Algie v ADX Depot Pty Ltd
[2022] FedCFamC2G 861
Federal Circuit and Family Court of Australia
(DIVISION 2)
Algie v ADX Depot Pty Ltd [2022] FedCFamC2G 861
File number(s): ADG 184 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 17 October 2022 Catchwords: PRACTICE AND PROCEDURE – default – Application in a Proceeding for summary dismissal – whether default in filing of affidavits in reply and submissions – factors for consideration – sufficiently arguable case without affidavits in reply – significant prejudice if summarily dismissed
PRACTICE AND PROCEDURE – oral application for extension of time to file affidavits – substantial delay – claims of ill health by the applicant’s solicitor – prejudice – merits – consideration of factors
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 361, 570
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05
Federal Court Rules 1976 (Cth) O 10, r 7
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 209 ALR 647
Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Klievans v Finance Sector Union of Australia [2022] FedCFamC2G 835
Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745; (1990) 27 FCR 388; (1990) 98 ALR 200
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67
Rothnie v St John Of God Hospital (Subiaco) [2014] FCCA 159
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 17 October 2022 Date of hearing: 17 October 2022 Place: Perth Counsel for the Applicant: Mr T Bourne via CISCO Webex Solicitor for the Applicant: Bourne Lawyers Counsel for the Respondent: Ms C Craggs via CISCO Webex Solicitor for the Respondent: Lynch Meyer ORDERS
ADG 184 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KELLIE ALGIE
Applicant
AND: ADX DEPOT PTY LTD
Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
17 OCTOBER 2022
THE COURT ORDERS THAT:
1.Pursuant to r 13.05(6) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) the following orders be set aside:
(a)orders 6-7 of Judge Young's orders of 4 February 2022
(b)order 3 of Judge Young's orders of 24 May 2022; and
(c)order 2 of Judge Brown's orders of 18 August 2022,
but otherwise the Respondent's Application in a Proceeding filed 12 October 2022 be dismissed.
2.The Applicant's oral Application in a Proceeding made at hearing for the extension of time in which to file Affidavits in Reply be dismissed.
3.Costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
Before the Court is an Application in a Proceeding filed on 12 October 2022 pursuant to which the respondent in these proceedings under the Fair Work Act 2009 (Cth) (“FW Act”), seeks orders for the summary dismissal of the proceedings on the basis that the applicant has not filed affidavits in reply (“Documents”) and an Outline of Submissions as required by orders initially made by Judge Young on 24 May 2022 (“Judge Young’s Orders”) for those affidavits to be filed by 20 July 2022, subsequently extended by the order of Judge Brown (“Judge Brown’s Orders”) on 18 August 2022 for the Documents to be filed by 22 September 2022.
The history of the matter is not in significant contest and is set out in the affidavit of Ms Celeste Jean Loo Craggs (“Ms Craggs”) sworn on 12 October 2022, and setting aside the reference that the Court has just made to Judge Young’s Orders and Judge Brown’s Orders, the history of the matter thereafter is outlined in Ms Craggs’ affidavit and indicates:
(a)that on 27 September 2022 the respondent’s solicitors wrote to the applicant’s solicitor, requesting an update in relation to the applicant’s Outline of Submissions and the Documents;
(b)later on 27 September 2022, the applicant’s solicitor responded to the respondent’s solicitors, advising that the applicant’s solicitor was experiencing health issues but would have the documents to the respondent’s solicitors by 30 September 2022. That did not eventuate, and on 5 October 2022, the respondent’s solicitors wrote to the applicant’s solicitor, seeking an update and advising the applicant’s solicitor that it was anticipated that instructions would be received to make an urgent application to this Court if the Documents were not received; and
(c)on 10 October 2022, there was some endeavour by one of the respondent’s solicitors to phone the applicant’s solicitor, and a message was apparently left. Subsequently the respondent’s solicitors wrote to the applicant’s solicitors, advising that the applicant was in default of Judge Brown’s Orders and asking for contact by noon on 11 October 2022 to discuss how it was intended to proceed with the prosecution of the applicant’s claim. That letter elicited no response from the applicant’s solicitor, and it would appear that no further response or correspondence or intimation as to how the matter might proceed has been delivered up to today’s hearing.
At hearing, the applicant through her solicitor sought further time for the filing of the Documents and formally made an application for an extension of time for the filing of the Documents to 5:00 pm ACDT on 19 October 2021 and also suggested that it might be possible to file an affidavit explaining the delay.
As the Court has already indicated, these are proceedings under the FW Act, and they were filed on 17 June 2021, alleging a contravention of a general protection under s 340 of the FW Act in relation to the applicant by the respondent and have been the subject of orders, as the Court has already indicated, by Judges Young and Brown. In relation to submissions, there was also an order by Judge Young on 4 February 2022 in which the applicant was required to file submissions within 14 days of receipt of the respondent’s affidavits, and at the time when those orders were made on 4 February 2022, there was no provision for the filing of the Documents, those Documents only coming in by way of Judge Young’s Orders. Judge Young’s Orders do not sit easily with the orders made earlier with respect to the filing of submissions because ordinarily one would expect that submissions would be filed after the filing of the Documents and no provision was made for that in Judge Young’s Orders.
The Court does note that Judge Brown’s Orders were necessary to be made as a consequence of an earlier default by the applicant in relation to the filing of the Documents, those not being filed in accordance with the terms of Judge Young’s Orders. It is plain enough that the applicant is in default in relation to the filing of the affidavits in reply in relation to Order 2 of Judge Brown’s Orders and also technically it might be said with respect to the filing of submissions which were required within 14 days of the respondent’s affidavits having been filed, the respondent’s affidavits appearing to have been filed on 6 July 2022.
The Court notes that at the hearing of the Application in a Proceeding today, the solicitor for the respondent conceded that on the materials filed by the applicant, there was a sufficiently arguable case for the matter to proceed to hearing, and, indeed, there was no application earlier for the matter to be summarily dismissed after the applicant’s affidavits were filed, it appears, in June 2022.
Rules 13.04 and 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) deal respectively with when a party is in default – and as the Court has already indicated, it is plain enough that the applicant is in default in this case – and also with the orders that may be made on default, including orders for summary dismissal of the proceedings. This Court has previously observed that the exercise of the discretion to dismiss for noncompliance with the Court’s orders is not commonplace and further that orders under what is now r 13.05(1)(a) ought to be exceptional, and the Court refers to Rothnie v St John Of God Hospital (Subiaco) [2014] FCCA 159 at [20]-[28] per Judge Lucev and also to Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88, recently referred to by this Court in Klievans v Finance Sector Union of Australia [2022] FedCFamC2G 835 at [6]-[8] per Judge Humphreys.
In Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745; (1990) 27 FCR 388; (1990) 98 ALR 200 (“Lenijamar”), the Full Court of the Federal Court established principles concerning applications to dismiss a proceeding based on noncompliance with Court orders. In Lenijamar, the Full Court of the Federal Court considered the discretionary power to make orders under the then O 10, r 7 of the then Federal Court Rules 1976 (Cth) (“1976 Federal Court Rules”). That order was in substantially the same terms, to the same effect as r 13.05 of this Court’s current GFL Rules. After making some observations generally about the scope of O 10, r 7 of the 1976 Federal Court Rules, the majority of the Full Court of the Federal Court in Lenijamar FCR at 396 per Wilcox and Gummow JJ cautioned that:
We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a noncompliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.
The majority of the Full Court of the Federal Court in Lenijamar observed that whilst it was undesirable to exhaustively outline the circumstances in which the power under O 10, r 7 of the 1976 Federal Court Rules would be appropriately exercised, two situations were obvious candidates for the exercise of the power. The first was where there has been a history of noncompliance by an applicant to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in bringing the matter to a hearing within an acceptable period: as to which see FCR at 396 per Wilcox and Gummow JJ where it was observed that there is:
…no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule.
The second situation outlined in Lenijamar arises where, whatever an applicant’s state of mind or resources, the noncompliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent: FCR at 396 per Wilcox and Gummow JJ.
The Court notes the terms of rr 13.04 and 13.05 of the GFL Rules, as follows:
13.04 When a party is in default
(1) For the purposes of rule 13.05, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant's claim; and
(b) fails to:
(i)give an address for service before the time for the respondent to give an address has expired; or
(ii)file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
13.05 Orders on default
(1) If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
(2) If a respondent is in default, the Court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages--grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate--costs; or
(c)if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:
(i)the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d) give judgment or make any other order against the respondent; or
(e)make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
(3)The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:
(a) an affidavit, or affidavits, proving:
(i)service of the application claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default; and
(b) an affidavit for the debt or liquidated damages in accordance with the approved form.
(4) Unless the Court otherwise orders, if a respondent to a cross-claim is in default:
(a)a judgment or decision on any claim, question or issue in the proceeding on the originating process; or
(b) any other cross-claim in the proceeding;
is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.
(5) In subrule (4):
"decision " includes a decision by consent.
"judgment " includes a judgment by default or by consent.
(6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
With respect to the FW Act, the relevant statutory provisions for present purposes are contained in s 340 and 341, and in the context of adverse action proceedings, it is necessary for an applicant to assert and establish that:
(a)they exercise the workplace rights pleaded in their statement of claim or application;
(b)that the conduct complained about, in fact, occurred; and
(c)that the conduct constitutes adverse action under s 342(1) of the FW Act.
If an applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is then for the respondent to prove on the balance of probabilities that it was not motivated by an impermissible reason: s 361(1) of the FW Act; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 209 ALR 647 and also Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67.
In this case, the materials presently filed for the applicant by way of the application and the various affidavits that have been filed make it clear and, indeed, it was conceded by the solicitor for the respondent in the course of this morning’s proceedings that there was a sufficiently arguable case for the applicant such that it could proceed to hearing without the Documents. All of the evidence in the proceedings save for the Documents have been filed. That is otherwise in accordance with the orders already made by the Court. A hearing date has been set for 28 and 29 November 2022, which is just six weeks away.
Essentially, save for submissions, the matter is hearing ready, and thus the question of whether there would be any delay in the matter going to hearing or would otherwise be delayed does not arise, particularly if the Court dispenses with any requirement to file the Documents. In that way, the only party that would be prejudiced by the applicant’s present and ongoing default, is the applicant. In considering whether to adopt that course, the Court bears in mind that the applicant is now twice in default with respect to the filing of the Documents, which would indicate that not too much reliance might have been otherwise placed on the Documents and not too much urgency to provide the Documents has been evidenced, bearing in mind that the applicant’s default, twice now, has been ongoing over a period of months since 20 July 2022. The Court also notes that it was suggested in submissions this morning by the applicant’s solicitor that the Documents probably did not rise much higher than being “tit for tat” evidence in relation to what is alleged to have occurred. The Court notes that the “tit for tat” reference was one which first emanated from the Court rather than the applicant’s solicitor.
The applicant’s solicitor in correspondence, which is in evidence in these proceedings in the affidavit of Ms Craggs, makes some reference to significant health issues, but there is no evidence before the Court as to what those issues are, but more particularly what steps, if any, were taken to endeavour to ensure that the Court’s orders were complied with especially by having others within the applicant’s solicitor’s firm or even, indeed, outside of it by way of a third party provider of services, prepare the Documents. The Court notes that the applicant’s solicitor did say this morning that some steps had been taken very recently, it would appear, to have someone else within the applicant’s lawyer’s firm either take over or substantially assist with the matter. That does not explain however why it is that that did not occur earlier and why it was not possible for the applicant to do that earlier and, therefore, to file the Documents within time.
There is, the Courts bears in mind, some prejudice to the respondent from the Documents being filed this late in the proceedings in terms of preparation, although one suspects that is probably minimal with the proceedings still being some six weeks away. The applicant is also, as the Court has earlier indicated, technically in default with respect to the filing of submissions, although the Court does accept that the position with respect to the filing of those Outline of Submissions is somewhat confused by the orders previously made by the Court and the fact that those orders were not clarified in subsequent orders providing for the filing of the Documents.
Aside from the making of the Application in a Proceeding, there has been no additional expense to the respondent occasioned by reason of the Documents not being filed, and, indeed, it might have been more economic for them to wait for and then oppose any necessary application for an extension of time in which to file the Documents. The Court also notes that there is some saving to the respondents if no affidavits in reply are filed because they would not have to be considered and would not have to be cross-examined on.
Finally, the Court notes that – and this harks back to where the Court began in some respects with respect to orders for summary dismissal of this type for noncompliance with respect to procedural orders not being commonplace –there is significant prejudice to the applicant if the proceedings were to be summarily dismissed and, in essence, of course, the applicant would lose the entirety of the action thereby.
On balance, the Court has come to the view that the prejudice to the applicant from a summary dismissal is too great, given the circumstances which relate to the failure to file the Documents and submissions. The more appropriate course, the Court considers in the circumstances, is simply to dispense with the requirement for the filing of the Documents and the Outline of Submissions subject to what the Court has to say with respect to the oral application for extension of time to file those Documents.
The solicitors for each side conceded in the course of submissions this morning, that this is a fairly simple case of an alleged contravention of the FW Act in an area where the law is certainly not unsettled, and the case is simply one which will turn upon the findings of fact ultimately made by the Court in respect of the respective contending factual positions put by the parties, and more particularly emerging from the evidence once it is cross-examined on. In that respect, as the Court observed this morning in submissions, it is more likely to be assisted by detailed written and/or oral submissions at the end of the case rather than submissions based on the untested evidence before the hearing.
The Court would, therefore – and, again, subject to the extension of time application – pursuant to r 13.05(6) of the GFL Rules set aside the relevant orders from the relevant orders of Judges Young and Brown made on 4 February, 24 May and 18 August 2022 and otherwise dismiss the Application in a Proceeding, leaving no requirement to file the Documents.
At hearing, the applicant made an oral application for an extension of time in which to file the Documents. As the Court has indicated, it was made at hearing, it was not previously foreshadowed, and it appeared to be reactive to remarks which were made by the Court during the course of the hearing. There is no affidavit evidence in support of the application, and the suggestion that affidavit evidence might be filed now was, with respect, too little too late, in the Court’s view.
With respect to an extension of time, the principles are well-known and certainly in the federal courts generally derived from Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 and require consideration of, firstly, the length of the delay, and here that is quite considerable. The Court notes that the original time for the filing of the Documents, and bearing in mind the Court is dealing with the Documents and not a complex statement of claim, for example, was 20 July 2022 which was extended to 22 September 2022, and so the delay is now ultimately close to three months overall and even in respect of the extension now close to one month for the filing of affidavits, and in circumstances where the hearing is only six weeks away, that is a considerable delay. In the Court’s view, this is not a factor which weighs in favour of an extension of time.
With respect to the explanation for the delay, as the Court has already indicated, there was some reference in the correspondence which is in evidence and also in oral submissions to the applicant’s solicitor’s health issues, and there was the suggestion made or it was indicated that another member of the applicant’s solicitor’s firm might now be dealing with the matter or aspects of the matter. It remains the case, however, that no explanation on affidavit explaining the reasons for the delay in terms of the applicant’s solicitor’s health issues or as to why other steps were not taken has been filed. Further, it is simply not sufficient to say in support of an oral application not foreshadowed made at hearing to say, “…well, we might file affidavit evidence later this week.” As the Court indicated during the course of those submissions, that simply leads to further delay in relation to the Application in a Proceeding which needs to be determined now, given the proximity of the hearing.
The Court also bears in mind that affidavit evidence of that type if an application for an extension of time was to be made ought to have been thought through and the consequences thought through and the application made and the evidence required filed before today’s hearing or at least be such that either affidavits were tendered at hearing or draft affidavits tendered at hearing with a view to being filed later on. That is simply not the position, and the Court is left in the unsatisfactory position of a promise of future action, in circumstances where the applicant’s solicitor’s past actions provide little confidence that such promises might be fulfilled.
With respect to prejudice, as the Court has already indicated, there is some prejudice to the respondent by reason of these delays, and there would be further prejudice in terms of the extension of time were the extension of time to be granted for the reasons that the Court has earlier expressed. With respect to the merits of the matter, it needs to be borne in mind that the Court is presently dealing with an application to extend time for the Documents to be filed. The Court is not dealing with an application for an extension of time in which to file an application or a response, that is, to make a case or defend a case, or in which to provide the evidence in support thereof so as to make or defend or respond to a case. In circumstances where it is effectively conceded by the respondents in submissions and where, as the Court has already observed, there is a sufficiently arguable case on the papers as they presently appear, the Court is not minded to grant leave to extend time to file the Documents, especially so where the applicant’s solicitor’s submissions suggested, perhaps albeit tentatively, that those affidavits would rise no higher than more “tit for tat” evidence and would not add anything in that respect to the particular merits of the case to which the Court has already referred.
So in those circumstances, the Court is not satisfied that by reason of the length of delay, the explanation for the delay, the question of prejudice or merits, that there is anything in those factors which would warrant an extension of time, and in the circumstances, the oral application for an extension of time in which to file the affidavits in reply will be dismissed.
With respect to the issue of costs, there was a submission made by the respondent’s solicitor for costs. However, having regard to the fact that the Court proposes to make orders in the terms that it has just outlined with respect to the respondent’s Application in a Proceeding, the Court, having regard to the provisions of s 570(2) of the FW Act, will reserve on the question of costs. The question of costs of the Application in a Proceeding and the application for an extension of time can be considered if necessary in light of the ultimate outcome of the proceedings, bearing in mind, of course, that there are not inconsiderable hurdles to obtaining an order for costs under the FW Act by reason of the provisions of s 570(2).
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 18 October 2022
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