FEDERAL COURT OF AUSTRALIA Willis v Capital Radiology Pty Ltd [2015] FCA 1199 Citation: Willis v Capital Radiology Pty Ltd [2015] FCA 1199 Appeal from: Application for extension of time and leave to appeal: James Sydney Willis v Capital Radiology Pty Ltd [2015] FCCA 2475 Parties: JAMES SYDNEY WILLIS v CAPITAL RADIOLOGY PTY LTD File number: VID 603 of 2015 Judge: PAGONE J Date of judgment: 6 November 2015 Catchwords: INDUSTRIAL LAW – workplace bullying – claim before Fair Work Commission – adverse action – unfair dismissal – exercise of workplace right – whether substance to application – whether adequate reason for dismissal from employment – whether unreasonable conduct of applicant caused respondent to incur costs PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – considerations relevant to determining whether to grant extension of time – considerations relevant to determining whether to grant leave to appeal – whether proposed grounds of appeal lack merit – whether adequate explanation provided for delay in bringing application Legislation: Fair Work Act 2009 (Cth) ss 340, 570(2)(b) Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) rr 35.13, 35.14 Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dobson v Australian Postal Corporation [2013] FCA 320 Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 Singh v Minister for Immigration and Border Protection [2015] FCA 483 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210 Zheng v Minister for Immigration and Border Protection [2015] FCA 989 Date of hearing: 6 November 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms C Symons Solicitor for the Respondent: SIAG Legal Pty Ltd IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 603 of 2015 BETWEEN: JAMES SYDNEY WILLIS Applicant AND: CAPITAL RADIOLOGY PTY LTD Respondent JUDGE: PAGONE J DATE OF ORDER: 6 NOVEMBER 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY fair work DIVISION VID 603 of 2015 BETWEEN: JAMES SYDNEY WILLIS Applicant AND: CAPITAL RADIOLOGY PTY LTD Respondent JUDGE: PAGONE J DATE: 6 NOVEMBER 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT (Revised from transcript) 1 This is an application for an extension of time and leave to appeal from a judgment of Judge Riley of the Federal Circuit Court of Australia delivered on 4 September 2015. Judge Riley dismissed the applicant's application for reinstatement of a proceeding before the Federal Circuit Court, which had been dismissed on 7 July 2015 for the applicant's non-appearance. The applicant's application to this Court for an extension of time and leave to appeal was filed on 25 September 2015. Rule 35.13 of the Federal Court Rules 2011 (Cth) requires an application for leave to appeal to be filed within 14 days of the date on which the judgment from which leave to appeal is sought was delivered, which in this case would have been 18 September 2015. An application to this Court was filed on 25 September 2015 and, therefore, it was necessary for the applicant to obtain an extension of time in which to seek leave to appeal under r 35.14. He also requires leave to appeal from the judgment of the Federal Circuit Court dismissing his application for reinstatement, because that judgment was interlocutory in nature, according to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 2 The matters ordinarily relevant to determining whether to grant an extension of time include the length of the delay, the adequacy of any explanation offered for the delay, whether the respondent would be prejudiced by the grant of an extension of time, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210, [16]; Zheng v Minister for Immigration and Border Protection [2015] FCA 989, [15]. An extension of time, even for a few days, should be refused if there is no merit in the proposed appeal: SZOZG v Minister for Immigration and Citizenship [2011] FCA 756, [24]; Singh v Minister for Immigration and Border Protection [2015] FCA 483, [23]. In determining whether or not to grant leave to appeal (here, if an extension of time were granted), the relevant considerations are whether the decision from which leave to appeal is sought is attended with sufficient doubt to warrant its reconsideration, and whether substantial injustice would result if leave were refused supposing the original decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9. An application for leave to appeal may be refused where granting leave would serve no useful purpose, such as where the proposed appeal has no merit: Duncan v Secretary, Department of Family and Community Services [2007] FCA 507, [18]. 3 The applicant's draft notice of appeal dated 25 September 2015 has the following under the heading 'Grounds of appeal': 1. Made a finding of fact or facts on an important issue which cannot be supported by the evidence. 2. Reasons not given for awarding costs against Appellant. His application for an extension of time and leave to appeal, also dated 25 September 2015, sets out the grounds of the application in the same terms as his proposed grounds of appeal. The applicant has also filed an affidavit dated 25 September 2015 which says only the following: I am applying for an extension of time because all legal professionals I have consulted have not advised me that the time limit for an appeal to an interlocutory matter is fourteen days. The applicant has not filed any other materials in support of his application for an extension of time and leave to appeal. Today at the hearing, the applicant repeated the statement that he had not been informed by any of those who had advised him that the time period for lodging an appeal was 14 days and not 28 days. He has in part supplemented his reasons for the application by having handed up to the court a copy of the reasons for judgment of Judge Riley, with his annotations throughout that copy of her Honour's reasons. 4 The respondent relies upon written submissions dated 4 November 2015 and an affidavit affirmed on 4 November 2015 by Alexandra Elizabeth Klimovics, a senior lawyer employed by the respondent's solicitors, which annexes documents relevant to the proceeding before the Federal Circuit Court. The respondent's main contentions in opposition to the application are that the applicant's explanation for his delay in seeking leave to appeal against the judgment of the Federal Circuit Court is inadequate (namely, that he had not been advised by any legal practitioners whom he had consulted that the time limit for filing an application for leave to appeal was 14 days), and that the applicant's proposed grounds of appeal lack merit such that leave to appeal should not be granted. The respondent accepts that the delay in seeking leave to appeal is not long. 5 The applicant's first proposed ground of appeal is that the Federal Circuit Court "made a finding of fact or facts on an important issue which cannot be supported by the evidence". The ground of appeal is not particularised, although, as I have said, the applicant at the hearing today handed up to the court a copy of her Honour's published reasons for judgment on which he has made handwritten comments. There is some underlining of various passages and some comments that he has written throughout the document. I have read those annotations and have asked the applicant for any submissions that he wished to make about how the annotations show error of a kind relevant to the issues before me, and the applicant has attempted to do so. 6 In my view, the material, even supplemented with the document handed up by the applicant, does not establish error of the kind that would justify a meritorious appeal. Furthermore, the grounds do not engage with the reasons given by Judge Riley for dismissing the applicant's application for reinstatement. Her Honour dismissed the application primarily for the reason that the applicant's substantive claim did not enjoy a reasonable prospect of success. The applicant's substantive claim was that the respondent had breached s 340 of the Fair Work Act 2009 (Cth) by taking adverse action against him for exercising a workplace right, being his right to complain to the Fair Work Commission about alleged workplace bullying. The adverse action about which the applicant complained was that the respondent had advised the applicant that his employment was suspended in January 2015 and had advised the applicant on 28 January 2015 that it would make a decision with respect to his ongoing employment on 4 February 2015. Her Honour found, however, that the respondent had a plausible reason for dismissing the applicant, which was that the relationship between the applicant and certain employees of the respondent had become unsalvageable. Her Honour referred, in particular, to statements made by the applicant in a letter to the respondent sent on 15 January 2015, in which the applicant demanded that the respondent terminate the employment of two employees, whom the applicant claimed had bullied him, in return for withdrawing his complaint to the Fair Work Commission. The letter was reproduced in full at [26] of her Honour's reasons for judgment and contains strong and inflammatory statements in relation to the other employees. 7 The annotated version of that part of her Honour's judgment contained the following annotations by the applicant. The first was in relation to her Honour's reference at [26] to an interim hearing before the Fair Work Commission on 19 December 2014, at which the Commissioner had stated that he was not satisfied at that stage that the applicant had been bullied or that there was a risk of him being bullied. The annotation said, "The Commissioner was wrong!". The second annotation, in relation to the letter sent by the applicant on 15 January 2015, was: This was sent in an effort to bring lengthy proceedings to an end and to save the company's reputation – as stated. Instead, other aspects of it have been highlighted for the respondents' own particular and obvious reasons. Towards the end of [26], the applicant wrote in respect of a passage of his letter consisting of four dot points: Yes, of course, why not considering what they have done in driving me to consider suicide, as their actions were added to those of my previous employer, Coal Services Health. I understand from these observations that the applicant has a different view about the facts from the facts found by her Honour, but the issue is whether the findings were open to her Honour on the evidence before her. What her Honour found appears particularly at [32]-[34], which say: 32. The documentary evidence shows that the disciplinary process in this case began before the applicant filed his complaint with the FWC which he says is the reason for the adverse action being taken against him. The documentary evidence also shows that the reason given by the respondent for the adverse action, namely the unsalvageable employment relationship, was more than plausible, given that the applicant had said that he required the employment of Ms Carroll and Ms Gibson to be terminated in exchange for him withdrawing his bullying claim. That was an ultimatum that, in the context of this case, seems to have been a highly probable reason for the termination of the applicant's employment. 33. I am not persuaded that, given the history of this matter, the applicant does have a reasonable prospect of success in the substantive application. His claim that he was suspended in January 2015 because of his application to the FWC on 11 September 2014 does not take account of the email that he sent on 9 January 2015, which was, on any view, inflammatory and does not take account of the fact that a disciplinary process had already begun with the letter of 4 September 2014. That was a week before the application to the FWC was filed. It seems to me that even taking into account the reverse onus of proof, there is very little prospect of the applicant succeeding in the substantive application. 34. I accept that the applicant would be prejudiced if the proceeding were not reinstated. However, I also accept that the respondent would be prejudiced if the proceeding were reinstated. This has been quite a long drawn-out matter. From the respondent's point of view, it has incurred cost, and there has no doubt been stress and strain to the employees who would be required to give evidence if this matter did proceed to a final hearing. It does not seem to me that the applicant gave adequate recognition to the stress that the respondent's employees might face when he said in his affidavit that there would be no prejudice to the respondent if the proceeding were reinstated. It is clear from the facts in those paragraphs that it was open to her Honour to conclude that the breakdown in the relationship between the applicant and the employees of the respondent, as evidenced in the letter sent by the applicant to the respondent on 15 January 2015, was the reason for the respondent's action in relation to the applicant's employment. The applicant's annotations do not reveal error by her Honour, or lead me to conclude that any error was made by her Honour. Indeed, if anything, they reinforce her Honour's conclusion. 8 The applicant's second proposed ground of appeal is that the Federal Circuit Court did not provide reasons for awarding costs against him. The Federal Circuit Court ordered that the applicant pay the respondent's costs of the application for reinstatement on 4 September 2015 pursuant to s 570(2)(b) of the Fair Work Act 2009 (Cth). That section relevantly provides that a party to a proceeding in a court in relation to a matter arising under the Fair Work Act 2009 (Cth) may be ordered to pay another party's costs if the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs. Judge Riley did not publish reasons for making that order for costs. However, it appears from the transcript of the hearing before the Federal Circuit Court on 4 September 2015, which was annexed to the affidavit of Ms Klimovics, that her Honour gave oral reasons for making that order. The Federal Circuit Court was not required to publish a written version of those reasons: see Khondoker v Minister for Immigration and Citizenship [2012] FCA 654, [56]; Dobson v Australian Postal Corporation [2013] FCA 320, [17]. 9 In any event, it was open to her Honour to order costs against the appellant, as it is apparent from her Honour's reasons for judgment that the applicant's unreasonable acts caused the respondent to incur costs, and that her Honour reached that conclusion on the evidence before her. The applicant applied to the Federal Circuit Court on 4 February 2015 seeking to restrain the respondent from terminating his employment until the hearing of the application or further order. The matter came on for directions on 7 July 2015. The applicant did not appear at that directions hearing and the proceeding was dismissed for the applicant's non-appearance. On 16 July 2015, he applied to reinstate the proceeding and it was listed for hearing on 28 July 2015. The applicant appeared in person on 28 July 2015 and sought an adjournment in order to obtain legal representation and file further materials. The Federal Circuit Court granted the adjournment and ordered the applicant to file and serve any further material on or before 25 August 2015. He did not file and serve any further material as required. At the hearing on 4 September 2015, the applicant claimed to have forgotten the date of the hearing on 7 July 2015 due to a mental condition and associated stress and anxiety. He produced a medical certificate to the court which indicated that he would be unfit for work from 7 July 2015 to 17 July 2015. Judge Riley noted that the medical certificate did not explain the nature of the applicant's medical condition and did not say that he would be unfit to attend court. The applicant claimed that he attended a mediation on 3 July 2015 and that the Registrar at that mediation did not mention the hearing on 7 July 2015. The applicant was also permitted to tender two documents to the court in support of his explanation for failing to attend the hearing. 10 Judge Riley did not accept that the applicant's explanation and excuses for failing to attend the hearing on 7 July 2015 were adequate. Judge Riley said at [35] of her Honour's reasons for decision: I am also not persuaded that the applicant's reason for not appearing on 7 July 2015 is adequate. He was able to attend the mediation on Friday, 3 July 2015. There was no suggestion that he did not participate in that court event effectively. The hearing on 7 July 2015 was only a directions hearing. It was not the final hearing. I am not persuaded by the material before me that the applicant could not have attended that directions hearing because of his medical condition. In any event, the applicant said that he did not attend the directions hearing on 7 July 2015 because he forgot about it. The medical evidence does not substantiate that he had a memory problem. The applicant also sought to blame the registrar for not mentioning that the matter was back in court for directions on 7 July 2015. However, it was not the registrar's responsibility to remind the applicant of the next court date. No error is demonstrated in her Honour's reasoning. It was open to her Honour to conclude that the applicant's failure to attend the hearing on 7 July 2015 caused the respondent to incur costs. Those costs were incurred in preparing for and attending the hearing of the applicant's application to reinstate the proceeding on 4 September 2015. It was also open to her Honour to conclude that the applicant's act of failing to attend the hearing on 7 July 2015 was unreasonable having regard to the inadequacy of his explanations for failing to attend and the evidence which he sought to adduce to substantiate those explanations. The applicant's failure to file and serve any material on or before 25 August 2015, contrary to her Honour's direction, also suggests that the applicant's conduct of the proceeding was unreasonable and that it caused prejudice to the respondent. 11 Accordingly, it is my view that the applicant's proposed grounds of appeal have no merit and that leave to appeal should be refused. The applicant's reason for seeking an extension of time, namely, that he was not advised that the time for applying for leave to appeal was limited to 14 days, should also be rejected as unsatisfactory. The applicant has not provided any evidence about the matters on which he sought advice and from which legal practitioners he sought advice. The applicant does not contend that he received incorrect advice about the time for seeking leave to appeal: cf Dobson v Australian Postal Corporation [2013] FCA 320. 12 Accordingly, the application will be dismissed. 13 The respondent seeks the costs of this proceeding on the usual basis that costs should follow the event. The applicant submitted that he should not be ordered to pay costs because he is in considerable debt following his dismissal from employment and would be unable to pay those costs. An inability to pay costs, however, is not a reason not to award costs. Accordingly, the applicant will be ordered to pay the respondent's costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 6 November 2015