Abela v Telstra Corporation Ltd
[2012] FMCA 17
•20 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABELA v TELSTRA CORPORATION LTD | [2012] FMCA 17 |
| INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Fair Work Act – application to bring proceedings for unlawful dismissal out of time – relevant considerations – whether proceeding previously discontinued – whether e-lodgment of notice of discontinuance deemed to be filing of that notice – power of registrar to reject documents – decision of registry to return document for signing by person on the record administrative not judicial in nature – whether interlocutory delays amount to abuse of process. |
| Fair Work Act 2009, ss.97, 351, 352, 369, 371 Administrative Decisions (Judicial Review) Act1977 |
| Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353 Satchithanantham v National Australia Bank (2010) 268 ALR 222 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 University of New South Wales v Huang [2011] FCA 673 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 |
| Applicant: | MICHAEL JOSEPH ABELA |
| Respondent: | TELSTRA CORPORATION LTD |
| File Number: | SYG 502 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 November 2011 |
| Date of Last Submission: | 4 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr M. Seck |
| Solicitors for the Respondent: | Blake Dawson |
ORDERS
The time for the commencement of these proceedings be extended to 10 March 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 502 of 2010
| MICHAEL JOSEPH ABELA |
Applicant
And
| TELSTRA CORPORATION LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was once an employee of the respondent. His employment was terminated on 13 July 2009. It appears that that termination followed a period of difficulty in the employment relationship including a period of sick leave taken by the applicant.
The applicant has filed an application in a case seeking leave to bring an unlawful dismissal claim under the Fair Work Act 2009 (“FWA”) out of time.
On 10 March 2010 the applicant filed an application commencing these proceedings under the FWA and with that application he filed a “Form 2” claim alleging dismissal in contravention of a general protection and a “Form 4” claim alleging contravention of a general protection. In the latter claim the applicant alleged disability discrimination on the part of the respondent and asserted that it had injured him in his employment. This claim was, in effect, dismissed summarily on 19 September 2011 when the relevant paragraphs of the applicant’s further amended points of claim were struck out. In the unlawful dismissal claim the applicant again alleged a breach of a general protection relying on the matters raised in the other claim. He also alleged that his dismissal was unlawful because it contravened s.351 of the FWA, in that one of its motivating reasons was disability discrimination, and s.352, which in some circumstances prohibits employers from dismissing employees because of temporary absence from work.
Section 371 of the FWA provides:
371 General protections court applications
FWA conference to be held before application
(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
Fair Work Australia held a conference between the parties in relation to the dismissal and certified on 3 December 2009 that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. Consequently, in order to be within time, the proceedings concerning the applicant’s dismissal from his employment with the respondent should have been commenced in this Court by 17 December 2009. As the application was not filed until 10 March 2010, the applicant sought an order that it be accepted out of time. An affidavit sworn by the applicant on 11 January 2010 in support of that interlocutory application was filed on 10 March 2010.
Background facts
On 16 April 2010 I ordered that it be determined as a separate question whether the applicant should be given leave to bring his claim for unlawful dismissal out of time. The question for separate determination was listed for hearing on 8 June 2010. Kim Therese McGuren, the solicitor then with conduct of the respondent’s case in the offices of its then-solicitors, Gilbert and Tobin, deposed in her affidavit affirmed 31 October 2011 that on or around 21 May 2010 Gilbert and Tobin wrote to Daniel Dwyer, the applicant’s then-legal representative, inviting the applicant to withdraw his unlawful dismissal application. She further deposed that on or around 24 May 2010 she spoke to Mr Dwyer by telephone and a conversation ensued to the following effect:
Mr Dwyer: I agree the temporary absence claim can’t get up. Your position is valid. I need to clarify the s.351 claim.
Ms McGuren: The Form 2 application cannot succeed as it is clearly filed outside the time prescribed.
Mr Dwyer:I agree the Form 2 application is out of time. I will speak to Mr Abela and come back to you. I expect he will discontinue the Form 2 and proceed with the Form 4.
Ms McGuren deposed that later that day she spoke again to Mr Dwyer during which telephone call words to the following effect were said:
Mr Dwyer: I am content with your proposal. I will drop you an email to confirm.
Ms McGuren: I will write to the court and advise that the Applicant will discontinue his Form 2 application by consent. We still need directions in relation to the Form 4 application.
Mr Dwyer:That should be on 15 June or at a later time.
By email dated 24 May 2010 Mr Dwyer wrote to Ms McGuren and to the applicant saying as follows:
I refer to our telephone discussions today and your letter of 21 May.
Following consideration of the matters raised I confirm:
1. Mr Abela will withdraw the s.352 application (Form 2) (temporary absence) and the associated application for an extension of time to make the application.
2.That the s.351 application (discrimination) (Form 4) will proceed by consent.
3.That the “out of time” hearing date be vacated – 15 June.
That the s.351 application (Form 4) be listed for a directions hearing but not before the 15 June.
I hope this accurately reflects our conversation.
On 27 May 2010 Gilbert and Tobin wrote to my associate saying, amongst other things:
The parties have agreed that Mr Abela will discontinue his Form 2 Application alleging a contravention of sections 352 and 351 of the Fair Work Act with no order as to costs. Mr Dwyer of the CEPU has advised that he will attend to filing the appropriate forms on behalf of Mr Abela shortly. Accordingly, the parties respectively request that the hearing date of 15 June 2010 be vacated and that the matter be listed for directions at a time convenient to the Court in relation to the further progress of Mr Abela’s Form 4 application.
The date was vacated and the matter re-listed for further directions on 18 June 2010.
On 16 June 2010 Ms McGuren sent an email to Mr Dwyer enclosing proposed consent orders which, amongst other things, provided for an order that the applicant discontinue his unlawful dismissal application before 2 July 2010 with no order as to costs and that he file and serve his points of claim in relation to his general protection claim by the same date.
Then followed conversations between Ms McGuren and Mr Dwyer on 17 and 18 June 2010 during which Mr Dwyer expressed an intention to file a notice of discontinuance within a matter of days. The evidence indicates that Mr Dwyer attempted to file the notice of discontinuance by e-lodgment but was unsuccessful. On 1 October 2010 Mr Dwyer again attempted to file the notice of discontinuance but it was not accepted for filing and he was sent a message by the registry in the following terms:
As originating document is signed by Applicant, Discontinuance should be as well. Please attend to and re-file.
No notice of discontinuance signed by the applicant appears to have been filed or to have been lodged for filing.
On 18 October 2011 the applicant filed the application in a case presently before the Court in which he sought leave to pursue his claim of unlawful dismissal out of time. In support of that application he relied on affidavits sworn on 11 January 2010, 13 May 2010 and two affidavits sworn on 17 October 2011.
In those affidavits the applicant deposed that he received the s.369 certificate from Fair Work Australia on or about 17 December 2009 and he observed that he had a fourteen day period from the date of the certificate within which to commence proceedings. Having read that, he telephoned Fair Work Australia and was referred to the Federal Court of Australia and then to this Court. He telephoned this Court’s registry that day and asked a registry officer whether he could apply for an extension of time and was advised that a registrar would call him back. He deposed that a registry officer called him back and referred him to a form on the Court’s website but he replied that he did not have easy access to the internet, in response to which the registry officer said she would email him a form to apply for an extension of time.
It appears that that email was never received. On the same day the applicant contacted the Campbelltown office of the Legal Aid Commission where the earliest appointment available to him was 7 January 2010. He went to see a legal aid solicitor on that day. He said that on 8 January 2010 the legal aid solicitor advised him to complete an affidavit explaining the delay in lodging his application. He then swore the 11 January 2010 affidavit and on the same day travelled to the Court in Sydney with the intent of lodging the application. Upon presenting at the registry counter, he was advised that he had to complete an “Application – Fair Work Division” which he could not complete at the time as he did not understand an aspect of it. He saw the legal aid solicitor on 12 January 2010 following which the application was prepared but, because of lack of funds, it was not until 19 January 2010 that he attended the registry again. However, the s.369 certificate was not attached to the application and I infer from his evidence that a registrar explained to him that although the general protection claim could be filed, the unlawful dismissal one could not. The applicant deposed that the subsequent 49 days were spent looking for the s.369 certificate and it was ultimately found at the Campbelltown office of the Legal Aid Commission. During this time the applicant, who appears to have had no income at the relevant time, had to deal with one of his sons needing specialist medical care, utilities’ warnings of service disconnections and interviews with Centrelink to have a healthcare card reinstated. He deposed that in the absence of any income he was distracted by several appointments with Centrelink and local charities “in a desperate attempt to have benefits re-instated and keep utilities connected”. The applicant deposed that on or about 8 March 2010, when it became clear that he could not travel to Sydney, he telephoned the Court and was advised that it was acceptable to mail the application which he did.
The applicant deposed that he was aware of discussions between Mr Dwyer and Ms McGuren regarding the proposed withdrawal of the unlawful dismissal application and associated out of time application because the proposal had been discussed with him by Mr Dwyer.
He deposed that Mr Dwyer advised that he was not able to provide advice on the disability or discrimination issues and suggested that specialist advice be sought, following which Mr Dwyer withdrew as the applicant’s solicitor. Mr Dwyer had never formally been identified to the Court as the applicant’s solicitor although he did appear at the directions hearing on 18 June 2010 and did correspond with the Court advising that the Communications, Electrical, Plumbing Union (“CEPU”) acted for the applicant in this matter.
Filing of notice of discontinuance
The respondent submitted that even though the registry did not accept the notice of discontinuance for filing it had neither the power nor the grounds for doing so with the result that the unlawful dismissal claim was no longer before the Court and the Court was therefore incompetent to entertain the present interlocutory application. In this regard, reference was made to r.13.01(1) of the Court’s Rules which relevantly provides:
13.01 Discontinuance
(1) A party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.
The respondent submitted that the rule required that the notice of discontinuance be in accordance with the approved form and be filed. He submitted that both requirements had been satisfied. In this regard, the respondent referred to a copy of the notice of discontinuance which was annexed to Ms McGuren’s affidavit and which bore Mr Dwyer’s signature. It was submitted that Mr Dwyer was the solicitor on the record for the applicant and could thus sign the notice of discontinuance on his behalf. In this regard, the respondent observed that Mr Dwyer had represented the applicant in court and in the filing of documents during the relevant period. It was submitted that the notice of discontinuance form provided that it could be signed either by the person giving the notice or by a lawyer and that if Mr Dwyer had signed it on behalf of the applicant, there was nothing which required the applicant himself to sign it.
The respondent further referred to r.2.03(1) which provides:
2.03 Document to be signed
(1) A document to be filed (other than an affidavit, annexure or exhibit) must be signed by a party or by the lawyer for the party unless the nature of the document is such that signature is inappropriate.
The respondent submitted that, as the applicant’s legal representative, there was nothing inappropriate in Mr Dwyer signing the notice of discontinuance.
As to the question of whether the notice of discontinuance had been filed, the respondent referred to r.2.05 which provides that documents may be filed by fax or electronic communication, as provided in div.2.2 of pt.2 of chp.1 of the Rules. It specifically referred to r.2.05(3) which provides:
2.05 How documents may be filed
…
(3) However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a) if the whole document is received by 4.30 pm on a day the Registry is open for business — on that day; and
(b) in any other case — on the next day the Registry is open for business.
and submitted that if a document is accepted, it is taken to be filed once the registry receives it.
Submitting that the registry had refused to file the document following its receipt, the respondent said that the circumstances in which a registrar can make such a decision are limited, such as when there has been a failure to comply with the rules relating to the electronic filing of documents. It submitted that the reason stated by the registry for refusing to accept the document for filing had no basis in the Rules and thus the registry had no valid basis to refusing to accept the notice. The respondent submitted that to the extent that the registry had made a decision not to accept the notice of discontinuance for filing, the decision was invalid, void and of no legal effect. It was submitted that as there was no valid basis to refuse to accept the notice of discontinuance for filing, it followed that once it had been sent by electronic communication and received by the registry, r.2.05(3) had been satisfied and the document is taken to have been filed.
The notice of discontinuance was not accepted for filing in the form in which it was lodged because it had been signed by the wrong person. In this case, although Mr Dwyer had appeared at one directions hearing and had corresponded with the Court he had, at no time, formally placed himself on the record. That being so, the Court did not have a sample of his signature other than that which appeared on a CEPU letter sent by email to my associate on 12 August 2010. When dealing with a document as important as a notice of discontinuance, the registry is entitled to be confident that the person signing the notice is authorised to do so. In the circumstances, it is apparent that the registry was not so satisfied.
The terms of the registry’s email do not identify whether it was sent by a registrar or an officer in the registry or whether the relevant decision was made by a registrar or a registry officer. However, the identity of the relevant person is not significant. A registrar has power to refuse to accept documents filed by electronic means, or by any other means, and that power necessarily includes a power to reject documents which do not comply with the Court’s rules, or which may be questionable for other reasons, should that be an appropriate decision to make in the circumstances: cf Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353 at 357 [15]. Arguably, a registry officer does not have that power. However, here the document was not refused filing but notionally returned to be properly signed and resubmitted. Administrative tasks such as this, which do not involve a decision actually to refuse to accept a document for filing, should not be considered to be beyond the authority of registry officers.
But in any event, the registry’s decision was an administrative one reviewable under the Administrative Decisions (Judicial Review) Act1977 (“ADJR Act”) and not of judicial character: Satchithanantham v National Australia Bank (2010) 268 ALR 222 at 230-231 [49]-[50].
No ADJR Act challenge having been made to the registry’s decision, it stands. Consequently, it must be concluded that the notice of discontinuance has not been filed and that the applicant’s unlawful dismissal claim has not been withdrawn. As a result, his application for an extension of time may be considered.
Application for extension of time
The respondent submitted that the principles relevant to whether an extension of time should be allowed are those discussed in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 where they were expressed in the following terms:
(a)The presumptive position is that there must be compliance with the time limit unless there is an acceptable explanation of the delay which makes it equitable to grant an extension of time.
(b)Action taken by the applicant to contest the termination, other than applying under the FW Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(c)Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. Conversely, the mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
(d)The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(e)Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
Brodie-Hanns is referred to in a note to s.371(2) of the FWA as setting down principles relating to the exercise of a similarly worded provision of the Industrial Relations Act 1988 but such a note is not to be taken to be part of an Act: s.13 Acts Interpretation Act 1901.
Conceding that it had not suffered any substantial prejudice as a result of the delay in filing, the respondent addressed the other considerations which were discussed in Brodie-Hanns. I am of the view that the first, fourth and fifth considerations discussed in Brodie-Hanns are relevant in this case.
It has been a feature of these proceedings that the applicant has considerable parenting responsibilities, being the sole carer of four young boys, and I am willing to accept that he is in very straitened financial circumstances. Although the respondent submitted that the applicant’s explanations for the various delays which affected the filing of the application were unconvincing, difficult to accept and lacking in detail as to all the steps he says he took during the relevant period, and also that his conduct appeared to demonstrate a lack of application to the issue, I am willing to accept his explanations as satisfactory. I am satisfied that the applicant took reasonable steps, in his particular circumstances, to file the initiating application and related claims.
I accept that he was distracted by his family responsibilities and personal difficulties and hampered by limited access to legal aid solicitors, and by their retention of the s.369 certificate, and that these produced a less than ideally efficient approach to the filing of the application. I also take into account that the delay was less than three months and that the applicant was essentially unrepresented and dealing with an institution and a process with which he was unfamiliar.
As to whether the claim sought to be brought by the applicant is unmeritorious, I have regard to the respondent’s letter to the applicant dated 13 July 2009 notifying him of his dismissal and of the statement in that letter that it was based on medical certificates which he had provided stating that he was entirely unfit to work. The respondent submitted that its action was taken because the applicant was unable to comply with the inherent requirements of his position. However, this is a matter for the respondent to prove and in respect of which no evidence from the relevant decision-maker or decision-makers has been placed before the Court. The only evidence relevant to this issue which was adduced was the letter of dismissal, two Workcover certificates and four months of payroll records. These are insufficient for me to conclude that the applicant was dismissed because he could not fulfil the inherent requirements of his job. In this regard, although concerned with the motivation for adverse conduct, the comments of Grey and Bromberg JJ said in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 are relevant. Their Honours said:
The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the “real reason” for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question. (at 221 [28])
Without having heard from the respondent’s witnesses, it is not possible to conclude that the claim, as far as it is one of unlawful dismissal in breach of s.351 of the FWA, is unmeritorious or has no reasonable prospects of success.
The claim under s.352 of the FWA, that the applicant was dismissed because he was temporarily absent from work because of illness or injury, was submitted by the respondent to be doomed to failure because reg.3.01(5) of the Fair Work Regulations 2009 provides that an illness or injury is not governed by s.352 if it extends for more than three months and is not paid personal or carers leave for the duration of the absence. The respondent submitted that the applicant’s absence extended for more than three months and did not constitute paid leave. At the relevant time, reg.3.01(5) provided:
3.01 Temporary absence — illness or injury
…
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on personal/carer’s leave (however described) for a purpose mentioned in paragraph 97 (a) of the Act for the duration of the absence.
Section 97(a) of the FWA provides:
97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; …
The applicant’s pay records, which were part of exhibit 1, indicate that he was on leave without pay from 2 April 2009 until his dismissal. The Workcover medical certificates state that the applicant was unfit for work in June and July 2009. It must therefore be inferred, at least for current purposes, that the applicant was on personal leave for reasons of illness. However, contrary to the respondent’s submissions, at the relevant time reg.3.01(5) did not require that in order to escape the operation of s.352 such leave be paid leave. The sub-regulation was subsequently amended to have this operation but that does not affect its operation in the context of this case which is that the applicant’s unpaid personal leave did not have the effect of excluding the operation of s.352. As the applicant’s absence was not excluded from the operation of s.352 of the FWA for the reasons advanced, I do not conclude that his claim of a breach of that section does not have reasonable prospects of success.
For these reasons, but subject to the following discussion, I consider that the applicant should be permitted to bring his unlawful dismissal claim out of time.
Abuse of process
The respondent submitted that if the Court were minded to grant an extension of time it should nevertheless dismiss the proceedings on the grounds that they involve an abuse of process as contemplated by r.13.10(c). It was submitted that the applicant had agreed to discontinue the unlawful dismissal claim and that after the directions hearing on 18 June 2010 the proceedings had progressed on a mutual understanding that that part of the proceedings had been or would be discontinued. It was submitted that the applicant should not be allowed to continue proceedings in circumstances where he had agreed to discontinue them nearly 18 months before his application for an extension of time and where the proceedings had progressed on the basis that only the general protection claim remained on foot. It was submitted that if the proceedings were not dismissed then they would, in effect, have to return to square one nearly two years after commencement of the claim in Fair Work Australia.
It was further argued that given the applicant’s repeated failures to comply with the Court’s directions and his failure to prosecute the matter, his conduct had been seriously and unfairly burdensome, prejudicial or damaging as well as being productive of serious and unjustified trouble and harassment. It was submitted that it would be an abuse of process to permit the applicant to advance a case that had for all intents and purposes been abandoned. Moreover, it was submitted that there were material employees of the respondent who had left its employment which created additional difficulties for it in the preparation of its evidence responding to the applicant’s claim.
At the outset, it should be noted that although it appears that the applicant and Mr Dwyer agreed that the Form 2 claim would not be pursued and would be discontinued, I am not convinced that Mr Abela, or Mr Dwyer for that matter, appreciated the effect of that proposal. Mr Dwyer’s conversations with Ms McGuren and his email of 24 May 2010, quoted above at [6] and [8], suggest that the only claim which Mr Dwyer believed was being discontinued was a claim based on the dismissal having been motivated by a temporary absence on the part of the applicant, and thus a breach of s.352 of the FWA. It appears from the exchanges between the representatives that Mr Dwyer believed that the discontinuance would not affect the applicant’s claim for a breach of s.351, that is to say, adverse action taken for the prohibited reason of the applicant’s alleged disability. If that is the case, then there was never a true agreement between the parties.
Turning to the respondent’s other submissions, what amounts to abuse of process “is insusceptible of a formulation comprising closed categories. Development continues”: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 265 [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ. However, as pointed out by Flick J in University of New South Wales v Huang [2011] FCA 673 at [21] a recurring, although not exclusive, concern when considering whether a proceeding involves an abuse of process is whether it involves oppression and unfairness. That is the basis upon which the respondent submits that the present proceedings are an abuse of process. In this regard, it referred to Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93-94 [28]:
The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed (66). In Walton v Gardiner the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people”. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. (per French CJ, Gummow, Hayne and Crennan JJ) (references omitted)
Although it is unsurprising that the respondent objects to meeting a case which remains undeveloped notwithstanding that the proceedings have been before the Court for more than a year and a half, in the absence of more information than is presently available to the Court, I cannot conclude that such delay could be described as oppressive or unfair, seriously and unfairly burdensome or productive of serious and unjustified trouble and harassment. Although I accept that some of the respondent’s potential witnesses might be less accessible than previously, it has not been demonstrated that they would be unavailable at a trial. Further, although it must be acknowledged that the FWA intends that litigation of this sort be commenced, and presumably proceed, with dispatch, the dismissal itself occurred less than three years ago and is thus well within standard limitation periods for the commencement of actions.
In support of its submission that the applicant’s prosecution of the proceedings to date has been so deficient as to amount to an abuse of process, the respondent points to a number of directions hearings during the course of 2010 and 2011, when the applicant was endeavouring to obtain legal assistance to plead his case properly.
At the directions hearing on 15 November 2010 the applicant said that the CEPU solicitor who had drafted his points of claim had ceased to act for him in the week of 13 September 2010. He said that he had made an application for legal representation to the Disability Discrimination Assistance Legal Centre and was waiting for the outcome of that application. The applicant indicated that he would amend his points of claim as the principal solicitor at the Disability Discrimination Assistance Legal Centre had raised issues which the CEPU solicitor had not raised. He also said that in order to file his evidence he would need to seek some documents from the respondent by way of subpoena or otherwise. I adjourned the matter until
28 January 2011 to allow time for the processing of the applicant’s application for legal representation and for him to amend his points of claim if he obtained such representation.
At the directions hearing on 28 January 2011 Mr Abela was represented by a PLT student from the Law Society of New South Wales pro bono scheme who sought an adjournment on his behalf to allow time for a new solicitor to prepare for the matter. She submitted that although a solicitor had been found for the applicant, that solicitor had a conflict of interest and thus they were seeking a new solicitor. Instead of an adjournment, the applicant was ordered to file his evidence by 18 March 2011, three weeks later than the date proposed by the respondent. The respondent sought a self-executing order that the matter be dismissed in the event that the applicant failed to file his evidence by 18 March 2011, an order I refused to make at that time. However, I did indicate that the respondent could make an application for dismissal if the applicant failed to file his evidence on time.
On 29 March 2011 the respondent’s solicitors wrote to my associate seeking to have the matter dismissed as the applicant had failed to file his evidence. The matter was listed for directions on 8 April 2011.
On 8 April 2011 the respondent pressed its application to have the proceedings dismissed on the basis that the applicant had not filed his evidence and had filed his points of claim late. The applicant, appearing in person, advised the Court that on 14 March 2011 a solicitor, Mr Donnelly, had agreed to represent him but that Mr Donnelly had been unable to attend court on that day. He further said that he had been unable to file his affidavit because Mr Donnelly had advised him to make many changes to it and that he was unable to say when his affidavit would be completed as he did not yet have an appointment with Mr Donnelly. The applicant said that as Mr Donnelly was very busy, he was not sure when he would be able to secure an appointment with him. The applicant also stated that whilst he was satisfied with his points of claim as they stood, Mr Donnelly was not. On that day I ordered that the applicant file any further amended points of claim and any affidavits he would rely on by 3 June 2011 and, further, that were he to fail to file an affidavit by that time, the proceedings would stand dismissed. The applicant did file amended points of claim and an affidavit on 3 June 2011.
On 10 June 2011 orders were made for the respondent to request further and better particulars by 20 June 2011 and for the applicant to respond by 18 July 2011.
On 13 July 2011 the applicant sent a letter to my associate requesting an extension of the time to provide his further and better particulars. The respondent did not consent to such an extension and on 21 July 2011 the respondent’s solicitors sent a letter to my associate indicating that they would be seeking an order that the proceedings be dismissed because of the applicant’s delay. At a directions hearing on 22 July 2011 the applicant sought a fourteen day extension to respond to the respondent’s request for further and better particulars, saying that the request was unnecessarily complex and large and that it sought copies of documents which he did not have. The applicant said that he had not been able to access the respondent’s request sent by email because when he had gone to access his email, the service had not been available. He had only accessed the email on 24 June 2011 but was unable to print it and was taken aback by its length. Further, he said that he was only able to attend his post office box on Fridays and that this explained his delay in receiving the hard copy sent to him by post. I made orders for the applicant to provide better and further particulars by 12 August 2011 and I stood over the respondent’s application to dismiss the proceedings to the next directions hearing on
19 August 2011.On 19 August 2011 the respondent advised the Court that the applicant had provided it with his response to its request for further and better particulars on 12 August 2011 and with some further attachments on 15 August 2011. The respondent indicated that it would be filing an application in a case seeking to strike out parts of the applicant’s claim based on the further and better particulars that he had provided.
On 19 September 2011 those portions of the further amended points of claim concerning his “Form 4” claim alleging contravention of a general protection were struck out. The applicant was granted leave to file the present application in a case.
Although each step in these proceedings has been drawn out by the applicant’s lack of representation and personal difficulties, I do not doubt that he has endeavoured to prosecute his case. The time taken for the applicant to complete timetabled steps has been far from ideal but does not, in my view, amount to a lack of prosecution amounting to an abuse of process. Further, his inconsistent observance of timetable directions, while undoubtedly causing delay, has been adequately explained and, in circumstances where such failure have only caused timetable slippage and nothing of much more substance, they do not, in my view, amount to an abuse of process. Overall, I am not of the view that the manner of the applicant’s prosecution of his case amounts to an abuse of process.
Conclusion
As I am not satisfied that the proceedings have been discontinued or that the conduct of the proceedings amounts to an abuse of process, but am satisfied that the applicant has made out his claim to be permitted to bring his claim for unlawful dismissal out of time, there will be an order that the time for the commencement of the proceedings be extended to the date when the initiating application was filed, 10 March 2010.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 20 January 2012
2
9
6