Armet v CFC Consolidated Pty Ltd (No 2)

Link copied
Case Copied 46 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648

File number(s): PEG 52 of 2021
Judgment of: JUDGE LUCEV
Date of judgment: 12 August 2022
Catchwords:

PRACTICE AND PROCEDURE – Transcript – where request for provision of hard copy transcript free of charge – considerations in relation to provision of transcript free of charge – whether in the interests of justice or the administration of justice that litigant be provided with a copy of the transcript – nature of and complexity of issues – whether litigant is impecunious – right to inspect and read transcript on a computer in the Registry

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – general protections application

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 2.11, 12.01

Federal Court Rules 2011 (Cth) r 6.11

Cases cited:

Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467

BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; (2004) 79 ALJR 348; (2004) 211 ALR 523

Chan v Harris (No 3) [2011] FCA 341

Darley and Darley [2019] FamCAFC 238

Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580; (1976) 50 ALJR 509; (1976) 8 ALR 649

Forbes v Bream [2008] FamCAFC 189; (2008) 222 FLR 96

Genovese v BGC Construction Pty Ltd [2006] FMCA 1507

Huang v University of New South Wales & Anor [2008] FMCA 1578

Karsten v Federal Republic of Germany [2008] FCA 331

Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583

Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors (No. 4) [2013] FCCA 133; (2013) 275 FLR 475

O’Donoghue v Administrative Appeals Tribunal & Ors [2012] FMCA 1191

O’Donoghue v Administrative Appeals Tribunal & Ors [2012] FMCA 964

See v Granich & Associates [2008] FMCA 27

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 702

SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234

Division: Division 2 General Federal Law
Number of paragraphs: 48
Date of hearing: 10 June 2022
Place: Perth
Applicant: In person (by telephone)
Counsel for the Respondent: Mr T Barrie
Solicitor for the Respondent: Barry.Nilsson.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:

12 AUGUST 2022

THE COURT ORDERS THAT:

1.The applicant’s oral application made on 10 June 2022 for the provision to him of a hard copy of the transcript of proceedings at the Court’s expense in this matter be dismissed.

2.The applicant have leave:

(a)to inspect an electronic copy of the transcript of any available transcript…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Armet v CFC Consolidated Pty Ltd (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC2G 648
Decision Date

CaseChat Overview and Summary

The case of Armet v CFC Consolidated Pty Ltd (No 2) involves the applicant, Stephane Armet, seeking a transcript of the proceedings and an order that the transcript be provided to him free of charge under the Federal Court's Impecunious Litigants Policy. The primary legal issue before the court was whether the Court should provide the applicant with a free transcript, considering the policy's criteria and the nature of the case. The Court examined whether Mr. Armet met the criteria for being deemed impecunious and whether it was in the interests of justice to provide him with a free transcript.

The Court considered the Impecunious Litigants Policy, which stipulates that a litigant must be genuinely unable to afford the transcript, and it must be in the interests of justice to provide the transcript at no cost. The Court noted that no other party had paid for the transcript, and thus, if the Court were to provide the transcript, it would need to bear the cost. The Court also considered the nature and complexity of the issues in the case and whether the transcript would aid in resolving those issues. Given that the case primarily involved procedural issues and that substantive issues had not yet been substantively addressed, the Court concluded that providing the transcript would not significantly aid Mr. Armet in the substantive aspects of his case. Consequently, the Court denied the application for a free transcript.

No specific orders were made in this decision beyond the denial of the application for a free transcript. The Court indicated that any costs associated with the application would be reserved for determination at the conclusion of the proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Federal Court's Impecunious Litigants Policy provides as follows (original emphasis):Background The Court has entered into commercial arrangements with transcript provider, Auscript Australasia Pty Ltd (Auscript), to ensure that a record is ordinarily taken of Federal Court proceedings, from which a transcript can be produced if required by the Court or the parties. Litigants obtain a transcript from Auscript, and not from the CourtThe Court acknowledges that there are circumstances in which litigants who are genuinely unable to afford transcript need to be provided with access to it, such as to avoid injustice to a disadvantaged party, or to enable the Court to perform its function properly and efficiently. In those circumstances, with transcript being provided by Auscript in electronic format, such litigants in a proceeding should be afforded the same equality of access to an electronic version of the transcript which is searchable, from which segments can be copied and pasted for submissions, and which is portable and inexpensive to produce and use.Role of the Court It is for the Court, and not the transcript provider, to decide whether a particular litigant is in need of assistance with respect to transcript. In determining whether a litigant is to be provided access to transcript at no cost to the litigant, there are two key criteria: 1.The Court is satisfied that, by reason of the litigant's circumstances or any other factor, the litigant cannot reasonably be expected to pay the commercial price for a copy of the transcript (see Determining access to transcript below); and 2.The Court is satisfied that it is in the interests of the administration of justice that the litigant be provided with an electronic copy of the transcript.Determining access to transcript There is no established test for determining whether a party is sufficiently deserving of assistance with respect to transcript. A legitimate concern of the transcript providers is that judges might become so generous in making transcript available as to provide an incentive to some legal practitioners to attempt to obtain free transcript when the means of their clients did not justify such assistance. In determining whether a litigant should be assisted to have access to the transcript, judges might consider: •whether the litigant is impecunious: such factors include whether Court fees have been waived (bearing in mind that the circumstances in which Court fees are waived are not limited to impecuniosity), the litigant's circumstances and ability to meet the costs of a transcript, and/or whether the litigant has legal representation (noting that impecunious litigants are not confined to those without legal representation. They may be able to afford some form of legal representation, but the cost of transcript may be beyond them. They may be represented under a scheme for free legal assistance. It may be necessary for a judge to consider whether transcript should be made available to an eligible party's legal representative). •the nature and complexity of the issues in the case and the degree of assistance likely to be required by the Court in argument about them; •the interest the Court has in the continued commercial viability of the transcript provider and the continued provision of high quality transcript in an efficient and timely manner. Providing access to transcript for an impecunious litigant Fundamental to the operation of the impecunious litigants policy is the principle that somebody needs to have paid for a copy of the transcript. The contract with Auscript states that: Where the Court or a Litigant have ordered and paid for a Transcript, that Transcript may be provided to an impecunious litigant free of charge as ordered or directed by the Court. In other words, "someone" has to have ordered and paid for the transcript for a copy to be provided to the impecunious litigant. Due to the commercial nature of the contract, the Court cannot make an additional copy of the Court's complimentary or free transcript and provide it to the impecunious litigant. Where neither the Court nor a party has paid for the transcript, in the event that the Court determines that the litigant should be assisted to have access to the transcript, the Court will be required to pay for that copy of the transcript for the impecunious litigant. The cost of that transcript to the Court is given at a reduced rate (10% discount on the commercial rate). Judges should not feel dissuaded from making orders, should the above criteria be met, because of the cost of transcript to the Court, but need to be mindful that there will be costs incurred by the Court. Practically, the policy requires the following: 1.The Court needs to be satisfied that the litigant is impecunious and that in the interests of justice they should be provided with a copy of the transcript; 2.If satisfied, the Court is to enquire whether another party has ordered and paid for a copy of the transcript (these enquiries can be made with Auscript); 3.If another party has purchased the transcript, then that party can provide - by order or direction of the Court - a copy of that transcript to the impecunious litigant; 4.If no other party has purchased the transcript, then the Court can order or direct, and pay for an additional copy of the transcript on behalf of the impecunious litigant at the 10% discounted rate. Unless Auscript is advised otherwise, where the Court purchases transcript on behalf of the impecunious litigant and •the Transcript has already been produced, Auscript will provide the transcript to the impecunious litigant directly (details to be provided by the Court) within 24 hours or as soon as practicable; or, •the Transcript has not already been produced, the default turnaround time will be 10 days, unless Auscript is advised otherwise. [Note: quicker turnaround times incur a higher cost to the Court] Sample orders are outlined below. Alternatively, a judge may make a direction or, given the administrative nature of this policy, have chambers staff advise Auscript in writing that a litigant has requested access to the transcript and the Court has either granted or allowed that request. Alternative option ‘Right to Inspect’: Allowing a litigant to read transcript on a computer in the registry, or by remote access technology Steps can be taken to ensure that the computer terminal cannot be used to make alterations to the transcript, or to access other Court data. It will be necessary to bear in mind the hours during which the registry is open, and the possibility of the need for supervision - whether accommodated in person or remotely.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As indicated at [1] above the Court dismissed an application in a proceeding on 10 June 2022. That application in a proceeding was to amend hearing dates and was dealt with extempore and dismissed for the following reasons, which for reasons already set out at [3] above, are set out more fulsomely than would usually be the case, from Armet (No 1)at [2]-[13] per Judge Lucev, as follows:2.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 2022.3.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 2022.4.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.5.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.6.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.7.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. 8.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 Act 2021 (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.9.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. 10.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.11.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. 12. 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 2022.13.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 Act 2009 (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.TRANSCRIPT RELEVANT RULES, POLICIES, INFORMATION AND JUDGMENTSRules of Court

Ratio Decidendi

Legal Principle Established

It is apparent from the cases cited above that it is not the case that any of the federal courts have ever routinely provided the transcript of proceedings to parties free of charge. It would appear that, as with the information available on this Court's web site, that the federal courts do not provide litigants with a copy of any transcript at the Court's expense, but do provide for litigants to be permitted to peruse (or inspect, but not copy), any available transcript in the Registry of the respective courts where the transcript has already been ordered by the court or one of the parties, save perhaps where impecunious litigants require transcript for the purposes of an appeal (which is not this case).Whether in the interests of justice, or the administration of justice, for the Transcript to be provided It is necessary to consider the interests of justice: as to which see BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; (2004) 79 ALJR 348; (2004) 211 ALR 523, and the interests of the administration of justice, the latter being broader than the interests of justice by reason of its administrative aspect: Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM. At present, the matter has been the subject of a first court date, two directions hearings, and the hearing of an application in a proceeding for the bringing forward of the hearing date, which application in a proceeding was dismissed: see Armet (No 1). The issues dealt with have been essentially procedural, and are reflected in the orders made by the Court on each of those occasions, as set out above. The Transcript which is available indicates little. That is because nothing of any substance, substantively, has been determined thus far in these proceedings. And whilst the Court has taken the time in Armet (No 1) (and here) to deal more fulsomely than would ordinarily be the case with such procedural issues, it does not alter the fact that provision of the Transcript is unlikely to aid Mr Armet in relation to the substantive issues in these proceedings. Indeed, the substantive issues in the proceedings have thus far not been dealt with, and only briefly adverted, and then only in part, to in Armet (No 1) at [5] per Judge Lucev (cited at [12] above). There can be no doubt that numerous issues have been raised by Mr Armet in either his pleadings, which have sometimes been “amended” under cover of an affidavit, and the five affidavits and annexures (totalling 388 pages) already filed by him, but save as indicated in Armet (No 1) at [5] per Judge Lucev, and save for referring - albeit ultimately unsuccessfully - Mr Armet for pro bono legal assistance in the formulation of an amended statement of claim because of the numerous issues raised by him, it remains the case that those issues raised by Mr Armet have not been discussed in any substantive way in the presently available Transcript. Whilst it is evident that English is not Mr Armet’s first language he professes to be “fluent [in] both spoken and written” English: Affidavit of Stephane Armet, sworn 8 April 2021, page 4 of the Annexures. Mr Armet has not requested an interpreter be used in the proceedings.