35.14, 35.18
Cases cited: Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19
AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176
Chen v A Judge of the Federal Court of Australia & Ors [2022] HCASL 212
Chen v Birbilis [2016] FCA 661
Chen v Monash University (No 2) [2015] FCA 552
Chen v Monash University [2015] FCA 130
Chen v Monash University (2016) 244 FCR 424; [2016] FCAFC 66
CXH16 v Minister for Immigration and Border Protection [2018] FCA 1498
Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Gallo v Dawson (1990) 64 ALJR 458
Grigor-Scott v Jones (2008) 168 FCR 450; [2008] FCAFC 14
Hanson v Burston [2022] FCA 1234
Jackamarra v Krakouer (1998) 195 CLR 516
Khondoker v Minister for Immigration and Citizenship [2012] FCA 654
Qizhi Chen v a Judge of the Federal Court of Australia & Ors (High Court of Australia, Keane J, 13 September 2022)
Mabo v Queensland (1988) 166 CLR 186
Mentink v Minister for Home Affairs [2013] FCAFC 113
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67
SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; [2016] FCAFC 24
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 57 Date of last submission/s: 11 July 2023 Date of hearing: Determined on the papers Counsel for the Applicant: The applicant was self-represented. Counsel for the Respondents: Richard Knowles KC and Emily Latif Solicitor…
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Details
- AGLC
- Chen v Birbilis [2023] FCA 1644
- Case
- [2023] FCA 1644
- Decision Date
CaseChat Overview and Summary
In the case of Chen v Birbilis, the applicant sought an extension of time to appeal the primary judgment made by North J on 3 June 2016. The primary judgment involved the applicant's dismissal from her employment and her subsequent application for reinstatement, which was summarily dismissed by the court. The applicant now wishes to appeal a specific aspect of the primary judgment concerning her claims under the Sex Discrimination Act 1984 (Cth). To do so, she requires an extension of time to apply for leave to appeal, which is now almost seven years after the primary judgment was delivered. The respondents oppose both the extension of time and the grant of leave to appeal, arguing that the delay is substantial, the primary judgment is not in doubt, and refusal of the application would not cause substantial injustice.
The court had to determine whether the applicant should be granted an extension of time for leave to appeal, considering the substantial delay and the adequacy of the applicant's explanation for this delay. Additionally, the court assessed whether the primary judgment had sufficient doubt to warrant reconsideration on appeal and whether denying the extension of time would result in substantial injustice.
The court concluded that the applicant should not be granted an extension of time for leave to appeal, and her application was dismissed. The court found that the applicant's explanation for the delay was inadequate and that the primary judgment was not sufficiently doubtful to warrant reconsideration. Furthermore, the court held that refusing the application would not cause substantial injustice. As a result, the application for an extension of time to seek leave to appeal was dismissed, and the applicant was ordered to pay the respondents' costs of the application.
The court had to determine whether the applicant should be granted an extension of time for leave to appeal, considering the substantial delay and the adequacy of the applicant's explanation for this delay. Additionally, the court assessed whether the primary judgment had sufficient doubt to warrant reconsideration on appeal and whether denying the extension of time would result in substantial injustice.
The court concluded that the applicant should not be granted an extension of time for leave to appeal, and her application was dismissed. The court found that the applicant's explanation for the delay was inadequate and that the primary judgment was not sufficiently doubtful to warrant reconsideration. Furthermore, the court held that refusing the application would not cause substantial injustice. As a result, the application for an extension of time to seek leave to appeal was dismissed, and the applicant was ordered to pay the respondents' costs of the application.
Orders
Orders of the court
1. The application for an extension of time to seek leave to appeal be dismissed.
2. The applicant pay the respondents’ costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow I have concluded that the applicant should not be granted an extension of time for leave to appeal and her application should be dismissed. BACKGROUND It is important to have regard to the following matters. From 2013 to 2016, the applicant instituted a number of proceedings in this court against Monash University and members of its staff: as well as the primary judgment, see Chen v Monash University [2015] FCA 130 (Tracey J), Chen v Monash University [2016] FCAFC 66, (2016) 244 FCR 424 (Barker, Davies and Markovic JJ), and Chen v Monash University (No 2) [2015] FCA 552 (Tracey J). The applicant was unsuccessful in each proceeding. The primary judgment, which is the subject of the present application, concerned the applicant’s dismissal from her employment on conduct grounds. That dismissal occurred on 25 June 2014. On 8 January 2016 the applicant filed an originating application seeking reinstatement of her employment: primary judgment at [2]. That application was met by the respondents to it with an application for summary judgment. In support of their application for summary judgment the respondents argued that:(a)the allegations in the applicant’s complaint terminated by the Australian Human Rights Commission on 10 November 2015 were allegations of victimisation in contravention of s 94(2) of the Sex Discrimination Act, and the court did not have jurisdiction to hear those claims; and (b)the second respondent, Ms Cornish, was not a respondent to the terminated complaint, and the court therefore did not have jurisdiction to determine any complaint against her. Having regard to binding authority North J accepted that this court did not have jurisdiction to hear the allegations of victimisation in contravention of s 94(2) of the Sex Discrimination Act: primary judgment at [8]-[11]. MATERIALS BEFORE THE COURT ON THIS APPLICATION The applicant has filed the following materials in connection with the present application:(a)an application for extension of time for leave to appeal filed on 19 March 2023 and served on 2 April 2023;(b)a proposed notice of appeal received by the court on 19 March 2023;(c)a 12 paragraph affidavit affirmed by the applicant on 6 April 2022 with seven exhibits (comprising 62 pages in total), which was accepted for filing on 23 March 2023 and served on the respondents on 2 April 2023;(d)a bundle of affidavits filed by the applicant on 22 May 2023 (comprising 1,991 pages in total), being:(i)a 15 paragraph affidavit affirmed by the applicant on 14 March 2022 with five exhibits;(ii)a 9 paragraph affidavit affirmed by the applicant on 14 March 2022 with six exhibits;(iii)a 22 paragraph affidavit affirmed by the applicant on 28 March 2022 with 11 exhibits;(iv)a 26-paragraph affidavit affirmed by the applicant on 6 April 2022 with multiple exhibits, which affidavit was filed in an application for judicial review commenced by the applicant in the High Court’s original jurisdiction on 26 April 2022 (proceeding number M24/2022);(e)a 16 paragraph affidavit affirmed by the applicant on 6 April 2022 with 14 exhibits (comprising 256 pages in total), which was accepted for filing on 22 May 2023 and served on the respondents on 25 May 2023 (this affidavit is similar in part to the applicant’s first affidavit, with some additions);(f)two sets of written submissions which were accepted for filing on 31 May 2023; and (g)written submissions in reply dated 11 July 2023.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Before the court is an application for an extension of time for leave to appeal from orders made by North J in Chen v Birbilis [2016] FCA 661, which was delivered on 3 June 2016 (primary judgment). His Honour summarily dismissed the applicant’s application seeking reinstatement of her employment at Monash University, having concluded that the applicant had no reasonable prospect of successfully prosecuting the proceeding within the terms of s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). Almost seven years later the applicant wishes to appeal in relation to that part of the primary judgment which related to her claims under the Sex Discrimination Act 1984 (Cth). Obviously enough she requires an extension of time to make an application for leave to appeal. Consistently with orders made by consent on 9 May 2023, the matter has been determined on the papers without oral hearing pursuant to s 20A of the Act and r 35.18 of the Rules. The respondents oppose the grant of an extension of time, and if an extension of time is to be granted they oppose the grant of leave to appeal, on the bases that: (a)the applicant’s delay is very substantial and her explanation for delay is inadequate; (b)the primary judgment is not attended by sufficient doubt to warrant its reconsideration on appeal; and (c)refusal of the applicant’s application would not work any substantial injustice. For the reasons that follow I have concluded that the applicant should not be granted an extension of time for leave to appeal and her application should be dismissed. BACKGROUND It is important to have regard to the following matters. From 2013 to 2016, the applicant instituted a number of proceedings in this court against Monash University and members of its staff: as well as the primary judgment, see Chen v Monash University [2015] FCA 130 (Tracey J), Chen v Monash University [2016] FCAFC 66, (2016) 244 FCR 424 (Barker, Davies and Markovic JJ), and Chen v Monash University (No 2) [2015] FCA 552 (Tracey J). The applicant was unsuccessful in each proceeding. The primary judgment, which is the subject of the present application, concerned the applicant’s dismissal from her employment on conduct grounds. That dismissal occurred on 25 June 2014. On 8 January 2016 the applicant filed an originating application seeking reinstatement of her employment: primary judgment at [2]. That application was met by the respondents to it with an application for summary judgment. In support of their application for summary judgment the respondents argued that:(a)the allegations in the applicant’s complaint terminated by the Australian Human Rights Commission on 10 November 2015 were allegations of victimisation in contravention of s 94(2) of the Sex Discrimination Act, and the court did not have jurisdiction to hear those claims; and (b)the second respondent, Ms Cornish, was not a respondent to the terminated complaint, and the court therefore did not have jurisdiction to determine any complaint against her.
Ratio Decidendi
Legal Principle Established
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