Al Khlif v Armani Restaurant Pty Ltd

[2021] FCCA 2172

FEDERAL CIRCUIT COURT OF AUSTRALIA

Al Khlif v Armani Restaurant Pty Ltd [2021] FCCA 2172

File number(s):

SYG 1879 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

10 March 2021

Catchwords:

PRACTICE AND PROCEDURE – application for an ex parte hearing for the purpose of seeking suppression of affidavit evidence sought to be relied upon by the respondents – where application made well after expiry of order for hearing – where application seeks vacation of hearing date and a stay of the proceedings – where there is no direct evidence currently before the Court of circumstances that would justify an ongoing suppression order of the breadth being sought – where the evidence does not identify conduct by the applicant to justify an order being necessary to prevent prejudice to the proper administration of justice, or being necessary to protect the safety of a person within s 88G of the Act

Legislation:

 Fair Work Act 2009 (Cth), s 566

Federal Circuit Court of Australia Act 1999 (Cth), s 88G

Number of paragraphs:

15

Date of hearing:

10 March 2021

Place:

Sydney

Solicitor for the Applicant:

Ms L Rumble, Holding Redlich

Counsel for the Respondents:

Mr M Green SC

Solicitor for the Respondents:

Grove Lawyers

ORDERS

SYG 1879 of 2020

BETWEEN:

WAEL AL KHLIF

Applicant

AND:

ARMANI RESTAURANT PTY LTD ACN 145 665 694

First Respondent

ARMANI PAYROLL PTY LTD ACN 615 458 636

Second Respondent

KRICH MUSTAFA

Third Respondent

ORDER MADE BY:	JUDGE STREE
DATE OF ORDER:	10 MARCH 2021

THE COURT ORDERS THAT:

1.The application in a case that was forwarded to the Court on 8 March 2021 on behalf of the respondents is dismissed.

2.Order 3 made on 8 March 2021 is dissolved.

3.Leave to file the affidavits identified in paragraph 12(i) – (v) of the affidavit of Cynthia Elachi sworn 8 March 2021 is refused.

4.The affidavit the subject of paragraph 12(vi) of the affidavit of Cynthia Elachi sworn 8 March 2021 be filed and served on or before close of business today.

5.Time for compliance with order 5 made 1 December 2020 is extended up to 19 March 2021.

6.Until the determination of these proceedings, the affidavit of the Cynthia Elachi sworn 8 March 2021 is to be suppressed on the Court record.

7.The affidavits the subject of paragraph 12 of the affidavit of Cynthia Elachi sworn 8 March 2021 are marked for identification, MFI 1, and MFI 1 is also suppressed from the public record until the determination of these proceedings.

8.Leave is granted to the applicant to file the amended application the subject of the application in a case dated 5 March 2021.

9.Leave is granted to the respondent to file and serve any affidavit evidence in respect of the subject matter of the amendments within seven days.

10.Leave is granted to the respondents to file an amended response in respect of the subject matter of the amendments but not otherwise raising any new issue, within 7 days.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application that was forwarded to the Court requesting an urgent ex parte hearing for the purpose of seeking suppression of affidavit evidence sought to be relied upon by the respondents in answer to the Fair Work contravention allegations of general protection provisions brought by the applicant within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”). 

2. The respondents filed a response on 12 November 2020 that identified a purported justification for the dismissal involving a particular employee. This is not the occasion to determine whether the respondents have discharged their onus in respect of the relevant contravention allegation. It is apparent, however, that the subject matter of the incident was squarely identified in the response. 

3. This Court made orders on 1 December 2020 fixing the matter for hearing, and relevantly, requiring the respondents to put on their affidavit evidence by 26 February 2021. This application for a suppression order was made well after the expiry of that order. No application in a case was brought forward seeking to explain why the Court’s orders could not be complied with.

4. The affidavit, by the solicitor on the record for the respondents, does not address the failure to comply with the Court’s order, and why some earlier step was not taken to bring the matter before the Court. Mr Green, of Senior Counsel, on behalf of the respondents seeks to apologise in that regard, and proffers bringing forward an affidavit explaining the same in due course. That is not a proper course to take in respect of an application, the nature of which is seeking serious suppression orders, and also, on its breath, seeking to stay the proceedings because of the alleged subject matter of the affidavits.

5. Whether or not the affidavits are matters that will be permitted to be read, the Court will deal with in due course because of the non-compliance with the Court’s order. Suffice to say that, in respect of this application, it not only seeks a stay in the proceedings, it also seeks to vacate the hearing date. Any step to vacate a hearing date that has been fixed should be promptly made with candid and fulsome explanation as to the circumstances justifying the vacation of the hearing date. That standard of explanation is not apparent on the face of the affidavit that has been filed by the solicitor on behalf of the respondents.

6. The solicitor on behalf of the respondents makes assertions in relation to apprehension of interference by the applicant or feared interference, founded on the relevant affidavit. That includes an affidavit by a party the proceedings, and includes the very subject matter of the response that was filed. There is no direct evidence currently before the Court in respect of circumstances that would justify an ongoing suppression order of the breadth being sought in the application that was filed by the respondents.

7. The material filed, taken at its highest, does not identify conduct by the applicant to justify an order being necessary to prevent prejudice to the proper administration of justice, or being necessary to protect the safety of a person within s 88G of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”). The mere assertions of apprehension are not sufficient to justify the making of a suppression order in respect of what is ordinarily an open Court hearing in respect of a fair work matter. Whilst the nature of the incident, may be one of sensitivity, it does not, of itself, identify a basis why there should a suppression order.

8. The rolled up reliance by the solicitor seeking a suppression order on the material that includes the incident the subject of the alleged justification for dismissal, materially undermines the weight to be placed on the assertions in respect of the apprehension and fears alleged by the solicitor. The failure to address the orders that were made by the Court further diminishes the weight to be placed on the solicitor’s affidavit in respect of the assertions of apprehension and fears. 

9. To stay the proceedings would be a most unusual step. No conduct has been identified by the applicant that comes near justifying the taking of such a serious step in respect of the proceedings.

10. There are a number of affidavits that have been filed other than by the third respondent which relevantly do not identify their address. The Court will deal with the issue of whether those affidavits are to be allowed to be read at the final hearing because of a failure to comply with the Court’s order. Suffice to say that each of the affidavits do not, of themselves, identify a basis upon which the Court would be satisfied that it was necessary within the meaning of s 88G(1)(a) or (c) of the FCCA Act to make a suppression order of the content of the affidavits or the identity of the deponents.

11. The affidavits do not relevantly disclose addresses, and accordingly, no suppression order in that regard is necessary. The Court did make an order in the nature of a temporary suppression order, when the application was filed, being order 3 requesting the legal representatives of the applicant to treat the material as if it had been the subject of a suppression order, and not to disclose the identity or address of those persons. The Court is not satisfied that there is any proper basis to continue order 3 that was made on 8 March 2021.

12. The application in a case also sought to vacate the hearing date. No proper basis has been identified to vacate the hearing dates.

13. The Court does not propose to strike out the response or to proceed with any summary dismissal because of a non-compliance with the Court’s order. The Court is, however, satisfied that this is an appropriate matter in respect of which, by reason of the non-compliance, the Court will not permit the affidavits listed in paragraph 12(i) to (v) of the affidavit of the solicitor for the respondents, sworn 8 March 2021, to be filed. The Court directs that the affidavit in paragraph 12(vi) be filed and served, on or before close of business today.

14. The Court has taken into account that it made orders for a final hearing and no proper step was taken to advance an application before the Court on a timely basis as to why the respondents could not comply with the Courts orders. The five purported affidavits the subject of the order rejecting the filing of the same are ones in respect of which Mr Green has said relevance, or the substance of which, could be dealt with on another occasion in respect of rulings. This Court makes orders for hearing in circumstances where it expects the orders to be complied with. The substance of the case in the present circumstances is one in respect of which the affidavits in (i) and (v) appear to be of a corroborative nature in respect of the evidence of a third respondent. The Court does not determine the matter on the basis of the relevance of the affidavits but takes into account the failure to provide a proper explanation in respect of the non-compliance with the Court’s orders. Mr Green proffers steps being taken to do so. That should have been done before and indeed was a matter that the Court does not accept is satisfactorily dealt with by a proposal or putting forward an explanation belatedly.

15. It is for these reasons the Court has made the orders dismissing the suppression and stay application as well as dismissing the adjournment application and the refusing to allow the belated filing of certain affidavits. The Court is also satisfied it is appropriate in the interests of the administration of justice to grant leave to the applicant to make certain minor pleading amendments that do no prejudice the trial date and consequential timetabling orders.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 March 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 7 October 2021