Penttila v Woolworths Limited - [2023] FCA 912

FEDERAL COURT OF AUSTRALIA
Penttila v Woolworths Limited [2023] FCA 912

Appeal from: Penttila v Woolworths Ltd [2022] FedCFamC2G 480

File number(s): QUD 294 of 2022

Judgment of: MEAGHER J

Date of judgment: 7 August 2023

Catchwords: PRACTICE AND PROCEDURE – Application for an extension of time and leave to appeal the Federal Circuit and Family Court of Australia (Division 2) – Extension of time granted – Whether any merit in draft grounds of appeal – Application for leave to appeal refused – Application dismissed

Legislation:
Evidence Act 1995 (Cth) ss 140, 183

Fair Work Act 2009 (Cth)

Federal Court of Australia Act (Cth) s 24

Federal Court Rules 2011 (Cth) rr 4.12, 35.13, 35.14, 39.32

Cases cited:
Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Aust) Pty Ltd (No 4) [2011] FCA 578; 194 FCR 479

Australian Securities and Investments Commission (ASIC) v Rich [2005] NSWSC 417; 216 ALR 320

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 174; 3 FCR 344

Lee v Lee [2019] HCA 28; 266 CLR 129

Penttila v Woolworths Ltd [2022] FedCFamC2G 480

Porter as former trustee of the estates of Ghasemi and Kakhsaz v Ghasemi [2021] FCAFC 144; 286 FCR 556

Division: Fair Work Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 35

Date of hearing: 25 May 2023

Counsel for the Appellant: The appellant appeared in-person

Counsel for the Respondent: Mr McKechnie

Solicitor for the Respondent: Minter Ellison

ORDERS

QUD 294 of 2022

BETWEEN:
RUSSELL PENTTILA

Appellant

AND:
WOOLWORTHS LIMITED ABN 88 000 014 675

Respondent

ORDER MADE BY:

MEAGHER J

DATE OF ORDER:

7 AUGUST 2023

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The appellant pay the costs of the respondent as agreed or assessed.

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

REASONS FOR JUDGMENT
MEAGHER J
INTRODUCTION

The appellant seeks an extension of time in which to seek leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) handed down on 29 June 2022, which dismissed two summary judgment applications and the substantive application brought by the appellant: Penttila v Woolworths Ltd [2022] FedCFamC2G 480. The substantive issue before the primary judge was whether the appellant was underpaid by the respondent throughout the duration of his employment.
The appellant was employed by the respondent on a part-time basis (Level 2 console operator) between 17 January 2014 - 30 November 2015 (First Employment Period), and on a full-time basis (Assistant Store Manager) from 30 November 2015 - 15 June 2017 (Second Employment Period). The appellant's employment was terminated from 15 June 2017, and he was paid four weeks' pay in lieu of notice and all accrued entitlements. On 5 February 2020, shortly after filing the application with the FCFCOA, the appellant was paid the…

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: [2023] FCA 912
Decision Date: 7 August 2023

CaseChat Overview and Summary

In the matter of Penttila v Woolworths Limited, the appellant sought an extension of time and leave to appeal a decision made by the Federal Circuit and Family Court of Australia (Division 2). The appellant's primary contention was dissatisfaction with the outcome of his case rather than any perceived procedural error by the primary judge. The court was tasked with determining whether the appellant's reasons for the delay were compelling enough to warrant an extension of time and whether the grounds of appeal had any merit.

The legal issues before the court involved assessing the appellant's justification for the delay in filing the appeal, as well as evaluating the substantive merit of the grounds of appeal. The court had to consider the appellant's self-represented status and his best efforts to argue his case, while also determining if there was any reasonable arguability in the grounds presented. The primary focus was on whether the appellant could demonstrate that the appeal had merit and if the delay in filing was justifiable.

The court found that, although there was no prejudice to the respondent by granting an extension of time, the appellant's reasons for the delay were compelling. However, the court was not convinced that any of the grounds of appeal had merit. The appellant had failed to establish that any of his grounds were reasonably arguable. Given these findings, the court granted the application for an extension of time but refused leave to appeal, ultimately dismissing the application. The appellant was also ordered to pay the respondent's costs.

The court's final orders were that the application be dismissed, and the appellant was to pay the respondent's costs as agreed or assessed, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The appellant pay the costs of the respondent as agreed or assessed.

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

The arguments in relation to procedural fairness can be boiled down to complaints that stem from the appellant's dissatisfaction with the outcome of his matter, rather than any appealable error made by the primary judge. CONCLUSION While there is no prejudice to the respondent in granting an extension of time, and I regard the appellant's reasons for delay compelling, I am not satisfied that there is any merit in his grounds of appeal. The appellant has failed to establish that any of his grounds are reasonably arguable. In saying that, I appreciate that the appellant was self-represented throughout the proceeding and made his best attempt to argue his case. Accordingly, the application for extension of time for leave to appeal is granted. Leave to appeal is refused, and the application is dismissed. The appellant must pay the respondent's costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Penttila v Woolworths Ltd [2022] FedCFamC2G 480
File number(s):	QUD 294 of 2022
Judgment of:	MEAGHER J
Date of judgment:	7 August 2023
Catchwords:	PRACTICE AND PROCEDURE – Application for an extension of time and leave to appeal the Federal Circuit and Family Court of Australia (Division 2) – Extension of time granted – Whether any merit in draft grounds of appeal – Application for leave to appeal refused – Application dismissed
Legislation:	Evidence Act 1995 (Cth) ss 140, 183 Fair Work Act 2009 (Cth) Federal Court of Australia Act (Cth) s 24 Federal Court Rules 2011 (Cth) rr 4.12, 35.13, 35.14, 39.32
Cases cited:	Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Aust) Pty Ltd (No 4) [2011] FCA 578; 194 FCR 479 Australian Securities and Investments Commission (ASIC) v Rich [2005] NSWSC 417; 216 ALR 320 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 174; 3 FCR 344 Lee v Lee [2019] HCA 28; 266 CLR 129 Penttila v Woolworths Ltd [2022] FedCFamC2G 480 Porter as former trustee of the estates of Ghasemi and Kakhsaz v Ghasemi [2021] FCAFC 144; 286 FCR 556
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	35
Date of hearing:	25 May 2023
Counsel for the Appellant:	The appellant appeared in-person
Counsel for the Respondent:	Mr McKechnie
Solicitor for the Respondent:	Minter Ellison

ORDER MADE BY:	MEAGHER J
DATE OF ORDER:	7 AUGUST 2023