Armet v CFC Consolidated Pty Ltd
[2022] FedCFamC2G 467
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467
File number(s): PEG 52 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 10 June 2022 Catchwords: INDUSTRIAL LAW – Fair Work – allegation of breach of general protection provisions – discrimination
PRACTICE & PROCEDURE – Programming of Court matters – amending of Court’s orders for programming to hearing
PRACTICE & PROCEDURE – Provision of transcripts – viewing of transcripts – furnishing of transcripts to parties at no or low cost
Legislation: Fair Work Act2009 (Cth) s 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 134, 157-160
Federal Magistrates Act 1999 (Cth)
Cases cited: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALD 353; (1995) 39 ALD 206 Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 10 June 2022 Place: Perth Applicant: In person by phone via CISCO Webex Counsel for the Respondent: Mr T Barrie Solicitor for the Respondent: Barry.Nillson Lawyers ORDERS
PEG 52 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEPHANE ARMET
Applicant
AND: CFC CONSOLIDATED PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 30 May 2022 be dismissed.
2.The issue of the provision of hard copies of the transcript, free of charge, to the Applicant, be reserved for further consideration by the Court.
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
These are the Court’s reasons for judgment ex tempore in relation to an application in a proceeding (“Application in a Proceeding”) by the Applicant, Mr Stephane Armet (“Mr Armet”), to amend hearing dates, and an oral application for the provision of transcript to Mr Armet.
By order made on 20 May 2022, this matter was listed for hearing for two days on 20 and 21 February 2023. In the intervening period, that is, between May 2022 and February 2023, there was a requirement for compliance with various programming orders, that is, the filing of, consecutively, a defence, a reply, any further applicant’s affidavits, respondents’ affidavits, the applicant’s outline of submissions, the respondents’ outline of submissions, and the applicant’s outline of submissions in reply. The last filing date for the applicant’s outline of submissions in reply was 2 December 2022.
By way of the Application in a Proceeding, filed 30 May 2022, Mr Armet seeks to compress the programming orders by:
(a)providing for Mr Armet to file submissions, a book of documents and affidavits at the same time on 12 August 2022;
(b)having the respondent file submissions and affidavits at the same time on 9 September 2022; and
(c)having the matter listed for hearing before the end of 2022.
The orders that are proposed in the Application in a Proceeding are impracticable, in the sense that they require submissions filed at the same time as affidavits. The purpose of submissions is to assist the Court to understand both the evidence and the legal issues which arise in a proceeding. To have submissions filed by Mr Armet in advance of the respondent’s affidavits and submissions cannot possibly assist the Court in that regard, and even more so here where Mr Armet is self-represented. Further, in this case, the Court provided for an outline of submissions in reply to assist Mr Armet, who is self-represented, to enable him to deal with and put before the Court – once again, to assist the Court – by way of reply to the respondent’s submissions, any matters which, as a self-represented litigant, he might not have anticipated would be raised by the respondent. In submissions today, Mr Armet says that there will be nothing that will be said by the respondent to which he might wish to reply, but that, with respect to him, anticipates the position of the respondent, and is unfair to Mr Armet as a self-represented litigant, for the reasons that the Court has just given above.
Submissions are particularly important in this case where not only is there a Fair Work general protections claim, but very many other matters raised which may or may not be within the Court’s associated jurisdiction under s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and numerous matters related to alleged applications involving international conventions, which may or may not form part of Australian domestic law, depending upon their enactment or otherwise in Australian domestic law, and the Court refers to Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALD 353; (1995) 39 ALD 206, CLR at [286]-[287] per Mason CJ and Deane J.
The orders sought to be made in the Application in a Proceeding are also impracticable, because this Court simply cannot accommodate the requested 2022 hearing. When the orders were made on 20 May 2022, Mr Armet was given the first available two-day timeslot, which was in February 2023, for a Fair Work hearing by the docket judge. This case is not one, with respect, of sufficient urgency that it requires an expedited hearing. Save for Mr Armet’s self-imposed complexity in relation to questions of associated jurisdiction and the application of international conventions, this is – if the Court can put it this way – a common, garden-variety Fair Work general protections matter, and nothing in the jurisdictional or convention matters raised by Mr Armet warrants expedition, and it is not apparent from any evidence presently before the Court that there is any other reason for expedition, but as the Court has already indicated, there is simply no time available, in any event, prior to the current February 2023 listing.
Mr Armet also complains in the Application in a Proceeding that by the time the hearing is to be heard, it will be over 700 days or approximately 23 months from the time of filing to the date of hearing. That is not unusual, and, in fact, is common and probably about the average time that Fair Work matters take to come to hearing in the Perth Registry of this Court. In this matter, there have been no particularly long delays, save for one matter that the Court will come to in relation to pro bono legal advice.
The originating application was filed in March of 2021. It was ordered to go to mediation, which it did in August and September 2021, and that delay of four to five months is entirely usual. Mr Armet does complain in the Application in a Proceeding that the mediation was, “Against the victim’s will and best interests”, but as the judgment in Broad Spectrum Training Pty Ltd v Bidding Buzz Ltd [2010] FMCA 932; (2010) 244 FLR 335 makes plain, mediation of disputed matters under the provisions of the Federal Magistrates Act 1999 (Cth), as it then was, and now likewise under the provisions of ss 157 to 160 of the Federal Circuit and Family Court of Australia Act2021 (Cth), it is mandatory for the Court to advise the parties about alternate dispute resolution, and as a matter of practice Fair Work matters are, almost without exception, referred to mediation.
In October 2021, that is, within a month of the completion of the mediation, the matter was referred to a Registrar for a pro bono referral for Mr Armet to receive legal assistance. That was made because of the complexities, again, primarily of Mr Armet’s making, to see whether or not a lawyer might assist him in the drafting of a statement of claim in proper form.
The various exchanges which subsequently occurred between the pro bono lawyers, who eventually came on board in December of 2021 – and, again, it is not unusual for a delay of about two months before pro bono lawyers come on board – over the period subsequently of about six months were, on Mr Armet’s account, at least, such that they resulted in Mr Armet not receiving any assistance from the pro bono lawyers with respect to the drafting of a statement of claim. The relationship and conduct of matters between the pro bono lawyers and Mr Armet are not matters for which the Court is responsible or becomes involved and, indeed, if pro bono lawyers withdraw from a matter, the practice is not to inform the Court as to the reasons why pro bono lawyers withdraw.
The matter was subsequently the subject of a directions hearing on 20 May 2022, at which the orders were made for the hearing nine months later. That period between the making of a detailed programming order and the listing for hearing, a period of about nine months, is neither unusual nor extraordinary in this Court.
In the circumstances, nothing put by Mr Armet, today:
(a)warrants bringing forward the hearing date;
(b)in any event, there is no available date for a two-day hearing before the Court, as presently constituted, before the presently listed date for the hearing,
and therefore nothing warrants amending the other programming orders in the order of 20 May 2022.
So, for those reasons, the Application in a Proceeding as filed is dismissed. In relation to the question of costs, they will be reserved. The Court indicates that if any costs are to be awarded – and costs are not ordinarily awarded in Fair Work matters, see s 570 of the Fair Work Act2009 (Cth), except on the conditions there prescribed – those matters might best be determined at the conclusion of the proceedings, when the matter can be viewed in its totality.
Mr Armet today makes an oral application with respect to the provision of transcript.
With respect to the provision of transcript, Mr Armet seeks an order from the Court for the provision of hard-copy transcript to him free of charge. The matter was one which was raised today without notice by way of an application to the Court, although the Court understands that this morning there may have been emails sent to Registry and Chambers with respect to that issue.
As the Court understands it, the provision of transcript, be it to the Court or any of the parties, requires the payment of the fees agreed between the transcript provider and the Commonwealth for the provision of that transcript. The Court did indicate to Mr Armet that he might come into the Registry and view any transcript which was available on the Electronic Court File to be viewed by the parties. The transcript of the directions hearing on 20 May 2022, is on the Electronic Court File and available. Mr Armet says that he wishes to have a hard copy of the transcript of the directions hearing to be able to send it to other people for whatever purposes he sees fit.
In the circumstances, the Court does not propose today to make an order with respect to the provision of transcript. The Court will look at that issue and take advice with respect to it and see whether or not it is possible, under the arrangements that are presently in place, to provide hard copy transcripts to Mr Armet free of charge. So, in those circumstances, the Court will make an order that the issue of the provision of transcript be reserved for further consideration by the Court.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 June 2022
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