Atkinson v Killarney Properties Pty Ltd & Ors
[2016] FCCA 3233
•14 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATKINSON v KILLARNEY PROPERTIES PTY LTD & ORS | [2016] FCCA 3233 |
| Catchwords: PRACTICE AND PROCEDURE – General protections application filed out of time – respondents’ application in a case for dismissal – application in a case for extension of time filed out of time ordered by the Court – application for time to extend time ordered by the Court to file extension of time application – principles for extension of time to comply with Court order – further application in a case after judgment reserved to file and serve further material – principles concerning re-opening a case. |
| Legislation: Fair Work Act 2009 (Cth), ss.361, 368, 370, 570 Federal Circuit Court Rules (Cth), rr.1.03, 3.05, 21.02 |
| Cases cited: Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Sims v RM Capital Pty Ltd & Anor (No. 2) [2015] FCCA 149 SZNOR v Minister for Immigration & Anor [2009] FMCA 639 |
| Applicant: | GARTH PEERS ATKINSON |
| First Respondent: | KILLARNEY PROPERTIES PTY LTD |
| Second Respondent: | ADRIAN SHANE PALM |
| Third Respondent: | STEVEN MICHAEL PALM |
| Fourth Respondent: | GUISEPENNA MENNA |
| File Number: | PEG 344 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 10 June and 18 October 2016 |
| Date of Last Submission: | 23 November 2016 |
| Delivered at: | Perth |
| Delivered on: | 14 December 2016 |
REPRESENTATION
| For the Applicant: | Mr N Marouchak (on 10 June 2016); the applicant in person (on 18 October 2016) |
| Solicitors for the Applicant: | Steve Heathcote, Barrister & solicitor (until 14 June 2016) |
| Counsel for the Respondents: | Mr N Burmeister (on 10 June 2016); Mr D Messina (on 18 October 2016) |
| Solicitors for the Respondents: | Rowe Bristol Lawyers |
ORDERS
That the applicant’s application in a case filed on 4 October 2016 be dismissed.
That the applicant’s oral application made at hearing on 6 May 2016 for an extension of time in which to comply with order 1 of the Court’s orders of 28 August 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 344 of 2015
| GARTH PEERS ATKINSON |
Applicant
And
| KILLARNEY PROPERTIES PTY LTD |
First Respondent
| ADRIAN SHANE PALM |
Second Respondent
| STEVEN MICHAEL PALM |
Third Respondent
| GUISEPENNA MENNA |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction and applications in a case
The substantive application, electronically recorded as being filed on 22 July 2015 at 5.06.55 PM AWST, is in relation to dismissal of the applicant (“Mr Atkinson”) from employment in alleged contravention of a general protection under the provisions of the Fair Work Act 2009 (Cth) (“FW Act”) (“Substantive Application”).
Before the Court are five applications in a case as follows:
a)the respondents’ (“Respondents”) application in a case filed 25 September 2015 (“Respondents’ Dismissal Application”) seeking the dismissal of the Substantive Application on the basis that it is out of time, and also seeking the dismissal of the Substantive Application as against the second, third and fourth respondents (respectively “Adrian Palm”, “Steven Palm” and “Mr Menna”) on the basis that they were not parties to the proceedings before the Fair Work Commission (“FWC”) and were not named in a certificate issued by the FWC under s.368 of the FW Act (“Section 368 Certificate”);
b)an application in a case filed by Mr Atkinson on 29 September 2015 seeking an extension of time in which to file the Substantive Application (“Mandatory Extension Application”);
c)a further application in a case by Mr Atkinson filed on 22 January 2016 seeking an extension of time in which to file the Substantive Application, and identical in terms to the Mandatory Extension Application (“Second Mandatory Extension Application”);
d)an oral application in a case made by Mr Atkinson on 6 May 2016 at the hearing of the Mandatory Extension Application, to extend the time set out in the Court’s order of 28 August 2015 (“August 2015 Court Order”) in which to file the Mandatory Extension Application (“Court Order Extension Application”); and
e)an application in a case dated 4 October 2016 filed by Mr Atkinson which essentially seeks to re-open the earlier hearings of the Mandatory Extension Application and the Court Order Extension Application (“Re-Opening Application”) to enable Mr Atkinson to file and serve further material in support thereof.
Chronology
The basic chronology of this matter is as follows:
a)on 3 June 2015 the first respondent (“Killarney Properties”) terminated Mr Atkinson’s employment;
b)on 17 June 2015 Mr Atkinson commenced proceedings in the FWC against Killarney Properties;
c)on 8 July 2015 the FWC issued the Section 368 Certificate;
d)22 July 2015 at 4.30pm was the last time at which the Substantive Application may have been filed without an extension of time, which may only be obtained on application to the Court: FW Act, s.370(a)(ii);
e)on 22 July 2015 at 5.06.55 PM AWST Mr Atkinson filed the Substantive Application. Mr Atkinson did not serve the Substantive Application or do anything to bring the Substantive Application to the attention of any of the respondents;
f)on 5 August 2015, 15 days after the expiry of the statutory limitation period Killarney Properties’ solicitor, having conducted a check with the Court’s Registry, wrote to Mr Atkinson’s solicitor (whose identity was exposed by the electronic Court file) and asked about the Substantive Application. After 5.00pm that day, the Substantive Application was served on Killarney Properties (through its solicitor): Affidavit of Daniel John Messina, sworn 7 April 2016 (“Messina’s April 2016 Affidavit”) at [12]-[20];
g)as at 13 August 2015, the date of the first directions hearing, Mr Atkinson had not made a Mandatory Extension Application. The matter was adjourned to 28 August 2015 without substantive directions being made;
h)on 27 August 2015 at 10.03am Mr Atkinson emailed his draft of an application in a case for an extension of time in which to file the Substantive Application to Mr Heathcote: affidavit of Steven Heathcote, sworn 18 May 2016, at [19] (“Heathcote 18 May 2016 Affidavit”), and in the 27 August 2015 email Mr Atkinson wrote as follows:
We will need to include an affidavit explaining the reason for late lodgement – what will / should the affidavit say and will you be providing it or will I?
Further, there is an earlier email from Mr Atkinson to Mr Heathcote of 25 August 2015 at 11.32pm which forms part of Attachment 1 to the Heathcote 18 May 2016 Affidavit in which Mr Atkinson indicated his frustration at still not having a copy of a particular document, and then he wrote as follows:
A recent email from you expressed the importance of good communication and information sharing. Moving forward, I would really appreciate the same regard.
i)as at 28 August 2015, the date of the second directions hearing, Mr Atkinson had still not made the Mandatory Extension Application. At that hearing, the Court made the August 2015 Court Orders in the following terms:
1. The Applicant file and serve any application for an extension of time (Extension Application) on or before 11 September 2015.
2. The Respondents file and serve any application to dismiss the proceeding (Dismissal Application) on or before 18 September 2015.
3. The Applicant file and serve any material in support of the Extension Application, and at [sic] any material in response to the Dismissal Application on or before 25 September 2015.
4. The Respondents file and serve any material in support of the Dismissal Application, and any material in response to the Extension Application on or before 2 October 2015.
The effect of the August 2015 Court Orders was that Mr Atkinson was afforded 53 days within which to file and serve his application for extension of a 14-day limitation period;
j)on 11 September 2015 Mr Atkinson did not comply with the August 2015 Court Order, and the Respondents’ solicitor was not notified of any pending lateness;
k)on 16 and 17 September 2015 there were exchanges of email correspondence, primarily between Mr Heathcote and Mr Messina, which are set out in Mr Atkinson’s 18 May 2016 Affidavit (“Atkinson’s May 2016 Affidavit”) as follows at annexures GPA1 (see Atkinson’s May 2016 Affidavit at [4]) and GPA2 (Atkinson’s May 2016 Affidavit at [10]):
i)an email from Mr Messina to Mr Heathcote on 16 September 2015 at 4.54pm as follows:
I refer to the above proceedings and to the orders of His Honour Judge Lucev dated 28 August 2015 (copy attached).
With reference to Order 1, we note your client was required to file and serve an application for an extension of time by 11 September 2015. To date we have not received any such application.
As it stands, we are required to file and serve our client's dismissal application by Friday, 18 September 2015. Given the logical progression of the matter, it was always the intention that our client's dismissal application would be filed subsequent to your client's extension of time application (as ordered).
Please advise of your client's intentions as a matter of urgency.
(emphasis added)
ii)Mr Heathcote’s email to Mr Messina on 16 September 2015 at 5.35pm as follows:
Thanks Daniel.
You're right. The application should already have been lodged. Before we file it, and the affidavit needed to support it, can you take instructions on whether your client continues to oppose the extension? It appear to me that a delay of 1-day ought not be the subject of too much controversy, particularly when an extension of time is almost certainly going to be granted.
If your client maintains it's position, we may have to re-visit the orders so that we can ensure that your client has adequate time to file a response.
(emphasis added)
iii)on 16 September 2015 at 5.35pm Mr Heathcote sent an email to Mr Atkinson attaching copies of the above two emails referred to at (i) and (ii) above, and wrote:
Garth - FYI
Therefore, by 16 September 2015, Mr Atkinson was aware of the 11 September 2015 deadline for filing of the Mandatory Extension Application and the fact that it should already have been filed;
iv)from Mr Messina to Mr Heathcote on 17 September 2015 at 10.51am as follows:
As indicated at the last directions hearing, prior to being in a position to determine whether our client will consent to an application for an extension of time, it requires your client to confer and provide his reasons for the delay in filing the subject application. As you will be aware, your client is well versed in both the Fair Work Act and the process required to be followed.
That being said, so that I may take instructions accordingly, please provide to us in writing, any such reasons for the delay (and in support of your client's request for extension).
v)from Mr Heathcote to Mr Messina on 17 September 2015 at 11.05am as follows:
Garth sought some advice about making his claim, and he determined to prepare it himself to save on costs. He asked me to review the claim before he filed it and I agreed to do so. The draft claim included material that was irrelevant and I suggested substantial amendments to it. Garth had the claim form ready within the limitation period but, when he came to file it, I pointed out that he had to file an application at the same time. He hadn't prepared an application.
I prepared the application, but we weren't able to finalise both the application and the claim, and file them, before 4:30pm on the last day for filing.
As I recall it, the documents was completed and ready for filing by about 5:30pm on that day. However, as you know, anything filed then is effectively filed on the following day.
Garth was diligent in his efforts to prepare the claim form, but he wasn’t aware of the need for an application. He didn’t become aware of that until the last day. He knew about the limitation period and he thought that he was ready to file on time.
vi)from Mr Messina to Mr Heathcote on 17 September 2015 at 3.43pm as follows:
Thank you for your email below. In all the circumstances, our clients intend to oppose any application brought for an extension of time.
The application is overdue and your client is in default of Judge Lucev's order (as was the case in filing the proceeding, without an explanation for the delay). Our clients require that you either comply with the order without further delay, or confirm in writing that your client will not apply for an extension of time.
(emphasis added)
vii)from Mr Heathcote to Mr Messina on 17 September 2015 at 10.34pm as follows:
Thanks for your email. Given your client's position, on the extension of time issue, we'll make the application next week regardless of what your client 'requires' of us.
(both forms of emphasis added)
l)on 23 September 2015 Mr Heathcote says that he filed the Mandatory Extension Application. Mr Heathcote says that his incorrect lodgement led to the improper imposition of a fee, which he sought to avoid Mr Atkinson paying: Heathcote 18 May 2016 Affidavit at [17]-[20];
m)Mr Heathcote later, in correspondence with the Respondents’ solicitor, says that the Registry rejected the application because a filing fee was paid incorrectly: Heathcote 18 May 2016 Affidavit Affidavit, Attachment A3 (email 29 September 2015, 12.15 pm);
n)neither Mr Atkinson nor Mr Heathcote informed the Respondents’ solicitor of what was occurring in relation to the Mandatory Extension Application;
o)despite Mr Heathcote’s undertaking, Mr Atkinson did not file his Mandatory Extension Application in the week ending Friday, 25 September 2015;
p)on 25 September 2015, Mr Heathcote’s undertaking that the Mandatory Extension Application would be filed not having been fulfilled, the Respondents filed the Respondents’ Dismissal Application;
q)on 29 September 2015:
i)Mr Atkinson filed the Mandatory Extension Application; and
ii)the Substantive Application was brought to the Respondents’ attention, via the service of an unsealed copy of the Mandatory Extension Application; and
iii)the Mandatory Extension Application was filed 69 days after the expiry of the statutory limitation period, and 83 days after the issue of the Section 368 Certificate. Until at least this date, the Respondents were effectively in limbo as to whether the proceeding would (or could) proceed;
r)on 5 October 2015 having not received service of a sealed copy of the Mandatory Extension Application, the Respondents’ solicitor followed up Mr Atkinson’s solicitor. In response, the same day, Mr Atkinson’s solicitor undertook to serve the sealed documents “later today”: Affidavit of Daniel John Messina, sworn 3 June 2016 (“Messina June 2016 Affidavit”) at [4] and Annexure DJM-1;
s)on 22 January 2016 Mr Atkinson re-filed his Mandatory Extension Application;
t)on 1 February 2016 having still not received service of a sealed copy of the Mandatory Extension Application, the Respondents’ solicitor followed up Mr Atkinson’s solicitor: Heathcote 18 May 2016 Affidavit at [29] and Attachment A4;
u)on 3 February 2016 Mr Atkinson served the sealed Mandatory Extension Application: Messina June 2016 Affidavit at [5] and Annexure DJM-2. The effect is that a sealed copy of the Mandatory Extension Application was not served until 197 days after the expiry of the statutory limitation period, and 210 days after the issue of the Section 368 Certificate;
v)on 6 May 2016 the Court sat to hear the Mandatory Extension Application and the Respondents’ Dismissal Application. On 6 May 2016 the Court made the following orders:
1. In relation to the applicant’s oral application to extend time in which to file the application to extend time lodged 29 September 2015:
a. the applicant file and serve any affidavits and an outline of submissions by 20 May 2016;
b. the respondents file and serve any affidavits and an outline of submissions by 5 June 2016; and
c. it be listed for hearing at 9.30am AWST on 10 June 2016 with leave to the respondents’ counsel to appear via video-link from Melbourne.
The oral application referred to in order 1 is the Court Order Extension Application;
w)on 10 June 2016 a hearing took place in relation to the Court Order Extension Application, and judgment was reserved;
x)on 14 June 2016 Mr Atkinson filed a Notice of Address for Service indicating that he was now self-represented;
y)on 4 October 2016 Mr Atkinson filed the Re-Opening Application, and an affidavit affirmed 3 October 2016 (“Atkinson’s October 2016 Affidavit”) in support thereof, seeking to file and serve further material in support of both the Mandatory Extension Application and the Court Order Extension Application; and
z)at a directions hearing on 18 October 2016 the Court made the following orders:
1. The applicant file and serve any further written submissions by 2 November 2016.
2. The respondent file and serve any written submissions by 16 November 2016, those submissions to include any objections to the applicant’s affidavit filed 4 October 2016.
3. The applicant file and serve any further submissions by 23 November 2016, including any response to the respondent’s objections to the applicant’s affidavit filed 4 October 2016.
4. The respondent file and serve any reply to the response to the objections to the applicant’s affidavit filed 4 October 2016 by 30 November 2016.
5. Judgment be further reserved to 9.30am on 14 December 2016.
6. Costs, if any, be reserved.
Submissions were filed in accordance with orders 1, 2 and 3 above.
Re-opening a case – principles
In determining whether or not to re-open a case and allow further evidence to be led the Court has regard to certain principles which are set out in the Federal Court judgment in Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J (“Ample Source”). Part of that test is the relevance of the proposed material: Ample Source at [355] per Robertson J, where the Federal Court said as follows:
Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138–139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 must now inform the principle.
The Court further observes that:
a)the decision to re-open a case and allow further evidence is a discretionary one: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18] per Austin J (“Rich”);
b)in Rich the New South Wales Supreme Court said the following factors are relevant to the exercise of a court’s discretion to re-open:
i)the degree of relevance and the probative value of the further evidence sought to be adduced, and its potential to involve an undue waste of time;
ii)the nature of the proceeding;
iii)the extent to which Mr Atkinson embarked upon calling the further evidence during the hearing;
iv)whether calling the further evidence ought reasonably to have been foreseen;
v)what explanation is offered by Mr Atkinson for not having called the further evidence during the hearing;
vi)the consideration of fairness that a respondent is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; and
vii)the prejudice to a respondent in terms of delay in the completion of the proceeding (and the consequential costs);
Rich at [18] per Austin J; and
c)regard must also be had to the public interest in the finality of litigation: Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33; CLR at 302-303 per Mason CJ.
It is necessary to apply the above principles to the affidavit evidence sought to be read in relation to the re-opening of the case.
Mr Atkinson’s October 2016 Affidavit asserts that there is new material which only came to his knowledge after he received an electronic copy of Mr Heathcote’s file on 17 June 2016 after Mr Atkinson became a self-represented litigant in the proceedings on 14 June 2016: Atkinson’s October 2016 Affidavit at [9]. That new material appears to comprise what is set out at [10] of Atkinson’s October 2016 Affidavit namely that:
a)after Mr Heathcote called Mr Atkinson on the morning of 23 July 2015 to tell him about the late lodgement of the Substantive Application, Mr Heathcote did nothing as Mr Atkinson’s legal representative until the Respondents’ solicitors called him on 5 August 2015 to seek confirmation that Mr Heathcote was Mr Atkinson’s legal representative in the proceedings. Mr Atkinson observes that that “period of idleness is roughly equivalent to two full weeks of normal office hours and may well have been even longer had the respondents’ solicitor not called when they did”: Atkinson’s October 2016 Affidavit at [10(a)];
b)on 5 August 2015 Mr Heathcote served notice of the Substantive Application on Killarney Properties and Adrian Palm via email to the Respondents’ solicitor: Atkinson’s October 2016 Affidavit at [10(b)] ; and
c)on 10 August 2015 the Respondents’ solicitor informed Mr Heathcote via email that the Respondents’ solicitor had instructions to act for the Respondents, and that Mr Heathcote acknowledged receipt of that email 10 minutes after it was sent: Atkinson’s October 2016 Affidavit at [10(c)].
In the Court’s view the material identified by Mr Atkinson as being new should not be the subject of re-opening. Firstly, this is because the evidence as to the period in which Mr Heathcote did nothing is already in evidence: Messina April 2016 Affidavit at [12]-[20]. Secondly, the serving of notice of the Substantive Application on Killarney Properties and Mr Adrian Palm is also already in evidence: see Messina’s April 2016 Affidavit at [20] and Annexure DJM 2. Thirdly, the fact that Mr Heathcote acknowledged the Respondents’ solicitors having instructions to act for each of the Respondents does not appear to be of any, or any sufficient, relevance to the Mandatory Extension Application or the Court Order Extension to warrant further consideration by way of a re-opening of those two applications in a case.
There is, therefore, nothing new or nothing relevant in the material sought to be adduced in Mr Atkinson’s October 2016 Affidavit. It is not therefore in the interests of justice that the Court Order Extension Application or the Mandatory Extension Application be re-opened to admit the alleged new material in Atkinson’s October 2016 Affidavit.
Mr Atkinson filed a second affidavit, without leave of the Court and in circumstances where there was no order of the Court permitting him to do so, affirmed 3 November 2016 (“Atkinson’s November 2016 Affidavit”). Atkinson’s November 2016 Affidavit sets out background at [1]-[11] which, as to its actual factual content, does not appear to be in dispute. It then goes on under the heading of “Steven Heathcote’s incompetence” to make various assertions concerning Mr Heathcote’s conduct in relation to the Substantive Application, the Mandatory Extension Application and the Court Order Extension Application: at [12]-[18].
In the Court’s view the interests of the administration of justice are not served by recourse being had to an affidavit for which no leave has been granted to be filed being used as the basis for an application to re-open interlocutory applications. Further, [1]-[10] of Atkinson’s November 2016 Affidavit are largely uncontroversial, or not seriously in dispute, but do not assist to any significant degree with the assessment of any matter relevant to the Mandatory Extension Application or the Court Order Extension Application (save perhaps in a minor degree as to the possible merits of the Substantive Application for the purposes of the Mandatory Extension Application).
As for the evidence in relation to Mr Heathcote’s alleged incompetence the only arguably new material of any consequence is that contained at [14]-[15] of Atkinson’s November 2016 Affidavit which indicates as follows:
14. On 16 September 2015 at 5:35PM, Heathcote forwarded to me a copy of an email which he had just sent to the respondents’ solicitor. The email to the solicitor disclosed Heathcote's admission that he had not complied with a court order that required my application in a case for an extension of time to be lodged with the court by 11 September 2015. On this same day, I sought clarification via email from Heathcote with regard to any consequences that might arise from his failure to comply with the court order may cause and was subsequently only advised to prepare an affidavit in support of an already drafted application for an extension of time. I have appended a copy of the aforementioned email to this affidavit under a heading of “Clarification of Consequences”.
15. On 17 September2015, I informed Heathcote via email that I was not prepared to continue using his services unless he gave me an undertaking to conduct his business in such a way so as to prevent his future failure to comply with the court's deadlines. On this same day, I received an email from Heathcote which I understood to mean that he would provide a level of attention to my matter sufficient to prevent his future failure to comply with the court's deadlines and that he would advise me accordingly if, at some future time, he believed that he could no longer provide that same level of attention to my matter. I have appended a copy of the aforementioned email to this affidavit under a heading of “Heathcote's Commitment”.
The Court notes that the email forwarded by Mr Heathcote at 5.35pm on 16 September 2015, and the email chain attached thereto, are set out above at [3(k)].
The evidence of Mr Heathcote’s alleged incompetence does not assist in explaining the initial delay given that at the time they were written the time for filing of the Court Order Extension Application had already passed. That is relevant to the issues raised by Mr Atkinson with Mr Heathcote in the relevant emails. In Mr Atkinson’s 17 September 2015 email (referred to at [15] of Mr Atkinson’s November 2016 Affidavit: see [12] above) Mr Atkinson wrote to Mr Heathcote and said that he was:
… becoming increasingly worried that you might have too many other things going on to give my matter the attention it needs.
…
If you think it’s better for this goal [the successful prosecution of the litigation] that I switch to someone else then please give me some names and I’ll call them.
Mr Heathcote’s email on 17 September 2015 at 10.49pm reply ought to have done little to ameliorate Mr Atkinson’s concern, containing as it did the following two paragraphs:
Whether I'm too busy to give proper attention to your case is very much a matter of scheduling, and that is not always something over which I have complete control. From a file management viewpoint, my large caseload means that I have less flexibility to deal with a request for an urgent meeting or an urgent review of a document. My current workload requires me to plan, and to be disciplined about doing the tasks that are planned for a particular day. If you need urgent responsiveness and guaranteed access, I don't think I can meet that expectation.
If you're looking for more than I can give you, I'll happily refer you to someone else. That is not to say that I don't enjoy working with you or on your case, my willingness to refer you elsewhere merely reflects my preference that you are adequately 'serviced' so that you achieve your objectives.
Mr Atkinson replied on 17 September 2015 at 11.51pm as follows:
With regard to your general availability for things unscheduled, I can I ask for no more than you've already provided and will even accept something less. …
My most significant worry is that you might exceed some deadline imposed by the court which then puts my claim at risk. …
For now it will be enough to know that you’re confident my prime worry won’t eventuate.
It is evident from the above email exchange that Mr Heathcote gave no commitment to Mr Atkinson in relation to his prime concern about exceeding Court imposed deadlines. Indeed, it is difficult to read Mr Heathcote’s 17 September 2015 email as making any commitment to deal with any matter involving Mr Atkinson’s case urgently if required, or perhaps even otherwise, and it evinces happiness on Mr Heathcote’s part for Mr Atkinson to be referred to see another lawyer. Mr Atkinson’s reply does not assist any argument on his behalf that the fault in the delayed filing of the Court Order Extension Application was Mr Heathcote’s, its amiable and relaxed tone being written against a background of Mr Atkinson having been aware since at least 25 August 2015 (see [3(h)] above) that the Mandatory Extension Application was necessary, and his further being aware since 16 September 2015 that a further deadline imposed by the Court under the August 2015 Court Order had not been met by the making of the Court Order Extension Application by 11 September 2015: see 3(k) above. Further, in circumstances where the deadline for the filing of the Court Order Extension Application was 11 September 2015 there is no evidence of any urgency or active follow up on the part of Mr Atkinson to press Mr Heathcote to file the Court Order Extension Application, which was ultimately not filed until 29 September 2015.
Those parts of Mr Atkinson’s November 2016 Affidavit relating to the alleged incompetence of Mr Heathcote are therefore of such low probative evidentiary value as to not warrant, in any event, their admission into evidence. Furthermore, in the context of the interests of the administration of justice, the case would have to be further delayed in the Court’s view to allow Mr Heathcote an opportunity to respond to the allegations against him, and that process, with all that it entails, would involve significant delay, costs and inconvenience. Indeed, such is the state of the list in the Perth Registry that a re-opening of the Mandatory Extension Application and the Court Order Extension Application, with evidence which is going to be in contest, may not now be listed for many months, and possibly until 2018. Likewise, there would be further prejudice to the Respondents if the evidence were to be admitted in support of the re-opening of the Mandatory Extension Application and the Court Order Extension Application, by reason of the delays mentioned immediately above.
Finally, there must be a public interest in even interlocutory litigation, and especially interlocutory litigation of this type, coming to an end: a proposition supported by the objects of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) which seeks to have the Court use streamlined procedures: FCCA Act, s.3(2)(b) and the FCC Rules, which mandate that the parties must avoid undue delay, expense and technicality: FCC Rules, 1.03(4), as well as the usual principles of case management applied by this Court: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; applied in Lejmanoski v The University of Western Australia (No. 3) [2016] FCCA 154 at [32]-[33] per Judge Lucev (albeit there in the context of an adjournment application). The public interest is not facilitated by re-opening interlocutory proceedings on the basis of evidentiary material of low probative value in circumstances where there will be significant delays in having the matter brought back on for hearing, and where the Mandatory Extension Application, the Court Order Extension Application and the Respondents’ Dismissal Application, relate to Mr Atkinson’s earlier failures to comply with relevant time limits.
In the above circumstances, the Court does not propose to admit Mr Atkinson’s November 2016 Affidavit into evidence. Further, the Court is of the view, for reasons set out above, that the interests of the administration of justice do not favour a re-opening of the Mandatory Extension Application or the Court Order Extension Application. It follows, therefore, that the Re-Opening Application will be dismissed.
Principles concerning extension of time for compliance with a court order
Rule 3.05(1) of the Federal Circuit Court Rules (Cth) (“FCC Rules”) states:
The Court may extend or shorten time fixed by these Rules or by a judgment, decree or order.
Rule 3.05(3) of the FCC Rules states:
The time fixed may be extended even if the time fixed has passed.
In Sims v RM Capital Pty Ltd & Anor (No. 2) [2015] FCCA 149 at [5]-[6] per Judge Lucev the Court summarised the relevant principles in relation to the exercise of the Court’s discretion under r.3.05 of the FCC Rules to extend time specified in a court order as follows:
a)there are no criteria for extending the time set out in r.3.05 of the FCC Rules;
b)the Court’s discretion is, therefore, unfettered, but it is generally accepted that the relevant considerations are those set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315; FCR at 348-349 per Wilcox J (“Hunter Valley Developments”) namely:
i)that the relevant time ought not be lightly ignored;
ii)the length of the delay;
iii)the explanation for the delay;
iv)the prejudice to the other party; and
v)the prospects of success of the underlying application, with the emphasis generally being on this consideration; and
c)it is for the Court to weigh the factors, and according to the particular circumstances one factor may outweigh another.
Applicant’s submissions on Court Order Extension Application
Mr Atkinson’s submissions in relation to the Court Order Extension Application are as follows:
a)the delay in filing the Court Order Extension Application was due to Mr Heathcote’s error, and that:
i)Mr Heathcote believed that the Court Order Extension Application should have been filed by 25 September 2016;
ii)acting under a false belief, Mr Heathcote arranged for the Court Order Extension Application to be filed online on 23 September 2015, and that it was order 3 of the Court’s 28 August 2015 order requiring the applicant to serve material in support of the Court Order Extension Application by 25 September 2015 which led to Mr Heathcote’s confusion;
iii)the Court Order Extension Application was rejected when lodged on 23 September 2015;
iv)Mr Heathcote was working on the mistaken belief that the documents were lodged in around late September 2015; and
v)in January 2016, Mr Heathcote realised the documents had not in fact been lodged and proceeded to lodge them on 22 January 2016 at 12:50pm;
b)the length of the delay was caused by Mr Heathcote’s mistaken belief that the documents were lodged in late September 2015, and further that when he became aware in January 2016 that he thought that the documents had not been lodged he lodged them relatively quickly with minimal delay, and there is therefore little delay in correcting the mistake once Mr Heathcote became aware of it;
c)both the unsealed Mandatory Extension Application, and Affidavit of Mr Atkinson affirmed 23 September 2015, were sent to the Respondents’ solicitors on 29 September 2015, and that the Second Mandatory Extension Application which was accepted for filing on 22 January 2016 is identical to the Mandatory Extension Application served on the Respondents’ solicitors on 29 September 2015, and that the Respondents could not therefore have suffered material prejudice because the Respondents had the Court documents well before the 6 May 2016 hearing date; and
d)the Substantive Application has good prospects of success, and in that respect relies upon submissions made at the hearing on 6 May 2016.
Respondents’ submissions on Court Order Extension Application
The Respondents’ submissions in relation to the Court Order Extension Application are as follows:
a)the explanation proffered by Mr Atkinson is that his solicitor (again) misunderstood the date ordered by Judge Lucev. The Respondents say three things about this explanation:
i)first, the explanation does not explain the further delays in making the Mandatory Extension Application after that misunderstanding was resolved. Mr Heathcote in his affidavit says that his mistaken belief was resolved on 16 September 2015 (when the Respondents’ solicitor followed him up): Heathcote 18 May 2016 Affidavit at [14] and Attachment A3. There is no explanation given as to why the Mandatory Extension Application was not filed until 23 (or, more accurately, 29) September 2015;
ii)second, the explanation does not explain the even further delay in bringing the filed Mandatory Extension Application to the Respondents’ attention. Even if the Court accepts that Mr Atkinson attempted filing the application on 23 September 2015, it should not countenance his failure to bring it to the Respondents’ attention until 29 September 2015; and
iii)finally, and perhaps most importantly, Mr Atkinson cannot be allowed to avoid his responsibility for compliance with the Court’s orders by repeatedly outsourcing them entirely to his solicitor. The Court’s orders bind Mr Atkinson, not Mr Heathcote. The apparent reliance on Mr Heathcote is aggravated by the fact that it was Mr Heathcote’s incompetence in calculating and meeting mandatory timeframes that led to the need to make the Mandatory Extension Application;
b)it is not appropriate to assess the length of the delay by reference only to the latest component of delay caused by Mr Atkinson. The aggregate length of the delay should be taken into account;
c)based on the material before the Court, Mr Atkinson’s substantive application has very limited prospects of success. Given the emphasis that must be given to this factor: Hunter Valley Developments FCR at 348-349 per Wilcox J, this is a strong indicator that the extension of time application should be dismissed;
d)the relevant time limit in this instance is two-fold. First, Mr Atkinson ignored the immediate time limit mandated by s.370 of the FW Act. That provision reads as follows: (emphasis added)
A person… must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) …;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days;
e)on their evidence the lateness of the filing of the Substantive Application was apparent to Mr Atkinson and Mr Heathcote the day after it was filed. Despite this, no Mandatory Extension Application was made. The first time limit was ignored;
f)subsequently, the August 2015 Court Order allowed Mr Atkinson an indulgence in respect of that first time limit and allowed him to make an application by 11 September 2015. That time limit was ignored. Mr Heathcote says he was not cognisant of that time limit. Even accepting his evidence, he was aware of the time limit by 16 September 2015: Heathcote 18 May 2016 Affidavit, Attachment A3;
g)from that date, the time limit was again ignored. So much is evident from Mr Heathcote’s email to the Respondents’ solicitor on 17 September 2015. Having been asked to “comply with [the August 2015 Court Order] without further delay”, Mr Heathcote replied:
[W]e’ll make the application next week regardless of what your client ‘requires’ of us.
Heathcote 18 May 2016 Affidavit, Attachment A3; and
h)ultimately, the Mandatory Extension Application was made on 29 September 2015 (18 days after the deadline imposed by the August 2015 Court Order and 70 days after the Mandatory Extension Application was first required to be made).
In relation to prejudice, including prejudice caused by delay, the Respondents’ submissions of 6 May 2016 at [18] and [19] provided as follows (footnotes omitted):
[18] The question of potential prejudice should be considered in the following context:
(a) Mr Atkinson did not bring the application to the Respondents' attention until 5 August 2015. Were it not for the diligence of the Respondents' solicitor in checking the electronic Court file, one can only imagine how much later that may have occurred.
(b) Mr Atkinson has not learnt his lesson. He has been guilty of further delays in the prosecution of his claim. Section 370(a)(ii) required Mr Atkinson to make his present application immediately (there being no jurisdiction without such an application). Despite this, no application was made prior to the first directions hearing. At that hearing, Mr Atkinson was allowed until 11 September 2015 to make his application. He did not do so. Ultimately, Mr Atkinson's application was filed on 22 January 2016.
[19] The usual issues of potential prejudice arise, including the availability of witnesses and the dilution of their memory with the effluxion of time. In this regard, the events that led to Mr Atkinson's dismissal took place in the period leading up to 3 June 2015.
In relation to the merits of the Substantive Application the Respondents’ Outline of Submissions of 6 May 2016 provided as follows:
[20] Mr Atkinson's evidence relating to the merits of his substantive application are at paragraphs 15 to 18 of his affidavit dated 23 September 2015. In short compass, his case is that his dismissal was actuated by his having made application AB2014/175 to the Commission.
[21] Mr Atkinson omitted to mention any of the matters referred to in paragraphs 9 to 11 of Mr Messina's affidavit sworn 7 April 2016 (and the dismissal-related correspondence attached to that affidavit and marked DJM-1). At the time of making his affidavit, Mr Atkinson was aware of all those matters and chose to say nothing about them. His silence, in accordance with the principle in Jones v Dunkel, gives rise to an inference that nothing he would have said would assist his case.
[22] Mr Messina's evidence confirms the truth about Mr Atkinson's dismissal:
(a) On 24 April 2015 he was issued with a written direction in relation to his employment. That direction arose as a consequence of Mr Atkinson having intimidated an employee in relation to that employee's hesitance to participate in Mr Atkinson's bullying proceeding.
(b) On 22 May 2015, despite the written direction that he not do so, Mr Atkinson attended the school campus of the First Respondent's client and intimidated another employee in relation to that employee's hesitance to participate in Mr Atkinson's bullying proceeding.
(c) That allegation was put to Mr Atkinson, in writing, on 26 May 2015. He was afforded an opportunity to respond.
(d) Despite the seriousness of the allegations and the effect of Mr Atkinson's conduct on its workforce, the First Respondent allowed him to delay responding to those allegations until after the hearing in the bullying proceeding (on 28 and 29 May 2015).
(e) On 2 June 2015 Mr Atkinson provided an extensive written response to the allegations against him. Mr Atkinson's denials of the allegations against him are grounded in his mistaken belief that he was at liberty to misconduct himself so long as he did not do so "in the capacity as an employee". This is borne out by the following admissions:
“While it is true that I am still employed by [the First Respondent], I attended St Andrew's Grammar School in a private capacity.”
“If I had attended the uniform shop in my normal capacity of [First Respondent] employee, I would not have tried to direct Ms Dinamarca to search the computer for a document as per allegation #7, I would have searched for it myself.”
“Notwithstanding my attendance in a private capacity, your reference to the existence of a [First respondent] policy that describes the correct process to follow to properly enter a school's grounds is invalid.”
(f) Moreover, Mr Atkinson's written response is internally inconsistent, betraying his attempt to obfuscate his misconduct. Having admitted that he “tried to direct Ms Dinamarca to search her computer”, he subsequently denies doing so, writing “I already knew the content of any documents Ms Dinamarca was likely to have on her computer ... so I had absolutely no interest in searching her computer for any documents.”
(g) At a meeting on 3 June 2015 Mr Atkinson provided oral responses to the allegations against him.
(h) The First Respondent considered Mr Atkinson's responses to be inadequate, and decided to terminate his employment.
[23] Mr Atkinson's application alleges contravention of (only) s 340 of the Act, which relevantly provides: (emphasis added)
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right,· or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right, or
(b) to prevent the exercise of a workplace right by the other person.
[24] The use of the word “because” in s 340 means that the central question in a general protections dispute is “Why was the adverse action taken?”
[25] In this case, the adverse action (Mr Atkinson's dismissal) was taken because of his misconduct in willfully ignoring a written direction in relation to his employment. As such, it is not adverse action proscribed by the Act.
[26] The adverse action is not elevated to such a status merely because the misconduct happened to also amount to the exercise of a workplace right. In this regard, the following passage from the judgment of Jessup J in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd is apposite. His Honour, referring to Barclay, finds:
As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a "connection" was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee's participation in industrial activity.
[27] The facts before the Court are simple and lead to the conclusion that Mr Atkinson's employment was terminated because the First Respondent concluded that he seriously misconducted himself. The fact that the misconduct occurred in the context of, or in connection with, his bullying application is of no relevance.
[28] In conclusion, Mr Atkinson's substantive application has very limited prospects of success.
Consideration
Explanation for the delay
In order for the Substantive Application to be valid and within the jurisdiction of the Court, the Mandatory Extension Application must be granted by this Court, and in order for the Mandatory Extension Application to be granted, the Court Order Extension Application must be granted.
It is therefore necessary to turn first to whether or not time ought to be extended under the Court Order Extension Application. That application, if granted, would extend time for the filing of the Mandatory Extension Application from 11 September 2015 (as in the August 2015 Court Order) to the time of actual filing on 29 September 2015. Both parties appear to have operated under a misapprehension in relation to whether or not the Mandatory Extension Application was filed on 29 September 2015 or 22 January 2016. The electronic court file shows that the Mandatory Extension Application was filed on 29 September 2015 at 12.02pm, and it is therefore unnecessary to deal with the Second Mandatory Extension Application filed on 22 January 2016.
The late filing of the Mandatory Extension Application on 29 September 2015 must be viewed in context. The Substantive Application had been filed late, albeit only by 36 minutes, but certainly in circumstances where the evidence indicates that both Mr Heathcote and Mr Atkinson were aware of the necessary time for filing of the Substantive Application. It is also clear from Mr Atkinson’s email of 25 August 2015 (set out at [3(h)] above) that both he and Mr Heathcote were aware of the necessity to make the Mandatory Extension Application, and were aware of it at least a month before it was ultimately made, it ultimately being made some 70 days after the expiry of a 14 day limitation period. The emails exchanged between Mr Heathcote and Mr Atkinson on 25 and 27 August 2015 demonstrate a keen awareness that the Substantive Application had been filed late, and that there was a necessity to make the Mandatory Extension Application. That email correspondence was in the context of a first directions hearing in this matter on 13 August 2015, and a second directions hearing which was imminent on 28 August 2015. The orders made on 28 August 2015, in the presence of both Mr Heathcote and Mr Messina, and pronounced orally, before being reduced to writing, left no room for doubt that the Mandatory Extension Application was required to be filed by 11 September 2015 pursuant to the August 2015 Court Order.
Even if Mr Heathcote was, as is asserted, under a mistaken belief as to the deadline under the August 2015 Court Order being 25 September 2015, and not 11 September 2015, what occurred in the email exchanges between Mr Heathcote and Mr Messina, and to a lesser extent in the forwarding of them to Mr Atkinson, on 16 and 17 September 2015 is vital to the disposition of this matter. The exchange of emails between Mr Heathcote and Mr Messina on 16 and 17 September 2015 demonstrates, and it is not in dispute, that the Respondents told Mr Heathcote that the Mandatory Extension Application had to be filed by 11 September 2015 and that no such application had yet been received, and that Mr Heathcote acknowledged at 5.35pm on 16 September 2015 that the Mandatory Extension Application “should already have been lodged”. That exchange of emails was sent (at 5.35pm on 16 September 2015) to Mr Atkinson, and Mr Atkinson was therefore aware as at 16 September 2015 of the 11 September 2015 deadline.
In the above circumstances, and given that the Substantive Application had been filed late, the Mandatory Extension Application had not yet been filed, and that the deadline set by the August 2015 Court Order had also been missed, it might be expected that every possible step would have been taken by both Mr Heathcote and Mr Atkinson to ensure that the Mandatory Extension Application was filed on 17 September 2015. That did not occur. Rather, having endeavoured to explain why the Substantive Application had been filed late, and following confirmation on the afternoon of 17 September 2015 that the Respondents intended to oppose any application for an extension of time, and an indication from the Respondents’ solicitor that the Respondents “require that … [Mr Atkinson] comply with … [the August 2015 Court Order] without further delay …”, the response from Mr Heathcote bordered on the extraordinary.
Rather than acknowledging the dilatory conduct which had led to the failure to comply with the August 2015 Court Order, Mr Heathcote appeared to take issue with what the Respondents required of Mr Atkinson, ignoring the fact that what the Respondents required reflected what the Court had ordered in the August 2015 Court Order, with some further indulgence allowing for the fact that Mr Atkinson had missed the deadline imposed by the Court under the August 2015 Court Order. Mr Heathcote’s email of 10.34pm on 17 September 2015 makes it plain that Mr Atkinson did not intend to make the Mandatory Extension Application until “next week regardless of what your client ‘requires’ of us”.
By the time this extraordinary response was sent to the Respondents’ solicitor, Mr Atkinson was six days late in complying with the terms of the August 2015 Court Order, and Mr Heathcote’s email indicated that there would be a further delay of some days, without proffering any explanation either for the lateness in complying with the August 2015 Court Order to date, or why it was necessary for further time to comply therewith. What Mr Heathcote’s email at 10.34pm on 17 September 2015 demonstrates is that there was a deliberate choice made to further delay the filing of the Mandatory Extension Application, in circumstances where no reason was given for the existing delay or the further delay. This deliberate act is not mere inadvertence, nor mere negligence (and whether it was negligent conduct by Mr Heathcote in his professional capacity is presently unnecessary to decide), such as to take it outside of the cases referred to in Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327; (2011) 246 FLR 430 at [59]-[67] per Lucev FM which might lead a court to allow an indulgence to an applicant because of the solicitor’s conduct. Further, for reasons further set out below, it is evident that Mr Atkinson, aware of the lateness of the Substantive Application, aware of the delay in filing the Mandatory Extension Application, failed to press Mr Heathcote as to when, precisely, the Mandatory Extension Application would be filed.
True to the email of 17 September 2015 at 10.34pm Mr Atkinson’s Mandatory Extension Application was then not sought to be filed until 23 September 2015. Other than the 17 September 2015 email from Mr Heathcote, there is no explanation as to why there was a further six day delay. In any event, the filing on 23 September 2015 was rejected. The reasons why do not matter, although on Mr Atkinson’s behalf, differing explanations have been proffered by Mr Heathcote. What does matter is that there is then a further wholly unexplained six day delay before the Mandatory Extension Application was finally filed. The Court notes that 23 September 2015, the day on which the filing of the Mandatory Extension Application was initially rejected was a Wednesday. Given that the proffered reasons for rejection do not relate to the content of the Mandatory Extension Application, or any affidavit in support thereof, it is inexplicable as to why the Mandatory Extension Application, and any affidavit in support thereof, was not sought to be filed on Thursday 24 September, Friday 25 September or Monday 28 September 2015, and had to wait until Tuesday 29 September 2015.
By the time the Mandatory Extension Application was filed there had been an 18 day delay beyond the time required under the August 2015 Court Order. That August 2015 Court Order had allowed 14 days for the filing of the Mandatory Extension Application, which when the August 2015 Court Order was made, was already the subject of a 37 day delay beyond the 14 day limitation period prescribed in s.370(1)(a)(ii) of the FW Act.
In summary, no proper explanation has been given for any of the delays in filing (or even seeking to file, as on 23 September 2015) the Mandatory Extension Application subsequent to the August 2015 Court Order. The only reason for the delay, and a reason operative only from 17 September 2015, was the deliberate choice of Mr Heathcote, as Mr Atkinson’s solicitor, to delay filing the Mandatory Extension Application for a further period of six days, which extended to 12 days (without explanation).
The longer the delay, the greater the necessity for an explanation of the delay: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ; Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J, and the Court must look not only at the explanation for the delay, but also at the extent of the delay, and balance the extent of the delay against the reason for the delay: SZNOR v Minister for Immigration & Anor [2009] FMCA 639 at [14] per Scarlett FM; WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [29] per Lucev FM.
In this case the extent of the delay is considerable. By the time of the filing of the Mandatory Extension Application on 29 September 2015 the delay alone was five times the relevant limitation period of 14 days. For reasons set out above, there was no proper reason given for the delay, in circumstances where both Mr Heathcote as Mr Atkinson’s solicitor, and Mr Atkinson, were aware of both the delay in filing the Substantive Application and the delay in complying with the August 2015 Court Order. The August 2015 Court Order indulged Mr Atkinson by further extending time, and that indulgence was met by a further delay of 18 days over and above the 14 day indulgence further granted by the August 2015 Court Order.
The extent of the delay here is such that there must be clear and cogent reasons for it, and in this case there are not clear and cogent reasons for the delay in complying with the August 2015 Court Order. The extent of the delay, absent a most compelling arguable case on the merits, is such that it is sufficient to defeat the Court Order Extension Application. Put differently, and to adopt the language of the Federal Court in Hunter Valley Developments, this is a case in which the relevant limitation for the purposes of the Court Order Extension Application has been lightly ignored, both by Mr Atkinson, and by his solicitor, Mr Heathcote.
Even if the Court had had regard to the terms of Atkinson’s November 2016 Affidavit the Court’s view of the explanation for the delay would remain unchanged. Indeed, had the Court had regard to Atkinson’s November 2016 Affidavit, the Court is of the view that the failure thereby revealed by Mr Atkinson to further press for Mr Heathcote to take urgent steps to remedy the delay in filing the Mandatory Extension Application supports the view reached by the Court that there is no proper explanation for the delay in filing the Mandatory Extension Application.
It is evident that there is prejudice to the Respondents in extending time. The Respondents would be obliged to argue a matter in respect of which a time limitation had expired. Given the extent of the dispute on the Mandatory Extension Application and the Court Order Extension Application, it is reasonable for the Court to infer that any hearing of the Substantive Application would be bitterly fought. There would also be further prejudice by reason of the fact that there would be a significant delay before the matter could be heard in this Court. At present, final hearings of fair work applications in the Perth Registry are being listed in the second half of 2018.
The prejudice which would accrue to the Respondents does not favour an extension of time under the Court Order Extension Application.
As to the prospects of success of the underlying, that is the Substantive Application, it is not apparent that the Substantive Application has any reasonable prospects of success. On the material before the Court it appears that the reason for the termination of Mr Heathcote’s services is more than likely to be found to be by reason of his misconduct as set out in the Respondents’ submissions cited above: see [26] above. That would be sufficient to rebut the onus under s.361 of the FW Act, and also to provide a justifiable reason for the termination, which is more likely to be believed at hearing by the Court than the alternative proffered by Mr Atkinson in the Substantive Application. In the circumstances, Mr Atkinson’s chances of success at hearing are weak, and that, taken together with the length of the delay in making the Mandatory Extension Application, and the failure to explain the delay, together with the prejudice to the Respondents, weigh against the grant of the Court Order Extension Application. In this case, and for reasons which will be apparent from what has been said above by the Court, greater weight can be placed upon the length of the delay and the failure to explain the delay, and the prejudice to the Respondents, than would normally be the case.
For all of the above reasons, the Court Order Extension Application must be dismissed.
Conclusion and orders
The Court has concluded that the Court Order Extension Application ought to be dismissed. It follows that it is unnecessary to make further orders dismissing the Mandatory Extension Application (or the Second Mandatory Extension Application), the Respondents’ Dismissal Application or the Substantive Application: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
In relation to costs, and bearing in mind the provisions of s.570(2) of the FW Act, which make costs in FW Act proceedings in this Court the exception rather than the rule, the Respondents (including Adrian Palm, Steven Palm and Mr Menna: see Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962 at [31]-[66] per Judge Lucev) will need to give consideration as to whether a costs application by them is justified in the circumstances. If a costs application is to be made then it can be made in accordance with the provisions of r.21.02(1)(a) of the FCC Rules, and if any such application is made, the Court will list that costs application for directions.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 14 December 2016
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