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
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
Nobarani v Mariconte (2018) 265 CLR 236
Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014
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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- AGLC
- Gambaro v Mobycom Mobile Pty Ltd [2021] FCA 211
- Case
- [2021] FCA 211
- Decision Date
CaseChat Overview and Summary
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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