Gambaro v Mobycom Mobile Pty Ltd and Ors (No.2)

[2020] FCCA 1100

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMBARO v MOBYCOM MOBILE PTY LTD & ORS (No.2) [2020] FCCA 1100

Catchwords:
INDUSTRIAL LAW – Practice and procedure – application for stay of operation of orders – application dismissed.

First Respondent: MOBYCOM MOBILE PTY LTD (ACN 110 558 873)

Second Respondent: SOUTHAM CONSULTING PTY LTD ACN 110 497 295

Third Respondent: CRAIG ANTHONY SOUTHAM

Fourth Respondent: BONNY ERIN FARRELL

Fifth Respondent: LINCOLN AARON BODLE

Sixth Respondent: JAMES KENNETH HARRISON

File Number: BRG 874 of 2017

Judgment of: Judge Jarrett

Hearing date: 3 April 2020

Date of Last Submission: 3 April 2020

Delivered at: Brisbane

Delivered on: 3 April 2020

REPRESENTATION

The Applicant in person

Mr Southam for the First, Second and Third Respondents

No appearance by or on behalf of the Fourth, Fifth or Sixth Respondents

ORDERS

1. The application in a case filed 13 February 2020 is dismissed.

2. By no later than 4:00pm on 1 May 2020, the first, second and third respondents cause an affidavit to be made, filed and served setting out which of the documents in the missing document list, contained within pages 47, 48 and 49 of the affidavit of the applicant filed 6 September 2019, the respondents say they have provided and the date on which each was provided, and which of the documents in the missing documents list the respondents no longer have or have never existed.

3. The application is adjourned to 29 May 2020 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 874 of 2017

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

Third Respondent

BONNY ERIN FARRELL

Fourth Respondent

LINCOLN AARON BODLE

Fifth Respondent

JAMES KENNETH HARRISON

Sixth Respondent

REASONS FOR JUDGMENT

1. The application that is filed on 13 February 2020 seeks the following orders:

   (1)An order that the appeal to the Court instituted by the filing of an application for extension of time and leave to appeal on 11 February 2020 operate as a stay of execution of proceedings under the judgment appealed from, namely, the judgment and order made by the Federal Circuit Court on 17 January 2020, File No. BRG 874/2017.

   (2)An order that each party have liberty to apply on four days written notice.

   (3)Such further or other order as the Court thinks fit

2. The application for the stay of operation of the order will be refused for these reasons.  It is ordinarily incumbent on an applicant for an order for a stay of execution to demonstrate that the appeal in question is brought bona fide and has some prospect of success; it is necessary to demonstrate that without the stay, the appeal would be rendered nugatory; and it is necessary to demonstrate that the applicant has acted in a timely fashion.

3. As to the last matter, I am satisfied the applicant has acted in a timely  manner and commenced an application for leave to appeal and an application for an order to extend the time within which to make an appeal.

4. As to the other two matters, I cannot be satisfied about those matters because the notice of appeal is not before me.  There is no evidence before me at all about the basis upon which the appeal is made.  The appeal is against an order in relation to a matter of practice and procedure, that is, a pleading point, and the applicant will have to demonstrate in the appeal that there is a question of the interests of the administration of justice involved or that there is some important point of principle involved to attract the attention of the appeal court. 

5. He might be able to do that, but it is difficult to see how it is because, as he explained to me, what he wishes to do is to include “statutory legislation” in his statement of claim.  For the reasons that I gave in respect of the proceedings and his application, which is now the subject of the appeal, it seemed to me to be entirely unnecessary for him to do that. 

6. Of course, I might be wrong about that, but my assessment at the time was – and it remains – that it is entirely unnecessary for him to plead the law.  And so it seems to me that the prospects of any application for leave to appeal might be best described as poor.  In those circumstances, the stay will be refused. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 April, 2020.

Associate: 

Date: 7 May 2020