Alvarez Nino v Kuksal (No 5)
[2024] FedCFamC2G 203
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alvarez Nino v Kuksal (No 5) [2024] FedCFamC2G 203
File numbers: MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021Judgment of: JUDGE FORBES Date of judgment: 16 February 2024 Catchwords: PRACTICE AND PROCEDURE – applications after substantive judgment and relief ordered – where no appeal against final orders – application for costs - applications by respondent for judgment to be set aside, judgment orders to be stayed and for recusal–where respondent directed to file materials in support of applications – where respondent in default of court order – discretion enlivened to dismiss applications – applications dismissed Legislation: Fair Work Act 2009 (Cth) s 548, 750
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190, 191
FederalCircuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04, 13.05
Cases cited: Alvarez Nino v Kuksal (No 4) [2023] FedCFamC2G 1051 Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 16 February 2024 Place: Melbourne Counsel for the Applicants: Mr S Bunce Solicitor for the Applicants: JobWatch Inc Respondent: In person ORDERS
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WILMER JAHIR ALVAREZ NINO
First Applicant
ANA MELISA GARCIA CALVO
Second Applicant
JUAN CAMILO RIOS LONDONO (and others named in the Schedule)
Third Applicant
AND: SHIVESH KUKSAL
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
By reason of the Respondent’s default of Order 2 of the Orders made on 2 February 2024:
1.The Respondent’s Application in a Proceeding filed on 16 January 2024 in matters MLG806/2021-813/2021 be dismissed.
2.The Respondent’s Application in a Proceeding filed on 24 January 2024 in matter MLG813/2021 be dismissed.
3.Any application for costs in relation to the dismissal of the Respondent’s applications is to be addressed in the written submissions to be filed by the parties pursuant to Order 1 of the Orders made on 2 February 2024.
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
(ex tempore revised from transcript)JUDGE FORBES
INTRODUCTION:
The respondent, Ms Shivesh Kuksal, is the applicant two applications before the Court. These have been referred to as the ‘set-aside application’ filed on 16 January 2024 in matters MLG806-813/2021 and the ‘recusal application’ filed on 24 January 2024 in MLG813/2021.
The questions which presently arise for the Court are whether Mr Kuksal is in default of orders made by the Court on 2 February 2024 and whether, if there has been a default, the Court ought to make further orders in relation to those applications, including that the applications be dismissed.
I will commence by recounting some observations I have made about these proceedings on numerous previous occasions. There are eight related proceedings which have travelled together as one. They are proceedings which have been conducted as small claims pursuant to section 548 of the Fair Work Act 2009 (Cth) (FW Act). As small claims, they are matters to be dealt with in a particular fashion. Section 548 of the FW Act relaxes the rules of evidence and procedure and there is a requirement for the Court to act in an informal manner and without regard to legal forms and technicalities[1].
[1] Fair Work Act 2009 (Cth) s 548(3)(b)
As small claims proceedings, the Court can make orders for payment of compensation. However, the proceedings are not civil penalty proceedings and the Court cannot impose pecuniary penalties against a respondent. That is important in framing the way in which this matter has proceeded to date and the way in which the Court has sought to case manage the proceeding generally.
I have also observed on numerous occasions in this proceeding, whether conducting case management or hearing applications, the Court is required to have regard to the overarching obligations set out in section 190 to 192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). At the risk of repeating myself, the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The Court is required to have regard to the just determination of all proceedings in the Court, the efficient use of judicial and administrative resources available for the purposes of the Court, the disposal of the Court’s overall case load, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matter.
Pursuant to section 191 of the FCFCOA Act, parties to a civil proceeding must conduct the proceeding in a way that is consistent with that overarching purpose. The overarching purpose to which I refer also finds voice in the Court rules. Rule 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (FCFCOA Rules) reiterates that the overarching purpose of civil litigation is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. There is a requirement that the Court avoid undue delay, expense and technicality.
The FCFCOA Rules and relevant provisions of the FCFCOA Act confer on the Court very wide powers and discretions to manage proceedings within the Court. That includes by making orders which are consistent with the overarching obligations. The Court can make orders which are directed at ensuring compliance or penalising non-compliance. For example, where a party has been ordered to do something as part of the case management process, such as to file a document, and fails to do that thing, the Court has power to make further orders upon that default.
This proceeding has been the subject of several published and ex tempore judgments on various points of procedure over a long period, and I do not intend to rehearse the background of all of that. But these should be read against the background of the earlier judgments in this case.
On 24 November 2023, I published the liability judgment, which is reported at Alvarez Nino v Kuksal (No 4) [2023] FedCFamC2G 1051 (the Liability Decision), and I made orders that the respondent pay compensation to each of the applicants pursuant to section 545 of the FW Act. At the time of delivering that judgment, I also ordered that the parties confer with a view to providing my chambers with a form of orders which reflected the compensation, including interest, I found was payable. I ordered that, in the absence of any agreement, the parties file competing orders and that I would then determine any disputes and make final orders on the papers.
It is now a matter of record that the applicants’ representatives notified chambers that the parties were not able to agree on the calculations. The applicants forwarded chambers minutes of proposed orders for each of the matters which reflected the liability reasons. Mr Kuksal did not offer up any competing orders. I made orders in the terms proposed by the applicants and I am satisfied they accord with my reasons.
Neither the Liability Decision nor the final compensation orders made on 18 December 2023 pursuant to that decision have been appealed.
On 15 January 2024, the applicants filed an application in a proceeding seeking orders for costs pursuant to section 570 of the FW Act (Costs Application). The parties were informed that the application would be listed for a directions hearing on 29 January 2024.
On 16 February 2024, Mr Kuksal filed an application in a proceeding. In that application, he sought an order pursuant to rule 17.05 of the FCFCOA Rules seeking that “the default judgment” delivered on 24 November 2023 following his non-attendance at the trial on 29 and 30 August 2022 be set aside. The application contends that the liability decision should be set aside on the basis that it has been achieved owing to a misapprehension of law and facts by the Court. That application was also listed for directions on 29 January 2024 (the Set Aside Application).
The directions hearing on 29 January 2024 did not subsequently proceed. A few days earlier, on 23 January 2024, Mr Kuksal informed chambers of his unavailability and subsequently filed an affidavit explaining why he was unable to attend the Court. I adjourned the directions hearing until 2 February 2024.
Also on 23 January 2024, Mr Kuksal sent directly to my chambers a second application in which he sought various orders including an order that I recuse myself. The application also sought an order that the Court stay the further hearing of the applications pending the determination of several collateral events, including a complaint he intends to pursue against me, an application for the transfer of the proceedings to the Federal Court of Australia and an application that the Court find various persons in contempt for alleged interference in the judicial process. The application filed on 23 January 2024 (the Recusal Application) has been referred to as the ‘recusal application’, but it embodies very much more than recusal.
The applicants’ Costs Application and Mr Kuksal’s Set Aside Application and Recusal Application all came before me for directions on 2 February 2024. On that occasion, Mr O’Hagan, a solicitor, appeared on behalf of the applicants, and Mr Kuksal appeared in person. After hearing the parties that day, I made case management orders in all matters.
In relation to the applicant’s Costs Application I directed the parties to file and serve written submissions in relation to that application, including a reply by the applicants, and resolved to determine that application in due course on the papers.
Relevantly, I also made orders concerning the respondent’s Set Aside Application and the Recusal Application. Order 2 of the orders I made on 2 February 2024, was specifically directed to those two applications. I directed the respondent, by no later than 4.00pm on 8 February 2024, to file and serve a written submission in support of each of the set-aside application and the recusal application, each submission not exceeding 10 pages in length, and any affidavits on which he intends to rely. I also directed the applicants, who are the respondents to Mr Kuksal’s applications, to also file and serve a written submission and affidavits by 4.00pm on 14 February 2024. The two applications were listed for hearing on 16 February 2024 at 10.15am.
In making the case management orders on 2 February 2024, I also expressly included a number of notations to those orders reflective of the case management principles that I referred to earlier. The notations are as follows:
“AND THE COURT NOTES THAT:
A. The interlocutory applications are made in proceedings which are being dealt with as small claims under section 548 of the Fair Work Act 2009 (Cth).
B. At the directions hearing on 2 February 2024 the Court reminded the parties of the overarching obligations of civil procedure referred to in ss 190-192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and of the parties’ obligations to conduct proceedings in accordance with those overarching obligations
C.The directions given in relation to each of the interlocutory applications have been made to ensure the just, efficient and timely determination of the applications having regard to the overall justice of the matters.
D.Having regard to the overall business of the Court and limited judicial resources, it is expected that each of the parties’ cases in relation to the interlocutory applications will be addressed in written submissions and that overall submissions can be contained.”
Is the respondent in default?
This Court’s capacity to deal with interlocutory applications at relatively short notice is notoriously limited. The business of the Court must be managed efficiently, having regard to the large volume of litigation, the interests of other Court users and the judicial workload. Litigants are required to cooperate.
The respondent did not file written submissions in respect of either of his interlocutory applications by 8 February 2024 or, indeed, at all.
On 14 February 2024, in accordance with my orders, the applicants filed their outline of submissions concerning both the Set Aside and Recusal Applications. They oppose the applications and submit that they are without merit.
The filing of the applicants’ submissions did not prompt any further action from the respondent. No application was made before today for leave to file or serve documents out of time or for any amendment to be made to the timetable. Further, no application has been made for an adjournment of this hearing.
I have heard Mr Kuksal this morning in response to my question about whether or not I should find him to be default of the orders I made on 2 February 2024. He denies that he is in default. Mr Kuksal contends that the orders I made on 2 February 2024, properly construed, merely gave him the option to file written submissions or further affidavits should he wish to do so. He says that he was not required to file any additional material.
I have heard and considered Mr Kuksal’s response, and I do not accept it. In my view, the orders were unambiguous. Respectfully, there could not be a clearer case of default than the failure of the respondent to file written outlines of submissions as I ordered on 2 February 2024, particularly when one has regard to the following:
(1)the exchanges which occurred at the directions hearing on 2 February 2024, including my reminder to the parties about their obligation to conduct these proceedings in accordance with the overarching obligations;
(2)the notations that I made to those orders, which I plainly did not make by accident but to squarely focus all parties to the obligations in the orders; and
(3)the fact that the case management orders that I had made were directed to achieving the overarching obligations, including the efficient, timely and cost-effective administration of justice.
Rule 13.04 of the FCFCOA Rules defines the circumstances in which a party is in default for the purposes of that rule. It provides that:
“(1) For the purpose of rule 13.05, an applicant is in default if the applicant fails:
(a) to comply with an order of the Court in the proceeding,
[…]
(e) prosecute the proceeding with due diligence.”
The failure to comply with order 2 of my orders made on 2 February 2024 is an act of default, and I find so. I also find that that failure constitutes a failure by Mr Kuksal to prosecute the applications with due diligence.
Having regard to limitations on the Court’s time and resources and having regard to the burden of costs which continues to mount on the applicants in this ongoing litigation, Mr Kuksal’s failure goes to the very core of the administration of justice. His failure to do what was required of him compromises the just, efficient and timely determination of applications he has made to this Court. It is conducive of ongoing delay, additional cost and it denies the applicants the fruit of their successful applications.
A default of a Court order enlivens the powers of the Court to make orders of the type described in rule 13.05 of the FCFCOA Rules, including that the proceeding be stayed or dismissed as to the whole or any part of the relief that is claimed. The Court can order a party to take a further step in the proceeding or it can make an order that the proceeding be stayed or dismissed if that further step is not taken.
These are matters for the Court’s discretion, to be tailored to the situation, and I am required to exercise that discretion judicially and reasonably. Mr Kuksal submitted as much, and I agree with him in that respect.
In considering how to exercise my discretion, I have taken the respondent’s conduct into account in the context of the proceedings as a whole. That has been the subject of comment in earlier judgments. I have also had particular regard to the two applications, and considered whether either of them, on the material presented to the Court to date, has any realistic prospect of success. I have also taken into account, as I have mentioned several times, the overarching obligations prescribed by the FCFCOA Act and the fact that these applications have been made in a small claims proceeding. I have considered and given weight to the manner in which small claims proceedings are required to be conducted.
I have also taken into account any prejudice to the applicants. Whilst Mr Kuksal submits that the Recusal Application does not give rise to prejudice, he indicated in court today that he proposed to rely upon the transcript of earlier proceedings, which is not available to the applicants. The applicants and the Court could have, but have not been, put on notice through a written submission as to the grounds of the Recusal Application or the evidence to be relied on. Furthermore, there is prejudice to the Court in terms of its ability to hear and determine applications efficiently and in the limited time it can make available for such matters. One of the purposes of requiring a party to file written submissions is to avail the Court the opportunity to prepare for a hearing and to conduct the matter in a structured and orderly fashion. The notations to my orders of 2 February 2024 make perfectly clear that the parties should put their cases in writing so as to minimise the precious Court time.
It is self-evident from Mr Kuksal’s oral submissions that there is a raft of material that he wishes to raise in relation to the Set-Aside Application. He has been given the opportunity to do so and has not. I am satisfied that the respondent has not conducted this proceeding with due diligence. Having regard to the manner in which this proceeding has been conducted from the commencement, I see no basis for any further indulgence to Mr Kuksal in circumstances where there is, in my view, clear default.
I cannot determine the merit of Mr Kuksal’s applications other than on an impressionistic basis, having regard to the materials currently before the Court. However, it seems to me that neither application has a realistic prospect of success. Written submissions filed by the applicants, forcefully oppose each application. I have read those submissions and consider them to be persuasive.
It seems to me, in circumstances where Mr Kuksal has not appealed the Liability Decision and compensation orders, that the prospects for the Set Aside Application are remote. In relation to the Recusal Application, where no outline has been filed and where it is sought to stay the proceeding on the basis of various foreshadowed complaints and applications – about which there is no evidence before the Court – that, too, has remote prospects.
These proceedings have been lengthy, expensive and difficult. The applicants have been successful in the substantive litigation and are entitled to the fruits of that success. Mr Kuksal’s failure to properly prosecute his applications will further delay these proceedings, in a manner which is entirely unacceptable. The applicants are again blameless.
DISPOSITION
On account of the respondent’s default of my orders made on 2 February 2024, and for the reasons I have given, I have determined that:
(1)the Set Aside Application filed by Mr Kuksal on 16 January 2024, should be dismissed.
(2)the Recusal Application made on 23 January 2024 should also be dismissed.
Any application for costs in relation to the dismissal of the respondent’s applications is to be addressed in the written submissions to be filed by the parties pursuant to Order 1 of the Orders made on 2 February 2024
Any extant orders I have made in relation to the determination of the applicants’ costs application otherwise remain in full force and effect.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 16 February 2024
SCHEDULE OF PARTIES
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021Applicants
Fourth Applicant:
JUAN CAMILO PINEROS TORRES
Fifth Applicant:
LEONARDO FABIO HERNANDEZ ALARCON
Sixth Applicant:
GERALDINE TORRES AMEZQUITA
Seventh Applicant:
CAROLINA CORRALES RHENALS
Eighth Applicant:
NICOLAS MORENO RIVERO