Sallehpour v Frontier Software Pty Ltd

FEDERAL COURT OF AUSTRALIA

Sallehpour v Frontier Software Pty Ltd [2005] FCA 1206

APPEAL – application for extension of time – notice of appeal wholly defective – applicant unable to demonstrate any arguable grounds – futility – application refused

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

MOHAMMADALI SALLEHPOUR v FRONTIER SOFTWARE PTY LTD

VID 277 of 2005

WEINBERG J
26 AUGUST 2005

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID277 OF 2005

BETWEEN:	MOHAMMADALI SALLEHPOUR APPLICANT
AND:	FRONTIER SOFTWARE PTY LTD RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	26 AUGUST 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s motion dated 18 August 2005, appended to his affidavit of that date, be dismissed.

2.The application for an extension of time within which to file and serve a notice of appeal be dismissed.

3.There be no order as to costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID277 OF 2005

BETWEEN:	MOHAMMADALI SALLEHPOUR APPLICANT
AND:	FRONTIER SOFTWARE PTY LTD RESPONDENT

JUDGE:	WEINBERG J
DATE:	26 AUGUST 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for leave to file and serve out of time a notice of appeal from a judgment of Marshall J given on 15 March 2005.  By that judgment, his Honour ordered that the present applicant’s application be dismissed, and that the matter of costs be dealt with at a later time, after receiving submissions from the parties. 

2. The application before Marshall J concerned an allegation by Mr Sallehpour that his employment had been terminated by the respondent for reasons that included:

   ·temporary absence from work because of illness within the meaning of the Workplace Relations Regulations 1996 (Cth);

   ·mental disability; and

   ·national extraction.

3. Mr Sallepour’s application to the Court was brought pursuant to s 170CP, for an order under s 170CR in respect of alleged contraventions of ss 170CK(2)(a) and (f) of the Workplace Relations Act 1996 (Cth) (“the Act”). It appears from his Honour’s reasons for judgment that he had considerable sympathy for Mr Sallehpour, and described the case “as a sad one”. He found that Mr Sallehpour suffered from a depressive illness that affected his ability to perform his duties in a timely manner, as well as his ability to respond to reasonable requests by the respondent to help him overcome, or at least manage, his illness, whilst preserving his employment. Ultimately, Mr Sallehpour lost his job. He claimed that this occurred for reasons proscribed by s 170CK of the Act.

4. Regrettably, Mr Sallehpour was not legally represented before his Honour.  Plainly, and not surprisingly, he had some difficulty in understanding some aspects of the proceeding. 

5. On 4 April 2005, which was within the twenty-one day period specified by the O 52 r 15 of the Federal Court Rules for filing a notice of appeal, he instead applied for an extension of time within which to…