Odyssey Trading Pty Ltd v Wang
[2021] FCA 1171
•28 September 2021
FEDERAL COURT OF AUSTRALIA
Odyssey Trading Pty Ltd v Wang [2021] FCA 1171
File number(s): VID 34 of 2021 Judgment of: O'CALLAGHAN J Date of judgment: 28 September 2021 Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – application refused Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 12 Date of last submission/s: 10 September 2021 Date of hearing: Determined on the papers Counsel for the Applicant: Mr JG Levine Solicitor for the Applicant: Maciel Pizzorno & Co Solicitor for the Respondent: Mr K Esser of Esser Legal ORDERS
VID 34 of 2021 BETWEEN: ODYSSEY TRADING PTY LTD
ApplicantAND: JIMEI WANG
Respondent
ORDER MADE BY:
O'CALLAGHAN J
DATE OF ORDER:
28 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application for extension of time and leave to appeal is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
This is an application for extension of time and leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 15 December 2020, granting leave for the applicant below (Ms Wang) to file her further amended statement of claim dated 11 December 2020, after it had earlier been struck out. Ms Wang’s claim is essentially a claim for underpayment of wages and other employment related entitlements in a series of contractual arrangements between the parties.
The application was filed on 29 January 2021 and accepted on 1 February 2021. It contains the following purported grounds:
1.The Appellant will be prejudiced in the conduct of the trial because the Further Amended Statement of Claim dated 11 December 2020 contains no particulars of the substance of the claim.
2.The Respondent and their legal representatives have in communicating with chambers given rise to a reasonable apprehension that they have access to the Primary Judge which the Applicant and their legal representatives lack.
3.The Primary Judge has permitted a reasonable apprehension of bias to arise.
4.The Appellant will be denied natural justice without particulars of the Further Amended Statement of Claim dated 11 December 2020[.]
5.Further and better particulars of the Grounds of the Application are contained in the draft proposed notice of appeal.
On 27 August 2021, the solicitor for Ms Wang sent an email to the Registry, in substance asking when the application would be determined, and submitting that the grounds for the application had been overtaken by events because Ms Wang has filed her affidavit evidence. The Registry was also informed that the Circuit Court judge will hear the trial commencing on 3 November 2021.
On 31 August 2021, in response to the email from the solicitor for Ms Wang, the solicitor for the respondent below (Odyssey Trading) asked for “urgent directions”.
On 1 September 2021, my associate sent the following email to the parties’ practitioners:
Dear Practitioners
I refer to Mr Angelatos’ email below.
His Honour directs that the applicant, Odyssey Trading Pty Ltd, file and serve any written submission on which it wishes to rely by 4pm on 7 September 2021. That submission should include, without limiting the matters relied on, any submission that the company wishes to put in relation to the question of whether grounds 1, 4 and 5 of the application for extension of time and leave to appeal dated 1 February 2021 have been rendered moot, in any event, by the provision below of witness statements.
As to the bias grounds, the submission should also say whether the grounds are still pressed and, if so, why.
Mr Esser’s client should respond by 4pm on 10 September 2021.
Subject to any further order, his Honour will determine any remaining controversy on the papers.
In response to that direction, Odyssey Trading filed a three-page submission, which said the following:
(a)grounds 1-4 of the application for extension of time and leave to appeal are pressed;
(b)paragraphs 11 and 12 of Mr Angelatos’ affidavit dated 25 January 2021, filed in support of the application, are no longer being relied on; and
(c)the affidavit dated 26 June 2021 that has been filed below, sworn by Ms Wang and annexing a spreadsheet about hours worked and quantum of payments said to be due and payable, is illegible and does not quantify the alleged amount of underpayments or contain proper particulars of the quantum claimed.
As best I understand it, the point made in Odyssey Trading’s written submission is that “the basis of the application” is that the further amended statement of claim filed below and dated 11 December 2020 is insufficiently particularised.
Ms Wang’s solicitors filed submissions, although for some reason, they were filed in the Federal Circuit Court proceeding, and not in this court. Those submissions, unsurprisingly, urge the court to dismiss the application.
The complaint that is made in the submission filed on behalf of Odyssey Trading is, self‑evidently, a complaint that must be ventilated before the learned judge who will hear the proceeding. The application was misconceived from the outset, but, in any event, the basis for it has been overtaken by the fact that Ms Wang has now filed the affidavit which will inform the basis of her claim. If there are inadequacies with it, including questions of whether any part of it is illegible, then such matters must be raised before the judge below.
It follows that grounds 1 and 4 of the application are misconceived.
As to grounds 2 and 3, which concern alleged “bias” by the judge below, Odyssey Trading was directed to file any submissions in support of those grounds, and did not do so. Despite the assertion in Odyssey Trading’s written submission that grounds 2 and 3 are “pressed”, in circumstances where nothing was said in support of them, I reject them.
Accordingly, the application for extension of time and leave to appeal dated 29 January 2021 is refused.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate:
Dated: 28 September 2021
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