Gonzalez v Gutierrez-Perez (No. 2)
[2013] FCA 464
•8 May 2013
FEDERAL COURT OF AUSTRALIA
Gonzalez v Gutierrez-Perez (No. 2) [2013] FCA 464
Citation: Gonzalez v Gutierrez-Perez (No. 2) [2013] FCA 464 Appeal from: Application for leave to appeal: Gonzalez v Gutierrez-Perez [2013] FCA 386 Parties: CARLOS DANIEL GONZALEZ v MARTHA LUCIA GUTIERREZ-PEREZ File number: NSD 751 of 2013 Judge: PERRAM J Date of judgment: 8 May 2013 Catchwords: PRACTICE AND PROCEDURE – Application for leave to appeal from a single judge of the Federal Court of Australia – Whether jurisdiction to grant leave Legislation: Federal Court of Australia Act 1976 (Cth) ss 24, 25 Cases cited: Gonzalez v Gutierrez-Perez (2013) FCA 386 Date of hearing: 8 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: The respondent appeared in person with the assistance of an interpreter
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 751 of 2013
BETWEEN: CARLOS DANIEL GONZALEZ
ApplicantAND: MARTHA LUCIA GUTIERREZ-PEREZ
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
8 MAY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 751 of 2013
BETWEEN: CARLOS DANIEL GONZALEZ
ApplicantAND: MARTHA LUCIA GUTIERREZ-PEREZ
Respondent
JUDGE:
PERRAM J
DATE:
8 MAY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a dentist formerly conducting practice from Fairfield in New South Wales. The respondent was formerly employed by him. On 22 January 2013 in the Chief Industrial Magistrate’s Court of New South Wales, judgment was entered in favour of the respondent against Dr Gonzalez in the sum of $20,000. In circumstances to which it will be necessary to return, Dr Gonzalez was not present during the hearing which took place in that Court. Within the timeframe prescribed by the legislation for an appeal from that decision, no appeal was filed. In April of this year, however, Dr Gonzales filed an application to extend the time in which he might appeal to this Court. That application was heard by Jacobson J on 17 April 2013 and his Honour refused it: see Gonzalez v Gutierrez-Perez (2013) FCA 386.
On 6 May 2013, Dr Gonzalez filed what purported to be a notice of appeal from Jacobson J’s decision. It is likely that this Court has no jurisdiction to entertain an appeal of that kind. The jurisdiction which was being exercised by Jacobson J was the jurisdiction conferred by s 25 of the Federal Court of Australia Act 1976 (Cth), subsection (1) which confers appellate jurisdiction on this Court and provides that, subject to any other provision, it is generally to be exercised by a Full Court. Section 25(2) then deals with class of interlocutory determinations which can arise during the exercise of appellate jurisdiction. One of those by s 25(2)(b) is an application for an extension of time within which to institute an appeal to the Court. By ss 25(1AA)(a) and 25(1B)(2) that jurisdiction is to be exercised by a single judge, unless a Judge otherwise directs. It was that jurisdiction, a Judge not having otherwise directed, which was being exercised by Jacobson J on 17 April 2013.
That matter is of significance because the grant of appellate jurisdiction to this Court includes only relevantly a grant of jurisdiction to hear appeals from single judges exercising the original jurisdiction of the Court. So much appears from s 24(1)(a). It follows that this Court has no jurisdiction conferred upon it to hear appeals from decisions of single judges exercising appellate jurisdiction under s 25 of the Act and in all likelihood, the present application is incompetent in the sense that the Court has no jurisdiction to entertain it. Despite that, however, it is useful to address, in the event that I be wrong in that conclusion, the substantive merits of the matter.
As I have said, Dr Gonzalez formerly conducted a dental practice at Fairfield employing a Ms Gutierrez-Perez. On 30 June 2011, his professional indemnity insurance was cancelled by his insurer, which he informed me from the Bar table was Guild Insurance, with the consequence of causing an immediate cessation of his practice.
In July 2011, immediately following that, he sought to work around that problem by seeking to put in place a new corporation, but this was to no avail. It might naturally be expected that a cancellation of his insurance and the cessation of the business would have a significant effect upon the financial position of Dr Gonzalez and the material before me certainly suggests that it has caused him extreme financial distress. At a point which is not clear to me, a complaint was made by the respondent to the Fair Work Ombudsman. In November 2012 in an attempt to put on a more even keel his financial position and to seek fresh employment, Dr Gonzalez applied for, in Australia, a resident’s visa from the State of Spain and thereafter at some date in November, travelled to Spain. He did this with the express purpose of seeking to sit dental exams so that he might work in Spain, to put in train steps which might lead to a grant to him of citizenship from the State of Spain, he originally being from Chile and there being arrangements between those two countries which facilitates that, and also to make easier the exercise of rights of practice in the United Kingdom.
The requirements of a resident’s visa necessitated his demonstration to the Spanish government of contacts and commercial contracts in Spain, the sitting of the exams, and the establishment of those contacts and commercial contracts was the principle reason he was in Spain. Whilst in Spain, seeking to advance himself in that fashion, the respondent commenced proceedings in the Chief Industrial Magistrates Court which I am satisfied Dr Gonzalez became aware of no later than 4 December 2012. It is clear from correspondence which he handed up to me that on that date he wrote to the Chief Industrial Magistrate’s Court and conveyed to it that he could not attend the hearing which was scheduled to take place in that Court on 19 December 2012 because he was now residing in Spain due to economic circumstances and work related issues. An email from that Court records that that letter was placed on the Court file. It appears, although one cannot be certain that when the matter was called on for hearing in the Chief Industrial Magistrate’s Court on 19 December 2012 that it was adjourned with Dr Gonzalez not being present for reasons which will be obvious.
It appears thereafter that the matter was listed for further hearing on 22 January 2013 and I am satisfied that no later than 16 January 2013, Dr Gonzalez was aware of that fact. I am content to conclude that because on that day Dr Gonzalez again wrote to the Chief Industrial Magistrate’s Court and indicated that he would not be able to attend since he was still in Spain, and, to support that assertion, he enclosed a copy of his airline tickets. Again, the Court responded to him indicating that that letter would be placed on the file. On 22 January 2013 the Chief Industrial Magistrate’s Court proceedings were called on for hearing, and, at that time Dr Gonzalez did not appear. It is apparent that the case was then conducted in his absence and the Court entered judgment in the sum of $20,000 against him. On 1 March 2013, Dr Gonzalez returned to Australia and sometime thereafter made the application which was eventually dealt with by Jacobson J in this Court.
His Honour dismissed the application for an extension of time and leave to appeal because he was not satisfied that the explanation which had been proffered by Dr Gonzalez for his delay in bringing the application was sufficient to justify the exercise of the jurisdiction which had been invoked. Assuming in Dr Gonzalez’s favour that I have the jurisdiction to entertain the present application (which for the reasons I have given, I doubt), it seems to me that I would arrive at the same conclusion as Jacobson J, albeit perhaps for slightly different reasons. It is not difficult perhaps to feel some sympathy for Dr Gonzalez and the circumstances in which he has found himself. He made a decision that it was to his interest and benefit to pursue a position in Spain, both in relation to the earning of further income and in relation to obtaining a right to work in Spain. One can understand why he regarded that as a priority.
Nevertheless, a court case commenced in this country is not something simply to be ignored. If Dr Gonzalez wished the proceedings before the Chief Industrial Magistrate’s Court to be adjourned he had, in my opinion, to take them a little more seriously than simply to write a letter and to hope for the best. In saying that, I accept the difficult situation in which he found himself, particularly in terms of financial restrictions and the retaining of a lawyer. Despite these circumstances, one simply cannot go around ignoring court cases because it is not convenient to attend to them. I did not apprehend that any different explanation attended the delay in making the application to Jacobson J; and that is, Dr Gonzalez was at all material times unable to make the application for the same reason he had been unable to appear before the Chief Industrial Magistrate’s Court. It seems to me that although this may seem harsh to Dr Gonzalez, nevertheless, that is not a sufficient explanation.
Court proceedings of the present kind, particularly ones which have significant impacts upon the rights of parties other than the applicant, cannot simply be ignored and I do not think that the explanation which has been proffered would have been, if I had had jurisdiction to entertain the application, a sufficient one. I dismiss the application with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 8 May 2013
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