Gao v Fair Work Ombudsman

Case [2013] FCA 754

FEDERAL COURT OF AUSTRALIA

Gao v Fair Work Ombudsman [2013] FCA 754

Citation: Gao v Fair Work Ombudsman [2013] FCA 754
Parties: PENG GAO v FAIR WORK OMBUDSMAN
File number: VID 644 of 2013
Judge: BROMBERG J
Date of judgment: 24 July 2013
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to file a notice of appeal – considerations relevant to the court’s discretion to grant an extension – whether adequate explanation for delay – whether applicant has reasonable prospect of success on the substantive appeal – whether appeal is from orders affecting liberty of the individual – whether appeal is from orders that are interlocutory in nature – whether leave to appeal is required – application dismissed.
Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1B), 24(1C), 24(1C)(a), 24(1D), 24(1D)(a)
Cases cited: Gaov Citywide Service Solutions Pty Ltd [2013] FCA 388
Parker v The Queen [2002] FCAFC 133
Wilson v Alexander (2003) 135 FCR 273
Talacko v Talacko (2010) 183 FCR 297
Re Luck (2003) 203 ALR 1
Anying Group Pty Ltd v Wang [2012] FCA 702
Date of hearing: 24 July 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 26
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms M Richards
Solicitor for the Respondent: Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 644 of 2013
BETWEEN:

PENG GAO
Applicant
AND:

FAIR WORK OMBUDSMAN
Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

24 JULY 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time to appeal of 15 July 2013 is dismissed.

2.The applicant pay the respondent’s costs of that application.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 644 of 2013
BETWEEN:

PENG GAO
Applicant
AND:

FAIR WORK OMBUDSMAN
Respondent

JUDGE:

BROMBERG J

DATE:

24 JULY 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application made by the applicant (“Mr Gao”) for an extension of time to file a notice of appeal from orders made by Tracey J on 5 and 26 April 2013.  The respondent (“the Fair Work Ombudsman”) opposes the application. 

  2. Mr Gao appeared without the benefit of legal representation. 

  3. This litigation has a complicated history.  It is necessary to set out briefly the relevant background. 

  4. Mr Gao was employed by Citywide Service Solutions Pty Ltd (“Citywide Service Solutions”). He was dismissed summarily from that employment on 27 April 2012.  Subsequently, he lodged a complaint with the Fair Work Ombudsman claiming that his former employer had underpaid him in respect of various entitlements.  Mr Gao sought assistance from the Fair Work Ombudsman to recover the alleged underpayments.  The Fair Work Ombudsman conducted an investigation and determined that Mr Gao’s claim of underpayments was not justified. 

  5. On 7 February 2013, Mr Gao filed an originating application naming Citywide Service…

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Details
AGLC
Gao v Fair Work Ombudsman [2013] FCA 754
Case
[2013] FCA 754
Decision Date

CaseChat Overview and Summary

In the matter of Gao v Fair Work Ombudsman, the applicant sought an extension of time to file a notice of appeal against a decision of the Fair Work Commission. The Federal Court was tasked with deciding whether to grant the extension and if so, under what circumstances. The primary legal issues were whether there was an adequate explanation for the delay in filing the notice of appeal, whether the applicant had a reasonable prospect of success on the substantive appeal, whether the appeal was from orders affecting the liberty of the individual, whether the appeal was from orders that were interlocutory in nature, and whether leave to appeal was required.

The court examined the applicant’s reasons for the delay and found that there was no adequate explanation provided. The court also assessed the merits of the substantive appeal and concluded that the applicant did not have a reasonable prospect of success. The court considered the nature of the appeal, noting that it was from interlocutory orders rather than orders affecting the liberty of the individual. Given these factors, the court exercised its discretion under the relevant rules and determined that an extension of time was not warranted. Consequently, the application for an extension of time to appeal was dismissed.

The court further ordered that the applicant pay the respondent's costs associated with the application. This decision underscores the importance of timely filings and the stringent requirements for obtaining extensions in such circumstances. The court's ruling emphasises the need for applicants to provide adequate explanations for delays and to demonstrate a reasonable prospect of success on appeal.

Orders

Orders of the court

1. The applicant’s application for an extension of time to appeal of 15 July 2013 is dismissed.

2. The applicant pay the respondent’s costs of that application.

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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