Askari v Life Without Barriers

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FEDERAL COURT OF AUSTRALIA

Askari v Life Without Barriers [2022] FCA 1347

File number(s): VID 568 of 2020
Judgment of: O'CALLAGHAN J
Date of judgment: 15 November 2022
Catchwords:

PRACTICE AND PROCEDURE – representative proceeding – application by respondent for an order that the proceeding be dismissed immediately pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) – whether applicant is in default pursuant to r 5.22(d) of the Federal Court Rules 2011 (Cth) by failing to prosecute the proceeding with due diligence – proceeding dismissed

PRACTICE AND PROCEDURE – costs – order sought by respondent that the applicant pay its costs of, and incidental to, the proceeding – whether applicant’s unreasonable act or omission caused respondent to incur the costs within the meaning of s 570(2)(b) of the Fair Work Act 2009 (Cth) – order made

Legislation:

Fair Work Act 2009 (Cth) ss 544, 545, 545(1), 545(5), 570, 570(1), 570(2)(a), 570(2)(b)

Federal Court of Australia Act 1976 (Cth) Part IVA

Federal Court Rules 2011 (Cth) rr 5.22, 5.22(d), 5.23, 5.23(1)(b)(i)

Cases cited:

Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 99
Date of last submission/s: 10 October 2022
Date of hearing: Determined on the papers
Solicitor for the Applicant: Mr G Doran of Nevett Ford Lawyers
Counsel for the Respondent: Mr C Tran
Solicitor for the Respondent: Corrs Chambers Westgarth

ORDERS

VID 568 of 2020
BETWEEN:

MEHDI ASKARI

Applicant
AND:

LIFE WITHOUT BARRIERS ACN 101 252 171

Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

15 NOVEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) the proceeding be dismissed.

2.The applicant pay the respondent’s costs of, and incidental to, the proceeding, fixed in a lump sum following a procedure and timetable to be ordered by the Court in accordance with the Costs Practice Note (GPN‑COSTS). 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

  1. This is a representative proceeding commenced in August 2020 under Part IVA of the Federal Court of Australia Act 1976 (Cth), alleging, among other things, contraventions of the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) and the Fair Work Act 2009 (Cth) (FW Act).  The lead applicant (Mr Askari or the applicant) alleges that Life Without Barriers (the respondent) employed him as a cultural support worker from 22 February 2022 to 22 November 2014. By interlocutory application dated 15 July 2022, the respondent seeks orders dismissing the proceeding and, notwithstanding s 570 of the FW Act, that the applicant pay its costs of and incidental to the proceeding.

  2. The respondent…

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Details
Case
[2022] FCA 1347
Decision Date

CaseChat Overview and Summary

In Askari v Life Without Barriers, the respondent sought orders dismissing the proceeding and recovering costs from the applicant. The applicant had commenced the proceeding in 2020, alleging underpayment of wages and other contraventions of the Fair Work Act 2009 (Cth) and the Social, Community, Home Care and Disability Services Industry Award 2010. The court considered the application on the papers. The primary legal issue was whether the applicant was in default by failing to prosecute the proceeding with due diligence, warranting dismissal under r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth). The court also considered whether the applicant's unreasonable act or omission caused the respondent to incur costs, warranting an order for costs under s 570(2)(b) of the Fair Work Act. The court found that the applicant had failed to prosecute the proceeding with due diligence, as evidenced by the significant delay between filing and the respondent's application. The applicant's conduct indicated an unwillingness or inability to cooperate with the court and the respondent in preparing the matter for trial within an acceptable period. The court also found that the applicant's unreasonable act or omission caused the respondent to incur costs, warranting an order for costs. The proceeding was dismissed and the applicant ordered to pay the respondent's costs of and incidental to the proceeding.

Orders

Orders of the court

1. Pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) the proceeding be dismissed.

2. The applicant pay the respondent’s costs of, and incidental to, the proceeding, fixed in a lump sum following a procedure and timetable to be ordered by the Court in accordance with the Costs Practice Note (GPN‑COSTS).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The respondent relied on an affidavit of Mr Bradley Woodhouse, a Partner at Corrs Chambers Westgarth, the legal representatives of the respondent, who has conduct of the proceeding on behalf of the respondent. The factual matters set out below are taken from Mr Woodhouse’s affidavit. The facts The applicant commenced this proceeding by an originating application and statement of claim dated 24 August 2020. The statement of claim read relevantly as follows:…4.The applicant was an employee of the respondent from 22 February 2011 to 22 November 2014 (“the Period”) employed as a cultural support worker.…6.During the Period the respondent classified the applicant as a permanent part‑time employee.7.During the Period the applicant’s employment was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (“the Award”).8.During the Period the applicant, as a cultural support worker, performed the duties of, and was entitled to be paid as a social and community services employee level 3 as defined in part B.3 of schedule B of the Award. 9.As a cultural support worker the applicant provided care and social and cultural support to groups of up to 8 unaccompanied minors, who had arrived in Australia as asylum seekers.10.During the Period, the applicant worked:(a)24 hour shifts, up to 16 hours per day;(b)worked consecutive shifts without at least a 10 hour break;(c)on numerous occasions worked up to 15 days consecutively without a day off;(d)on at least 1 occasion worked every day in a month without a day off;(e)more than 38 hours in any week and was not paid overtime; and (f)Saturdays, Sundays and public holidays without being paid a loading for such work.11.In the premises of paragraph 10, the respondent contravened clauses 25, 26, 27, 28 and 34 of the Award.12.Further to paragraph 11, for all the work that the applicant performed as a cultural support worker, the respondent underpaid the applicant the rates prescribed by the Award.PARTICULARSThe applicant will provide further and better particulars of the underpayment after discovery.13. By (a)contravening clauses 25, 26, 27, 28 and 34 of the Award; and/or (b)failing to pay the applicant the rates prescribed by the Award –the respondent contravened section 45 of the [FW] Act.14.During the Period the applicant was a member of The Services Union Queensland (“the Union”).15.In or about mid 2013 the respondent became aware that it was in breach of the Award:(a)to have the applicant work 24 hour shifts; and (b)in that it had underpaid him and other cultural support workers that the respondent employed.. [sic]PARTICULARSThe applicant relies upon an email from Ms Tneka Springett of The Services Union Queensland to Mr Jawadi Askari & others dated 3 June 2013, a copy of which may be inspected by appointment with the applicant’s solicitors.16.In the email referred to in paragraph 15 the Union referred to ‘making a claim for underpayment of wages’ on behalf of its members including the applicant.17.In the premises of paragraph 16 and for reasons unknown to the applicant the Union took no steps to recover underpayment of wages on behalf of its members including the applicant.18.In or about mid 2013 Mr John Te Paea, an employee of the respondent, applied under section 372 of the [FW] Act alleging a contravention of the [FW] Act relating to the respondent unilaterally changing the terms and conditions on which he and other of the respondent’s employees were engaged for employment.PARTICULARSThe application is C2013/5249 and was lodged through the Brisbane registry of the Fair Work Commission. A conciliation conference was held before Commissioner Spencer, which representatives of the respondent attended but no resolution was reached.19.On or about 18 November 2014 the Union notified the respondent that it had wrongly classified cultural support workers as home care workers for the purposes of the Award and that as a result the respondent was likely to have underpaid overtime to those workers including the applicant.PARTICULARSA copy of a letter from The Services Union Queensland to Life Without Barriers dated 18 November 2014 may be inspected by appointment with the applicant’s solicitors.20.In the premises of paragraph 19, the respondent undertook no review and did not pay amounts to the applicant or any cultural support worker the respondent employed at all.21.Further or alternatively to paragraphs 3 – 20 the applicant relies on the decisions of the South Australian Employment Tribunal in Hosseini v Life Without Barriers [2017] SAET 146, Hosseini v Life Without Barriers (No 2) [2018] SAET 19 and Hosseini v Life Without Barriers (No 3) [2018] SAET 15 as being on all fours with his claim against the respondent.AND THE APPLICANT CLAIMS:A.Underpayment of wages.B.Pre‑judgment interest.C.Civil penalties under the Fair Work Act 2009 for contraventions of the Social, Community, Home Care and Disability Services Industry Award 2010.D.Any further or other orders this Honourable Court sees fit.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The matter was then re‑allocated to my docket. On 1 September 2022, I directed that the parties file any written submissions on which they wished to rely. They duly did so. Having considered those submissions and Mr Woodhouse’s affidavit, I determined that it was appropriate in all the circumstances to determine the matter on the papers. Consideration By its interlocutory application, the respondent sought orders dismissing the proceeding under r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) and that the applicant pay the respondent’s costs of and incidental to the proceeding. I will turn first to the question of dismissing the proceeding. Rule 5.23(1)(b)(i) provides:5.23 Orders on default (1)If an applicant is in default, a respondent may apply to the Court for an order that:(a)…(b)the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:(i) immediately … Rule 5.22 defines when a party is in default, as follows:A party is in default if the party fails to:(a)do an act required to be done, or to do an act in the time required, by these Rules; or (b)comply with an order of the Court; or (c)attend a hearing in the proceeding; or (d)prosecute or defend the proceeding with due diligence. The principles relevant to the application of O 10, r 7 of the Federal Court Rules 1976 (Cth) (the predecessor to r 5.23) were discussed in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395‑397 (Wilcox and Gummow JJ):It is to be noted that the power given by [O 10, r 7, now r 5.23] is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.…The observations which we have just made about the scope of O 10, r 7 are not intended to convey the impression that any failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding. On the contrary, the rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim … We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non‑compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.The discretion conferred by O 10, r 7 is unconfined, except for the condition of non‑compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non‑compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non‑compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non‑compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co‑operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court’s directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non‑compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.