Barrett v Willoughby City Council

[2021] FCCA 1203

FEDERAL CIRCUIT COURT OF AUSTRALIA

Barrett v Willoughby City Council [2021] FCCA 1203

File number(s):

SYG 235 of 2021

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

21 May 2021

Catchwords:

PRACTICE AND PROCEDURE – application for default judgment based on respondents’ failure to file a response within the time required by an order of the Court and within the times agreed by the applicant – whether the extent of the default and the circumstances in which default occurred merit the making of orders in default – application for default judgment dismissed.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2001 (Cth) rr 13.03A(2), 13.03B(2)

Number of paragraphs:

16

Date of hearing:

21 May 2021

Place:

Sydney

The Applicant:

Appeared in person

Counsel for the Respondents:

Ms L Saunders, by telephone

Solicitor for the Respondents:

HWL Ebsworth Lawyers

ORDERS

SYG 235 of 2021

BETWEEN:

MARK BARRETT

Applicant

AND:

WILLOUGHBY CITY COUNCIL

First Respondent

BRETT CURTIS

Second Respondent

JOHN HARTSHORN

Third Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	21 MAY 2021

THE COURT ORDERS THAT:

1.The application in a case filed on 17 May 2021 is dismissed.

REASONS FOR JUDGMENT
(Revised from transcript)

1. There is listed before me today an application in a case brought by the applicant, Mr Barrett, seeking default judgment. The application in a case is made in a proceeding that Mr Barrett has brought for relief under the Fair Work Act 2009 (Cth) (FW Act).

2. The application for relief under the FW Act was filed on 15 February 2021. It was commenced by the filing of a form of application, and it was supported by a Form 4. The Form 4 is over 29 pages long, and it appears to contain quite a bit of detail.

3. The matter first came before me on 10 March 2021.  On that day orders were made in relation to the service of the application on the third respondent, and the matter was again listed for directions before me on 1 April 2021.

4. On 1 April 2021 I made orders in chambers. These were made by consent. By those orders, which are the usual orders I make on a first court date, I ordered that the respondents file their response on or before 6 May 2021, and I made an order that Mr Barrett file a reply on or before 27 May 2021. I then made my usual orders for mediation.

5. The respondents did not file a response by 6 May 2021; but it is common ground that there was communication between the lawyers for the respondents and Mr Barrett in which the respondents sought the agreement of Mr Barrett to extend the time by which the respondents could file a response. That request was made, and granted, three times. On the failure of the respondents to file within the third time, Mr Barrett decided to file the application in a case, which I listed today.

6. Mr Barrett has submitted that the respondents have acted in bad faith in agreeing, on no less than three occasions, to file a response within an agreed extended time, but failing to do so by those agreed times; and he submitted that an extension has been granted sufficient times for it to be just for the Court itself not to grant any further time and, instead, to make orders for default judgment.

7. The application for default judgment is opposed. Ms Saunders, who appears for the respondents, submitted – and this, I don’t think can be disputed – that the respondents communicated with Mr Barrett about their inability to file a response within the agreed time. She submits that the document to which the respondents were required to respond is complex which required the lawyer, Ms Saunders, to obtain instructions from three respondents, and to make inquiries of other persons. And here it should be noted that the events which are the subject of the proceeding occurred almost six years before the time Mr Barrett commenced the proceeding.

8. There is no doubt that failing to comply with the orders I made on 1 April 2021 - by which I mean the failure to file a response by 6 May 2021 – is a default such as to lead to my characterising the respondents as being in default within the meaning of r 13.03A(2) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Being in default gives the Court power to make orders in default, which are identified in r 13.03B(2) of the FCC Rules.

9. Whether the Court should make an order in default is wholly within the discretion of the Court.  In exercising that discretion there are a number of factors that need to be taken into account.  The first is the extent of the default. The second is the circumstances of the default.

10. In terms of the extent of the default, Mr Barrett might feel aggrieved that he has given three extensions which have not been complied with; but from the Court’s point of view, the extent of the default is to be measured by reference to the orders the Court made, and the default here is 12 days. That 12 days must be viewed in a broader context. The first is the nature of the claims made. As I have said, by simply looking at the Form 4, the claim is based on fairly extensive facts and matters which, to be answered, would have required a degree of work.  The second contextual matter is that this application relates to events that have occurred almost six years ago.  The passing of such time, one may reasonably suppose, makes it relatively difficult to obtain instructions.  So in that context, the respondents’ default in relation to the time I set is relatively insignificant.

11. The fault – if I can use the word “fault” – is not anything the respondents have failed to do, but in their misjudging the time by which the respondents believed they could respond to the Form 4.  Mr Barrett says that this manifests bad faith.  I do not accept that submission. The fact is the respondents communicated with Mr Barrett; and the respondents have filed a response. Further, the response is a 76 paragraph document responding to each and every paragraph in Mr Barrett’s Form 4.

12. These last-mentioned matters cover the second element that I have referred to, and that is, the circumstances of the default. I will just restate them – the respondents communicated with Mr Barrett, work was done to prepare a response, and a response has been filed.

13. In those circumstances, it would not be appropriate that, in the exercise of my discretion, I grant any judgment based on the default of the respondents.

14. There is another thing that I should note. Litigation is a stressful activity. It consists of parties being in dispute. The purpose of the parties bringing their dispute to a court is for the dispute to be dealt with with a degree of cooperation, so that to the extent the parties to the dispute cannot resolve their dispute, it will be brought before the court for the court itself to determine it. It is commonplace, regrettable as it is, for parties, in good faith, to agree to timetables which they cannot comply with for reasons which are entirely understandable – and I am speaking from my experience as a lawyer for 30 years before I became a Judge.

15. Strictly, what parties should do – and which some litigants who do regular business with the Court do – is to apply to the Court for an extension before the time passes. That is commendable; but on the other hand, it increases costs, and it increases the work load of the Court. In those circumstances, parties often agree between themselves. That is what occurred in this case. I am sure that if the matter proceeds further, and there is a timetable Mr Barrett does not comply with, he would be grateful for an extension that he would be granted by the respondent, and not be faced with an application for default judgement on account of his being late in complying with any court order or any agreed extension of any court order.

16. In these circumstances, the order I propose to make is to dismiss the application in a case for default judgment.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       31 May 2021