Ameer v Toost Pty Ltd
[2023] FedCFamC2G 247
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ameer v Toost Pty Ltd [2023] FedCFamC2G 247
File number(s): ADG 58 of 2022 Judgment of: JUDGE BROWN Date of judgment: 31 March 2023 Catchwords: PRACTICE & PROCEDURE – INDUSTRIAL LAW – application for summary dismissal – basis for dismissal non-appearance by respondents & failure to defend with due diligence – general protections proceedings – explanation for non-appearance – matters to be considered Legislation: Fair Work Act 2009 (Cth) ss 340, 341(1), 342, 361, 550
Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 4.03, 10.01, 13.04, 13.05, 13.06, 30.06
Cases cited: CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52
Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159
Shea v TRUenergy Service Pty Ltd (No 6) (2014) 314 ALR 346
Webster v Lampard (1993) 177 CLR 598
Welsh v Digilin Pty Ltd [2008] FCAFC 149
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 27 March 2023 Place: Adelaide Counsel for the Applicant: Mr Dean Solicitor for the Applicant: Johnston Withers Lawyers Counsel for the Respondents: Mr Paterson Solicitor for the Respondents: Edmond Khoury Solicitors ORDERS
ADG 58 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAHAD AMEER
Applicant
AND: TOOST PTY LTD
First Respondent
SYED ZAHEER AHMED SHAH
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed 2 March 2023 is dismissed.
2.The final hearing in this matter listed 8, 9 & 10 August 2023 at 10:00am before Judge Lucev is confirmed.
3.The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 28 April 2023.
4.The respondent file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 26 May 2023.
5.The applicant have leave to file and serve an affidavit in reply on or before close of Registry filing on 9 June 2023.
6.The parties are to file and serve any written submissions and a list of authorities they wish to rely on at the hearing on or before close of Registry filing on 25 July 2023.
7.On or before 25 July 2023 the applicant do pay the setting down fee and such daily hearing fee or file an exemption certificate in respect thereof.
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
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an application for summary dismissal of the defence to a general protection claim instituted pursuant to the provisions of the Fair Work Act 2009 (Cth).[1] The general protection proceedings arise as a consequence of an employment relationship between the parties which began on 19 October 2015 and came to an end on or about 25 November 2021.
[1] Hereinafter referred to as “the FWA” or “the Act”.
If the relevant defence is summarily dismissed, the applicant concerned wishes the Court to enter judgment in his favour in respect of the liability of the respondents pursuant to the relevant provisions of the Act. Thereafter, he does not oppose the respondents being able to file material and make submissions in respect of the appropriate penalty to be imposed and what should be the extent of the compensation to which he is entitled.
In the jargon utilised in proceedings of this kind. The applicant’s counsel, Mr Dean seeks summary judgment in respect of liability and then the adjournment of the proceedings for a penalty hearing. At an earlier stage of proceedings, the case was set down for a final hearing in respect of both issues in August of 2023.
It is Mr Dean’s submission that the respondents have failed to defend the proceedings with due diligence; have failed to attend Court on a number of occasions; and, as such, have failed to take necessary steps in the proceedings; each of which, both individually and in combination justify summary dismissal of any defence in respect of liability.
Such an application is opposed by Mr Paterson, counsel for the respondents, who asserts that the proceedings remain vigorously contested in respect of both liability and penalty. He concedes that there have been missteps in respect of the defence of the proceedings but asserts that a reasonable explanation has been given for the various omissions and, as such, it would be unjust for the defence to be summarily dismissed.
BACKGROUND
The applicant in the Fair Work proceedings is Fahad Ameer.[2] The respondent is Toost Pty Ltd of which the second respondent, Syed Zaheer Ahmed Shah is a director.[3] Mr Ameer claims to have been the subject of adverse action by the respondents, which is prohibited by the FWA, and renders them liable to pecuniary penalties and to pay him compensation.
[2] Hereinafter referred to as “the applicant”.
[3] Hereinafter referred to as “the respondents”.
Mr Ameer was employed by the respondent company, as a store manager and baker, at a business styled the Cheesecake Shop at premises at the Salisbury Shopping Centre, in suburban Adelaide, which is owned by Toost Pty Ltd. It is the applicant’s position that he was employed pursuant to the provisions of a Modern Award, namely the General Retail Industry Award.[4] Mr Ameer is a citizen of Pakistan, who was granted an indefinite bridging visa, pursuant to the provisions of the Migration Act 1958 (Cth).
[4] Hereinafter referred to as “the Award”.
At some stage, Mr Ameer and other employees of the Salisbury Cheesecake approached the relevant Industrial Association, which represents the employees of retail bakers which is the Shop, Distributive & Allied Employees’ Association. It was their position that they had been underpaid.
As a consequence on 11 November 2021, Mr Satchell, the Association’s lawyer, wrote to Mr Shah, at an address in New South Wales alleging that Toost Pty Ltd had breached various provisions of both the Award and provision of the FWA. These breaches can be summarised as follows:
·Toost had failed to pay the amount of wages due under the Award for the hours worked by paying a flat rate of pay, which did not take into account overtime;
·Toost had failed to pay personal leave or had not accounted it properly in payslips issued;
·Mr Ameer had been misclassified in respect of his employment qualifications and so had been underpaid;
·Mr Ameer had been provided with false or misleading payslips; and
·These various irregularities had led to Mr Ameer being underpaid for overtime performed by him, annual leave, and personal leave entitlements, public holiday penalties and as consequence of his misclassification.
Under the FWA, these matters are classified as falling within the rubric of civil remedy provisions, which can result in the employer concerned being liable for the imposition of a fine. In addition, pursuant to the provisions of section 550(1) of the Act provides that a person who is involved in a contravention of a civil remedy provision of the Act is also taken to have contravened that provision. Mr Satchell contended that Mr Shah bore accessorial liability for the breaches of the Act and the Award alleged to have been committed by Toost Pty Ltd.
On 19 November 2021, Mr Ameer contends that he raised with Mr Shah concerns that he had not been paid in accordance with relevant provisions of the Award. Thereafter, the parties corresponded and Mr Ameer engaged a solicitor to act on his behalf via an Industrial Organisation the Shop, Distributive & Allied Employees’ Association.
Between 22 and 23 November 2021, Mr Ameer and Mr Shah corresponded via email. Firstly Mr Ameer wrote requesting evidence from Shah that he (Mr Ameer) had been requested to work additional hours. Mr Shah wrote in response that he had never required staff, at the Salisbury Cheesecake Shop, to work other than to the rooster he had provided. He further asserted that Mr Ameer had breached franchisee policies and had collected cash money for the till. Around 23 November 2021 Mr Shah engaged Mr El Khoury as his solicitor. Mr El Khoury practices in Kareela in New South Wales.
On 25 November 2021, Mr Shah wrote to Mr Ameer informing that his employment had been terminated forthwith on the grounds of serious misconduct in breach of his contract of employment. He further advised that he (Mr Shah) had evidence that fraudulent activities had occurred, which had been provided to the NSW Police.
It is Mr Ameer’s contention that he has been subject to adverse action by Toost Pty Ltd, for which Mr Shah bears accessorial liability because he raised issues regarding his coverage under the Award with his employer. He seeks the imposition of penalties on each and the payment to him of compensation.
Mr Ameer commenced these proceedings on 17 March 2022. The respondents filed a defence on 22 August 2022. In general terms they denied the breach of any of the general protection to which Mr Ameer is entitled under the FWA. They acknowledged that he had been subject to adverse action but alleged that the substantive and operative reason for Mr Ameer’s dismissal was that he had stolen money from weekly cash sales; failed to deposit takings into his employer’s bank account; and forged Mr Shah’s signature on an application for Australian permanent residency.
The application for default judgment is brought pursuant to the provisions of rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.[5] In general terms, rule 13.05(2) authorises the Court to make orders giving judgment against a respondent, for the orders sought against such a respondent, if that respondent is in default.
[5] Hereinafter referred to as “the Rules”.
Rule 13.04(2) delineates the circumstances in which an applicant is in default, which in turn triggers the Court’s discretion to enter judgment against a respondent. Pursuant to the Rules, a respondent is in default if the respondent concerned 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.
Such a default, in turn triggers the provisions of rule 13.05(2), which reads as follows:
(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.
Accordingly, the Court is conferred with a discretion, if it finds that a respondent is in default within the terms envisaged by rule 13.04(2). As will be discussed, in due course, the relevant proceedings were commenced by way of application without, as yet, any affidavit material being filed.
In addition, rule 13.06 deals with default orders which can be made if a party fails to appear. It reads as follows:
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii)any other steps that the Court or the Registrar directs are taken;
(c) if the absent party is an applicant—dismiss the application;
(d)if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(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 or the Registrar thinks just.
Obviously, as with all discretions, the Court retains the authority not to dismiss a response or defence, on the basis of any such default, if such a step would not be in the interests of the overall administration of justice.
LEGAL PROVISIONS RELATING TO GENERAL PROTECTION APPLICATIONS
In general terms, in order to establish that any person has suffered a contravention of a general protection provision, under section 340 of the FWA, they must establish:
·That they have a workplace right protected under the Act, as defined by section 341(1) of the FWA;
·That they have suffered a form of adverse action, as defined by section 342 of the FWA; and
·There is a sufficient degree of connection between the relevant workplace right asserted and the adverse action taken against them.
Again, in general terms, pursuant to section 341(1) defines the expression workplace right. It encompasses the following:
·An individual has a workplace right if entitled to the benefit of or hold a role under a workplace law or workplace instrument;
·Is able to initiate or participate in a proceeding workplace law or workplace instrument;
·Is able to make a complaint or inquiry to:
·to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
·if the person is an employee—in relation to his or her employment.
As I understand Mr Ameer’s application, he contends that he had a workplace right to raise issues and complain about matters relating to him working overtime, which he did through the agency of Mr Satchell. Thereafter there is an obvious causal connection between him exercising that right and the termination of his employment.
In Shea v TRUenergy Service Pty Ltd (No 6)[6] Streeton-Dodds J defined the concept of being able to make a complaint, in the industrial context, in the following terms:
(a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
[6] See Shea v TRUenergy Service Pty Ltd (No 6) (2014) 314 ALR 346 at [29].
At this stage, it would appear to be not open to challenge that Mr Ameer was entitled to complain to Mr Satchell and then for Mr Satchell to complain to Mr Shah about the application of the Award to Mr Ameer’s employment at the Salisbury outlet of the Cheesecake Shop.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:
Meaning of adverse action Item Column 1
Adverse action is taken by …Column 2 if … 1 an employer against and employee the employer:
dismisses the employee; or
injures the employee in his or her employment; or
alters the position of the employee to the employee’s prejudice; or
discriminates between the employee and other employees of the employer
Mr Ameer asserts that he has been subject to adverse action by reason of his termination and also as a consequence of the reduction of his overtime, which occurred prior to him engaging Mr Satchell. He characterises this latter occurrence as an injury to his employment.
As a consequence of the use of the word because in section 340 of the Act there must be a factual or causal link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
For obvious reasons, it is a very difficult task for an applicant to prove what was occurring in the mind of any person alleged to have taken the adverse action in question. Considerations of this kind inform the rationale for the implementation of one of the central features of the general protection provisions, namely the creation of what is invariably referred to, by lawyers, as the reverse onus. The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which any alleged adverse action was taken.
Essentially, if it is established, by any applicant, that there their employment is subject to a relevant workplace right and they have also established that they have been subject to adverse action, the onus passes to the employer to provide the substantive and operative reasons for the adverse action, particularly that it was not for a reason protected by the FWA.
Section 361 of the Act comes into operation only after it has been established that adverse action was taken and that a relevant workplace right exists as an objective fact.[7]In Jones v Queensland Tertiary Admissions Centre Limited (No 2) Collier J explained the operation of section 361 in the following terms:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[8]
[7] See CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].
[8] See Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10].
Necessarily, after adverse action has been established and its relation to a workplace right, the reverse onus must involve an analysis, by the Court, of the reason or reasons why the adverse action was taken by the person or persons who made the relevant decision to take the adverse action.
As noted above, the defence filed by Toost Pty Ltd seeks to challenge the causal connection between the adverse action it took against Mr Ameer and the workplace rights asserted by him. The effect of the answering material being that the substantive and operative reason for its adverse action against Mr Ameer was his alleged dishonesty.
Section 550(1) of the Act provides that a person who is involved in a contravention of a civil remedy provision of the Act is also taken to have contravened that provision. Section 550(2) provides a definitive list of the circumstances in which a person is taken to be involved in a contravention. A person is so involved only if the person concerned:
·has aided, abetted, counselled or procured the contravention; or
·has induced the contravention, whether by threats or promises or otherwise; or
·has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
·has conspired with others to effect the contravention.
THE PROCEEDINGS THUS FAR
At relevant times, rule 30.06 required an application, under the general protection provisions of the FWA, to be made to the Court’s Fair Work Division, by way of an application in approved form accompanied by a claim also in approved form entitled a form 2. These documents have been filed.
In his application, Mr Ameer indicates he seeks the orders sought in his claim. On an interlocutory basis, he sought disclosure of documents relating to the decision of the respondents to terminate his employment, particularly those relating to his alleged fraudulent activities. Rule 4.03 indicates that a respondent must file a response in approved form within 28 day of service of the relevant application.
The matter was listed for its first court date on 11 August 2022. On 9 August 2022, Mr El Khoury filed a notice of appearance on behalf of both respondents. It provided an email address as the relevant address for service, which was Mr El Khoury’s email address, as well as his practice address.
Pursuant to rule 10.01 the Court must give directions for the conduct of proceedings on the first court return date. This can include orders or directions concerning dispute resolution; discovery and inspection of documents; and any other relevant matter.
On 11 August 2022, the following orders were made:
1. The Respondents file a Defence within 7 days of today’s date.
2.The parties are to exchange an informal preliminary list of documents which are likely to be relevant prior to the next hearing.
3.Further consideration of the matter is adjourned to 15 September 2022 at 9.30am for directions and any issues arising from discovery.
A response and a defence were filed on 22 August 2022. No affidavit was provided but none had been directed. In these circumstances, on 15 September 2022, the following orders were made:
1.The parties be referred to a Registrar for mediation under s.169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Division 23.1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), such mediation to be conducted on a time and date to be determined by the Registrar conducting the mediation with leave to the Respondents to attend electronically.
2.Liberty to approach the Associate to Judge Brown if the mediation date listed is inconvenient to the parties.
3.Further consideration of the matter is adjourned to a date and time to be advised for mention not less than 14 days after the mediation has concluded.
The mediation took place on 14 December 2022. The parties were each informed of the date and time of this mediation by an email from my associate. In the email, each of the parties’ legal representatives were advised that the case would be listed for further directions, before the Court, at 9.30 am on 31 January 2023. No reference was made as to what was the applicable time zone.
The relevant parties attended the mediation but were unable to resolve the matter. It is what has occurred after this date which has led to the current controversy in the case. No one appeared on behalf of the respondents on the adjourned date. Mr Dean pressed on the Court the need for expedition of the case from his client’s perspective.
In these circumstances, the following orders were made:
1.This matter be listed for final hearing before Judge Lucev sitting in Adelaide on 8, 9 & 10 August 2023 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
2.Further consideration of the matter is adjourned to 15 February 2023 at 9.30am for the making of trial directions.
On 13 February 2023, my associate wrote an email to Mr El Khoury in the following terms:
Good afternoon Mr Khoury,
I confirm my discussion that the next hearing in the above matter will be taking place on 15 February 2023 at 9.30am (Adelaide time).
As you were not present at the hearing on 31 January 2023, I have attached a copy of the orders made by Judge Brown on at occasion.
Given your location, you will find the MS Teams login details for the hearing on 15 February.
On 15 February 2023, once again there was no appearance by or on behalf of either respondent. In these circumstances, Mr Dean, who had appeared in person, pressed for the defence to be summarily dismissed pursuant to the applicable provision in the Rules. In these circumstances, the following orders were made:
1. Further consideration of the matter is adjourned to 17 March 2023 at 9.30am (SA time) for mention.
In these circumstances, on 2 March 2023, the solicitor for the applicant filed the application which is currently before the Court, which seeks the following orders:
l.That, pursuant to Rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) and Family Court of Australia (Division 2) General Federal Law Rules 2021 judgement be entered against the First and Second Respondents;
2.That the Applicant file, within 21 days, any affidavit material relied upon in support of any relief sought, including any application for pecuniary penalty, and any application for costs;
3.The matter is set down for a hearing as to relief, any application for a pecuniary peanlty and any application for costs; and
4.Such further or other orders as this Honourable Court sees fit.
The application was supported by an affidavit from Mr Ameer’s solicitor Mr Ben, which detailed the procedural history of the matter as outlined above. Mr Ben also deposed that the application had been served via the electronic address provided by Mr El Khoury on 2 March 2023.[9]
[9] See affidavit of service filed 17 March 2023.
Mr Paterson appeared for the respondent from New South Wales, via electronic means on 17 March 2023. Mr El Khoury also attended. Mr Dean pressed the application, which was resisted. Mr Paterson indicated that he had not seen the application and Mr El Khoury indicated that he had not received it.
I have been provided with a transcript of what was said. The relevant portion of the transcript is as follows:
MR PATERSON: Well, firstly it’s opposed. It’s opposed, your Honour. In relation to the failure to attend, on the last occasion, that was my fault. I dialled in at 10.20, I think, and it was – I should have dialled in at 9.50. I mistook it by half an hour thinking it was an hour delay.
HIS HONOUR: Okay. Okay.
MR PATERSON: I’m not sure about the explanation in relation to the first non-appearance. That may be because we misdiarised it. I would have to – Mr El Khoury might be able to assist you on that, but they’re the – in my submission, it’s a stunt. That’s not enough to bring about – I don’t think we were ever written – given written notice of that, other than the service of it. I oppose it. I haven’t seen the affidavit. Does the matter have any merits? Well, it couldn’t have any merits. We’re entitled to defend it, your Honour, so that’s my submission, your Honour.
In these increasingly acrimonious circumstances, I invited the parties to discuss the issues between them to see if the matter could be resolved consensually. I then adjourned the case until 27 March 2023, when both Mr Dean and Mr Paterson appeared once again and Mr Dean maintained his application for summary dismissal.
Prior to this adjourned date, both parties filed further affidavit material as follows:
·Mr El Khoury deposed an affidavit on behalf of the respondent filed 22 March 2023; and
·Mr Ben on behalf of the applicant filed an affidavit on 24 March 2023.
From this material, it is apparent that there is no longer any controversy regarding Mr El Khoury being served with the summary dismissal application. Mr El Khoury has provided the following explanations for the various non- appearances attributed to him:
·He missed the appearance of 31 January 2023 because he was on holiday and overlooked the listing reference;
·He was aware of the hearing for 15 February 2023 and retained Mr Paterson to appear on his behalf. Mr Paterson made a mistake about the time difference between New South Wales and South Australia and dialled into Court half an hour late, by which time the matter had been dealt with; and
·He had overlooked the email containing the application for summary dismissal from Mr Ben because he had received over 35 emails on the date in question. Accordingly he had made a mistake, when he said he had not received the application.
In these circumstances he opposes the application for summary dismissal and apologises to the Court for his various omissions.
Mr Dean characterises these various omissions as being axiomatically evidence of the fact that the respondents have not defended the proceedings with due diligence. He characterises the conduct of their representative as being demonstrative of a devil may care attitude to his client’s significant claim, which in his submission has been subject to numerous and significant delay and prejudice and only a degree of intermittent interest from the respondents.
In Mr Dean’s submission the respondents have demonstrated a sufficient lack of cooperation with the Court and its processes from which the Court can conclude that they are either unable or unwilling to defend the case with sufficient rigour that it can proceed to a final hearing in a reasonable timeframe. In particular, he points to the fact that the respondents, either personally or through their representatives have not indicated any willingness to bear the costs thrown away, by the applicant, as a consequence of their non-appearances.
On the other hand, Mr Paterson submits that the proceedings are obviously defended and there is a significant evidentiary controversy raised on the current pleadings, namely the allegation of significant dishonestly and forgery levelled against Mr Ameer. He would characterise the various omissions leading to the summary dismissal application as being unfortunate but as having been rendered less worthy of censure by reason of the explanations provided as to why they occurred.
APPLICABLE LEGAL PRINCIPLES
The Court is conferred with a discretion, pursuant to rule 13.05 to dismiss an application if the applicant concerned fails to comply with one of its orders; file and serve a document; or defend the proceedings with due diligence.[10]
[10] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.04.
As with all discretions, the discretion provided by rule 13.05 must be exercised judicially and according to the dictates of justice. At a fundamental level, the Court has an obligation to investigate and determine a claim for judicial relief, which has been honestly made in the proceedings before it, by the suitor concerned.
On the other hand, the Court retains it may be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.[11] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[11] See Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32] (Tamberlin, Greenwood and Collier JJ).
In these circumstances, the authorities are clear that the application of the discretion to dismiss an application for non-compliance with an order or a failure to appear, is not to be regarded as being commonplace in its exercise.[12] A range of factors dependant on the facts of each case will influence how the discretion is to be exercised.
[12] See Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] (Lucev J).
In Lenijamar Pty Ltd v AGC (Advances) Ltd,[13] the Full Court of the Federal Court indicated that it was “undesirable [for the Court] to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised.” In this context, Wilcox and Gummow JJ identified what they considered to be two obvious candidates for the exercise of the power, which can be summarised as follows:
·Cases characterised by a history of non-compliance such to indicate an inability or unwillingness to co-operate with the other party or the court to bring the proceedings to hearing within an acceptable period;
·Cases in which non-compliance was continuing and occasioning unnecessary delay, expense or other prejudice to the other party concerned.[14]
[13] See Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200.
[14] See Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200, 208-9.
In a separate but concurring judgment Pincus J said as follows in respect of the exercise of the relevant discretion:
[T]he Court may, in my opinion, take into account such matters as whether the claim or defence of the party in default appears to have substance, whether the case is one in which delay in hearing is likely to be particularly damaging to prospects of correctly deciding the dispute, whether the party applying for dismissal has itself transgressed, whether the party in default has gained some advantage by delay (for example, where it has had the benefit of an interlocutory injunction), whether credible assurances (supported, perhaps, by arrangements to commit the conduct of the matter to another firm or other counsel) have been given as to the prompt carrying out of future steps and whether the delay has been such as to induce the party not in default to think that the matter has probably gone to sleep;[15]
[15] See Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200, 214-5 (Pincus J).
In Professional Administration Service Centres Pty Ltd v Commissioner for Taxation,[16] the Full Court of the Federal Court attempted to tabulate considerations which were likely to be relevant to the exercise of the discretion, which can be summarised as follows:
[16] See Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52, 62 [44] (Edmonds, McKerracher and Nicholas JJ).
·The nature of the default involved;
·The duration of the default and whether it is continuing;
·The circumstances surrounding the making of the order subsequently breached and the practices of the court concerned;
·What has happened since the default, particularly whether an attempt has been made to rectify the breach;
·Whether the breach creates prejudice or places an unacceptable burden on the other party;
·Does the breaching party genuinely want the case to go to trial;
·The stage the proceedings have reached;
·Disruption to possible trial dates;
·The consequences for the applicant of dismissing the application.
In Webster v Lampard, the High Court said as follows:
The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[17]
[17] See Webster v Lampard (1993) 177 CLR 598, 602 (Mason CJ, Deane and Dawson JJ).
In the context, of a summary dismissal application, Kirby J in Lindon v Commonwealth of Australia (No 2)[18] indicated that it is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used. In my view, such comments are apposite to the current matter.
[18] See Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
CONCLUSIONS
The evidence available to me in the current matter is extremely limited, as no affidavit material has been filed. However, on the face of the pleadings there is a significant evidentiary controversy as to the substantive and operative reason why Mr Ameer was subject to the adverse action in question. It will be resolved in the context of the reverse onus provisions created by section 361 of the Act.
Given there has, as yet, been no affidavit material filed, it is not possible for the Court to make any assessment of the strength or otherwise of the respective cases of either of the parties concerned. In my view, it would be a significant matter, indeed, to deprive the respondents of the opportunity to formally provide their explanation for the adverse action taken against Mr Ameer. In this context, a hearing date has been allocated, in the relatively proximate future, at which this controversy can be ventilated and resolved.
The two breaches on which the current application is based are linked together in a closely connected temporal setting. Firstly, the respondents missed the directions hearing of 31 January 2023 and secondly, they again failed to appear on the date to which the case was adjourned being 15 February 2023.
Thereafter, a representative for the respondents has appeared on the two subsequent mentions of the matter. At these two subsequent hearing, it has been vigorously asserted that the proceedings remain contested and the basis on which they are so has been delineated. Mr El Khoury has filed an affidavit explaining the reasons for the breach of order and his failure to appear. His explanation cannot be characterised as improbable.
In my view, it cannot be said that the two breaches concerned have occasioned any unreasonable prejudice to the applicant. He is essentially in the same position as he would have been in if Mr El Khoury had appeared, namely awaiting hearing and the making of directions for the orderly filing of trial material. There has been no disruption to those trial dates.
I have no reason to doubt that Toost Pty Ltd and Mr Shah are not genuine in their desire to go to trial and put in issue the substantive and operative reason as to why adverse action was taken against Mr Ameer. In my view, in these circumstances, it is likely to represent a significant injustice to them, if they are deprived of the opportunity of defending the matter on the basis of the omissions of their solicitor, who has explained why he failed to appear on two discrete and consecutive occasions.
For these reasons, I have reached the conclusion that the application in a proceeding must be dismissed. I will make the necessary directions to prepare the matter for the trial scheduled in August of this year. Given the circumstances, I do not propose to make any order as to costs.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 31 March 2023
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