Ghimire v Karriview Management Pty Ltd - [2019] FCA 1108

FEDERAL COURT OF AUSTRALIA
Ghimire v Karriview Management Pty Ltd [2019] FCA 1108

Appeal from: Application for extension of time: Industrial Magistrates Court of Western Australia (M90 of 2017 & M92 of 2017, Orders of 17 November 2017)

File numbers: WAD 423 of 2018
WAD 424 of 2018

Judges: COLVIN J

Date of judgment: 17 July 2019

Catchwords: PRACTICE AND PROCEDURE - applications for extension of time to appeal from decisions of Industrial Magistrates Court - where adequate explanation advanced for the delay - where applicants sought to pursue an appeal but misunderstood the process - where one ground of appeal had arguable merit - where judgment not acted upon by respondent - where respondent did not appear - application allowed

Legislation: Fair Work Act 2009 (Cth) ss 546, 548, 565

Cases cited:
Hamden v Secretary, Department of Human Services [2013] FCA 3

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZZYV v Minister for Immigration and Border Protection [2016] FCA 957

Parker v The Queen [2002] FCAFC 133

Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

Date of hearing: 16 July 2019

Registry: Western Australia

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 20

Counsel for the Applicants: Ms M Georgiou

Counsel for the Respondent: The Respondent did not appear

ORDERS

WAD 423 of 2018

BETWEEN:
AMRIT GHIMIRE

Applicant

AND:
KARRIVEIW MANGEMENT PTY LTD (ABN 46063633572)

Respondent

WAD 424 of 2018

BETWEEN:
FULMAYA SHARMA

Applicant

AND:
KARRIVEIW MANGEMENT PTY LTD (ABN 46063633572)

Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

17 JULY 2019

THE COURT ORDERS THAT:
1.The time within which the applicants may bring an appeal against the orders made by the Industrial Magistrates Court of Western Australia on 17 November 2017 in each of M90 of 2017 and M92 of 2017 be extended until 14 days after the date of this order.
2.Any appeal brought pursuant to the extension of time granted by these orders be confined to the matters stated in ground 1 of the draft notice of appeal annexed to the affidavits of each of the applicants dated 20 September 2018.

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

REASONS FOR JUDGMENT
COLVIN J:

In December 2016 and January 2017, Mr Amrit Ghimire and his wife Ms Fulmaya Sharma worked for Karriview Management Pty Ltd (Karriview). A dispute arose as to the amount they were entitled to be paid. They each brought proceedings in the Industrial Magistrates Court of Western Australia. They said that they worked long hours and were not paid for those hours. The two claims were heard together on 15…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 1108
Decision Date: 17 July 2019

CaseChat Overview and Summary

Ghimire v Karriview Management Pty Ltd involved an application for an extension of time to appeal against decisions of the Industrial Magistrates Court of Western Australia. The applicants, Mr Ghimire, sought to extend the time limit for appealing orders made by the Industrial Magistrates Court on 17 November 2017. The primary issue before the court was whether the applicants had provided a sufficient explanation for the delay in lodging their appeal and whether their proposed grounds for appeal had merit. The court also considered whether the respondent had acted upon the judgment and whether the respondent's absence from the proceedings was a relevant factor.

The court examined the applicants' affidavits, which outlined their reasons for the delay in lodging their appeal. It was noted that the applicants had misunderstood the appeal process, which contributed to the delay. Despite this, the court found that the applicants had provided an adequate explanation for the delay. Furthermore, the court found that one of the proposed grounds for appeal had arguable merit. The court also noted that the respondent had not acted upon the judgment, and the respondent did not appear before the court. The court concluded that these factors warranted an extension of time for the applicants to lodge their appeal.

Accordingly, the court allowed the application for an extension of time. The time within which the applicants could bring an appeal against the orders of the Industrial Magistrates Court was extended until 14 days after the date of the court's order. The court also specified that any appeal brought pursuant to the extension of time granted by the orders would be confined to the matters stated in ground 1 of the draft notice of appeal. This decision ensures that the applicants have the opportunity to pursue their appeal on the specified ground, while also maintaining the integrity of the court's processes.

Orders

Orders of the court

1. The time within which the applicants may bring an appeal against the orders made by the Industrial Magistrates Court of Western Australia on 17 November 2017 in each of M90 of 2017 and M92 of 2017 be extended until 14 days after the date of this order.

2. Any appeal brought pursuant to the extension of time granted by these orders be confined to the matters stated in ground 1 of the draft notice of appeal annexed to the affidavits of each of the applicants dated 20 September 2018.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for extension of time: Industrial Magistrates Court of Western Australia (M90 of 2017 & M92 of 2017, Orders of 17 November 2017)
File numbers:	WAD 423 of 2018 WAD 424 of 2018
Judges:	COLVIN J
Date of judgment:	17 July 2019
Catchwords:	PRACTICE AND PROCEDURE - applications for extension of time to appeal from decisions of Industrial Magistrates Court - where adequate explanation advanced for the delay - where applicants sought to pursue an appeal but misunderstood the process - where one ground of appeal had arguable merit - where judgment not acted upon by respondent - where respondent did not appear - application allowed
Legislation:	Fair Work Act 2009 (Cth) ss 546, 548, 565
Cases cited:	Hamden v Secretary, Department of Human Services [2013] FCA 3 Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 Parker v The Queen [2002] FCAFC 133 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
Date of hearing:	16 July 2019
Registry:	Western Australia
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	20
Counsel for the Applicants:	Ms M Georgiou
Counsel for the Respondent:	The Respondent did not appear