Gonzalez v Gutierrez-Perez

[2013] FCA 386

FEDERAL COURT OF AUSTRALIA

Gonzalez v Gutierrez-Perez [2013] FCA 386

Citation:		Gonzalez v Gutierrez-Perez [2013] FCA 386
Parties:		CARLOS DANIEL GONZALEZ v MARTHA LUCIA GUTIERREZ-PEREZ
File number:		NSD 469 of 2013
Judge:		JACOBSON J
Date of judgment:		17 April 2013
Legislation:		Fair Work Act 2009 (Cth)
Date of hearing:	17 April 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Solicitor for the Applicant:	Self-represented
Solicitor for the Respondent:	Self-represented

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 469 of 2013

BETWEEN:	CARLOS DANIEL GONZALEZ Applicant
AND:	MARTHA LUCIA GUTIERREZ-PEREZ Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	17 APRIL 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

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 469 of 2013

BETWEEN:	CARLOS DANIEL GONZALEZ Applicant
AND:	MARTHA LUCIA GUTIERREZ-PEREZ Respondent

JUDGE:	JACOBSON J
DATE:	17 APRIL 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to appeal against an order made by the chief industrial magistrate, on 22 January 2013.  On that date, the chief industrial magistrate ordered the applicant for an extension of time (Dr Gonzalez) to pay the respondent to this application (Ms Gutierrez-Perez) the sum of $20,000.  That sum represented certain entitlements, including long service leave, which were claimed by Ms Gutierrez-Perez.

2. Both of the parties appeared before me this morning in person, without legal representation, but Ms Gutierrez-Perez was assisted by a Spanish interpreter.  It appears to me that I have jurisdiction under the provisions of the Fair Work Act2009 (Cth), in particular section 565 of the Act, and that any right of appeal which Mr Dr Gonzalez may have had against the order of the chief industrial magistrate expired 21 days after the date of the order; however, I’m prepared to assume that I have power to extend the time to appeal.

3. The principles upon which the power to extend time is granted are well established.  They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there was any prejudice to the respondent and the merits of an appeal if an extension is granted.  Of course, every case turns upon its own facts, but in the present case, it seems to me that the most important consideration is the merits of the appeal.

4. Dr Gonzalez explains in his affidavit of 19 March 2013 the reasons why he was not present before the chief industrial magistrate when the order was made.  Dr Gonzalez was overseas.  It is possible that the chief industrial magistrate was not aware of that fact, but I do not consider that this is material, in the present case.  What seems to me to be of overriding importance is, as I have said, the question of the merits of Dr Gonzalez’s claim to have a defence to the action.

5. I raised the difficulty as to this issue with Dr Gonzalez.  He told me that the issue which he wishes to raise if I grant him an extension of time is that it has not been established that Ms Gutierrez was employed by him during the 10 year period required to give rise to a claim to long service leave; however, the evidence upon which he relies does not establish his assertion that Ms Gutierrez-Perez was employed by him during the requisite 10-year period.  Indeed, Dr Gonzalez tendered the witness statement made by Ms Gutierrez-Perez in the chief industrial magistrate’s court.

6. That document states that she was employed for a period from August 2001 to June 2011, and thereafter by a company.  It is plain that Ms Gutierrez-Perez was employed by Dr Gonzalez directly for a period of some nine years and 10 months, and the only argument seems to be that the company was not a company “within the group”, as asserted by Dr Gonzalez.  The effect of what he put to me is that group was not associated with him;  however, nothing that he put to me makes good that assertion, and it is clear enough that the chief industrial magistrate accepted, on this evidence, that Ms Gutierrez-Perez was employed for the requisite period.

7. Accordingly, therefore, I am not satisfied that Dr Gutierrez has any real prospects of success in an appeal.  It would therefore be futile to grant an extension of time, even if I were to accept that he has given a satisfactory explanation for the delay.  I therefore propose to dismiss his application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        26 April 2013