FEDERAL COURT OF AUSTRALIA

Gambaro v Mobycom Mobile Pty Ltd [2019] FCA 910

Appeal from: Application for extension of time: Gambaro v Mobycom Mobile Pty Ltd & Ors [2018] FCCA 3360 File number: QUD 804 of 2018 Judge: RANGIAH J Date of judgment: 14 June 2019 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time for leave to appeal from interlocutory orders of Federal Circuit Court of Australia – procedural fairness – allegations of apprehended bias and unfair conduct by primary judge – extension allowed – leave to appeal allowed Legislation: Fair Work Act 2009 (Cth) s 340 Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) Rule 35.13(a) Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Décor Corporation Pty Ltd v Data Industries Inc (1991) 33 FCR 397 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Ellis v R [2015] NSWCA 262 Minogue v Williams [2000] FCA 125 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 RPS v R (2000) 199 CLR 620 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Date of hearing: 25 March 2019 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Mr R Hassall Solicitor for the Respondents: Sparke Helmore

ORDERS

QUD 804 of 2018 BETWEEN: MICHAEL ALEXANDER GAMBARO Applicant AND: MOBYCOM MOBILE PTY LTD (ACN 110 558 873) First Respondent SOUTHAM CONSULTING PTY LTD (ACN 110 497 295) Second Respondent CRAIG ANTHONY SOUTHAM (and others named in the Schedule) Third Respondent

JUDGE: RANGIAH J DATE OF ORDER: 14 JUNE 2019

THE COURT ORDERS THAT:

1. The time for filing of the applicant’s application for leave to appeal be extended to 7 November 2018.

2. The applicant have leave to appeal from the judgment of the Federal Circuit Court of Australia delivered on 22 October 2018.

3. The applicant file and serve his notice of appeal by 4 pm on 20 June 2019.

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

REASONS FOR JUDGMENT

RANGIAH J:

1 On 22 October 2018, the Federal Circuit Court of Australia dismissed an application by the applicant, Michael Alexander Gambaro, seeking, inter alia, orders for leave to file an amended statement of claim and further discovery. Mr Gambaro applies for an extension of time to seek leave to appeal from that judgment, and leave to appeal.

2 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires that leave be obtained to appeal from an interlocutory judgment of the Federal Circuit Court. Rule 35.13(a) of the Federal Court Rules 2011 (Cth) provides that the application must be filed within 14 days after the date on which the judgment was pronounced or the order made.

3 Mr Gambaro was required to file his application for leave to appeal by 5 November 2018. His application was filed two days late, on 7 November 2018. Accordingly, he requires an extension of time to seek leave to appeal.

4 The Court has a discretion under r 35.14 of the Federal Court Rules as to whether to grant the extension of time. The relevant factors include whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondents and the merits of the proposed appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

5 Generally, leave to appeal will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave, and substantial injustice would result from a refusal of leave to appeal: Décor Corporation Pty Ltd v Data Industries Inc (1991) 33 FCR 397 at 390–399; Minogue v Williams [2000] FCA 125 at [19].

6 Mr Gambaro’s explanation for the late filing of his application is that Auscript delayed in providing the transcript of the hearing before the primary judge. He attempted to file his application for leave to appeal on 4 November 2018, but his attempt was unsuccessful. He provided a copy his unfiled application to the solicitors for the respondents on 4 November 2018.

7 While Mr Gambaro could have filed his application for leave to appeal without waiting for the transcript, allowance must be made for the nature of the proposed appeal, which relies heavily upon the way the hearing was conducted. Mr Gambaro did attempt to file the application within the 14 day period. I am satisfied that Mr Gambaro has provided a satisfactory explanation for his delay.

8 The delay was only two days. The respondents have not asserted that they are prejudiced by the delay.

9 In these circumstances, the application for an extension of time depends upon the merits of the proposed appeal. The application for leave to appeal also depends substantially upon the merits of the proposed appeal.

10 In the primary proceeding before the Federal Circuit Court, Mr Gambaro alleges that the first to seventh respondents contravened s 340 of the Fair Work Act 2009 (Cth) by taking adverse action against him because he exercised workplace rights. The adverse action is alleged to include the termination of Mr Gambaro’s employment on 24 May 2017.

11 On 11 June 2019, a judge of the Federal Circuit Court ordered that the proceeding be listed for trial on 30 October 2018 with an estimated length of two days. On 15 October 2018, Mr Gambaro filed his interlocutory application, called an Application in a Case, seeking leave to file an amended statement of claim, an order for further discovery and other orders.

12 The trial judge became unavailable to conduct the trial, and it became apparent that the trial would have to be adjourned. The matter was then listed before the primary judge on 22 October 2018 for case management and the hearing of the Application in a Case.

13 Mr Gambaro represented himself before the primary judge. The respondents were represented by a solicitor.

14 It is not practicable to describe all the relevant exchanges between the primary judge and Mr Gambaro, or to set out the most relevant exchanges fully. However, the exchanges included the following:

HIS HONOUR: You can’t just change the goal posts just before the trial. You’re lucky that the trial is being delisted because, quite frankly, if I had looked at this and I had said yes you could do this you would be paying the costs of the other side for bringing an application so soon to the trial which would mean that it would have to be delisted in any event, but anyway I’m still trying to work out your – you know, I’m - - -

MR GAMBARO: Can we go back - - -

HIS HONOUR: You get – you will get judges very frustrated very easily, Mr Gambaro. Your claims are, in short compass, very narrow matters but you keep wanting to widen them in an incredible way. Now, what is it that you want to say to me?

…

HIS HONOUR: How is there statute changes? Either the law is as it was - - -

MR GAMBARO: Workplace - - -

HIS HONOUR: Do not ever interrupt me. Do not ever. You’ve been told many times when I talk your mouth goes closed. You do not ever interrupt me or you will be cited for contempt. I’m not putting up with your rubbish.

MR GAMBARO: Yes, your Honour.

HIS HONOUR: There’s only one person in charge here and it’s me. Now, make your submission.

MR GAMBARO: I thought you were going to explain something, your Honour.

HIS HONOUR: You interrupted me. What’s so important? What is so important that you would risk the wrath of the court in trying to tell me that there is something more important. Tell me what it is.

…

MR GAMBARO: Well, there has been no evidence provided, your Honour.

HIS HONOUR: But, sorry, it’s like telling me that I should be giving you a court file about an alien invasion. And I say, “Well, I haven’t got a file court about the alien invasion.” And you’re saying, “Well, you haven’t proved to me that you haven’t got a court file about the alien invasion so, therefore, you’re hiding something.” Do you understand how absurd that seems? You do, don’t you?

MR GAMBARO: Well - - -

HIS HONOUR: You do, don’t you?

MR GAMBARO: No. Well, your Honour, if - - -

HIS HONOUR: You do, don’t you?

MR GAMBARO: No, I don’t agree, your Honour.

HIS HONOUR: You don’t agree. So that if you ask me for a file – the court file on alien invasions and I said, “Well, I haven’t got it,” that, therefore, I am not complying with any requests by you for a court file on alien invasions?

MR GAMBARO: If a - - -

HIS HONOUR: You’re saying that you don’t agree that such a conclusion is absurd?

MR GAMBARO: Your Honour, to be compliant - - -

HIS HONOUR: No. Do not change the subject. You answer my questions. You say that if you asked for a court file on alien invasions and I said that there wasn’t one that I would, therefore, be refusing to give you the court file on alien invasions.

Yes or no?

MR GAMBARO: If you can - - -

HIS HONOUR: Yes or no?

MR GAMBARO: No. If you can provide an affidavit stating that it’s not in your possession or custody then that’s sufficient. But, your Honour, a compliant workplace would in the dismissal of an employee they would have procedures that have documents that have interaction at - - -

HIS HONOUR: But you see that’s an argument. That’s an argument you make at the trial.

MR GAMBARO: Okay. Well - - -

HIS HONOUR: The point is here you are asking me to make an order for something. How can I make an order for something unless I know that it actually exists? And I’ve asked you for the proof of how it is that I should know that it exists otherwise you are simply wasting this court’s time. Now, answer my questions. How do you know that this exists.

MR GAMBARO: Because it’s - - -

HIS HONOUR: How do you know that it exists and if you tell me because any place should have something like this you will be in contempt.

MR GAMBARO: Okay. Well, it does.

HIS HONOUR: Now, tell me how do you know that this exists?

MR GAMBARO: Well, I’m not going to answer that question, your Honour.

HIS HONOUR: No, you answer my question or you will be in contempt.

MR GAMBARO: Well, I don’t – with all due respect I don’t appreciate the threat of a contempt.

HIS HONOUR: You will answer my question.

MR GAMBARO: Your Honour, I’m a - - -

HIS HONOUR: You will answer my question or - - -

MR GAMBARO: I’m self-represented.

HIS HONOUR: You will answer my question.

MR GAMBARO: I’m self-represented and - - -

HIS HONOUR: You will answer my question.

MR GAMBARO: This is a - - -

HIS HONOUR: Get security.

MR GAMBARO: This is a complex matter.

HIS HONOUR: And – no, you are getting security because you are going to be removed from my court right now because you have failed to answer my question and you are treating this court with contempt.

MR GAMBARO: Can you repeat the question, your Honour?

HIS HONOUR: How do you know that these articles exist?

MR GAMBARO: Because the fourth respondent and the fifth respondent have put in their affidavits that they’ve met with other workers in the office. They’ve made ---

HIS HONOUR: What is there that shows me that there are notes, meeting notes and CCTV footage that shows any of this? Answer my question.

MR GAMBARO: I can get the – I will get - - -

HIS HONOUR: Answer my question.

MR GAMBARO: I’m a self-represented - - -

HIS HONOUR: No, no, no.

MR GAMBARO: I’m - - -

HIS HONOUR: No, answer my question or I will have you removed.

MR GAMBARO: I’m a self-represented applicant, your Honour.

HIS HONOUR: Okay. Remove – please remove Mr Gambaro from my court room because he is refusing to answer the questions of the court. Leave.

MR GAMBARO: Can I - - -

HIS HONOUR: Leave.

15 At that point, Mr Gambaro was removed from the courtroom by security guards. The hearing continued in Mr Gambaro’s absence.

16 The primary judge told the solicitor for the respondents that he would not grant the application for leave to file an amended statement of claim. In the course of a discussion about discovery, his Honour said:

HIS HONOUR: - - - we’re going to be able to – the matter has to get on at some stage.

MR HASSALL: Yes.

HIS HONOUR: But – and it can’t be by me. I’ve lost patience with Mr Gambaro and I – you know, I will keep, as it were, managing the matter but I can’t do the trial.

MR HASSALL: Yes.

HIS HONOUR: It’s one of those ones where even though I could bring an independent mind I would think that for the same reason that Bond J had to recuse himself from Mr Palmer’s trial that I would have to do the same for Mr Gambaro.

17 The primary judge later said:

HIS HONOUR: So look what I’m going to do is I’m just going to put down some short reasons because when he does come back and hopefully he’s in a less truculent mood he understand why it is that I have done what I’ve done today. All right.

18 The transcript indicates that judgment was delivered. However, his Honour’s reasons have not been published.

19 The orders made by the primary judge were that:

(1) The hearing dates of 30 and 31 October 2018 be vacated.

(2) The application in case filed on 15 October 2018 be dismissed.

(3) The respondents file and serve an affidavit deposing to the disclosure they have provided by no later than 4.00 pm on 8 March 2018.

(4) This matter be adjourned for mention/directions only at 9.30 am on 25 March 2019 in the Federal Circuit Court of Australia at Brisbane.

20 Mr Gambaro’s draft notice of appeal contains seven proposed grounds of appeal. Those grounds include allegations that the primary judge erred in disallowing the proposed amended statement of claim and failing to order discovery in relation to particular documents. However for present purposes, it is only necessary to consider the following grounds:

5. The learned Judged erred in law in that, in making the Orders of 22 October 2018, Applicant was denied procedural fairness and natural justice.

6. The learned Judged erred in law in exercising his discretion to remove the Applicant from the Courtroom on 22 October 2018 during his oral submissions.

21 Mr Gambaro was self-represented in his application before this Court. His written submissions include the following:

9. The Applicant’s Application in Case was heard on 22 October 2018, and the Applicant was very concerned as [the primary judge] was the presiding Judge.

10. There has been previous confrontation between the Applicant and [the primary judge].

11. From the outset of proceedings [the primary judge] was confrontational, vulgar and abrupt.

12. The Applicant had prepared submissions for 22 October 2018, and was attempting to go through his Application step-by-step in a slow and methodical procedure.

13. [The primary judge] on the other hand, was rushing proceedings, was looking for an argument, treating the Applicant like he is legally trained and asked the Applicant unrelated hypothetical questions.

14. The Applicant answered the hypothetical questions with a “No”.

15. [The primary judge] persisted and asked the same hypothetical questions which made the Applicant feel uncomfortable, as the questions had no relevance to proceedings and the Applicant did not understand the questions.

16. [The primary judge] removed the Applicant from the Court when the Applicant was mid­way through his written and prepared verbal submissions.

17. [The primary judge] continued proceedings with the Respondents’ Legal Representative and they had a lengthy discussion about matters without the Applicant.

18. [The primary judge] went on further to make Orders in the absence of the Applicant.

19. The Applicant submits that the manner in which [the primary judge] presided over proceedings, removed the Applicant from the Court and made Orders in the absence of the Applicant were contrary to established principles.

22 Mr Gambaro’s written submissions go on to assert, inter alia, that the primary judge had a lengthy discussion with the respondents’ solicitor in his absence, that orders were made in his absence and that he did not have the opportunity make submissions in relation to the orders made. Mr Gambaro asserts that the primary judge was biased and confrontational. In an affidavit filed on 8 November 2018, Mr Gambaro asserts that this was, “not the first time [the primary judge] has shown vulgar behaviour coupled with screaming, yelling, humiliating statements and failing to remain impartial in my proceedings”.

23 Mr Gambaro’s allegations that he was denied procedural fairness must be understood as asserting apprehended bias on the part of the primary judge; that the conduct of the hearing was unfair because of excessive and intimidating judicial intervention; and that he was not given a reasonable opportunity to be heard because he was removed from the courtroom.

24 The respondents submit that despite Mr Gambaro’s removal from the courtroom, he was not denied procedural fairness. They point out that the primary judge ordered them to file an affidavit addressing issues relating to production of documents. They submit that during the hearing, his Honour afforded Mr Gambaro the opportunity to make submissions concerning the proposed amended statement of claim and his request for discovery. Further, his Honour took into account Mr Gambaro’s submission that he was having difficulties handling three court matters at the same time and programmed the next case management hearing date accordingly.

25 The test for apprehended bias was described in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] as whether, “a fair-minded lay-observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. There may also be a miscarriage of justice, in circumstances not amounting to apprehended bias, where the conduct of a judge prevents a party from properly conducting his or her case: Ellis v R [2015] NSWCA 262 at [65]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [161]–[172].

26 In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, Gummow ACJ at [2] and Callinan J at [172] held that the Full Court of the Federal Court had erred by dealing with other grounds first before considering an allegation of apprehended bias on the part of the trial judge. Similarly, Kirby and Crennan JJ held at [117]:

An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice.

27 Accordingly, an intermediate appellate court must deal with an allegation of apprehended bias first and, if it finds that allegation is made out, is required to order a retrial without considering the merits of any other grounds. The ground of apprehended bias is distinct from a ground that the trial was conducted unfairly, the latter turning largely upon whether the litigant has had a proper opportunity to advance his or her case: RPS v R (2000) 1999 CLR 620 at [11]. However, there is an overlap. Applying the reasoning in Concrete Pty Ltd, where it is alleged that the misconduct of the trial judge made the hearing unfair, that allegation should also be dealt with before other grounds of appeal.

28 In my opinion, the same approach should be taken in an application for leave to appeal. If the applicant’s ground of apprehended bias or unfair conduct of the hearing has sufficient prospects of success, there will be a risk of substantial injustice if leave to appeal is not granted, and leave should be granted without consideration of the merits of the applicant’s other grounds.

29 Mr Gambaro’s proposed appeal has sufficient prospects of success to justify an extension of time to file the application for leave to appeal. Although the orders were interlocutory, the prospects of success of the proposed appeal and the risk of injustice that would result from a refusal of leave to appeal warrant a grant of leave to appeal.

30 The parties submitted that I should proceed to decide the appeal if leave to appeal were granted, in the interests of saving time and expense. While sympathetic to that submission, I have concluded that the appeal is of a nature that requires the attention of a Full Court. I propose to canvass with the parties measures that might minimise delay and expense.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:

Dated: 14 June 2019

SCHEDULE OF PARTIES