Marks v Trebilcock

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FEDERAL COURT OF AUSTRALIA

Marks v Trebilcock [2021] FCA 536  

Appeal from: Application for an extension of time:  S.J. Coggins & S.L. Marks & Marks Family Trust & Stephen Coggins Family Trust t/a New Wave Constructions (SA) v Trebilock [2020] SAET 164
File number: SAD 178 of 2020
Judgment of: WHITE J
Date of judgment: 20 May 2021
Catchwords: INDUSTRIAL LAW – application for an extension of time in which to commence an appeal – applicant appeals from a decision of the South Australian Employment Tribunal – consideration of the prejudice to the parties – lack of full and frank explanation for a significant delay – application dismissed.  
Legislation:

Fair Work Act 2009 (Cth) ss 539, 545(3), 547, 565, 570

Federal Court Amendment (Court Administration and Other Measures) Rules 2019

Federal Court Rules 2011 (Cth) rr 1.39, 36.03

South Australian Employment Tribunal Act 2014 (SA) ss 67(3), 81(1), 86

Cases cited:

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Comcare v A’Hearn (1994) 45 FCR 441

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Garrett v Universal Holdings Pty Ltd [2007] FCA 626

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Minister v New Wave Aerospace [2020] SASC 37

Shahin Enterprises Pty Ltd v Mathew [2020] FCAFC 57; (2020) 274 FCR 557

SJ Coggins and SL Marks & Marks Family Trust & Stephen Coggins Family Trust t/as New Wave Constructions (SA) v Trebilcock [2019] SAET 183

S.J. Coggins & S.L. Marks & Marks Family Trust & Stephen Coggins Family Trust t/a New Wave Constructions (SA) v Trebilock [2020] SAET 164  
Division: Fair Work Division
Registry: South Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 73
Date of hearing: 22 April 2021
Counsel for the Applicant: Ms M Makris with Ms C Viergever
Solicitor for the Applicant: Johnson Lawyers
Counsel for the First Respondent: Mr S McDonald SC
Solicitor for the First Respondent: Camatta Lempens
Counsel for the Second, Third and Fourth Respondents: Ms C Viergever
Solicitor for the Second, Third and Fourth Respondents: Johnson Lawyers

ORDERS

SAD 178 of 2020
BETWEEN:

STEPHEN MARKS

Applicant
AND:

MARK TREBILCOCK

First Respondent

STEPHEN COGGINS
Second Respondent

THE MARKS FAMILY TRUST (and another named in the Schedule)
Third Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

20 MAY 2021

THE COURT ORDERS THAT:

1.The application for extension of time in which to commence an appeal is dismissed.

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


REASONS FOR JUDGMENT

WHITE J:

  1. By an application filed in the Court on 11 December 2020 and amended by leave on 23 April 2021, the applicant (Mr Marks) seeks an extension of time in which to commence an appeal against orders made on a wages claim by the South Australian Employment Tribunal (the SAET) on 22 June 2018.  The period of extension sought by Mr Marks is substantial, but that is…

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Details
Case
[2021] FCA 536
Decision Date

CaseChat Overview and Summary

Marks v Trebilcock is a case where the applicant, Mr Marks, sought an extension of time to appeal a decision made by the South Australian Employment Tribunal (SAET) on 22 June 2018, related to a wages claim. The claim was made by the first respondent and concerned unpaid wages, superannuation contributions, and other entitlements under the Joinery and Building Trades Award 2010. The SAET found in favour of the first respondent and ordered Mr Marks to pay various amounts, along with costs. Mr Marks applied to the Court on 11 December 2020, seeking an extension of time to appeal the SAET's decision. The Court had to determine whether the applicant's significant delay in filing the appeal and lack of a satisfactory explanation justified granting an extension.

The Court examined the circumstances of the delay and whether Mr Marks' experience with litigation and his unrepresented status factored into the decision. The Court found that Mr Marks had considerable experience in litigation, often as a self-represented litigant, and was familiar with procedural requirements. Despite his assertions that he did not fully appreciate he was out of time for lodging an appeal, the Court found these claims implausible. The Court also considered the potential prejudice to the first respondent if the extension was granted, which would have resulted in further delay and costs. Given the significant delay, lack of a satisfactory explanation, and the prejudice to the first respondent, the Court dismissed the application for an extension of time.

The Court concluded that Mr Marks' experience with litigation and his attempts to lodge an appeal previously indicated that he understood the procedural requirements. The Court found that Mr Marks' assertions about his understanding of the appeal process were inconsistent with his actions and the information provided. As a result, the Court dismissed the application for an extension of time, and no extension was granted. The Court's decision highlights the importance of providing a satisfactory explanation for significant delays in filing appeals and the potential consequences of such delays for the opposing party.

Orders

Orders of the court

1. The application for extension of time in which to commence an appeal is dismissed.

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

Background

Background to the litigation

By an application filed in the Court on 11 December 2020 and amended by leave on 23 April 2021, the applicant (Mr Marks) seeks an extension of time in which to commence an appeal against orders made on a wages claim by the South Australian Employment Tribunal (the SAET) on 22 June 2018. The period of extension sought by Mr Marks is substantial, but that is not the only unusual feature of the application.Background The first respondent commenced proceedings in the SAET on 29 September 2017 claiming amounts said to be due to him pursuant to the Joinery and Building Trades Award 2010 (the Award) made by the Fair Work Commission (the FWC) and the imposition of pecuniary penalties. By reason of ss 539 and 545(3) of the Fair Work Act 2009 (Cth) (the FW Act), the SAET had jurisdiction to hear and determine those claims. The Court has not been provided with a copy of the first respondent’s application in the SAET but it is evident that he asserted that he had been employed either by the partnership comprising Mr Marks, Mr Stephen Coggins, the Marks Family Trust and the Stephen Coggins Family Trust (which traded as New Wave Constructions (SA)), or by New Wave Group Pty Ltd, or by Mr Marks, or by Mr Stephen Coggins as individuals. The application was heard by Lieschke DP in the SAET on 21 and 22 June 2018. Mr Marks represented himself as well as the other respondents in the proceedings. At the conclusion of the hearing on 22 June 2018, Lieschke DP gave an ex tempore judgment and made orders as follows:1.The Applicant was employed at all material times by Stephen Marks in his personal capacity.2.I order Stephen Marks to pay to the Applicant within 21 days the following amounts:2.1Unpaid wages of $99,403, less income tax, and provision of a PAYG statement or other documentary evidence of the tax paid to the ATO.2.2Interest on unpaid wages of $17,892, in full.2.3Compensation of $39,221 for unpaid superannuation contributions ($33,238) and interest ($5,983), in full.2.4Unpaid accrued annual leave of $22,413, les (sic) income tax, and provision of a PAYG statement or other documentary evidence of the tax paid to the ATO.2.5Interest on unpaid leave of $2,017, in full.3.I order Stephen Marks to pay to the Applicant legal costs of $660, incurred by Mr Mark’s unreasonable failure to attend the hearing scheduled for 21 June 2018.4.I adjourn the issue of the claim for reimbursement of the value of the Applicant’s tools to be heard at the same time as the application for Pecuniary Penalties.5.I dismiss the remaining claims of the applicant. In summary, Lieschke DP upheld the first respondent’s claim that he had been an employee, found that his employer was Mr Marks in his personal capacity, made orders for the payment of wages and other entitlements, and adjourned to a further hearing the first respondent’s claims for the imposition of pecuniary penalties and for reimbursement of the value of certain tools. A transcript of Lieschke DP’s ex tempore reasons has not been provided to this Court.

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

I accept that, ordinarily, the fact that a litigant is unrepresented in the pursuit of legal proceedings will be a relevant matter in understanding the circumstances in which the matter came to be out of time and in determining whether the justice of the case makes the extension appropriate. The lack of familiarity of such a litigant with procedural requirements is one reason why that is so. The difficulty which Mr Marks had in providing documents in paper form for filing in this Court may be one manifestation of Mr Marks’ lack of understanding of procedures. Consideration Mr Marks describes himself as being, in effect, a commercial builder. However, he differs from many unrepresented litigants as it is evident that he has considerable experience in litigation, often as a self‑represented litigant. Mr Marks is also seemingly able to obtain legal representation in legal proceedings as and when it suits him. In the proceedings heard by Lieschke DP, Mr Marks had representation at one stage by Angas Lawyers. In the appeal in the SAET, he had representation from at least 6 July 2018 until the Full Bench delivered its judgment on 28 August 2019. In the proceedings commenced by the first respondent in the District Court in 2018, Mr Marks was represented by a different lawyer and in relation to the proceedings in the Federal Circuit Court in 2018 and 2019, Mr Marks had representation by a yet different lawyer. In relation to the proceedings in the District Court in 2020 and 2021, Mr Marks has been represented by his present solicitors. The first respondent’s solicitor also drew attention to other litigation in which Mr Marks has been involved and from which his involvement in yet further litigation can be discerned: The judgments record or indicate that Mr Marks represented a party in each of these proceedings other than Minister v New Wave Aerospace [2020] SASC 37. In these circumstances, I think it reasonable to conclude that Mr Marks had some familiarity with the way in which litigation is conducted and with the procedural requirements concerning the commencement of proceedings. His conduct in relation to the present appeal should be assessed in the light of that experience. I regard Mr Marks’ claim that “until recently” he had not fully appreciated or realised that he was out of time for lodging a notice of appeal to this Court as implausible and am not willing to accept it. Likewise, I regard his asserted belief that the time in which to bring an appeal did not commence to run until the matter at first instance had been completed in all respects to be implausible. As counsel for the first respondent noted, these assertions seem inconsistent with Mr Marks’ assertions that he had attempted to lodge a notice of appeal in the SAET on 28 June 2018 and with the instructions which he must have given to his solicitor in respect of the lodgement of the appeal in the SAET on 13 July 2018. Moreover, the evidence of the first respondent’s solicitor (which I accept) indicates that Lieschke DP told Mr Marks on 16 October 2020 that he was “out of time to appeal” and that, if he wished to appeal to this Court, he would need to file an application for an extension of time immediately.