Loch v JB Restaurants Pty Ltd
[2019] FCA 1147
•29 July 2019
FEDERAL COURT OF AUSTRALIA
Loch v JB Restaurants Pty Ltd [2019] FCA 1147
Appeal from: Application for extension of time: Loch v JB Restaurants Pty Ltd [2018] FCCA 3951 File number: NSD 607 of 2019 Judge: THAWLEY J Date of judgment: 29 July 2019 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to appeal orders made by the Federal Circuit Court of Australia – where explanation for delay is inadequate – where proposed appeal has insufficient merit Legislation: Evidence Act 1905 (Cth) Pt IIIA s 7E (repealed)
Evidence Act 1995 (Cth) s 69
Fair Work Act 2009 (Cth) ss 45, 293
Federal Circuit Court of Australia Act 1999 (Cth) ss 14, 42
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Restaurant Industry Award 2010
Cases cited: AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 Date of hearing: 19 July 2019 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: The applicant appeared in person Counsel for the Defendant: Mr C Dibb Solicitor for the Defendant: Thuan Nguyen & Associates ORDERS
NSD 607 of 2019 BETWEEN: ODIN AARON MASON PLOUMOND LOCH
Applicant
AND: JB RESTAURANTS PTY LTD
Defendant
JUDGE:
THAWLEY J
DATE OF ORDER:
29 JULY 2019
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.
REASONS FOR JUDGMENT
THAWLEY J:
INTRODUCTION
On 24 April 2019, Mr Loch filed an application for an extension of time to appeal against orders made by the Federal Circuit Court of Australia on 22 August 2018 – see: Loch v JB Restaurants Pty Ltd [2018] FCCA 3951.
The applicant had been employed by JB Restaurants from 7 June 2013 until 28 December 2014. He commenced the proceedings in the Federal Circuit Court on 25 January 2018. Mr Loch claimed he had worked longer hours than those for which he had been paid and that he was only paid $10 an hour in breach of the Restaurant Industry Award 2010. He asserted contraventions by the respondent of ss 45 and 293 of the Fair Work Act 2009 (Cth) (FW Act). He also claimed in respect of an underpayment of annual leave entitlements. This latter claim was accepted, but quantified at a lesser amount than sought.
The primary judge accepted that payslips were prepared contemporaneously with the calculation and payment of wages: J[58]. His Honour concluded that the applicant was paid for the hours he worked and that he was paid the amounts recorded in the respondent’s books: J[59], [62]. His Honour found there was no contravention of the FW Act so far as concerned unpaid wages.
The Federal Circuit Court ordered judgment for the applicant against the respondent in the sum of $2,343.20 plus interest in respect of the claim for accrued annual leave.
The application for an extension of time to appeal was accompanied by an affidavit, also filed on 24 April 2019. A draft notice of appeal was lodged as correspondence in the Court’s Electronic Court File on 23 April 2019. The application for an extension of time was made 223 days after the time for filing a notice of appeal had expired: Federal Court Rules 2011 (Cth) r 36.03.
A second draft notice of appeal was lodged for filing with the registry on 18 June 2019 but was rejected. The second draft notice of appeal was then lodged in the Court’s Electronic Court File as correspondence on 19 June 2019. Mr Loch confirmed that he relied only on the second draft notice of appeal, not the first draft notice of appeal.
PRINCIPLES
Factors that might be considered in exercising the discretion under r 36.05 of the Rules to grant or refuse an extension of time to file a notice of appeal have been variously expressed: AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at [10]. The discretion is unfettered, but must be exercised judicially. One purpose of r 36.03 is to bring disputes to finality. The starting point is to respect the statutory time limit. Rule 36.05 contemplates that there may be circumstances where, notwithstanding that an appeal was not filed within the prescribed time, an extension should be granted. The terms of the relevant statutory provision which allows for an extension determines the scope of the discretion. Rule 36.05 provides:
(1)A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.
(2)The application may be made during or after the period mentioned in rule 36.03.
(3)The application must be accompanied by the following:
(a) the judgment or orders from which the appeal is to be brought;
(b) the reasons for the judgment or orders, if published;
(c) an affidavit stating:
(i)briefly but specifically, the facts on which the application relies; and
(ii)why the notice of appeal was not filed within time;
(d) a draft notice of appeal that complies with rules 36.01 (1) and (2).
…
That provision does not contain any express limitation on the matters which might be considered in exercising the discretion. Nor does r 1.39 of the Rules. Rule 36.05 does require an articulation in an affidavit of (i) the facts relied upon and (ii) why the notice of appeal was not filed within time. Matters which are commonly raised as relevant to the unconfined exercise of discretion to extend time include, but are not limited to:
(1)the length of the delay;
(2)the explanation for the delay, including the role of the applicant in, and the responsibility of the applicant for, the delay;
(3)any prejudice to the respondent or other persons arising out of the delay, including any action taken by the applicant to alert the respondent to the fact that the decision would be contested;
(4)the merit of the proposed appeal.
CONSIDERATION
Length of delay
The delay was very lengthy. The length of the delay weighs against exercise of the discretion to extend time. The length of the delay and the explanation for it are inter-related in that a very short delay might be excused even where the explanation for it is not particularly satisfactory. A delay of the kind in this case would ordinarily require a very good explanation before time would be extended.
Explanation for delay
In his affidavit affirmed on 23 April 2019, Mr Loch stated that he was prevented from lodging a notice of appeal within the time period stipulated by the Rules for reasons including, but not limited to, “a death in [the] family, the birth of [his] child, personal involvement in three State Commissions, [his] personal involvement in three procurement matters (RFPS, and RFT’s), misfortune and misadventure in [his] education, personal health issues and several criminal matters which resulted in [him] being the victim”.
Mr Loch also filed an affidavit affirmed on 18 June 2019 in support of his application. The affidavit annexed numerous documents. A significant number of the annexed documents were complaints, or correspondence relating to complaints, that Mr Loch had made to a number of institutions and government departments.
The applicant took various steps in relation to the matter before the Federal Circuit Court after orders were made on 22 August 2018:
(1)The applicant lodged two complaints with the Legal Services Commissioner, both received on 27 August 2018, concerning JB Restaurant’s barrister (signed by Mr Loch on 24 August 2018) and solicitor (undated) in the proceedings before the Federal Circuit Court the subject of this application for an extension of time. Both complaints contained serious allegations.
(2)On 24 October 2018, the applicant lodged a complaint with the Tax Practitioner’s Board against the accountant who gave evidence for JB Restaurants. The complaint alleged that the accountant “was engaged to lie in the Federal Circuit Court” and that “her lies covered fraud, embezzlement and human slavery”.
(3)On 7 December 2018, Mr Loch commenced proceedings numbered SYG 3436 of 2018 in the Federal Circuit Court (second proceeding). He filed an affidavit dated 6 December 2018 in support of those proceedings. Mr Nguyen, the solicitor for the respondent, stated in an affidavit read on this application, that JB Restaurants filed an application for summary dismissal of the second proceeding. This was listed for hearing on 14 February 2019. On 9 February 2019, Mr Loch stated he would not be present at that hearing. The associate to the judge before whom the matter was listed responded by email on 11 February 2019 stating that the matter would proceed on 14 February 2019 and that any application for an adjournment could be made on that occasion. On 14 February 2019, the Federal Circuit Court made the following notation and orders:
THE COURT NOTES THAT:
1.There was no appearance today by or on behalf of Mr Loch when the matter was called.
2.Mr Loch had advised the Court that he would not be appearing today due to his concerns over alleged criminal offences.
3.The matters raised in Mr Loch’s application filed on 7 December 2018 either were or should have been raised in earlier proceedings which have been dealt with in this Court, as addressed in the affidavit of Mr Nguyen.
THE COURT ORDERS THAT:
1.The application filed on 7 December 2018 is dismissed.
2.There be no order as to costs.
3.The respondent is to serve a sealed copy of these orders on Mr Loch.
(4)On 23 January 2019, in an email sent to the respondent’s solicitor, barrister and the associate to the primary judge, the applicant stated that he had asked the Attorney-General to “investigate into the matter of being advised by [the primary judge] a partial magistrate during court proceedings”. The applicant also stated that he had made a complaint about the primary judge to the Attorney-General in a cover letter to an online submission to the Australian Federal Police dated 17 February 2019.
(5)The applicant made a complaint to the Inspector-General of Taxation, receipt of which was acknowledged in a letter dated 22 February 2019, alleging that the Tax Practitioners’ Board had not properly investigated or considered his evidence in respect of his complaint against the firm of accountants (it was unclear whether this complaint related to the complaint at (2) above).
(6)On 6 March 2019, the applicant lodged, against JB Restaurants, an Application for Directions of Procedure (FW Application) with the Fair Work Commission seeking to initiate a matter which included (but was not confined to) similar allegations to those the subject of the Federal Circuit Court proceedings in respect of which an application for an extension of time to appeal is now made. The FW Application included:
I would like payment of unpaid wages, compensation for damages sustained while at work, fines for JB Restaurants Pty Ltd and imprisonment for its proprietors. I never had an unfair dismissal but have numerous damages. The whole workplace was underpaid, abused and had no workplace rights.
Also annexed to Mr Loch’s affidavit affirmed on 18 June 2019 were documents concerning disputes unrelated to the Federal Circuit Court proceedings. These concerned disputes between the applicant and the University of Technology Sydney, TAFE NSW and two other previous employers of the applicant: Rokt Pty Limited and TMA Enterprises Pty Limited.
Amongst the annexures to the affidavit were a number of medical records, including Patient Health Summaries from Earlwood Medical Centre relating to various consultations between 20 September 2017 and 12 June 2019. These recorded, among other things, a history of depression, anxiety, stress and alcoholism. The applicant was diagnosed as having High Functioning Autism Spectrum Disorder. Some of the material indicated that the applicant may have difficulty with paper work and that he might require additional time to complete certain tasks. The material also indicated that Mr Loch had witnessed a suicide on 17 July 2018 and that this had a significant negative impact on him.
The annexures contained a letter from Sydney Children’s Hospital in Randwick dated 14 November 2018 confirming an appointment for Mr Loch’s son for 7 December 2018 in relation to a medical issue of some significance. I infer from the material that the applicant’s son probably underwent an operation in early December 2018.
I accept that Mr Loch had the various difficulties and faced various challenges as recorded in the medical records and as otherwise referred to above. I accept these various difficulties and challenges were significant. I accept that there were demands on his time.
The delay in Mr Loch filing his application is lengthy. Mr Loch was, despite the various difficulties he faced, able to engage in much communication relating to the case he now seeks to appeal from, including making complaints against the Judge who heard the case, the solicitor and barrister who acted for the respondent, the accountant who gave evidence and the firm for which she worked. He was also able to respond to various subsequent inquiries triggered by the making of those complaints. Mr Loch was able to commence new proceedings in the Federal Circuit Court which sought, amongst other things, to re-agitate issues which had been dealt with by the primary judge. He was able to engage the processes of the Fair Work Commission to raise complaints which included allegations which had been resolved against him by the Federal Circuit Court. There was no explanation as to why it was that Mr Loch could pursue all of those matters but not an appeal.
The matters referred to above, including Mr Loch’s medical history and the medical issue concerning his son, go some way towards explaining the delay in his filing of a notice of appeal. However, particularly having regard to the steps taken by Mr Loch after judgment on 22 August 2018, I consider that the explanation for not filing a notice of appeal within time is inadequate. This weighs heavily against granting an extension of time. Even if the explanation had been adequate, the merit of the proposed appeal is such that I would not have extended time.
Prejudice to the respondent
JB Restaurants was entitled to expect that the issues the subject of the Federal Circuit Court proceedings had been finalised once the period of time to file a notice of appeal had expired, even if the conduct of Mr Loch in taking the steps outlined at [11] above, might have suggested he would not let the matter lie.An extension of time necessarily gives rise to the prejudice caused by a re-enlivening of finalised proceedings. The relevant employment was from 7 June 2013 to 28 December 2014 and the Federal Circuit Court proceedings were not commenced until 25 January 2018. They were finalised months ago. Parties are entitled to move on and organise their affairs on the basis that litigation is at an end once the time for appeal has passed. The respondent is a small business. Litigation generally causes stress and anxiety for all parties, as well as witnesses and others. That is evidently true in this case where the litigation has also been productive of various complaints to professional and other bodies.
The respondent noted that it had not obtained a costs order before the Federal Circuit Court because of the restrictions on costs in proceedings under the FW Act. The Federal Circuit Court had noted at J[64] that it did not find Mr Loch to be untruthful and that he appeared to believe his case.
I accept there is prejudice to the respondent, however, this factor alone does not justify the refusal of the application for an extension of time. It does weigh heavily in favour of the conclusion I otherwise reach that the application for an extension of time should not be granted.
Merit of the proposed appeal
The applicant’s second draft notice of appeal raised the following grounds of appeal:
1.The Federal Circuit Court Rules 2001 (Cth) was not considered as a whole document and in its full legal meaning.
2.The Federal Circuit Court Rules 2001 (Cth) was considered too specifically for some actions, where a broader legal meaning was more appropriate.
3.Specific sections of the Federal Circuit Court Rules 2001 (Cth), that had meaning at specific points in the case where ignored for a broader legal meaning of the act.
4.The application of the Federal Circuit Court Rules 2001 (Cth) was not impartial.
5. The respondent’s affidavits where not in the format stipulated under the Federal Circuit Court Rules 2001 (Cth) section 15.26 “Making an affidavit”.
6. The respondent’s annexures where not paginated or marked with the title and number of proceeding as stated under the Federal Circuit Court Rules 2001 (Cth) section 15.28 “Documents Annexed or exhibited”.
7. The magistrate applied section 36 of the Evidence Act 1995 (Cth) vexatiously and for documents that where inadmissible.
8. The magistrate did not follow the flowchart in Chapter 3 of the Evidence Act 1995 (Cth).
9. I asked the magistrate to apply section 7M “Rejection for unfairness etc.” of the Evidence Act 1905 (Cth), as subsections (a) and (b) applied and it did not happen. The respondent’s barrister did the same to the same result.
10. The respondent and the applicant wanted a succinct, short hearing and did not receive one. This is against the application of the Federal Circuit Court of Australia Act 1999 (Cth), Section 42 “Federal Circuit Court to operate Informally”.
11. Section 7E “Dispute as to happening of event” of the Evidence Act 1905 (Cth) was not applied as neither claim was proven or disproven and no costs were awarded.
12. The matter was not determined in accordance with section 14 “Determination of matter completely and finally” of the Federal Circuit Court of Australia Act 1999 (Cth) as no claim was disproven fully.
13. The final outcome of the hearing was not desirable to either parties or to the Commonwealth.
14. The full amount of evidence was not considered in the Judgement Orders.
15. The full list of directions I gave in a written submission to the court was not heard during hearing.
16. The magistrate presumed and supposed for outcomes 60 to 64.
17. Due process was not followed, for which everyone has an implied Constitutional right to.
These proposed grounds of appeal were not the subject of particulars.
The applicant’s written submissions on the application included:
1.That the evidence given in the Affidavit for Extension of Time is sufficient to show Special Circumstance.
2.That the evidence given in the Affidavit for Extension of Time is sufficient to make it impracticable to have begin legal proceedings for an Appeal of SYG204/2018 earlier.
3.That the evidence shows Medical, Family, Family Medical, Legal, Law Enforcement, Educational, Vocational and Governance matters which had to be attended to.
4. That the sum of these issues is far greater than any of the issues on their own.
5.That the suicide I witnessed on 17/07/2018 made it impracticable to lodge the Appeal within 28 days of the original date of decision, as my health was proper.
6.That many of these issues are so complex, that they are still ongoing and so had greater impact during the time in the past, that it was impracticable to have lodged the Appeal for SYG204/2018.
Mr Loch stated in his affidavit filed on 24 April 2019 that there was fresh evidence “that should be heard in a fresh legal case”. The existence of fresh evidence was also the subject of ground 7 of the first draft notice of appeal which Mr Loch confirmed he did not rely upon. Mr Loch has not identified the further evidence, the ground of appeal to which it relates or explained why it was not adduced in the Federal Circuit Court.
Grounds 1 to 4 assert that the primary judge misapplied the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) or applied them in a way which was biased. The circumstances of how the FCC Rules might have been misapplied was not identified. The allegation of bias was not substantiated by any evidence or by reference to the reasons for judgment or otherwise.
Grounds 5 and 6 refer to the formatting of affidavits and annexures filed by JB Restaurants. It was not shown that any such non-compliance, assuming in Mr Loch’s favour that it existed, materially affected the decision of the primary judge. It was not indicated how these matters could have resulted in appealable error.
Grounds 7, 8 and 9 allege that the primary judge erroneously exercised discretions in respect of the admission or rejection of documents or other evidence. The evidence the subject of the alleged erroneous admission or rejection was not identified. No further information regarding the circumstances of the alleged errors was provided.
Ground 10 asserts that the hearing was not short and succinct and therefore did not comply with s 42 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act). The applicant did not identify how the length or formality of the hearing before the primary judge might have affected the decision of the primary judge or otherwise given rise to an appealable error. I note that the hearing was completed within 1 day and that the primary judge made orders and delivered detailed reasons for judgment the next day. This was short and succinct.
I note that the applicant stated in his affidavit affirmed on 23 April 2019 that “another day of hearing was requested and should have been granted”. The applicant did not identify any prejudice arising from this, assuming it to be correct. There was no identification of any denial of procedural fairness or of any claims or issues in the proceeding that might have been dealt with differently by the primary judge had an additional day of hearing been granted.
Ground 11 refers to s 7E of the Evidence Act 1905 (Cth). This provision was in Part IIIA of that Act, dealing with the admissibility of business records. The admissibility of business records is now governed by s 69 of the Evidence Act 1995 (Cth). The applicant did not identify the evidence to which ground 11 related, nor any submission advanced to the primary judge in that respect, or how or why it was said that the treatment of the evidence was incorrect.
Ground 12 asserts that the orders and reasons for judgment of the Federal Circuit Court did not comply with s 14 of the FCCA Act. That section, in summary, requires the Federal Circuit Court to grant all remedies to which a person appears entitled so that, so far as possible, all matters in controversy may be completely and finally determined, avoiding a multiplicity of proceedings. The applicant did not identify a remedy to which he was entitled that was not granted by the Federal Circuit Court.
The Federal Circuit Court dealt with all of the claims made and gave to Mr Loch the remedy to which he was entitled. The Federal Circuit Court found that his case with respect to annual leave was made out but that his case in respect of unpaid wages was not made out: J[63], [69].
Ground 13 does not identify any alleged error of law. It was not further explained.
Ground 14 states that the primary judge did not consider all of the evidence. In his affidavit filed on 24 April 2019, Mr Loch stated that his “second affidavit was not considered during the hearing and facts that [he] brought to the magistrate’s attention were not considered and [were] not reported on in the final report”. The applicant’s “second affidavit” was not before this Court. The applicant did not identify any other evidence he claimed was not considered. The reasons for judgment reveal a conscientious examination of the evidence to which it refers.
Ground 15 asserts that directions given by the applicant to the Federal Circuit Court were not followed. The nature of the directions given by the applicant was not identified.
Ground 16 asserts that the primary judge “presumed and supposed” for the result recorded in at J[60] to J[64]. If this is to be understood as an allegation of pre-judgment or bias, it is not made out as reasonably arguable for the purpose of granting an extension of time. The applicant did not provide any explanation of his complaint beyond the terms of the ground.
Ground 17 asserts that the applicant was not afforded due process. No further details were given in respect of this ground assuming it to be a ground which was intended to raise some matter not raised by the earlier grounds.
None of the proposed grounds of appeal identified in the second draft notice of appeal disclosed a reasonable argument that there was appealable error.
CONCLUSION
The explanation for the lengthy delay is inadequate. The proposed appeal has insufficient merit to warrant the grant of an extension of time. The application for an extension of time to appeal is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate:
Dated: 29 July 2019
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