Gambaro v Mobycom Mobile Pty Ltd

Case [2021] FCA 211


FEDERAL COURT OF AUSTRALIA

Gambaro v Mobycom Mobile Pty Ltd [2021] FCA 211  

Appeal from: Application for extension of time and leave to appeal: Gambaro v Mobycom Mobile Pty Ltd & Ors [2020] FCCA 121
File number: QUD 41 of 2020
Judgment of: LOGAN J
Date of judgment: 12 March 2021
Catchwords:

PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – where appeal is against interlocutory orders – whether applicant had sufficient prospects of success – where applicant is self-represented – whether error in delivery of judgments ex-tempore – whether error in refusal to join additional respondent to proceedings – application dismissed

EMPLOYMENT LAW – whether third party can be payment to an employee discharge the employer’s obligation to pay wages owed to the employee – where no controversy between payer and employer   

Legislation:

Fair Work Act 2009 (Cth) ss 55, 323, 324, 550, 570

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) r 35.13

Cases cited:

Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fair Work Ombudsman v Hu [2019) FCAFC 133

Gambaro v Mobycom Mobile Pty Ltd & Ors [2020] FCCA 121

Gambaro v TShopBiz Pty Ltd & Ors (No 2) [2020] FCCA 1098

Gambaro v TShopBiz Pty Ltd & Ors [2020] FCCA 122

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318

Johnston v Arnaboldi [1990] 2 Qd R 138

Mimebourne Pty Ltd as Trustee for the Fountain Family Trust v Gambaro [2018] FCA 1619

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6

Nobarani v Mariconte (2018) 265 CLR 236

Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014

Owen v Tate [1976] QB 402

Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986)

Sabapathy v Jetstar Airways [2021] FCAFC 25

Sharman License Holdings Ltd v Universal Music AustraliaPty Ltd [2005] FCA 802

Southway Group Ltd v Wolff (1991) 57 BLR 33

Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 48
Date of hearing: 25 November 2020
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondents: Russells

ORDERS

QUD 41 of 2020
BETWEEN:

MICHAEL ALEXANDER GAMBARO

Applicant

AND:

MOBYCOM MOBILE PTY LTD (ACN 110 558 873)

First Respondent

SOUTHAM CONSULTING PTY LTD (ACN 110 497 295)

Second Respondent

CRAIG ANTHONY SOUTHAM (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

12 MARCH 2021

THE COURT ORDERS THAT:

1.The application for an extension of time within which…

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Gambaro v Mobycom Mobile Pty Ltd [2021] FCA 211
Case
[2021] FCA 211
Decision Date

CaseChat Overview and Summary

The case of Gambaro v Mobycom Mobile Pty Ltd involved the applicant, Gambaro, who sought an extension of time and leave to appeal against interlocutory orders in a matter concerning employment law. The primary dispute arose from the employer's obligation to pay wages to the employee, specifically whether a third party's payment to the employee could discharge the employer's obligation, where there was no controversy between the payer and the employer. The matter was before the Federal Court of Australia.

The legal issues before the court included whether Gambaro had sufficient prospects of success in the appeal against the interlocutory orders, whether there was an error in the delivery of judgments ex-tempore, and whether there was an error in refusing to join an additional respondent to the proceedings. The court also considered whether Gambaro, as a self-represented party, was able to adequately present his case.

The court dismissed the application for an extension of time and leave to appeal. It found that Gambaro did not have sufficient prospects of success, and that the alleged errors in the delivery of judgments and the refusal to join an additional respondent did not warrant an appeal. Additionally, the court noted that as a self-represented party, Gambaro was required to meet a higher standard of presentation and argumentation, which he failed to do. The court also made orders regarding the costs of the application, stipulating that any application for costs must be made within a specified timeframe, and that costs would be reserved pending the outcome of any such application.

The court's decision was clear in dismissing the application for an extension of time and leave to appeal, and in outlining the procedures for any potential costs applications. The dismissal of the application and the associated costs orders reflect the court's view that the applicant did not meet the necessary criteria for an appeal and that the proceedings should be concluded without further delay.

Orders

Orders of the court

1. The application for an extension of time within which to seek leave to appeal be dismissed.

2. Any application by a respondent for costs is to be made by a written submission of not more than 3 pages filed and served not later than 19 March 2021.

3. In the event that an application for costs is so made, the applicant is to file and serve such submission of not more than 3 pages, if any, as he may be advised not later than 26 March 2021.

4. In the event that no application for costs is made by a respondent, there be no order as to costs in favour of that respondent.

5. Pending the expiry of the time limited for the making of an application for costs, costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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