D'Ortenzio, Angela Gabrielle v Telstra Corp Ltd [1998] FCA 452

FEDERAL COURT OF AUSTRALIA PRACTICE AND PROCEDURE - appeals to the Full Court - extent of the powers of a Single Judge - application by respondent to stay or dismiss an appeal.

APPEAL - appeals to the Full Court - extent of the powers of a Single Judge - application by respondent to stay or dismiss an appeal. Workplace Relations Act 1996 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 1979 (Cth) Order 20 r 2(1) Re Keeley; ex parte Nuchman Pty Ltd 52 ALR 666 referred to Kainhoffer v Director of Public Prosecutions (1994) 120 ALR 98 discussed Le Poidevin Industries Pty Ltd v Mid-North Animal & Plant Control Board (Judgment No 3122: delivered 13 November 1991) noted Wilson v Hollywood Toys (Australia) Pty Ltd (1996) 68 FCR 84 noted ANGELA GABRIELLE D'ORTENZIO v TELSTRA CORPORATION LIMITED NO SG 2 OF 1998 O'LOUGHLIN J ADELAIDE 1 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 2 of 1998

BETWEEN: ANGELA GABRIELLE D'ORTENZIO

AppELLANT

AND: TELSTRA CORPORATION LIMITED

Respondent

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 1 MAY 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: The notice of motion filed herein on behalf of Telstra Corporation Limited on 19 January 1998 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 2 of 1998

BETWEEN: ANGELA GABRIELLE D'ORTENZIO

AppELLANT

AND: TELSTRA CORPORATION LIMITED

Respondent

JUDGE: O'LOUGHLIN J

DATE: 1 MAY 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT The appellant, Ms Angela Gabrielle D'Ortenzio was, at one time, employed by the respondent, Telstra Corporation Ltd. That employment came to and end; Ms D'Ortenzio described it as a "termination" and in a hearing before a Judicial Registrar, successfully sought re-instatement. Telstra had argued that her employment had come to an end by virtue of "effluxion of time"; it appealed to this Court and was successful on the appeal which was heard by von Doussa J. Ms D'Ortenzio, who is not now represented by legal advisers, has purported to file notice of appeal to the Full Court. By notice of motion, Telstra has moved the court for an order that the purported notice of appeal be struck out. In order to appreciate the issues, it is necessary to recount the relevant history of Ms D'Ortenzio's work with Telstra. In a statement of agreed facts that was prepared at a time when Ms D'Ortenzio was legally represented, it is recorded that Ms D'Ortenzio commenced employment with Telstra in the "pay-by-phone" area on 13 May 1993. Her engagement was outlined in a letter headed "Advice of Period of Fixed-Term Employment". The fixed term for the period of employment, as stated in the letter, was from 13 May 1993 to 16 June of the same year. Subsequently, there were similar letters of employment for fixed periods of time throughout 1993 through to 1996. In early 1996, Ms D'Ortenzio applied for a position in a different section in Telstra called the "win-back program". She did that because she thought that her prospects of gaining permanent employment and longer hours of employment were better. In the first instance, she was successful in obtaining short-term employment in the "win-back program". She was then offered a full-time position for fixed-term employment by letter dated 15 January 1996. That term was to expire on 12 April 1996. She was successful in having further fixed terms granted to her, up to and including 1 November 1996. Her last period of employment, according to Telstra, was in respect of the period 28 September to 1 November 1996. That particular term was identified in Telstra's letter of 27 September 1996, when it wrote to Ms D'Ortenzio saying: "I am pleased to offer you an extension of your fixed-term employment with Telstra in the service provider service centre as an administrative officer grade 1 for a period of five weeks from Saturday, 28 September 1996 to Friday, 1 November 1996 inclusive." Ms D'Ortenzio took it upon herself to strike out the typewritten words "five weeks from Saturday, 28 September 1996 to Friday, 1 November 1996 inclusive" and inserted in its place, in her handwriting, the words and figures "12 months from 28 September 1996 to November 1997 with right to renewal." She then signed her name and posted back the letter to an officer of Telstra. Von Doussa J addressed the contents of that letter and made a finding that Telstra had never agreed to that change occurring in the letter. Ms D'Ortenzio ceased working at Telstra with effect as from early November 1996. The position, as she saw it, was muddied by Telstra forwarding to her some form of identification card in the following month of December 1996, expressed to be current for a nominated period of time. If what I have just said is an accurate summary of the factual circumstance then, of course, Telstra should have never forwarded any such identification card in those circumstances. Ms D'Ortenzio instituted proceedings in this court and sought reinstatement of her "terminated" employment. Those proceedings were heard before Judicial Registrar Farrell, who found in favour of Ms D'Ortenzio, effectively saying that the ongoing renewals of the periods of employment constituted permanent employment. It was from that decision that Telstra appealed. As part of the appeal process, von Doussa J apparently ordered a stay of proceedings which, on the one hand, denied reinstatement, but, on the other hand, required Telstra to pay Ms D'Ortenzio as if she were an ongoing employee of Telstra. That payment occurred in the latter part of 1997 even though at that time Ms D'Ortenzio was not required by Telstra to take up actual employment. Von Doussa J found against Ms D'Ortenzio on two bases; the first was that the employment that she enjoyed with Telstra was never, at any time, terminated. His Honour came to this conclusion because her employment was always for fixed-term periods; his Honour held therefore that she ceased to be employed by Telstra, not because Telstra terminated her employment but because her then current period of employment had expired: she left the employ of Telstra by virtue of effluxion of time, and not by termination of contract. Secondly, he relied upon the provisions of r 30 of the regulations made under the Workplace Relations Act 1996 for the purpose of identifying her as an employee contracted for a specific task or purpose and thus as not being one that was covered by the statutory protections. Ms D'Ortenzio thereafter filed the document styled "Notice of Appeal". Telstra's reaction was wholly predictable and wholly justifiable. I had said to Ms D'Ortenzio, during the course of directions hearings, and I am compelled to repeat, that the language of her document leaves much to be desired. It is very difficult to comprehend, from the words which she has used, the nature of the complaints that she is making. Ms D'Ortenzio was legally represented before von Doussa J, and at one stage in the appeal process, on one of the directions hearing, a legal practitioner did appear on her behalf. But she has told me from the bar table that she is unable to afford the costs of a solicitor. In circumstances such as these, the court does whatever it can to assist an unrepresented litigant. It will avoid, if it is possible, seeing an unrepresented litigant defeated on technicalities or on issues of strict law. Sometimes it is a case of trying to work upon the principle that justice and the merits rather than law should govern proceedings. But having said that, there is nevertheless a requirement, borne as much out of commonsense as out of the Rules of Court, that if a person comes to this court complaining about some issue it is incumbent on that person to state in clear, uncomplicated language, first of all, the nature of the complaint, secondly, the reasons for the complaint, and thirdly, the remedies which the complainant would ask the court to grant. Ms D'Ortenzio was given the opportunity by the Court - despite opposition from the representatives of Telstra - to re-draft her documents, and to re-present them in a form which would do her cause justice. I regret to say that she has not been successful. As an example of the difficulties which she faces and which I have faced in trying to comprehend the nature of her complaints, I read from one section of her affidavit of 20 March 1998. It is as follows: "Paragraph 5 and 6. If Telstra Corporation was not in full resentment by not, being put right by giving me my work instead of money, full salary weekly for six months from 30th of May to November 16 1997 section 170..CB. s for section 21. Breach of contract under section 170DG and section 170DF(e) inforced under section 170FA S21." I could not understand that passage, and I am grateful to Mr Roder, counsel for Telstra, who explained it to me. The explanation is that Ms D'Ortenzio would have the Court rely upon the fact that von Doussa J required Telstra to pay her full salary for a period of six months from 30 May to 16 November 1997. That period was a period subsequent to the decision of Judicial Registrar Farrell but before the decision of von Doussa J. Having had that passage identified, first as a ground of appeal, and secondly as a cause of complaint, I am compelled to say that it is without substance because events subsequent to the cessation of Ms D'Ortenzio's employment and events subsequent to the decision of Judicial Registrar Farrell play no part in determining what was the relationship between Ms D'Ortenzio and Telstra on the day when her employment ceased back in November 1996. I do not consider it necessary to go through the remaining contents of the amended notice of appeal nor the supporting affidavit of Ms D'Ortenzio, save to say this, that every consideration is to be given to an appellant to prosecute his or her appeal in the court. But having said that, there will be times when a judge can see that an appeal has no chance of success - and I am compelled to say that this is such a case. Initially I was of the opinion that, as a single judge, I had the power to order that Ms D'Ortenzio's appeal be dismissed and, in that belief, I made such an order after first giving ex temporare reasons for judgment. On reflection I began to question my jurisdiction and I invited Mr Roder, counsel for Telstra to address me on that issue. I am most grateful for the assistance that he has given the Court. I turn then to consider the question of jurisdiction. The Federal Court is a creature of statute; it was established in 1976 by the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). Part III is entitled "Jurisdiction of the Court" and Div 2 of that part is entitled "Appellate and related Jurisdiction". Section 24 is the first of the sections in Div 2; it delineates the types of appeals in respect of which the Court has appellate jurisdiction. Subsection 25(1) of the FCA Act then states that, subject to some exceptions some of which are of present concern: "The appellate jurisdiction of the Court shall, ... be exercised by a Full Court." The first of those exceptions appears in subs 25(2) which was originally in the following terms: "(2) Applications for leave or special leave to appeal to the Court from a judgment of another court may be heard and determined by a single Judge or by a Full Court and the Rules of Court may provide for enabling such applications to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing." The powers of a single judge were increased in 1984 when subs 25(2) of the FCA Act was amended to enable a single judge to hear also applications for an extension of time within which to institute a notice of appeal. In addition the power of a single judge to hear and determine applications for leave to appeal was broadened. Originally that power only related to applications with respect to "a judgment of another Court". In 1984 the words "from a judgment of another Court" were deleted. The 1984 amending Act was assented to on 25 June 1984. Three months earlier, in March 1984, Gibbs CJ had said in Re Keeley; ex parte Nuchman Pty Ltd 52 ALR 666 at 667 that the question whether a single judge of the Federal Court had power to give leave to file and serve a notice of appeal out of time was "undoubtedly a question on which opinions may differ". The 1984 amendment put that issue beyond doubt. The subsection was then further amended in 1990 to enable a single judge to hear and determine applications for leave to amend grounds of an appeal and applications to stay an order of a Full Court. As a result of the 1990 amendments, subs 25(2) of the FCA Act now reads as follows: "(2) Applications: (a) for leave or special leave to appeal to the Court; or (b) for an extension of time within which to institute an appeal to the Court; or (c) for leave to amend the grounds of an appeal to the Court; or (d) to stay an order of a Full Court; may be heard and determined by a single Judge or by a Full Court." The last occasion upon which s 25 of the FCA Act was amended was in 1994. Subsection 25(2B) was then inserted to give further powers to a single judge. That subsection provides as follows: "(2B) A single Judge or a Full Court may: (a) join or remove a party to an appeal to the Court; or (b) make an order by consent disposing of an appeal to the Court (including an order for costs); or (c) give directions about the conduct of an appeal to the Court, including directions about: (i) the use of written submissions; and (ii) limiting the time for oral argument." At first sight, it would appear that the powers of a single judge, with respect to appeals to the Full Court, are limited to those express provisions that are to be found in s 25 of the FCA Act. However, there have been occasions when judges of this court have made orders with respect of Full Court matters even though there is no reference to those matters in s 25. For example, in Kainhoffer v Director of Public Prosecutions (1994) 120 ALR 98, the substantive application was an appeal to the Full Court of the Federal Court from a decision of a State Supreme Court. A magistrate had confirmed that the appellant was eligible for surrender within subs 19(2) of the Extradition Act 1988 (Cth) and had ordered that she be committed to prison to await surrender. The Supreme Court confirmed the magistrate's order. In the Federal Court, the appellant filed a notice of motion seeking an order that she be granted bail under the provisions of subpar 21(6)(f)(iv) of the Extradition Act. So far as is relevant, that paragraph provided that "the Court to which the ... appeal is made may ... order the release on bail of the person ...." It was submitted on behalf of the Director of Public Prosecutions that the power to grant bail could not be exercised by a single judge - that it had to be exercised by a Full Court. That submission was based on the contents of subs 21(3) of the Extradition Act which provides for an appeal by a person to "the Full Court of the Federal Court". Spender J was of the opinion that the power to grant bail conferred by subpar 21(6)(f)(iv) was capable of exercise by a single judge. It would seem that his Honour came to that decision upon the premise that the issue of bail was not part of the appellate jurisdiction of the Court but rather, part of its original jurisdiction. Mr Roder also referred to an unreported decision of the Supreme Court of South Australia: Le Poidevin Industries Pty Ltd v Mid-North Animal & Plant Control Board (Judgment No 3122: delivered 13 November 1991). Although that case emanated from a different legislative regime, the views expressed by Olsson J are of some assistance to the arguments that were advanced on behalf of Telstra. His Honour said at p 3 of his judgment: "It is not the prerogative of a single judge of this Court, in effect, to circumvent or terminate the appellate process unless it appears, on the face of it, the purported appeal is so defective in form or substance that it must be struck out as either failing to invoke the jurisdiction of the Full Court to pass upon it or is otherwise clearly a patent abuse of process." Another example of a single judge exercising power in the apparent appellate process, and one that is of particular significance to this application is Wilson v Hollywood Toys (Australia) Pty Ltd (1996) 68 FCR 84. In that case, Olney J, in an ex tempore judgment, concluded that a single judge had power to strike out an appeal to the Full Court as being vexatious. In coming to that conclusion his Honour proceeded under the Federal Court Rules 1979 (Cth) ("the Rules"). As was the case in this present application, the contents of the notice of appeal were incomprehensible and the respondent to the appeal moved the Court on a notice of motion seeking an order that the appeal be dismissed as showing no arguable grounds of appeal and as being vexatious. Order 20 r 2(1) of the Rules is in the following terms: "2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding: (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court; the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding." Olney J was of the opinion that this provision of the Rules applies in any "proceeding" and, as "proceeding" is defined in s 4 of the FCA Act to include an appeal, that the rule therefore applied to appeals. His Honour went on to say: "The question is whether the term "Court" as used in O 20, r 2 in the case of an appeal includes a single judge. I am of the view that a single judge does have the necessary power to deal with the present application under O 20, r 2. I have reached this view because O 52, which deals specifically with the appellate jurisdiction of the Court, defines "Court" for the purposes of that Order as being the Full Court; O 52 makes no mention of a strike-out or dismissal procedure similar to O 20, r 2, and I am of the opinion that the net result of this is that the provisions of O 20, r 2, are intended to apply in the case of an appeal and the power may be exercised by a single judge." I am grateful to Mr Roder for drawing to my attention two matters of significance with respect to the decision in Wilson v Hollywood Toys. Mr Roder caused a search of the transcript of the proceedings to be conducted and, as a result, it transpires that the application to strike out the appeal was not contested and the provisions of ss 24 and 25 of the FCA Act were not drawn to his Honour' attention. Mr Roder submitted that a single judge, in dismissing a purported appeal to the Full Court, would not be engaging in the appellate process of the Court in those circumstances where the appellant had failed properly to invoke the appellate jurisdiction of the Court. If, as is the case here, the document that is called a "Notice of Appeal" is meaningless, then, so he submitted, it is not in fact or in law a "Notice of Appeal" and a single judge, exercising the original jurisdiction of the Court is empowered to so decree. As Mr Roder emphasised, the appellate jurisdiction of the Court, as set out in s 24 of the FCA Act is "to hear and determine" appeals. The object of s 25, as evidenced by the various amendments to it, is to pass over to a single judge matters that are incidental to appeal process proper. But if a document fails to attract the appeal process because of its fundamental inadequacy, then, so it was submitted, a single judge was entitled to act in the original jurisdiction of the Court and, in the appropriate case, identify a proceeding as frivolous or vexatious or an abuse of the process of the Court and deal with it under O 20 r 2(1). Although I am attracted to that argument, I remain concerned that a single judge is being invited either to stay or dismiss Ms D'Ortenzio's opportunity of approaching the Full Court. To stay her application so that she may get her papers in order may not be such a cause for concern but to dismiss her appeal summarily - may, in the absence of a specific power in s 25, encroach upon the powers of the Full Court. The question that must be decided is whether, in respect of an appeal or an application for leave to appeal to the Full Court, the role of a single judge is limited to those matters that are spelt out in the statute or whether the powers of a single judge are extended to cover matters that may be described as issues of original jurisdiction or, perhaps, to matters that may be described as ancillary to the express statutory powers. I regard this question as one of practical and increasing importance. The number of self represented litigants who are approaching the Full Court are increasing and if a single judge is empowered to deal with inadequate documents or deficiencies in documents by using the powers that are contained in O 20 r (2)(1), it would greatly assist the expeditious handling of the Court's business. I incline to the view that a single judge does not have the power to dismiss a notice of appeal and I arrive at that conclusion because of the absence of such a power in the express language of s 25 of the FCA Act. I express this view conscious of the contrary decisions of single judges of this Court but by adopting this stance I will afford the Full Court, should it think it appropriate in the circumstances of Ms D'Ortenzio's case, to express an authoritative view on this issue. Telstra's application is therefore dismissed. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin