Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services
[2024] FCA 389
•19 April 2024
FEDERAL COURT OF AUSTRALIA
Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services [2024] FCA 389
Appeal from: Application for extension of time: Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services [2023] FedCFamC2G 616
Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services (No 2) [2023] FedCFamC2G 849
File number(s): TAD 28 of 2023 Judgment of: MCELWAINE J Date of judgment: 19 April 2024 Catchwords: PRACTICE AND PROCEDURE – application for extension of time for cross-appeal – where improper purpose and abuse of process – application dismissed
PRACTICE AND PROCEDURE – application for stay of execution of orders of primary judge – where orders required payment of compensation and pecuniary penalties – where payments made pursuant to those orders – application dismissed
Legislation: Federal Court Rules 2011 (Cth) r 36.23 Cases cited: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 27 Division: Fair Work Division Registry: Tasmania National Practice Area: Employment and Industrial Relations Number of paragraphs: 13 Date of last submissions: 3 April 2024 (Appellant)
7 April 2024 (Respondent)Date of hearing: Determined on the Papers Counsel for the Appellant: The Appellant appeared in person. Counsel for the Respondents: Mr M Irfan appeared on behalf of the Respondents. ORDERS
TAD 28 of 2023 BETWEEN: FATIMA SHOAIB SIDDIQUI
Appellant
AND: KARL THOMAS & M. IRFAN PTY LTD TRADING AS MOWBRAY PHYSIOTHERAPY
First Respondent
MUHAMMAD IRFAN
Second Respondent
ORDER MADE BY:
MCELWAINE J
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS THAT:
1.The respondents’ application for an extension of time to file a cross-appeal is dismissed.
2.The respondents’ application for a stay of execution of the orders made in proceeding LNG 68 of 2021 is dismissed.
3.The appeal be otherwise referred to a registrar for case management.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCELWAINE J:
This application for leave to bring a cross-appeal out of time must fail. That is so because of the improper purpose that lurks behind it. The respondents’ appeal to the exercise of my discretion is futile. The discretion does not exist to facilitate an abuse of process.
Following a protracted liability hearing, Judge Taglieri of the Federal Circuit and Family Court of Australia (FCFCOA) for reasons published and orders made on 17 July 2023, upheld a small number of the appellant’s claims pursuant to the Fair Work Act 2009 (Cth) (FW Act), granted declaratory relief that the respondents had contravened the appellant’s Award entitlements to be paid overtime, failed to make available copies of the Health Professionals and Support Services Award 2020 and the National Employment Standards to the appellant in breach of the Award, failed to provide a copy of the Fair Work Information Statement in breach of s 125 of the FW Act and failed to comply with various regulatory provisions to provide to the appellant her employee records upon request and to keep employee records to the required standard: Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services [2023] FedCFamC2G 616.
That hearing occupied her Honour, and the resources of the parties for three days. Having done so, her Honour adjourned the matter for further submissions about compensation and pecuniary penalties. Her Honour considered the written submissions of the parties and ultimately determined that the respondents pay to the appellant $4,376.30 as compensation for unpaid overtime, and pecuniary penalties of $8,000 to the Commonwealth and $2,000 to the appellant: Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services (No 2) [2023] FedCFamC2G 849.
The parties had the benefit of legal representation before the FCFCOA. Each is now self-represented. The appellant lodged a notice of appeal to this Court against all the orders made in the FCFCOA on 20 October 2023 (no one seems to have noticed until now that the appeal against the orders of 17 July 2023 was filed out of time. In any event, that is not presently before me). There are 15 appeal grounds in all. The respondents had 21 days from the service of the notice of appeal to cross-appeal. They did not. On 5 January 2024, and without seeking leave to act on behalf of a corporation, the second respondent Mr Irfan filed an application for an extension of time to file the notice of cross-appeal pursuant to r 36.23 of the Federal Court Rules 2011 (Cth). The appellant opposes the application.
Mr Irfan relies on two affidavits in support of the application. He does not give a very satisfactory explanation for the delay, and in part his affidavits are argumentative. What emerges is that he extends no goodwill to the appellant. At the first case management hearing on 8 February 2024, it was accepted by the appellant and Mr Irfan that the most efficient mechanism to deal with the application was to determine it on the papers, having afforded an opportunity to the parties to file and serve any further affidavit material in support of or in opposition to the application, together with written submissions. That material has been filed and considered.
It is not necessary for me to essay the procedural history, the merit of any of the separate 42 points that the respondents seek to agitate in their draft notice of cross-appeal or whether there is an adequate and satisfactory explanation for the delay. The exercise of my discretion to refuse the application turns upon a more fundamental consideration.
Mr Irfan in his affidavit made on 19 December 2023 candidly, if I may say so somewhat remarkably, reveals the real purpose behind the intention of the respondents to prosecute the cross-appeal if leave is granted. Although his language is expressed somewhat colourfully, I set out the following paragraphs from the affidavit to explain to Mr Irfan why it would not be appropriate to grant the relief that he seeks. Thus:
16.Moreover, part of the decision detriment the respondent serves as an impetus for prospective claimants to reconstruct, base their assertions on inaccurately fabricated evidence, and retroactively produce records that fail to meet the requisite ‘standard of proof.’ Such litigants may excessively lean on the reverse onus provision. The primary judgment could be cite/invoked as a precedent for their spurious claims.
17.The applicant exhibited vexatious conduct throughout the litigation process., opting to prolong this matter with the evident intent of burdening the legal system and taxpayers. The trial judge duly recognized this behaviour. Consequently, the motivation behind the cross-appeal in this case extends beyond the personal interests, encompassing broader public interest. The objective of this cross-appeal is to serve as a deterrent to prospective applicants who may cite this case, rely on reverse onus provision without the standard of proof, seek to exploit the legal system based on prior successes derived from the reliance on falsely generated records.
18.Exceptional circumstances, including financial constraints, lack of awareness regarding self-representation, researching authorities similar to this case, changes in the legal representation, reviewing large material in the court book, subpoena material, researching the legal merit/demerit and the serious health issues of my father, prevented the timely filing of the cross-appeal
19.The circumstances outlined in paragraphs 14, 15, 16, 17, and 18 of this affidavit have compelled me to initiate a cross-appeal, driven by a broader public interest imperative and the imperative to safeguard the legal system rooted in the principles of justice.
20.I firmly believe that denying an extension would result in substantive injustice to myself as a defendant and entire legal system here in Australia due to the decision, which I intend to address in the cross-appeal.
This Court resolves matters arising under laws made by Parliament to settle controversies and vindicate rights, operating as an essential component of Australia’s representative democracy pursuant to the Constitution. It quells controversies by making findings of fact and applying thereto principles of law, either pursuant to statute or the common law. This Court’s jurisdiction is statutory and although it does not have inherent jurisdiction, it is well-established that it has and may exercise incidental powers to prevent the abuse of its processes. The categories of abuse of process are not closed. Often it is easier to spot conduct that is an abuse of process than to describe why it is of that character. No such difficulty arises in the present case. Justice French once remarked that the “possible varieties of abuse of process are only limited by human ingenuity”: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 and continued:
Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes.
Although concerned with an application to dismiss a proceeding, that statement of principle holds true in this case. This Court does not hear cases where the purpose of one party to the proceeding is to serve a so-called broader public interest by agitating a cross-appeal to achieve a result that amounts to a deterrent to the appellant, or to litigants more generally, from bringing cases pursuant to the FW Act that a respondent asserts is meritless. Conduct designed to vex an appellant in that way is plainly an abuse of process. Further, having openly disclosed that purpose, it would simply be a waste of the resources of this Court to permit the respondents to agitate the grounds of cross-appeal, whether or not there is any individual merit to those grounds.
For these reasons, I refuse the application for leave to file the putative cross-appeal out of time.
Which brings me to another matter. The respondents made an informal application by written correspondence to chambers on 7 February 2024 for “a stay of execution” of the orders made in the FCFCOA. The application was supported by the affidavit of Mr Irfan of 29 February 2024. The stay concerns the monetary sums that the respondents were ordered to pay by way of compensation and pecuniary penalties. The amounts were paid in October and November 2023. Having complied with the orders, there is nothing that remains to be stayed.
I order that the respondents’ application for an extension of time to bring a cross-appeal filed on 5 January 2024 is dismissed.
The appellant’s appeal remains docketed to me for determination. As the appellant and respondents are litigants in person, I consider it appropriate to refer this matter to a registrar of the Court for case management in order to prepare the appeal for final hearing before me.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. Associate:
Dated: 19 April 2024
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