Federal Court of Australia Huang v Octec Limited [2024] FCA 588 File number(s): NSD 91 of 2024 Judgment of: WIGNEY J Date of judgment: 28 May 2024 Date of publication: 4 June 2024 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and leave to appeal – where applicant's substantive application was summarily dismissed for past defaults – where delay in filing application for leave to appeal reasonably explained and there was no material prejudice to the respondent arising from the delays – where arguable case that the primary judge erred in summarily dismissing the application – leave to appeal and extension of time granted Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO Federal Court Rules 2011 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.05; 13.03 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 28 May 2024 Counsel for the Applicant Mr A Gotting Counsel for the Respondent Ms L McBride Solicitors for the Respondent HWL Ebsworth ORDERS NSD 91 of 2024 BETWEEN: CHUN YI HUANG Applicant AND: OCTEC LIMITED Respondent order made by: Wigney j DATE OF ORDER: 28 May 2024 THE COURT ORDERS THAT: 1. The time for the applicant to apply for leave to appeal be extended up to and including 28 May 2024. 2. The applicant be granted leave to appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) WIGNEY J 1 This is an application for an extension of time and leave to appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) Circuit Court. The effect of that judgment was to summarily dismiss the applicant's application in that court pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.05(1). That rule provides for the summary dismissal of applications where the applicant has been in default of court orders. 2 The applicant, Ms Chun Yi Huang, originally commenced proceedings in this Court pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth). She claimed that the respondent, Octec Limited, had unlawfully discriminated against her. 3 In March 2021, Ms Huang's application was transferred to the Circuit Court. Regrettably, the progression of Ms Huang's application in the Circuit Court was slow and tortuous. There were many procedural hiccups and delays, at least some of which may perhaps be attributed to the manner in which Ms Huang conducted her case. 4 Ms Huang's application was eventually listed for a two-day final hearing in June 2023. Unfortunately, that hearing was vacated because the primary judge was ill. The matter was subsequently listed for hearing before another Circuit Court judge in October 2023. That hearing was adjourned, this time on the application of Ms Huang because she was ill. While the judge before whom the matter was listed referred to some earlier delays and procedural defaults by Ms Huang, she nevertheless accepted that Ms Huang was ill and was unable to appear. The matter was then listed for a further case management hearing before the primary judge on 13 October 2023. 5 At the case management hearing on 13 October 2023, Octec did not press for the matter to again be listed for a final hearing. Instead, it foreshadowed that it was proposing to file an application for the separate determination of a preliminary question of law. The primary judge made procedural orders to facilitate the hearing of that application on 8 December 2023. Those orders included orders for the filing of written submissions. 6 Octec subsequently filed an application in a proceeding. That application was not an application for the separate determination of a preliminary question of law. Rather, it was an application for the summary dismissal of Ms Huang's application on two bases. The first was that Ms Huang's application had no reasonable prospects of success and was therefore liable to be dismissed pursuant to r 13.13 of the Rules. The second and alternative basis was that Ms Huang had been in default of orders made by the Circuit Court and her application was therefore liable to be dismissed pursuant to r 13.05 of the Rules. 7 It should perhaps be noted at this point that, while Ms Huang had at times been represented by a lawyer, she was unrepresented at the case management hearing before the primary judge on 13 October 2023, and was unrepresented when Octec's application for summary dismissal was heard by the primary judge on 8 December 2023. Moreover, while Ms Huang appears able to understand and speak some English, that is not her first language. She was assisted at that hearing by a Mandarin interpreter. 8 Fortunately for Ms Huang, she is now represented by pro bono counsel. 9 On 8 December 2023, the primary judge made orders and delivered ex tempore reasons dismissing Ms Huang's application pursuant to r 13.05 of the Rules. It would not be unfair to say that the primary judge's reasons were spare and uninformative. They comprised little more than a chronological recitation of what were said to be prior procedural defaults by Ms Huang, many of which occurred well before the matter had been listed for final hearing before the primary judge back in June 2023. Her Honour also indicated that, had she not dismissed Ms Huang's application for default, she would have dismissed her application on the basis that the application "had no reasonable prospect of being successfully prosecuted". That conclusion, however, was unsupported by any meaningful analysis or reasoning. 10 Ms Huang did not file any application for leave to appeal the primary judge's judgment within the 14-day period allowed by the Federal Court Rules 2011 (Cth) for the filing of such applications. She eventually lodged an application for an extension of time and leave to appeal on 23 January 2024. That application was accepted for filing on 31 January 2024. 11 Octec opposed both the grant of an extension of time and the grant of leave to appeal. 12 I am persuaded that it is appropriate in all the circumstances to grant Ms Huang both an extension of time and leave to appeal the judgment of the primary judge. 13 As for the extension of time, Ms Huang relied on an affidavit affirmed by her. That affidavit contained an explanation of her delay in filing her appeal and application. Her explanation, in short summary, was that she was unrepresented at the time and erroneously believed that her appeal had to be filed in the Circuit Court. In early January 2024, however, she received email correspondence from the Court which advised her that she was required to file her application in this Court. Ms Huang also ascertained that, because the time within which she was required to file an application for leave to appeal had passed, she was required to file an application for an extension of time supported by an affidavit. Further delay was occasioned by the fact that Ms Huang had difficulty locating a Justice of the Peace to witness her affidavit. 14 I am satisfied in all the circumstances that Ms Huang's explanation for the delay is reasonable, particularly given that she had no legal representation at the time. Some allowance should also be made for the fact that these events occurred during the Christmas and New Year holiday period. I am also satisfied that Octec was not and has not been materially prejudiced by the delay in filing the application. 15 As for leave to appeal, I am persuaded that Ms Huang has at least an arguable case that the primary judge erred in summarily dismissing her application. As I am to hear the appeal, it is both unnecessary and undesirable to address the merits of the grounds of appeal or the alleged errors in any detail. It suffices to note that it is at least reasonably arguable that the primary judge erred in the exercise of her discretion in respect of the summarily dismissal of Ms Huang's application pursuant to r 13.05 of the Rules because she both failed to consider and apply the applicable principles and failed to have regard to relevant considerations. It is also reasonably arguable that Ms Huang was denied procedural fairness having regard to the way the summary dismissal application was heard and determined. 16 As for the applicable principles, it is at least reasonably arguable that the primary judge failed to exercise the caution and restraint that must generally be exercised when summarily dismissing an application, including for defaults. The need for caution and restraint in this case was all the more evident given the procedural history and the fact that Ms Huang was not legally represented. As for relevant considerations, it is at least reasonably arguable that the primary judge failed to have regard to the nature and circumstances of the alleged defaults, including whether they had given rise to any material delay or prejudice to Octec. 17 As for the denial of procedural fairness, it is at least arguable that Ms Huang was not fairly or adequately apprised of the issues that she may have to address in respect of the summary dismissal application. In particular, she was not given fair notice of all of the alleged defaults upon which Octec relied, or given a fair opportunity to adduce evidence or make meaningful submissions in relation to those alleged defaults. That is particularly significant in circumstances where it would appear that many of the alleged defaults were not in fact defaults, or at least were not material or significant defaults in the context of the overall proceedings. As noted earlier, many of the defaults that provided the basis for the summary dismissal occurred well before the matter had been listed for final hearing before the primary judge in June 2023. To make matters worse, it would also appear to be arguable that there were deficiencies in the way the proceedings were interpreted to Ms Huang. 18 As well as being satisfied that Ms Huang has a reasonably arguable case on appeal, I am also satisfied that Ms Huang would suffer substantial injustice if leave to appeal were refused, supposing that the primary judge had erred. That is because the practical effect of the primary judge's orders was to finally determine Ms Huang's substantive application. 19 I should emphasise that I have not reached any firm, let alone final, views in relation to the merits of the appeal. At this point it is only necessary for me to be satisfied that Ms Huang's grounds of appeal are at least reasonably arguable. 20 It follows that it is appropriate to order that the applicant, Ms Huang, be granted both an extension of time and leave to appeal. I will in due course make procedural orders in respect of the hearing of the appeal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate: Dated: 4 June 2024