STEPHANIE JOY EAST AS LITIGATION GUARDIAN FOR NOAH MARCUS EASTApplicantAND:GRAHAM DENIS FLETCHERRespondent
[2021] FedCFamC2G 54
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)East as Litigation Guardian for East v Fletcher [2021] FedCFamC2G 54
File number(s): BRG 816 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 16 September 2021 Catchwords: PRACTICE AND PROCEDURE – application to extend time for review of Registrar’s decision. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit Court Rules 2001 (Cth) rr 20.01(1)(b), 20.02(2)
Cases cited: Gallo v Dawson (1990) 93 ALR 479
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
OP & HM (2002) FamCA 454
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 16 June 2021 Date of hearing: 16 June 2021 Place: Brisbane The Applicant: In Person Solicitor for the Respondent: MPB Lawyers ORDERS
BRG 816 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEPHANIE JOY EAST AS LITIGATION GUARDIAN FOR NOAH MARCUS EAST
Applicant
AND: GRAHAM DENIS FLETCHER
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application filed on 2 March, 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
This is an application to review a decision of a Registrar that determined an application for relief under the Fair Work Act 2009 (Cth) in the Court’s small claims jurisdiction established under that Act.
On 25 November, 2020 a Registrar determined the application in favour of the applicant and a Registrar ordered that the respondent pay to the applicant the sum of $2,028.00 by way of compensation for unpaid wages within 90 days of the order. No order was made as to costs.
On 2 March, 2021 the respondent filed an application to review the Registrar’s decision.
By r.20.01(1)(b) of the Federal Circuit Court Rules 2001 (Cth) an application for review of the exercise of a power by a Registrar must be made within seven days of the exercise of that power. The court has power to extend the time prescribed in FCCR 20.01(1)(b) on any terms that the court thinks fit or with the consent of the parties to the proceedings: FCCR 20.02(2).
In his application for review the respondent seeks an extension of time within which to make his application for review.
Whilst the discretion to extend the time within which to permit an applicant to apply for a review of the exercise of a power by a Registrar is unfettered by anything in the rule conferring that discretion, it nonetheless must be exercised judicially. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 summarises the principles applicable to an application for an extension of time within which to make an application such as this. It has been broadly applied to a wide range of various applications. The matters relevant to the Court’s consideration of whether time should be extended are unconfined, although are usually said to include:
(a)the extent of the delay;
(b)whether there is a reasonable and adequate explanation for the delay;
(c)whether the substantive application is sufficiently arguable to support the application for an extension of time. The proposed review should have such prospects of success so as to not render the extension of time an exercise of futility. If a review application has no prospects of success, an extension of time, even for a short period, may be refused; and
(d)whether there is any prejudice to the respondent to the application for the extension.
In OP & HM (2002) FamCA 454, the Full Court of the Family Court held at paragraph 19 of the joint judgment that:
The principles to be applied in determining an application for extension of time are fairly well settled. Whilst there is a broad discretion, the fundamental issue is whether an extension of time will enable the court to do justice between the parties. This is normally shown by an applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise…
The applicant’s delay here is 97 days. It is a significant delay. It is many multiples of the period limited for the making of the review application. In his affidavit filed with his application for review, the respondent explains the delay in commencing the application as follows:
(a)When he received the Registrar’s judgment by email on 26 November, 2020 he contacted the Court asking for the transcript of the hearing. He was advised that the Court does not have the transcripts and that he would have to purchase them from the transcription company;
(b)He asked the “court registry” whether they would allow me to file an appeal by February 2021. (Quite properly in my view), the registry would not assist him and he was only given “form information” about where he could find further information and the forms on the Internet. The respondent says that he is 70 years of age and computer illiterate;
(c)“Covid-19 issues” also impacted on his case and he asked the Registrar to be understanding not just to his age but also to the “unusual circumstances of 2020”. The respondent alleges that he “was in lockdown for the greater part of 2020 as I am 70 years of age and my freedom of movement was restricted greatly”;
(d)He was unable to access his “files” which were critical to his case. He told the Registrar of that “fact on approximately 10 occasions and the presiding Registrar would not grant an adjournment”. He says that he was disadvantaged greatly due to circumstances beyond his control;
(e)On 12 February, 2021 he attended the Federal Circuit Court registry in Brisbane “trying to sort out what had to be done to obtain an extension and the transcript. “I couldn't work anything out what the counter staff were telling me they kept saying go online and I said is a computer in the registry and they said no. I was at a complete loss as to what to do as like I have said I am computer illiterate”;
(f)On 23 February, 2021 the respondent contacted Legal Aid Queensland and the first appointment he could be given was for some time in March, 2021; and
(g)Not willing to wait that long, the respondent contacted a private lawyer who assisted the respondent with drafting the application and the affidavit in support of the extension.
The respondent sought an extension of time to commence his review application until June, 2021. He asserts that he has an arguable case as he has since discovered evidence which was not available in the original trial that he only discovered in January, 2021 and which will decide the case in his favour.
In a subsequent affidavit filed by the respondent on 15 April, 2021 the respondent swears that after he contacted the registry and received no help on 26 November, 2020 he was “lost” and unable to proceed. He says he contacted a few law firms however none of them would act on a pro bono basis for him. He said he found a law firm in Tweed Heads who would assist with his application though he does not say when he consulted that firm. However, from the context of his affidavit it seems that he contacted the firm who prepared the documents for him after he made contact with Legal Aid Queensland on 23 February, 2021.
In his second affidavit, the respondent asserts that the Registrar erred at law by not allowing “a lot of what I believe is admissible evidence and vital to my case”. He swears that he has an arguable case and that when the evidence is “put before a court will be deciding factor in my favour”.
When the application for the extension of time came before me, the applicant’s litigation guardian appeared for him and the respondent appeared in person. The respondent made submissions in support of his application.
He addressed his complaints about the way in which the proceeding was conducted before the Registrar. He argued that despite him sending to the registry an affidavit with seven “attachments” that he wished to use for the trial, the Registrar did not receive that affidavit or the attachments because the affidavit had not been filed and the attachments had “gone missing”. He says that the way in which the Registrar dealt with the matter in his reasons for judgment was wrong and disingenuous. In his submissions to me, however, the respondent said that whilst he asserted that he had filed an affidavit and some attachments, the Registrar told him that there was none on the court file and perhaps they had been rejected by the registry because they were not in a form that was capable of being filed. To that suggestion the respondent said in submissions to me:
Well, yes, well, that’s correct. What Tanya Barry – which is who I marked it to the attention of – those attachments – she was saying, “Well, he sent them in after 5 o’clock, so I’m – I’m going to pull them out.” But that – that was kind of, you know, everything got a bit raggedy and this …
After making submissions about whether or not he filed an affidavit and some attachments the respondent complained in his submissions to me about having to pay a filing fee for filing his application for review. The respondent told me that he sent “a couple of curt letters” to staff in the registry and he did not think that served him “very well”. Whilst he had some documents that demonstrated payments to the applicant that he was able to put before the Registrar, he did not have available to him all of his documents that showed that he owed nothing to the applicant. He professed to now have available to him documents which showed the “whole story” which he was unable to locate prior to the hearing before the Registrar because they had been boxed up and he did not know where they were.
The respondent then went on to be critical of the Registrar for delivering his reasons for judgement and decision on 27 November, 2020 “when he knew very well I go away for a month at Christmas”. He was critical in his submissions to me that he was told he would have to pay a filing fee if he wished to review the Registrar’s decision. He submitted that the registry sent him the forms that he would need to file the review application and they also sent him a form that he could fill out if he was “destitute and couldn’t pay the 750”. The respondent explained in his submissions to me:
Now, that got me a little inflamed, because here we were again – he knew very well I go away for a month at Christmas. I have got a short time to appeal this, so I got in contact with him again and sent off a few letters. And they came back and said, “You’re going to have to pay $750 if you want an appeal or a review.” And they sent me the forms, very nice of them and they also sent me a form that I could fill out if I was destitute and couldn’t pay the 750.
Now, that got me a little worked up, so I started looking at everything and – and noticing that the reasons for judgment were totally off the plain, as I recall it, and so I was – went after the Auscript copies. So in contact with Auscript – this is during my appeal period and still trying to get out of the State and get down to Sydney – the – they wanted 300 to $450 for the first hour of the Auscript on the hearing, and 600 to 900 for the second hour. I didn’t even bother asking for the third hour and I needed seven hours, so that wasn’t going to get me anywhere.
I think I went back to the court asking them whether – what circumstances the court sometimes would draw on those – those Auscript tapes. So meanwhile – during that period – there were border issues, so this whole Sydney thing that I usually go away on became very iffy, because I was also travelling to Newcastle, and that was now a hot spot and central coast the same. I was going there and couldn’t go there and I did eventually – I did eventually get down the coast, but I didn’t go to any hot spots.
But the thing is, I wrote to the court – probably not a good idea from the fashion I did it – but it was only me and I – I said to them, “I’m having difficulty with this. When I get back, can I ask for time, or work out a situation where I can get something together to appeal this?” And at – and at that stage, you know, my businesses were ruined. I had run out of cash – liquid cash – and I couldn’t find $750 to – to fight a $2000 matter which I didn’t owe, I’m – I’m asserting.
So to wrap it up – in my hand here now – are four pages from – I mean, this case has been going on for a year, but if – if – if I had have been able to submit my evidence, this would have been over a long time ago. If it hadn’t have been messed with in the way it was, because I feel that there was a little bit of tinkering there.
I asked the respondent what he meant by the last remark set out above. He told me that he thought that he never received “a single bit of assistance or help” and that the applicant was “getting all the help”. He considered that the registry staff and the Registrar did not assist him at all whereas they were more than happy to assist the applicant. In fact, the respondent told me that he considered that the registry staff had done things deliberately to put obstacles in his way.
The respondent concluded by telling me that the case came down to a contest between the documents that have been presented to the Registrar by the applicant to verify his claim and the documents that the respondent had in his possession. He says that he was able to provide two of those documents to the Registrar at the hearing but the Registrar did not place any weight on them. He said that he now had further “weekly reports” that demonstrated the applicant’s claim was not sustainable. Of the two that he was able to give to the Registrar which he referred to as “document one and document three” they “would have stopped this case”. But as what subsequently occurred indicates, they did not stop the case and so did not have the value that the respondent considered that they had.
CONSIDERATION
The respondent’s affidavit material and his submissions to me demonstrate that he confused somewhat, the process upon which he was embarking. His submissions and his evidence talk about an appeal against the Registrar’s decision and his concern with various matters that occurred before the Registrar. However, an application to review a decision of the Registrar is not an appeal. Provided the application is regularly commenced, the matter proceeds de novo and generally speaking little or no reference is made to the Registrar’s decision or reasons therefore. It is not an appeal in any sense but rather a rehearing of the matter that had been dealt with by the Registrar.
However, having not commenced the review process within the time limited for that purpose, the applicant must now demonstrate that there is some prospect that a different result would be arrived at than that which was ordered by the Registrar.
I am not satisfied about the applicant’s explanation for the delay in commencing his review application. His own evidence makes it clear that he knew that there was a time limit and that it was very short. He sought advice from the registry and was given advice about the forms that he needed to use and how he could go about filing his application for review. The respondent seems to have ignored that advice although on his own evidence he had sufficient time to undertake the matters he told me about and which are set out in the extract above at [15]. He then seems to have put off a consideration of the application for review until February, 2021. He says that it was necessary for him to travel interstate for the purposes of Christmas, but the Registrar’s judgment was delivered on 27 November, 2020 some weeks before Christmas. In any event, given that the relevant documents could be filed electronically, there is no reason to think that could not have been done from wherever it was that the respondent went for Christmas. He has had the assistance of others to lodge documents electronically in the past.
The Covid-19 pandemic does not explain the applicant’s delay. Apart from some general references to the “Covid-19 situation” there was no real attempt by the respondent to establish that there was any particular impact upon him that was relevant to the question of delay in his failure to meet the seven day time limit for the filing of the review application.
The delay in this case is significant and the delay has accrued notwithstanding that the respondent had been advised of the time limit before it expired. His explanations for not meeting the time limit and his subsequent explanations concerning the length of time it took for him to commence this application are unpersuasive and my impression is that they are contrived.
Moreover, I am not satisfied that there is likely to be any different result in the case should the respondent be given the extension of time for which he applies. Critically, the respondent suggested to me that two of the documents that were received into evidence by the Registrar were the “end of the case” in so far as the applicant’s claims were concerned but as the Registrar’s determination makes plain, that was not so. There was nothing put into evidence before me that demonstrated that that there is a substantial issue to be raised on the rehearing.
If the extension of time is granted, the applicant will suffer prejudice in that he will be put to the trouble and expense of a further hearing and he will be delayed in his attempts to obtain satisfaction of the order made by the Registrar. If the extension of time is refused, the respondent will suffer prejudice in the sense that he will not be able to agitate his review application. I take those matters into account.
In Gallo v Dawson (1990) 93 ALR 479 at 480, McHugh J explained that where a rule of court provides a discretion to extend time, such extension is (citations omitted):
…not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties...
This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time…
Having regard to all of those matters, I do not consider that to do justice between the parties it is necessary for there to be an extension of time within which the respondent might commence a review application against the decision of the Registrar made on 27 November, 2020.
The application filed on 2 March, 2021 is therefore dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 16 September, 2021. Associate:
Dated: 16 September 2021
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