Liongson v Olims Canberra Hotel
[2010] FCA 248
•15 March 2010
FEDERAL COURT OF AUSTRALIA
Liongson v Olims Canberra Hotel [2010] FCA 248
Citation: Liongson v Olims Canberra Hotel [2010] FCA 248 Parties: CARL LIONGSON v OLIMS CANBERRA HOTEL Appeal: Liongson v Olims Canberra Hotel [2009] FMCA 572 File number: ACD 30 of 2009 Judge: STONE J Date of judgment: 15 March 2010 Legislation: Federal Court Rules O52 r38 Place: Canberra Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 12 The appellant appeared in person Counsel for the Respondent: S O'Brien
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 30 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: CARL LIONGSON
Appellant
AND: OLIMS CANBERRA HOTEL
Respondent
JUDGE:
STONE J
DATE OF ORDER:
15 MARCH 2010
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The appellant’s application to vacate the hearing of the appeal be dismissed.
2.The respondent’s application in its notice of motion filed 15 March 2010 be allowed.
3.The appeal be dismissed for want of prosecution.
4.The appellant pay the respondent’s costs of 15 March 2010.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 30 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: CARL LIONGSON
Appellant
AND: OLIMS CANBERRA HOTEL
Respondent
JUDGE:
STONE J
DATE:
15 MARCH 2010
PLACE:
CANBERRA
REASONS FOR JUDGMENT
On 10 June 2009 the Federal Magistrates Court dismissed Mr Liongson’s application seeking relief in relation to his claim that his employment with the respondent, Olims Canberra Hotel, was unlawfully terminated contrary to the Workplace Relations Act 1996 (Cth): Liongson v Olims Canberra Hotel [2009] FMCA 572. The Federal Magistrate concluded, on the basis of factual findings that had been made, that:
… [T]here is no jurisdiction for this Court to determine the application by Mr Liongson and all other applications that are ancillary to or dependent on it. All applications by Mr Liongson currently before the Court should be dismissed with costs.
As the Federal Magistrate’s decision was interlocutory Mr Liongson could only appeal that decision with leave. His application for leave came before Finn J on 11 November 2009: Liongson v Olims Canberra Hotel [2009] FCA 1291. His Honour held that the Federal Magistrate erred in concluding that he had no jurisdiction to determine Mr Liongson’s application and for that reason granted Mr Liongson leave to appeal. Finn J’s reasoning is relevant to the present application. His Honour referred to the Federal Magistrate’s finding that, on the evidence before him, Mr Liongson had not been dismissed, constructively or otherwise and said, at [2]-[3] of his reasons:
Whether or not the learned Federal Magistrate was correct in the view he took on the factual question of whether Mr Liongson had been dismissed by his employer, the Federal Magistrate clearly erred in the conclusion that followed from his finding. The Court was seized of jurisdiction to determine the application made by Mr Liongson. Section 663 of the Act conferred that jurisdiction. There is no suggestion that the application was instituted otherwise than in good faith.
The application, on the Federal Magistrate’s finding on the preliminary question, inevitably had to be dismissed. An essential element of Mr Liongson’s claim as determined on the hearing of the separate question was not made out. The only proper order to be made by the Federal Magistrate in consequence was that, as no question could arise as to relief under s 665 of the Act, Mr Liongson’s application ought be dismissed. That order would have been a final order and Mr Liongson would have been entitled to appeal as of right. In form the orders made by the Federal Magistrate included an order that “all outstanding applications be dismissed”. Though the path taken by the Federal Magistrate to arrive at this conclusion was clearly incorrect, the substantive result was not given his finding. For this reason I am satisfied that the effect of the Federal Magistrate’s orders should properly be regarded as final with the consequence that Mr Liongson was entitled to appeal as of right.
His Honour’s finding of jurisdictional error explains why it was not necessary for him to consider, as is usual in an application for leave to appeal from an interlocutory judgment, whether an appeal had any prospect of success. On 27 November 2009 Mr Liongson filed a notice of appeal in which he sought an order that the judgment of the Federal Magistrates Court be reversed. The grounds of appeal alleged wrongful termination of employment and constructive dismissal.
On 12 February 2010, the appeal was set down for hearing today. Standard orders for the preparation of the appeal were made, including the preparation of appeal books by the appellant. Those appeal books were not prepared within the time stipulated in the orders of the Court, indeed they have not yet been prepared. The appellant now seeks to have the hearing of the appeal vacated. By notice of motion filed today, the respondent seeks to have the appeal dismissed for want of prosecution pursuant to O52 r 38 of the Federal Court Rules and for the appellant to pay the respondent’s costs of the application for leave to appeal and of the proceeding today.
Rule 38(1) permits the Court to order that an appeal be dismissed for want of prosecution where an appellant has not prosecuted their appeal with due diligence. Rule 38(2) provides that the Court may not make an order under r 38(1) unless notice of the proposed order has been served on the appellant. The evidence given in Court today by Mr Paulka, general manager of the respondent, establishes that the notice of motion and supporting affidavit was served on the appellant at 10.38am this morning by email. Given the time at which that document was served, the respondent also seeks an abridgment of time for service of the notice of motion.
I would decline to abridge the time for service of the notice of motion were it not clear from correspondence between the parties generally, if not exclusively, by email, that the respondent had given the appellant some indication of its intention to proceed in this manner because of the delay in the preparation of the appeal books. The position now is that it is clear that the appeal is not in a state to proceed today, and therefore unless the application to vacate it and reschedule it for another day is successful, the only feasible alternative for the Court is to dismiss the appeal in accordance with the respondent’s notice of motion.
That brings me to a consideration of the reasons given by Mr Liongson for his failure to comply with the orders made on 14 December 2009. Those orders related to the preparation of the appeal generally and, in particular, for the preparation of the appeal books by 19 February 2010.
By letter dated 10 March 2010, addressed to the Court, Mr Liongson set out the reasons why he was seeking an adjournment of the appeal. Those reasons, which he supplemented orally today, relate to the difficulty he has had, both practical and financial, in preparing for the appeal. They also relate to some problems he has had with his health.
From the bar table, Mr Liongson tells me today that he has identified a lawyer who would be prepared to act for him for fees which he thinks he would be able to afford in the future. He offered further details and no evidence to support this claim. Mr Liongson admits that he cannot afford to pursue his appeal at the present. Furthermore, it is not clear how far in the future it would be before he would be in a position to do so. He has offered no evidence or even any submissions that would indicate that there is any reasonable prospect of the appeal being ready for hearing within any reasonable time.
As mentioned above, the listing of the appeal for hearing today was made on 12 February 2010. There has been ample time in the month or so since that date for Mr Liongson to make an application to vacate the hearing of the appeal. Nevertheless the application was not made until 10 March 2010, only days before the appeal was to be heard. The explanation set out in Mr Liongson’s letter, as well as his oral submissions today, indicate to me that he has not given the preparation of the appeal the attention it deserves. Putting that aside, I am not satisfied that the difficulties he has experienced would be resolved in the future, or that if the hearing was to be rescheduled, that there is any greater certainty that he would be in a position to deal with it at that time.
In any appeal it is important to do justice not only to the appellant but also to the respondent. The courts typically try to assist a litigant in person as much as possible, but that should not obscure the fact that respondents to an appeal have a right to have complaints made against them resolved promptly and efficiently. This has not been the case in relation to this appeal. I therefore do not accede to the appellant’s request that the hearing today be vacated. That application is dismissed. As it is clear that the appeal cannot go ahead, the only alternative is, in my view, for the appeal to be dismissed for want of prosecution, pursuant to O 52 r 38 and for the appellant to be ordered to pay the costs of the proceeding today.
The respondent also asked for the appellant to be ordered to pay its costs of the application for leave to appeal. That submission was based on a misunderstanding of Finn J’s reasons. As explained above, his Honour found that the Federal Magistrate erred in concluding that he did not have jurisdiction. It was that error that resulted in the order made being interlocutory and therefore in leave to appeal being necessary. For that reason, Finn J held that leave should be granted as if that decision had been a final decision. His Honour did not deny that the actual decision made was interlocutory and that, in the circumstances, leave was necessary. That being so the appellant’s application for leave to appeal was successful and he should not be required to pay the respondent’s costs of that application.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 22 March 2010
0
2
1