Ellenbrook Family Medical Centre Pty Ltd v Bibok [2022] FCA 172

Federal Court of Australia

Ellenbrook Family Medical Centre Pty Ltd v Bibok [2022] FCA 172 Appeal from: Bibok v Ellenbrook Family Medical Centre Pty Ltd (Federal Circuit Court of Australia, PEG 395 of 2019, orders dated 15 February 2021)

File number: WAD 38 of 2021

Judgment of: COLVIN J

Date of judgment: 1 March 2022

Date of publication of reasons: 2 March 2022

Legislation: Federal Court of Australia Act 1976 (Cth) s 24

Cases cited: SMS Technology Pty Ltd v Abdullah M Al Hamed [2009] FCA 451

Division: Fair Work Division

Registry: Western Australia

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 5

Date of hearing: 1 March 2022

Counsel for the Appellant: Dr S Wamono (self-represented)

Counsel for the Respondent: The Respondent did not appear

ORDERS WAD 38 of 2021

BETWEEN: ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD Appellant

AND: GILLIAN BIBOK Respondent

order made by: COLVIN J DATE OF ORDER: 1 MARCH 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J: 1 Ms Gillian Bibok brought an employment claim in what was then the Federal Circuit Court. The defendant to that claim was named as 'Ellenbrook Family Medical Centre Pty Ltd'. On 15 February 2021, the Circuit Court entered judgment in default of appearance by the defendant in the amount of $11,246.70. On 2 March 2021, a notice of appeal from the judgment was accepted for filing in this Court. The appeal was brought in the name of Ellenbrook Family Medical Centre Pty Ltd (EFMC). It was signed by Dr Simon Wamono as 'Representative for Ellenbrook Family Medical Centre'. 2 The matter was brought on for case management on 14 May 2021. At that time Dr Wamono attended for EFMC. There was no appearance for Ms Bibok. It appears that Ms Bibok has not been served with the notice of appeal. Dr Wamono was advised of the decision in SMS Technology Pty Ltd v Abdullah M Al Hamed [2009] FCA 451 and of the availability of the procedure in the Circuit Court to apply to set aside a judgment entered in default of appearance. The case management hearing was adjourned to a date to be fixed to enable EFMC to consider its position. 3 No further steps were taken by EFMC and, at the instigation of the Court, the matter was listed for case management on 1 March 2022. Dr Wamono again attended. He confirmed that he had caused the proceedings to be commenced and that the email address specified in the application was his address. However, Dr Wamono explained that he no longer had any involvement with EFMC whether as a director or shareholder. He indicated that the medical practice had been sold. He did not seek to proceed with the appeal. 4 The appeal is brought from a judgment that is an 'an interlocutory judgment' for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth): SMS Technology at [10]. Therefore, leave to appeal is required. As leave was not sought, an application for leave would now be out of time. The appeal has not been served and the person responsible for commencing the appeal disavows any authority to advance the proceedings. 5 In those circumstances, I concluded that the appropriate order was for the proceedings to be dismissed and indicated that I would publish my reasons for doing so. My reasons are that (a) the appeal requires leave; (b) leave has not been sought; (c) any application for leave would now be out of time; (d) EFMC has taken no steps in the proceedings for almost a year; (e) the person responsible for the commencement of the proceedings disavows any authority to continue them; (f) the proceedings have not been served on the respondent; (g) there is, in any event, a procedure available in the Circuit Court by which application may be made to set aside a judgment entered in default of appearance and no explanation has been given as to why that procedure has not been pursued; and (h) notice of the case management hearing of 1 March 2022 had been given to the only point of contact specified in the notice of appeal and there has been no attendance by any person seeking to advance the appeal. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.