Southern Migrant and Refugee Centre Inc v Shum

• Jurisdiction: Australia Federal only
• Judge: SNADEN J
• Judgment Date: 16 June 2020
• Neutral Citation: [2020] FCA 832
• Date: 16 June 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Southern Migrant and Refugee Centre Inc v Shum [2020] FCA 832

Appeal from:	Application for an extension of time within which to appeal (or leave to appeal) from: Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214
File number:	VID 127 of 2020
Judge:	SNADEN J
Date of judgment:	16 June 2020
Catchwords:	PRACTICE AND PROCEDURE – application for an extension of time within which to appeal – application for leave to appeal from a decision of the Federal Circuit Court of Australia (hereafter, the “FCCA”) – where the FCCA found that the applicants terminated the respondent’s employment in contravention of ss 340(1) and 352 of the Fair Work Act 2009 (Cth) – whether the proposed appeal has merit – whether leave to appeal required – whether it is in the interests of justice to grant leave to appeal – whether sufficient explanation afforded for length of delay – whether granting of leave to appeal unfairly prejudicial to the respondent – extension of time and leave to appeal granted
Legislation:	Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) pt 3-1; ss 340 and 352 Fair Work Regulations 2009 (Cth) reg 3.01 Federal Court Rules 2011 (Cth) rr 35.13 and 36.03
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148 Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCA 41 Browne v Dunn (1893) 6 R 67 Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 Construction, Forestry, Mining and Energy Union v The Employment Advocate [2001] FCA 1442 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dovuro Pty Limited v Wilkins (2003) 215 CLR 317 Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60 Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697 Iannuzzi v Commissioner of Taxation (2019) 268 FCR 349 Jackamarra v Krakouer (1998) 195 CLR 516 Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 Warramunda Village Inc v Pryde (2002) 116 FCR 58
Date of hearing:	10 June 2020
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	36
Counsel for the Applicant:	Mr N Harrington
Solicitor for the Applicant:	Landers & Rogers
Counsel for the Respondent:	The Respondent did not appear

ORDERS

		VID 127 of 2020
BETWEEN:	SOUTHERN MIGRANT AND REFUGEE CENTRE INC First Applicant ; BRIAN OATES Second Applicant ; TRAVIS HEENEY Third Applicant
AND:	LAI SHUM Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	16 JUNE 2020

THE COURT ORDERS THAT:

1. To the extent that they require it (if any):

   1. the deadline by which the applicants were to file an application for leave to appeal from the judgment of the Federal Circuit of Australia in Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214 (hereafter, the “Primary Judgment”) be extended to 28 February 2020; and

   2. the applicants be granted leave to appeal from the Primary Judgment.

2. The deadline by which the applicants are to file a notice of appeal from the Primary Judgment (whether pursuant to the leave granted above or otherwise) be extended until 14 July 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1. The applicants move the court for an extension of time within which to seek leave to appeal—or, alternatively, to appeal—from a judgment of the Federal Circuit Court of Australia (hereafter, the “FCCA”). Insofar as leave to appeal is required, that is sought also.

2. The judgment in question—Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214 (hereafter, the “Primary Judgment”; Judge Riley)—concerned a suit brought against the applicants (and others) under pt 3-1 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”). The respondent, Ms Shum, is a former employee of the first applicant, Southern Migrant and Refugee Centre Inc (hereafter, the “SMRC”). The other applicants are current or former employees or officers of the SMRC. By her action in the FCCA, Ms Shum alleged (amongst other things) that her employment with the SMRC had been terminated in contravention of ss 340(1) and 352 of the FW Act. The FCCA accepted as much.

3. As is customary, the trial before the FCCA was split into two phases. The first concerned the then-respondents’ liability for the contraventions that Ms Shum alleged against them. That is the subject of the Primary Judgment: the FCCA accepted that the then-respondents (or some of them) had contravened the FW Act in some (though not all) of the ways that Ms Shum had alleged. The second phase of that suit is yet to be heard. It will deal with the relief that ought to be granted in light of the court’s findings on liability. It has been adjourned pending resolution of the proceeding that is now before this court.

4. By the Primary Judgment, the FCCA made orders apparently in the nature of declarations, by which it recorded its findings as to the then-respondents’ liability for the contraventions (or some of the contraventions) that Ms Shum had alleged against them. Under the heading “declarations”, the court recorded in the Primary Judgment as follows:

1. Southern Migrant Resource Centre (“SMRC”) contravened s.340 of the Fair Work Act 2009 (“the Act”) by taking adverse action against Lai Shum by dismissing her from her employment for prohibited reasons including that she had exercised or proposed to exercise workplace rights.

2. Pursuant to s.550(2)(a), (c) and (d) of the Act, Brian Oates and Travis Heeney were involved in SMRC’s contravention of s.340 of the Act.

3. SMRC contravened s.352 of the Act by dismissing Lai Shum partly because she was temporarily absent from work due to illness or injury.

4. Pursuant to s.550(2)(a), (b) and (c) of the Act, Travis Heeney was involved in SMRC’s contravention of s.352 of the Act.

5. The Primary Judgment was pronounced on Wednesday, 5 February 2020. Under the Federal Court Rules 2011 (Cth) (hereafter, the “FCA Rules”), the applicants had until 4 March 2020 to lodge an appeal (FCA Rules, r 36.03) or 19 February to lodge an application for leave to appeal, if it were required (FCA Rules, r 35.13). For reasons that will shortly be addressed, there is much confusion about whether or not they require this court’s leave in order to appeal from the Primary Judgment.

6. The present application was not filed until 28 February 2020. No notice of appeal has been filed as yet. Regardless of whether or not they require leave to appeal from the Primary Judgment, the applicants first require an extension of time. For the reasons that follow, I am...