FEDERAL COURT OF AUSTRALIA
Elvin v Fair Work Ombudsman [2022] FCA 881
File number(s): ACD 104 of 2021 Judgment of: ABRAHAM J Date of judgment: 29 July 2022 Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – where no relevant judgment means court does not have jurisdiction – where leave to appeal not granted from orders interlocutory in nature – application refused Legislation: Federal Court of Australia Act 1976 (Cth) ss 4(a), 24, 37M Cases cited: Bellamy’s Australia Limited v Basil [2019] FCAFC 147; (2019) 372 ALR 638
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397
EBT17 v Minister for Home Affairs [2019] FCA 200
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585
Nationwide News Pty Limited v Rush [2018] FCAFC 70
Parker v The Queen [2002] FCAFC 133
Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8
Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238
Snowside Pty Ltd as trustee for the Snowside Trust, in the matter Boart Longyear Ltd [2019] FCA 2159
Division: Fair Work Division Registry: Australian Capital Territory National Practice Area: Employment and Industrial Relations Number of paragraphs: 31 Date of last submission/s: 4 May 2022 Date of hearing: Determined on the papers Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Mr M Seck with Ms B Byrnes Solicitor for the Respondent: Office of the Fair Work Ombudsman ORDERS
ACD 104 of 2021 BETWEEN: COLIN KENNETH ELVIN
Applicant
AND: FAIR WORK OMBUDSMAN
Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
29 JULY 2022
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be refused.
2.The applicant is to pay the respondent’s costs to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
The applicant, by an application dated 9 December 2021, applies for an extension of time to seek leave to appeal. That application is supported by an affidavit explaining the relevant delay and annexing the proposed notice of appeal in relation to Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242.
The applicant…
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- AGLC
- Elvin v Fair Work Ombudsman [2022] FCA 881
- Case
- [2022] FCA 881
- Decision Date
CaseChat Overview and Summary
The court considered that for an appeal to be entertained, a relevant judgment must have been made. The court found that the primary judge had not made a judgment but had instead issued orders that set a timetable for further steps to be taken by the parties. As such, the court did not have jurisdiction to hear the appeal at that time. Additionally, the court found that the applicant had not demonstrated that the appeal grounds had sufficient doubt or that substantial injustice would result if leave were refused. The court emphasised that leave to appeal is granted at an impressionistic level to determine if the grounds are sufficiently arguable or have reasonable prospects of success.
Accordingly, the application for an extension of time and leave to appeal was refused. The court ordered that the applicant was to pay the respondent's costs, to be agreed upon or assessed. The decision underscored the importance of having a final judgment before an appeal can be entertained and the need for a compelling demonstration of the merits of the appeal grounds.
Orders
Orders of the court
1. The application for an extension of time and leave to appeal be refused.
2. The applicant is to pay the respondent’s costs to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
As to leave to appeal, the discretion is also an unfettered one, with each case being determined on its merits. Nonetheless, the discretion is informed by well-established principles including that generally an applicant must establish: (1) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. This Court must exercise the power to grant leave in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [2]; Bellamy’s Australia Limited v Basil [2019] FCAFC 147; (2019) 372 ALR 638 at [6]. As with the extension of time, the evaluation of the prospects of success of the proposed appeal grounds is conducted “at a reasonably impressionistic level” and enquires whether a ground “is sufficiently arguable” or “has reasonable prospects of success”: EBT17 v Minister for Home Affairs [2019] FCA 200 at [4] citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63]; Snowside Pty Ltd as trustee for the Snowside Trust, in the matter Boart Longyear Ltd [2019] FCA 2159 at [58].Consideration A consideration of the basis of the grounds reflects that all but one of the grounds (which is Ground C) is directed to the conduct of the proceedings up until and including the trial, and the reasons for judgment. Orders reflecting the outcome of the hearing are yet to be made. Rather, on 14 October 2021, the primary judge made orders which in effect set a timetable for further steps to be taken by the parties. These steps included the filing of an amended defence by the applicant, the filing of evidence and submissions with respect to the alleged underpayments and the referral to a Registrar to conduct an inquiry and provide a report on questions concerning the alleged underpayments. On the basis that no relevant order has yet been made by the primary judge, the respondent contends that seven of the eight grounds are incompetent because this Court does not, at this time, have jurisdiction. The applicant challenges that submission and contends that the primary judge has made a judgment. The respondent’s submission must be accepted. Section 24(1) of the Federal Court Act provides, inter alia, for “appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court”: s 24(1)(a). Judgment is relevantly defined in s 4 to mean, “a judgment, decree or order, whether final or interlocutory”: s 4(a).