FEDERAL COURT OF AUSTRALIA Ali v Chandler Macleod Group Ltd [2016] FCA 1234 Appeal from: Ali v Chandler Macleod Group Ltd [2016] FCA 479 File number(s): WAD 240 of 2016 Judge(s): SIOPIS J Date of judgment: 11 October 2016 Catchwords: APPEAL – whether the appeal is incompetent because the grounds of appeal are defective – whether the appeal should be summarily dismissed on the grounds of incompetency. Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(aa) Fair Work Act 2009 (Cth) ss 394(2), 394(3), 604 Federal Court Rules 2011 (Cth) r 36.01 Fair Work Commission Rules 2013 (Cth) r 56(2) Cases cited: Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390 Zegarac v Dellios [2007] FCAFC 58 Date of hearing: 11 October 2016 Registry: Western Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 32 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Mr M Blatchford Solicitor for the First Respondent: Momentum Legal Counsel for the Second Respondent: The Second Respondent did not appear. Table of Corrections 14 October 2016 In paragraph 22, "29 August 2016" should read "17 August 2016". 14 October 2016 In paragraph 23, "23 August 2016" should read "29 August 2016". ORDERS WAD 240 of 2016 BETWEEN: SAJID ALI Appellant AND: CHANDLER MACLEOD GROUP LTD First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: SIOPIS J DATE OF ORDER: 11 OCTOBER 2016 THE COURT ORDERS THAT: 1. The appeal is dismissed for lack of competency pursuant to r 36.72 of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SIOPIS J: 1 This is an application by the first respondent, Chandler Macleod Group Ltd, for the dismissal of the appeal by the appellant, Mr Sajid Ali, from the decision of the primary judge on 6 May 2016. 2 The primary judge dismissed Mr Ali's application for judicial review of the decision of the Full Bench of the Fair Work Commission (the Commission), dated 1 February 2016, which had refused permission to Mr Ali to appeal against the decision of Commissioner Cloghan in the Commission. 3 The first respondent contends that Mr Ali's appeal is incompetent. background 4 The background to the matter is as follows. 5 Mr Ali was dismissed from his employment in a bakery. There is some doubt as to the exact date on which he was dismissed, but the Commission approached it from the basis that he had been dismissed on 13 March 2013. 6 On 21 June 2013, Mr Ali brought an application under the Fair Work Act 2009 (Cth) in the Commission alleging that he had been unfairly dismissed. The application came before Commissioner Cloghan, who found that the application had not been made within the 21 day period from the date of the dismissal which was prescribed by s 394(2) of the Fair Work Act, and that there were no exceptional circumstances which warranted the Commission exercising its power under s 394(3) to extend the time for the filing of Mr Ali's unfair dismissal application. Accordingly, the application was dismissed on 10 October 2013. 7 In finding that there were no exceptional circumstances, Commissioner Cloghan took into account each of the matters referred to in s 394(3) of the Fair Work Act and found, in particular, that there had been no explanation for the delay in filing the application. 8 Then, more than two years later, Mr Ali made an application to the Full Bench of the Commission under s 604 of the Fair Work Act for permission to appeal against Commissioner Cloghan's decision not to extend the time within which to bring the application for unfair dismissal. 9 Relevantly, r 56(2) of the Fair Work Commission Rules 2013 (Cth), provided that a notice of appeal must be filed within 21 days of the date of the decision the subject of the appeal, or, within such further time as allowed by the Commission on application by the appellant. Mr Ali's notice of appeal was filed 775 days after the prescribed 21 day period had expired. 10 The Full Bench of the Commission considered whether it should exercise its power under r 56(2) and extend the time for Mr Ali to file his notice of appeal. 11 In refusing to extend time, the Full Bench had regard to the considerations relevant to the exercise of its power under r 56(2), namely: whether there was a satisfactory explanation for the delay; the length of the delay; the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if the time limit was extended; and any prejudice to the respondent if the time was to be extended. 12 The Full Bench observed that the delay could only be characterised as "lengthy". The Full Bench found that there was no satisfactory explanation for Mr Ali's delay in filing his notice of appeal. 13 The Full Bench observed that Mr Ali had said that he had been in Pakistan at the time that Commissioner Cloghan's decision was made and he did not return to Australia until 22 January 2015. The Full Bench went on to say that, even if this was a reasonable explanation for the delay, which it was not, Mr Ali had not given any comprehensible explanation for the delay from his return to Australia on 22 January 2015 until his notice of appeal was filed on 15 December 2015. 14 The Full Bench also observed that it was unlikely that any of the grounds of appeal would be upheld if the time was extended. In particular, the Full Bench noted that Mr Ali had not sought to challenge Commissioner Cloghan's finding that Mr Ali had not provided a reason for the delay. 15 Further, the Full Bench observed that there was a three year delay since Mr Ali's employment had terminated and this could prejudice the first respondent if time was extended. 16 Accordingly, the Full Bench dismissed the application made by Mr Ali. 17 Mr Ali then brought an application in this Court for judicial review of that decision of the Full Bench of the Commission. 18 The primary judge considered the reasons for decision of the Full Bench in detail and held that the decision did not disclose any "error of law, let alone jurisdictional error". the appeal 19 On 26 May 2016, Mr Ali filed a notice of appeal in this Court from the decision of the primary judge. 20 In that notice of appeal, Mr Ali's grounds of appeal stated: appeal is going to be made on the ground because the application been dismissed at fair work commission on not making the application on time. 21 In response to that notice of appeal, the first respondent filed a notice of objection to competency of the appeal. 22 On 17 August 2016, there was a directions hearing. At that hearing, I made directions giving Mr Ali an opportunity to amend the notice of appeal. 23 On 29 August 2016, Mr Ali filed an amended notice of appeal which identified the following ground of appeal: Not satisfy from the decision taken by the Justice in judicial review. detail grounds will be provided in hearing at Federal Court. 24 Following the filing of that amended notice of appeal, the first respondent maintained its objection to competency and its application for the dismissal of the appeal on that ground. The hearing of that application was listed for today. 25 A single judge of the Court has the power under s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) to summarily dismiss an appeal on the ground that the appeal is incompetent (Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773). 26 In Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390, Griffiths J considered the circumstances in which an appeal may be dismissed as being incompetent on the basis that the notice of appeal did not clearly identify the grounds of appeal. At 396 of that decision, Griffiths J referred with approval to the following observations of North J (with whom Weinberg and Jessup JJ agreed) in Zegarac v Dellios [2007] FCAFC 58 at [7]: In my view it does not follow that a failure to comply with Order 52 Rule 13(2) renders an appeal incompetent. If a notice is incomprehensible or entirely unrelated to the issues dealt with in the judgment, an appeal may be incompetent. 27 Mr Blatchford on behalf of the first respondent, submitted that r 36.01 of the Federal Court Rules 2011 (Cth) requires an appellant to state the grounds relied upon in support of the appeal, and that Mr Ali had not identified any such grounds. Further, said Mr Blatchford, the defects in the grounds of appeal in both notices of appeal filed by Mr Ali were such as to render the grounds of appeal incomprehensible. 28 In response to the first respondent's submissions, I asked Mr Ali to identify any errors which he alleged the primary judge had made. 29 Mr Ali made oral submissions. He also handed up written submissions. Mr Ali's oral and written submissions related only to the circumstances in which he was dismissed from his employment. The submissions did not identify or otherwise address the question of any alleged error in the primary judge's decision that the Full Bench had not fallen into jurisdictional error. 30 In determining whether summarily to dismiss an appeal as incompetent where the grounds of appeal are defective, the Court will take into account whether there is some prospect that the grounds of appeal may be reformulated; and, therefore, whether the appellant should be given a further opportunity to reformulate the grounds of appeal. 31 However, I am of the view that there would be no value in giving Mr Ali another chance – a third chance - to draft grounds of appeal that identify error on the part of the primary judge. This is because it is apparent that the primary judge did not err in finding that the decision of the Full Bench did not disclose any jurisdictional error. 32 Accordingly, the appeal is dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 14 October 2016