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High Court of Australia Transcripts |
Last Updated: 7 July 2015
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S310 of 2014
B e t w e e n -
FAWZY SOLIMAN
Plaintiff
and
UNIVERSITY OF TECHNOLOGY SYDNEY
First Defendant
VICE PRESIDENT HATCHER, SENIOR DEPUTY PRESIDENT HAMBERGER, COMMISSIONER JOHNS IN THEIR CAPACITY AS OFFICERS OF FAIR WORK AUSTRALIA
Second Defendant
Application for order to show cause
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 18 FEBRUARY 2015, AT 9.30 AM
Copyright in the High Court of Australia
MR A.G. ROGERS: Your Honour, I appear for the plaintiff. (instructed by Mitry Lawyers)
MR A.T. BRITT: Your Honour, I appear for the first defendant. (instructed by Sparke Helmore Lawyers)
HIS HONOUR: I note that there is a submitting appearance for the second defendant. Now, Mr Rogers, I have looked at the papers in this matter. I cannot say that I have studied them. Is what you are, in substance, seeking today that the matter be remitted to the Federal Court? Yes, thank you. Mr Britt, the affidavit material, provisionally, appears to me to establish a satisfactory reason for the delay in filing the application for an order to show cause in this Court. I understand that you say that the application is without merit. That is a submission that may or may not have substance. The difficulty is that on the material before me I am simply in no position to rule on it.
MR BRITT: I understand the second part of what your Honour is saying. Your Honour, in respect of the material that was filed by the plaintiff, I think on Monday, we have a further affidavit that deals with one of the matters which is raised in the plaintiff’s evidence, that is, his claim that he was ill for a period of time. My learned friend has seen that affidavit and I would seek leave to file in Court that affidavit in that it goes to part of the – or responding to part of the explanation provided by the plaintiff for the delay.
HIS HONOUR: Well, there is his illness. There appears to be his sister’s illness. Was he absent overseas for some time?
MR BRITT: On the material, he was absent overseas. It would appear to be returning to work on 13 October and, quite clearly the plaintiff says that he was absent in Egypt and he was looking after his sister in respect of that period of time.
HIS HONOUR: And there were some difficulties with the availability of his counsel as well, where there was some slight delay, in any event.
MR BRITT: I do not think the evidence goes that high for events after 13 October, that is, it is quite clear there were some issues about the availability of his counsel immediately following the decision of the Full Bench of the Commission and then some delay, but quite a small delay in respect to providing at least a preliminary advice, but all of those matters relate to events prior to his return either on 10 October or on 13 October.
HIS HONOUR: Yes. The totality of the delay is not in excess of two months, is it?
MR BRITT: That is right, your Honour, it is not in excess of two months.
HIS HONOUR: This affidavit material, which I will receive if it is not objected to, would challenge what part of the explanation?
MR BRITT: It would show that the - your Honour is aware from reading the plaintiff’s affidavit material that he claims that he was too ill for a period of time, that is, too ill for the period of time from 7 October through to 14 November to consider this matter. That affidavit material goes to show that for the period 10 October through to 14 November the plaintiff did not apply for sick leave from the first defendant and was at work for the first defendant during that period of time and it just goes to that issue.
HIS HONOUR: Right. Very well, I will receive the affidavit.
MR BRITT: Thank you, your Honour.
HIS HONOUR: I grant leave to file in Court the affidavit of Jeremy George Simpson, sworn 17 February 2015.
MR BRITT: Thank you, your Honour.
HIS HONOUR: Now, formally, gentlemen, what affidavits do I need to read?
MR ROGERS: Your Honour, the affidavit of Rick Mitry sworn on 17 December 2014, the affidavit of Yooree Lee sworn on 16 February this year and the affidavit of Fawzy Soliman, also sworn on 16 February this year.
HIS HONOUR: Yes.
MR BRITT: Your Honour, from our side of the table, the affidavit of Dino Liistro sworn on 10 February 2015 and the affidavit of Jeremy George Simpson sworn on 17 February 2015.
HIS HONOUR: Yes, thank you. I read those affidavits. I take it that there is no objection to any part of them?
MR BRITT: No objection.
MR ROGERS: No objection.
HIS HONOUR: Yes. Well, Mr Rogers, what do you say about this further affidavit material?
MR ROGERS: It is not disputed that Mr Soliman was at work at the relevant time. That does not necessarily go to whether he could in good health turn his attention to matters such as this, and that is particularly in the context of a circumstance where – if I could refer your Honour to the affidavit of Ms Lee, and in particular page 10 which is annexure YL7 to Ms Lee’s affidavit. There is an email from counsel for Mr Soliman to Mr Soliman’s solicitor, Ms Lee. It is cut off, but it says this:
I have established that the deadline is 3 months in relation to prerogative relief –
and it turns out that was mistaken. But what happened thereafter can all be read in the context of that advice which had been received from counsel. Mr Soliman, for his part, the day after judgment had been delivered on 16 September, had written to his instructing solicitors – and this appears at page 4 of Ms Lee’s affidavit – the numbers are at the top, your Honour – at the bottom of page 4 Mr Soliman had said:
Dear Jim and Rick –
Jim being counsel, Rick being the solicitor –
When is the dead line to lodge any possible appeal?
So he was actively concerned right from the start to know timetabling. He was given some incorrect advice and, notwithstanding that he may have been attending work, presumptively in the full knowledge that he had until – as he apprehended it – the middle of December to bring proceedings, the presumption that he was not well but not so unwell that he could not attend work, that matter presumably got put to one side and then was picked up in late November and ultimately it appears that on 11 December Mr Soliman gave instructions to commence proceedings, he believing – and the solicitor believing at that time that he was still within time and, of course, by that time he was out of time.
While my friend’s point is not invalid, that is that he was well enough to attend work, it needs to be seen in the background context of imprecise advice. I say that as no criticism of counsel at the time. I suspect he was still overseas himself and was working on information he had received. The words “I have established” seems to suggest that he was relying on something he had obtained from perhaps his chambers; I do not know. But to visit, as it were, the fact that Mr Soliman was able to attend work, or to attend with that, the proposition that he therefore – all the disadvantages which go with being out of time, in my respectful submission, would be visiting too heavy a burden upon him.
HIS HONOUR: Yes. So your basic point though is that he received mistaken legal advice, so whether he is well or unwell - - -
MR ROGERS: Sorry, your Honour?
HIS HONOUR: Whether he is well or unwell does not seem to impact particularly on that point.
MR ROGERS: Yes.
HIS HONOUR: All right. Now, is there any reason, if time were enlarged for the filing of the application, why it cannot be remitted to the Federal Court?
MR ROGERS: Not at all, your Honour.
HIS HONOUR: And, indeed, that was done by consent when similar proceedings were brought on the last occasion.
MR ROGERS: I gather so. I was not involved, but I gather so.
HIS HONOUR: I gather that only from the report of the decision of the Full Court.
MR ROGERS: That must be right. I have not detected it, but that must be right.
HIS HONOUR: Yes, all right. Thank you, Mr Britt.
MR BRITT: Your Honour, can I deal with the last two matters first?
HIS HONOUR: Yes.
MR BRITT: If your Honour does, in fact, enlarge time we agree that the matter should be remitted to the Federal Court.
HIS HONOUR: Yes.
MR BRITT: In respect of the previous occasion, again your Honour is correct, the matter was done by consent before his Honour Justice Heydon on the last occasion this matter was in this Court, or these parties were in this Court.
HIS HONOUR: Yes. This saga was in this Court, perhaps.
MR BRITT: And to some extent, your Honour, that is one of the points that we make in our written submissions, that ultimately litigation has to come to an end.
HIS HONOUR: I appreciate that point. The difficulty is that on the last occasion when similar proceedings were brought, they were successful.
MR BRITT: They were successful in part.
HIS HONOUR: He got the orders he wanted.
MR BRITT: He got one of the orders that he wanted, I would concede that. The appeal, or the matter before the Full Federal Court on the last occasion dealt with a number of matters, of which the question as to whether the demotion was harsh, unjust or unreasonable was one of a number of matters, and it was on that point the plaintiff was successful, and it was that issue and that issue alone that was remitted back to Vice President Watson of the Fair Work Commission.
HIS HONOUR: Yes.
MR BRITT: Your Honour, in our written submissions we set out the various propositions that we say that go to the issue of the extension of time. We concede that it is not a complete list in the way that we have drafted that. But as to the explanation, when one looks at the chronology in the plaintiff’s own evidence, on 3 October the plaintiff appears to receive an advice on prospects. One does not find that in the body of the affidavit but one finds it when one looks at annexure 8 to that affidavit, and at the very bottom of that page there is a reference to the receipt of an “advice on prospects”.
Neither your Honour or I know what was in that particular document and whether in fact the issue of timing was then addressed. On 7 October there is an email to the plaintiff where we are told counsel is “preparing a more comprehensive advice on prospects” and then there is a question of costs. That is found at Ms Lee’s affidavit at paragraph 15 and annexure 8. It is clear that the plaintiff received this email and that is set out in the plaintiff’s own affidavit at 14. There is no evidence before your Honour as to whether there was a further advice provided and/or the contents of such an advice, but perhaps more importantly the timing if such an advice was prepared.
On 21 October the plaintiff’s instructing solicitors send him an email concerning the future steps he wants to take in this matter. That is again at Ms Lee’s affidavit YL9. There appears to be no evidence as to what the plaintiff did when he received that email. The next step in the chronology is a further email to a similar effect was sent on 27 October. There are no steps, or no evidence - what steps, if any, the plaintiff did on receipt of that email.
There is then a period of slightly less than three weeks to the next date in the chronology; that is on 14 November 2014. There is an email from the plaintiff seeking to meet with his solicitor and counsel the following week. That is found at Mr Soliman’s affidavit at paragraph 16 and annexure FS8. There is then a meeting on 18 November between the plaintiff, his solicitor and counsel to discuss the decision of the Full Bench, and that is at Ms Lee’s affidavit at paragraph 17.
Then there is a period of time of almost four weeks which is not explained at all. It is until 11 December that the plaintiff instructs solicitors to commence a preparation of the appeal, and that is at Ms Lee’s affidavit at 18. We then know on 15 December new counsel is briefed; that is Ms Lee’s affidavit at paragraph 19. Then there is a further delay, which we take no issue with, in respect to the matters that occurred on the 15th and 16th; we do not take issue with that.
HIS HONOUR: Yes.
MR BRITT: What we see is few, if any, steps being taken between 7 October and 18 November, and then again – sorry, and 14 November – and then again between 18 November and 11 December.
HIS HONOUR: Now, at the time of the meeting on 18 November had the period for lodging an application already expired?
MR BRITT: I think it was a matter of two days over, and that is set out in our written submissions at paragraph 3.
HIS HONOUR: Yes. What do you say to the basic point that everyone appears to have been operating on the mistaken understanding that the period for lodging the application was three months rather than two?
MR BRITT: There is no doubt there is an email to that effect but, with respect, I do not think the evidence goes as high as we were all operating as a result of this error. When you look at the affidavits in the matter they are not explicit to that effect and, secondly, what is perhaps slightly unusual in respect of that, when one looks at the application in this matter it is certainly raised in that application that there might be the need to extend time. That is not explained by acting under the impression that the matter had three months, given the dates of those documents, but we rely upon our written submissions.
HIS HONOUR: Yes.
MR BRITT: We do have a real issue with whether the matter has merit at all.
HIS HONOUR: Of course, I appreciate that, and it is simply impossible for me to determine whether paragraph [31] of the reasoning of the Full Bench was open to it without having regard to a vast amount of material that is simply not before me.
MR BRITT: I hear what your Honour is saying in respect of that. All I can say is your Honour has to read the decision in its totality - - -
HIS HONOUR: Which I have done.
MR BRITT: - - - and not just paragraph – I am not suggesting your Honour only read paragraph [31], but one has to read the remaining paragraphs that then address the issues. If one looks at my learned friend’s submissions, in essence what is being said is that it is a jurisdictional error not to find a jurisdictional error and, in many respects, this case is on all fours with the decision that we referred to in our written submissions, being Re Commonwealth of Australia & Anor; Ex parte Marks.
HIS HONOUR: Yes. My difficulty with a submission of that kind is that this case, at least as framed, appears to be on all fours with the proceeding that was decided in favour of this plaintiff against this defendant by the Full Court.
MR BRITT: Yes, your Honour.
HIS HONOUR: The nature of the error is very similar – or at least the nature of the error alleged is very similar. It is said by the plaintiff to turn on whether the conclusion reached in paragraph [31] was open. Reading paragraph [31] in the context of the decision as a whole, of course, is necessary, but it is not sufficient to be able to form a view as to whether the conclusion was open. In those circumstances, I am not inclined to summarily terminate these proceedings by reference to lack of merit. If they are remitted, then, if so advised, your motion for summary dismissal remains on foot and you can activate it.
MR BRITT: Yes, your Honour.
HIS HONOUR: Often, as we all know, judicial review proceedings are best dealt with finally and as soon as possible. I do not want to truncate your submissions further, but I have reached a view as to the acceptability
of the explanation for the delay. If there is something more you wish to say on that, I will hear.
MR BRITT: I have nothing more to say on that issue, other than to say it is one of the factors that you need to take into account.
HIS HONOUR: Of course.
MR BRITT: It is not the only factor that your Honour needs to take into account.
HIS HONOUR: Yes, thank you very much.
I do not propose, given the exchange between counsel and the Bench, to deliver elaborate reasons. It is sufficient to reiterate that on the material before me I am not in a position to form a view as to the merits of the application. As to the acceptability of the delay of some two months between the delivery of the decision of the Full Bench of the Commission and the filing of the application I am satisfied on the evidence before me that it is substantially explained by the plaintiff having received erroneous legal advice to the effect that the period for filing such an application was three months and not two.
It is said, on behalf of the first defendant with justification, that there is an interest in bringing the matter to finality. In my judgment, the ends of final justice are best achieved by enlarging the time for the filing of the application to 18 December 2014 and remitting the matter to the Federal Court where it can be heard and determined, either on a final basis or, if the first defendant is so advised, in the discretion of that court, on an application for summary dismissal.
In those circumstances the orders I propose to make are as follows:
Is there anything that counsel wish to say about the form of those orders?
MR BRITT: Not for our part, your Honour.
HIS HONOUR: Those are the orders I now make. Thank you, gentlemen.
AT 9.57 AM THE MATTER WAS CONCLUDED
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