Lee v Fair Work Commission - [2021] FCA 1188

FEDERAL COURT OF AUSTRALIA
Lee v Fair Work Commission [2021] FCA 1188

Appeal from: Application for extension of time: Lee v Superior Wood Pty Ltd [2021] FCA 515

File number: QUD 161 of 2021

Judgment of: RANGIAH J

Date of judgment: 6 October 2021

Catchwords: PRACTICE AND PROCEDURE – application for extension of time to seek leave to appeal against interlocutory judgment of a single judge of the Federal Court – primary judge dismissed the proceeding on the basis of procedural deficiencies in the applicant’s originating application – application for leave to appeal filed nine days out of time – whether satisfactory explanation for delay – whether proposed application for leave to appeal and appeal have merit – application for extension of time refused

Legislation:
Fair Work Act 2009 (Cth) s 570

Federal Court Rules 2011 (Cth) rr 1.40, 2.16, 4.01, 5.04, 5.23, 12.01, 35.13, 35.14

Federal Court of Australia Act 1976 (Cth) ss 24(1A) and 24(1AA)

Cases cited:
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Lee v Superior Wood Pty Ltd [2020] FWCFB 6011

Lee v Superior Wood Pty Ltd [2021] FCA 515

Lee v Superior Wood Pty Ltdt/a Superior Wood [2019] FWC 5095

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

State of New South Wales v Canellis (1994) 181 CLR 309

Wilson v Alexander (2003) 135 FCR 273

Division: General Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 34

Date of hearing: 16 September 2021

Counsel for the Applicant: The Applicant appeared in person

Counsel for First to Fourth Respondents: The First to Fourth Respondents filed submitting notices save as to costs

Solicitor for the Fifth Respondent: Mr M Curran of Gilchrist Connell

ORDERS

QUD 161 of 2021

BETWEEN:
JEREMY LEE

Applicant

AND:
FAIR WORK COMMISSION

First Respondent

VICE PRESIDENT ADAM HATCHER

Second Respondent

DEPUTY PRESIDENT AMBER MILLHOUSE (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

6 OCTOBER 2021

THE COURT ORDERS THAT:
1.The application for an extension of time to seek leave to appeal is dismissed.
2.There be no order as to costs.

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

REASONS FOR JUDGMENT
RANGIAH J:

This is an application for an extension of time to seek leave to appeal against the judgment of a judge of this Court in Lee v Superior Wood Pty Ltd [2021] FCA 515.
The judgment of the primary judge was interlocutory. Accordingly, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) requires the applicant to obtain leave to appeal. Rule 35.13 of the Federal Court Rules 2011 (Cth) (the Rules) provides that an application for leave to appeal must be filed within 14 days after the date of judgment. Rule 35.14 of the Rules allows an application to be made for an extension of time to seek leave to appeal.

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: [2021] FCA 1188
Decision Date: 6 October 2021

CaseChat Overview and Summary

The case before the court involved Lee, who sought an extension of time to appeal an interlocutory judgment made by a single judge of the Federal Court. The Fair Work Commission was the respondent in the original case. The application was made nine days after the deadline for seeking leave to appeal, and the court had to decide whether there was a satisfactory explanation for the delay and whether the proposed application for leave to appeal and the appeal itself had merit.

The court considered whether Lee had provided a satisfactory explanation for the delay in filing the application for leave to appeal. It also assessed whether the proposed application for leave to appeal and the appeal itself had sufficient merit to warrant an extension of time. The court needed to balance the principles of fairness and the importance of adhering to procedural rules.

The court found that Lee had not provided a satisfactory explanation for the delay. The court held that the explanation offered did not justify the late filing of the application. Additionally, the court considered that the proposed application for leave to appeal and the appeal did not have sufficient merit to warrant an extension of time. The court emphasised the importance of adhering to procedural rules and deadlines in legal proceedings.

The court dismissed the application for an extension of time to seek leave to appeal. No order was made regarding costs. The dismissal of the application for an extension of time meant that Lee's appeal against the interlocutory judgment would not proceed. The outcome underscored the importance of timely compliance with procedural requirements in legal proceedings.

Orders

Orders of the court

1. The application for an extension of time to seek leave to appeal is dismissed.

2. There be no order as to costs.

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: Lee v Superior Wood Pty Ltd [2021] FCA 515
File number:	QUD 161 of 2021
Judgment of:	RANGIAH J
Date of judgment:	6 October 2021
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time to seek leave to appeal against interlocutory judgment of a single judge of the Federal Court – primary judge dismissed the proceeding on the basis of procedural deficiencies in the applicant’s originating application – application for leave to appeal filed nine days out of time – whether satisfactory explanation for delay – whether proposed application for leave to appeal and appeal have merit – application for extension of time refused
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court Rules 2011 (Cth) rr 1.40, 2.16, 4.01, 5.04, 5.23, 12.01, 35.13, 35.14 Federal Court of Australia Act 1976 (Cth) ss 24(1A) and 24(1AA)
Cases cited:	Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Lee v Superior Wood Pty Ltd [2020] FWCFB 6011 Lee v Superior Wood Pty Ltd [2021] FCA 515 Lee v Superior Wood Pty Ltdt/a Superior Wood [2019] FWC 5095 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 State of New South Wales v Canellis (1994) 181 CLR 309 Wilson v Alexander (2003) 135 FCR 273
Division:		General Division
Registry:		Queensland
National Practice Area:		Employment and Industrial Relations
Number of paragraphs:	34
Date of hearing:	16 September 2021
Counsel for the Applicant:	The Applicant appeared in person
Counsel for First to Fourth Respondents:	The First to Fourth Respondents filed submitting notices save as to costs
Solicitor for the Fifth Respondent:	Mr M Curran of Gilchrist Connell

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	6 OCTOBER 2021