FEDERAL COURT OF AUSTRALIA
Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577
Appeal from: Application for extension of time: Cross v Harbour City Ferries Pty Ltd t/as Harbour City Ferries & Ors [2017] FCCA 514 File number: NSD 576 of 2017 Judge: LEE J Date of judgment: 29 December 2017 Catchwords: PRACTICE AND PROCEDURE – application pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) seeking an extension of time within which to appeal from a decision of the Federal Circuit Court – where merits of proposed appeal grounds determinative – where no merit in proposed appeal grounds – application dismissed Legislation: Fair Work Act 2009 (Cth), ss 65, 340, 341, 345, 355
Federal Court of Australia Act 1976 (Cth), Pt VB
Federal Court Rules 2011 (Cth), rr 1.61(4), 36.03(a)(i), 36.05, 36.05(1), 36.05(3)(c)
Cases cited: CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354
Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 245 FCR 39; (2016) 258 IR 396
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Italiano v Carbone [2005] NSWCA 177
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Date of hearing: 18 September, 10 November 2017 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 78 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr D Mahendra Solicitor for the First Respondent: Corrs Chambers Westgarth Solicitor for the Second Respondent: Lander & Rogers ORDERS
NSD 576 of 2017 BETWEEN: CRAIG RICHARD CROSS
Applicant
AND: HARBOUR CITY FERRIES PTY LTD T/AS HARBOUR CITY FERRIES
First Respondent
SYDNEY FERRIES CORPORATION
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
29 DECEMBER 2017
THE COURT ORDERS THAT:
1.The application for an extension of time within which to file a notice of 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.
REASONS FOR JUDGMENT
LEE J:
A INTRODUCTION
This is an application for an extension of time within which to file a notice of appeal against a decision of the Federal Circuit Court delivered on 24 March 2017, dismissing the applicant’s claims for relief against the first respondent, Harbour City Ferries (HCF), and the second respondent, Sydney Ferry Corporation (Sydney Ferries) in respect of alleged contraventions of the Fair Work Act 2009 (Cth) (FWA).
The applicant was self-represented, one result of which was that the formulation of…
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Details
- Case
- [2017] FCA 1577
- Decision Date
CaseChat Overview and Summary
Cross v Harbour City Ferries Pty Ltd concerned an application for an extension of time to appeal a decision of the Federal Circuit Court. The applicant, Cross, had been employed by Sydney Ferries and was later offered employment by Harbour City Ferries (HCF) following a transition of ferry services. Cross sought to appeal various findings made by the primary judge, including that no adverse action was taken against him due to family and carer's responsibilities and that he was not entitled to certain roster information.
The court was required to determine whether the proposed grounds of appeal were reasonably arguable and whether an extension of time was warranted. The court also needed to consider the merits of the application and whether the applicant had provided sufficient justification for the delay in filing the appeal. The court found that the proposed grounds of appeal were not reasonably arguable and that there was no merit in the applicant's case. The applicant had not demonstrated any error in the primary judge's findings or that the appeal had a real prospect of success.
The court dismissed the application for an extension of time to appeal. The court held that the applicant had not provided a satisfactory explanation for the delay in filing the appeal and that the proposed grounds of appeal were not reasonably arguable. The court also found that the applicant had not demonstrated any error in the primary judge's findings or that the appeal had a real prospect of success. The court ordered that the application for an extension of time be dismissed and that the applicant pay the respondents' costs of the application.
The court was required to determine whether the proposed grounds of appeal were reasonably arguable and whether an extension of time was warranted. The court also needed to consider the merits of the application and whether the applicant had provided sufficient justification for the delay in filing the appeal. The court found that the proposed grounds of appeal were not reasonably arguable and that there was no merit in the applicant's case. The applicant had not demonstrated any error in the primary judge's findings or that the appeal had a real prospect of success.
The court dismissed the application for an extension of time to appeal. The court held that the applicant had not provided a satisfactory explanation for the delay in filing the appeal and that the proposed grounds of appeal were not reasonably arguable. The court also found that the applicant had not demonstrated any error in the primary judge's findings or that the appeal had a real prospect of success. The court ordered that the application for an extension of time be dismissed and that the applicant pay the respondents' costs of the application.
Orders
Orders of the court
1. The application for an extension of time within which to file a notice of 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
By 10 November 2017, submissions had been filed by the respondents, which identified and addressed the case for extension articulated by the applicant on 18 September 2017; the applicant’s submissions in response ran to some 46 pages, much of which was either repetitive or opaque. The hearing resumed on 10 November 2017 and the parties were provided the opportunity to make additional oral submissions. Argument proceeded on the question as to whether the proposed appeal raised grounds which were reasonably arguable so as to justify an extension of time.B BACKGROUND The applicant was employed as a casual general purpose hand with Sydney Ferries from 2008. In November 2011, he was offered a 6 week contract which he turned down and thereafter he only worked one more shift for Sydney Ferries, in February 2012. In July 2012, HCF took over responsibility for running passenger ferry services on the Parramatta River and Sydney Harbour (transition). In furtherance of the relevant agreement between the respondents, in May 2012, the applicant was offered (and accepted) employment as a casual general purpose hand with HCF on the same terms as his previous employment with Sydney Ferries. In early July 2012, the applicant was offered a permanent position by Sydney Ferries which, if accepted, would have led to the applicant’s permanent employment with HCF after the transition. He did not accept the offer and it was subsequently withdrawn. Thereafter, at some stage between July and October 2012, the applicant’s name was removed from a list of casual employees maintained by HCF. As will become evident, the timing and circumstances in which this occurred is said to be a central aspect of the proposed case on appeal.C PRIMARY JUDGE’S DECISION Before the primary judge, the applicant contended that the respondents contravened a number of the general protection provisions in the FWA. In the proceedings below, the applicant also joined Mr Craig Rieck, who was the “General Manager of Operations” of the respondents at the relevant times. The primary judge properly rejected the direct claims advanced against Mr Rieck as he was never, and was never going to be, the applicant’s employer. The applicant’s first claim was that Sydney Ferries took adverse action against him, contrary to s 351 of the FWA, because he had family and carer’s responsibilities. The relevant adverse action was the failure to allocate shifts, and moving the applicant from one list of casual employees (Pool A) to a different list (Pool B). In short, Pool A casuals were typically more senior and were allocated shifts before Pool B casuals (see [24]-[26]). In rejecting the claim, the primary judge found that there was no obligation on Sydney Ferries to offer any shifts to any particular casual (at [20]). His Honour accepted the evidence led by the respondents in respect of the process for the allocation of shifts, in particular that whether or not someone had family or carer’s responsibilities, or had made a complaint or enquiry, was not taken into account in the allocation of work (see [21]-[38]). His Honour’s primary conclusion was that no adverse action had been taken (at [59]). In the alternative, his Honour found that if there was adverse action, it was not taken because the applicant had exercised a workplace right (at [60]-[63]).
Evidence
Evidence Before The Court
In respect of re-examination, the applicant was expressly informed by the primary judge of the process to be followed (Court book, pages 76-7). The primary judge explained:His Honour: You will be cross-examined.Mr Cross: Yes.His Honour: And then you can give brief evidence in reply if necessary. And then we will move into the respondents’ evidence…(Emphasis added) Following cross-examination of the applicant, the following exchange occurred (Court book, page 124):His Honour: Mr Cross, you can step down now.Mr Cross: OkayMr Mahendra: You Honour, there’s no cross-examination of the applicant’s other witness. I will leave it in Mr Cross’ hands as to how he wants to close his…evidentiary case.His Honour: Mr Cross, that constitutes your evidence… As I recall – correct me if I’m wrong – but the only outstanding matter is this amendment to your application. Is that right?Mr Cross: Yes, your Honour.His Honour: Right. Well, if that’s the end of your evidence, then we will now move on to Mr Mahendra’s case. Mr Mahendra. At the hearing of this application, I invited the applicant to explain what his case in respect of this aspect was and to identify what evidence he was prevented from adducing in re-examination (Transcript, 18 September 2017, page 31). The applicant pointed to four matters: a line of cross-examination being irrelevant; an allegation that he was prevented from clarifying a previous statement to the effect that he did not plan to work in the maritime industry, which was evidently seized upon by the respondents to put the proposition that the applicant did not intend on working in the maritime industry; to clarify his interpretation that the 24 May 2012 letter was in connexion with his day care and family and carer’s responsibilities; and, the fact that the primary judge made strong adverse credit findings in circumstances where the applicant was not afforded the opportunity of re-examining himself. These complaints go nowhere. As to the first matter, irrelevancy is an objection and the applicant answered the questions asked; it was incumbent upon him to raise the objection at the time the question was asked. As to the second matter, the applicant indicated that he would have given evidence contrary to the proposition, namely, that he had subsequently accepted an offer of employment from HCF and had subsequent discussions with Mr Rieck regarding the offer of permanent employment; the difficulty for the applicant is that, as he conceded before me (Transcript, 18 September 2017, page 35-6), this evidence was already plainly before the primary judge. The clarification which the applicant points to in the third of these matters was, in fact, given by him in evidence (Court book, page 122-3). As to the fourth matter, no fair reading of the transcript supports in any way an assertion that the applicant was shut out from clarifying his evidence. Indeed it is fair to say that there was no real distinction drawn by the applicant in providing submissions and evidence to the primary judge (as might be expected in circumstances of a self-represented litigant).
Decision
Reasons for decision
In early July 2012, the applicant was offered a permanent position by Sydney Ferries which, if accepted, would have led to the applicant’s permanent employment with HCF after the transition. He did not accept the offer and it was subsequently withdrawn. Thereafter, at some stage between July and October 2012, the applicant’s name was removed from a list of casual employees maintained by HCF. As will become evident, the timing and circumstances in which this occurred is said to be a central aspect of the proposed case on appeal.C PRIMARY JUDGE’S DECISION Before the primary judge, the applicant contended that the respondents contravened a number of the general protection provisions in the FWA. In the proceedings below, the applicant also joined Mr Craig Rieck, who was the “General Manager of Operations” of the respondents at the relevant times. The primary judge properly rejected the direct claims advanced against Mr Rieck as he was never, and was never going to be, the applicant’s employer. The applicant’s first claim was that Sydney Ferries took adverse action against him, contrary to s 351 of the FWA, because he had family and carer’s responsibilities. The relevant adverse action was the failure to allocate shifts, and moving the applicant from one list of casual employees (Pool A) to a different list (Pool B). In short, Pool A casuals were typically more senior and were allocated shifts before Pool B casuals (see [24]-[26]). In rejecting the claim, the primary judge found that there was no obligation on Sydney Ferries to offer any shifts to any particular casual (at [20]). His Honour accepted the evidence led by the respondents in respect of the process for the allocation of shifts, in particular that whether or not someone had family or carer’s responsibilities, or had made a complaint or enquiry, was not taken into account in the allocation of work (see [21]-[38]). His Honour’s primary conclusion was that no adverse action had been taken (at [59]). In the alternative, his Honour found that if there was adverse action, it was not taken because the applicant had exercised a workplace right (at [60]-[63]). The second claim was that Mr Rieck failed to provide the applicant with requested roster information after the applicant had received the offer of permanent employment from Sydney Ferries in early July 2012. It was said that the applicant required the information to organise day care for his child and because he needed leave in October 2012 to attend to family commitments. As this information was not forthcoming, he was not able to accept the offer and it was subsequently withdrawn. The applicant contended that the failure to provide this information injured his employment because of his family and carer’s responsibilities. The applicant failed in this contention on a number of bases. The primary judge was not satisfied that there was any adverse action; an offer of employment had been made and was withdrawn when it was not accepted. Neither was the primary judge satisfied that the applicant had in fact raised his family and carer’s responsibilities in connection with the offer of permanent employment. Alternatively, if there had been adverse action, the primary judge was not satisfied that it was taken because the applicant had family and carer’s responsibilities. The primary judge’s view was that the evidence showed that the applicant’s real concern was that he had booked a holiday for a friend’s wedding in October 2012, and his Honour found that the claim was fabricated ([65]-[82]).
Ratio Decidendi
Legal Principle Established
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