Tulett v Yourtown Pty Ltd

Case [2024] FCA 513

FEDERAL COURT OF AUSTRALIA

Tulett v Yourtown Pty Ltd [2024] FCA 513

Appeal from: Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120
File number(s): SAD 35 of 2023
Judgment of: O'SULLIVAN J
Date of judgment: 17 May 2024
Catchwords:

PRACTICE AND PROCEDURE — application for extension of time to file an application for leave to appeal –— where applicant mistakes his belief that he had a right to appeal –— where extension of time to file application for leave to appeal does not cause prejudice to respondents — where respondents do not resist an extension of time being granted — leave for an extension of time within which the applicant may file an application for leave to appeal granted

PRACTICE AND PROCEDURE — application for leave to appeal from decision of Federal Circuit and Family Court — where primary judge ordered that the applicant’s application alleging various contraventions of the Fair Work Act 2009 (Cth) should be summarily dismissed — whether decision of primary judge is attended with sufficient doubt to warrant being reconsidered on appeal — whether the applicant would suffer substantial injustice if leave was refused — application for leave to appeal refused

Legislation:

Fair Work Act 2009 (Cth), ss 340, 351

Federal Circuit & Family Court of Australia Act 2021 (Cth), ss 143(1) & (3)

Federal Court of Australia Act 1976 (Cth), ss 24(1A), 31A

High Court Rules 2004 (Cth), O 26, r 18
Cases cited:

Abram v Bank of New Zealand [1996] FCA 635

Boensch v Somerville Legal [2021] FCAFC 79

Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66; (2008) 169 IR 236

Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713

Dietrich v The Queen [1992] HCA 57; 177 CLR 292

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479

Hamod v New South Wales [2011] NSWCA 375

House v The King [1936] HCA 40; (1936) 55 CLR 449

In Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

Lamont v Malishus Limited (No 2) [2022] FCA 237

Lenjimar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745

Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251

Mendonca v Legal Services Commissioner [2020] NSWCA 84

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1

Sekigawa v Minister for Immigration & Border Protection [2016] FCA 127

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Tomasevic v Travaglini [2007] VSC 337; 17 VR 100

Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Welsh v Digilin Pty Ltd [2008] FCAFC 149, (2008) 250 ALR 13
Division: Fair Work Division
Registry: South Australia
National Practice Area: Employment and Industrial Relations
Number…

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AGLC
Tulett v Yourtown Pty Ltd [2024] FCA 513
Case
[2024] FCA 513
Decision Date

CaseChat Overview and Summary

The case of Tulett v Yourtown Pty Ltd involved the applicant, Mr Tulett, seeking an extension of time to file an application for leave to appeal against a decision of the Federal Circuit and Family Court. The primary judge had ordered that Mr Tulett's application, which alleged various contraventions of the Fair Work Act 2009, should be summarily dismissed. The central legal issues for the court were whether the primary judge's decision was attended with sufficient doubt to warrant reconsideration on appeal, and whether the applicant would suffer substantial injustice if leave to appeal was refused. Additionally, the court considered whether to grant an extension of time for the filing of the application for leave to appeal.

The court found that the application for leave to appeal should be refused as the decision of the primary judge was not attended with sufficient doubt to warrant reconsideration. Furthermore, it was determined that Mr Tulett would not suffer substantial injustice if leave to appeal was refused. The court also considered the respondents' lack of prejudice and their non-resistance to the extension of time for filing the application for leave to appeal. Consequently, the court granted the extension of time for the applicant to file the application for leave to appeal.

In summary, the court granted the extension of time for the filing of the application for leave to appeal but refused the application for leave to appeal itself. The final orders were that the time within which the applicant could file the application for leave to appeal was extended to 3 June 2023, and the application for leave to appeal was refused.

Orders

Orders of the court

1. The time within which the applicant may file an application for leave to appeal is extended to 3 June 2023.

2. The application for leave to appeal is refused.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The primary judge noted that s 143 is in similar terms to s 31A of the Federal Court of Australia Act 1976 (Cth) which provides:31A Summary judgment(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is prosecuting the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.(4)This section does not limit any powers that the Court has apart from this section.(5)This section does not apply to criminal proceedings. It was in that context that the primary judge referred to Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, 131 [22] (French CJ and Gummow J) and their Honours observations that s 31A:22In the Federal Court and in the Court of Appeal of Queensland, the criterion of a “reasonable prospect” of success has been understood in analogous statutory settings to mean a “real” rather than “fanciful” prospect. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.(Citation omitted) The primary judge referred to the High Court’s clear warning that to order summary judgment, it must be exercised with exceptional caution and should never be exercised unless it is clear that there is no real question to be tried: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602, and the observations of Kirby J as to the principles applicable to summary judgment in Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251, 256 where his Honour was considering O 26, r 18 of the High Court Rules 2004 (Cth):1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes tum an apparently unpromising cause into a successful judgment.4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon’s statement of claim.6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.(Citations omitted)

Ratio Decidendi

Legal Principle Established

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