Batista v Wells Fargo International Finance (Australia) Pty Ltd
[2019] FCCA 3384
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATISTA v WELLS FARGO INTERNATIONAL FINANCE (AUSTRALIA) PTY LTD | [2019] FCCA 3384 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an adjournment – principles for consideration – inadequate reasons advanced for adjournment – prejudice to the respondent – case management issues – adjournment refused. |
| Legislation: Fair Work Act 2009 (Cth), ss.361, 368, 570 Federal Circuit Court Act 1999 (Cth), s.3 |
| Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 Myers v Myers [1969] WAR 19 |
| Applicant: | NUNO BATISTA |
| Respondent: | WELLS FARGO INTERNATIONAL FINANCE (AUSTRALIA) PTY LTD ACN 611 029 148 |
| File Number: | PEG 358 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 November 2019 |
| Date of Last Submission: | 21 November 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 21 November 2019 |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr N Burmeister |
| Solicitors for the Respondent: | Baker Mackenzie |
ORDERS
The application in a case filed 15 November 2019 be dismissed.
Written reasons for judgment in relation to order 1 be published from Chambers at a later date.
The applicant have leave to file and serve any written submissions on which he intends to rely at hearing by 26 November 2019.
The time in which to file the affidavits of Jake Wilson sworn 1 November 2019 and Shuki Yun affirmed 1 November 2019 be extended to the date of filing.
Costs, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 358 of 2018
| NUNO BATISTA |
Applicant
And
| WELLS FARGO INTERNATIONAL FINANCE (AUSTRALIA) PTY LTD ACN 611 029 148 |
Respondent
REASONS FOR JUDGMENT
On 21 November 2019 this Court made orders dismissing the application in a case filed 15 November 2019 by the applicant, Mr Batista. The Court indicated that it would provide written reasons to the parties’ later the same day.
Mr Batista seeks an adjournment of the hearing of this matter, which is listed for two days commencing 28 November 2019. The respondent opposes the matter being adjourned.
In light of the final hearing being one week away, and notwithstanding the Court’s limited hearing capacity, the adjournment application was listed for today. The Court was of the view that the adjournment application should be returnable prior to the hearing date in order to avoid costs being incurred in preparing for the final hearing of the matter (in the event the Court were to find the final hearing should not proceed). At this stage, the hearing may also require additional hearing days at a later date. In these circumstances the Court determined that it would not be efficient for the Court to hear the adjournment application in the time allocated for the substantive hearing.
The parties had both been on notice since 15 November 2019 that the adjournment application would be heard today. They have had adequate notice to prepare their arguments.
Background
The Court does not propose to outline the background of the substantive claim itself. It is sufficient to provide only a brief chronology of the matter as it has proceeded through the Court.
The applicant filed the substantive application on 2 July 2018. He alleges that the respondent breached the Fair Work Act 2009 (Cth) (the “FW Act”) by taking adverse action against him for a prohibited reason.
During the course of the proceedings the applicant was referred for pro-bono legal assistance. Pro-bono Counsel was engaged. It appears, however, that the applicant and Counsel disagreed and Counsel and her instructors withdrew on 8 August 2019. The applicant has thereafter been without legal representation.
The matter was originally listed for hearing during the weeks of 2 or 9 September 2019. The parties vacated that hearing date by consent. The matter was then listed for hearing in the week of 20 November 2019. In both circumstances, the matter was listed before a visiting Judge with a rolling list for each of those weeks.
On 27 September 2019, the Court emailed the parties advising that the matter would be listed for final hearing on 28 and 29 November 2019. All of the evidentiary materials to be relied on for hearing were to be filed and served by 8 November 2019.
While some correspondence subsequently exchanged between the parties and Chambers indicated that it was possible for the matter to re-listed for hearing in January 2020 (with an additional day set aside for the hearing), the matter has at all times remained listed for hearing on 28 and 29 November 2019.
The applicant did indicate in the course of that correspondence that he wished to have further time to prepare as he was seeking documents “of great importance” and was seeking legal representation. Contrary to what the applicant stated however, the “set date” was never in January 2020.
In an email to the parties dated 25 October 2019, the Court indicated that the hearing dates would remain at 28 and 29 November 2019 and that if the applicant wished to seek an adjournment or further time to file documents he would require consent from the respondent or would need to file an application in a case with supporting affidavit.
On 11 November 2019, the respondent provided Chambers (and the applicant) with four folders of documents containing various exhibits referred to in the affidavits of the respondent’s witnesses.
Later that afternoon, the applicant emailed Chambers and informally requested an adjournment. He advised that he needed more time to process the documentation in the folders provided to him. Chambers indicated that the applicant would need to seek consent or file an application in a case with supporting affidavit requesting an adjournment.
On 15 November 2019, the applicant filed an adjournment application.
Applicant’s Case
The applicant filed an affidavit in support of the adjournment. That affidavit annexed a letter in the following terms:
I wish to seek an adjournment to the case due for hearing on the 28-29th of November 2019 for the following reasons;
Request more time to review documents presented by the respondent, respondent recently filed 5 lever arch files of documents to which I received a copy of three weeks before the hearing dates.
As the respondent knows I am undergoing treatment for Anxiety, Severe Depression and Sleep Apnea. All conditions have been officially medically diagnosed and I have further correspondence from treating physicians should it be required. Some of these documents are in my affidavit of evidence in chief filed in the court September 2019.
As a result, I tend to go into panic and find it difficult to focus in order to process all the documents in time.
As a self-representative, I also need to engage with Legal Aid from time to time to seek advice, but Legal Aid is respectfully busy and difficult to get a hold of at times.
Respondent declined an informal request for adjournment.
I would like to postpone the hearing until January/February 2020 to a suitable date within the courts schedule.
At hearing, it was explained that the Court needs to be satisfied that it is in the interests of the administration of justice for an adjournment to be granted. If the Court is satisfied that an adjournment is necessary to ensure that there is a just resolution of the proceeding then the Court may exercise the discretion to grant an adjournment.
The Court explained to the applicant that when determining whether or not an adjournment should be granted (and to inform itself whether it is in the interests of justice) it will take into account:
a)the evidence in support of the adjournment and the explanation for the adjournment;
b)the parties choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
c)any prejudice to the respondent that cannot be mitigated by costs; and
d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44] (“Luck”).
Against this background, the applicant was invited to address these factors and advance any other argument as to why he considered an adjournment to be in the interests of the administration of justice. In effect, the applicant indicated that he needed an adjournment because of his mental health needs and because the documentation he needed to review was extensive. He reiterated that the delays to date have not been his fault. He also stated that he had been asked to provide documents to the respondent and that documents that he himself had asked for had not been provided.
The applicant provided a medical certificate dated 20 November 2019 which read as follows:
The above patient has been under the care of Dr Johannes Dupreez who has treated him for Depression. Dr Dupreez has left this clinic and Mr Batista reports that he continue with the antidepressant medication - Paroxetine once a day. He reports that he has been unable to fund for psychological treatments.
The material handed up also included correspondence from St John of God Hospital dated 5 July 2019 indicating that the applicant had taken part in a sleep study which found he had “Mild obstructive sleep apnoea overall” which “may or may not cause symptoms”.
These documents were marked Exhibit 1.
Respondent’s Case
The respondent was invited to respond to the applicant’s submissions and explain why it opposed the adjournment. The respondent filed an affidavit of Bianca Dearing sworn 20 November 2019 and an outline of submissions of the same date.
The respondent’s submissions can be summarised as follows:
a)the applicant has not offered any good reason for the adjournment. His affidavit makes bare assertions of a medical nature. No evidence of the condition is provided. Nor is there any evidence of any link between the condition and any inability to attend the hearing. Moreover, there is no reason as to why the alleged condition prevents a late-November trial but apparently permits one in January;
b)an adjournment will prejudice the respondent by causing it to throw away the costs incurred by it in preparing the case for trial. The matter is ready for trial. All evidence has been filed and served. The respondent has filed and served detailed submissions. Its solicitors and counsel are well advanced in their preparation. Much time and effort (both on the part of the respondent and the Court) has been devoted to the logistics of having witnesses around Australia, in Hong Kong and in the United States give evidence by video-link;
c)the procedural history tells against a further accommodation. The September dates were adjourned to allow the applicant to amend his pleading. A November trial was ordered in April 2019. The present trial orders were made on 22 August 2019. They were made with the applicant’s consent. Any blame about the proximity of the trial date to the date on which the applicant received Wells Fargo’s evidence falls squarely at his own feet;
d)the circumstances of the filing and service of the respondent’s evidence does not tell for an adjournment as the applicant was served with the documents and while the respondent technically served Mr Batista with some of its evidentiary material up to 58 minutes late, Mr Batista cannot be said to have suffered any prejudice as a consequence. In the same vein, the respondent’s late filing of two of the affidavits (the reasons for which are explained in Ms Dearing’s Affidavit) cannot be said to tell for the adjournment;
e)the respondent’s evidence is not oppressive. Consistent with the timetable to which he consented (to allow himself more time to prepare his own evidence), he had almost four weeks to deal with the respondent five affidavits. The task is not difficult because the witnesses all talk about the same confined matters. One witness observed the applicant’s history of workplace misconduct. The other four witnesses were members of a committee that decided what to do about that misconduct. There is extensive overlap between the witnesses. They all give largely the same evidence, corroborating each other. The learning curve on getting across their evidence is flat;
f)there has been considerable delay to date. None of it was caused by the respondent and each day of delay prejudices the respondent. This is because the delay has real consequences: The case will turn on whether the respondent’s witnesses are believed. Their recollections of key events, dates and details will be vital. The events pleaded by the applicant began over three years ago. Recollections of those events may already suffer from the erosion caused by the passage of time. This will prejudice the respondent;
g)the proper use of the Court’s resources is a fundamental consideration in the exercise of the discretion to grant or refuse an adjournment. The proposed adjournment would result in the existing dates being wasted. Other hearing dates would have to be found in the future. This would inconvenience the Court. Other litigants would also suffer by experiencing the consequent delays that would cascade like dominoes down the docket.
At hearing, Counsel for the respondent relied on his written submissions and made some further points of note in response to the applicant’s submissions and Exhibit 1:
a)the medical documents provided by the applicant in Exhibit 1 do not indicate that the applicant is suffering from a medical condition that would inhibit him from participating in or attending at the hearing;
b)the applicant has had nearly one month to review the materials and it should be noted that in order for the respondent to meet the onus in s.361 of the FW Act it must produce evidence from the relevant decision-makers. There is more than one decision-maker in this case (hence the need for affidavits from each). Nonetheless, the evidence overlaps to a significant extent; and
c)the FW Act requires an applicant to file their application in this Court within 14 days of the Certificate under s.368 being issued. It is therefore anticipated that an applicant will act expediently in pursuing their claims and in circumstances where a possible adjournment will cause the matter to be hear over two years from the date of filing (and nearly three years after the critical events), it cannot be seen as in the interests of justice to adjourn.
Consideration
The Court has outlined the factors it will generally take into account above. Those factors are not exhaustive. The Court’s discretion to grant an adjournment is wide: Myers v Myers [1969] WAR 19 at 21 per Jackson J.
The Court recognises that the applicant is an unrepresented litigant. The Court has a duty to ensure that he is not disadvantaged by a lack of legal representation. The Court is cognisant that it has a duty to afford fairness both to an unrepresented applicant and a respondent who has legal assistance, and that this obligation necessarily requires the court to bear in mind case management principles and the objects of the Court under s.3 of the Federal Circuit Court Act 1999 (Cth) and r.1.03 of the Federal Circuit Court Rules 2001 (Cth).
Having taken into account the applicant’s arguments and the respondent’s arguments, the Court is not satisfied that an adjournment is warranted.
First, the applicant has known since at least 29 April 2019 that this matter would be heard in November 2019. The applicant’s legal representatives withdrew on 9 August 2018. The respondent agreed to the applicant having additional time to gather his evidence and seek legal assistance. Further, the applicant agreed to the timetable for the filing of evidence.
Second, the “four folders of documents” the applicant received on 11 November 2019 had been served on him electronically on 1 November 2019 in their entirety by 4.58pm. The “four folders of documents” did not contain new documents. Rather, they were documents that the applicant had received in electronic form on 1 November 2019.
The Court notes that the 22 August 2019 orders required the documents to be filed by 4.00pm. They were not served until 4.58pm. On its face, the respondent has failed to comply with the orders. However, the Court does not accept that the fact that the respondent served the affidavits 58 minutes beyond the time ordered was prejudicial to the applicant. The respondent requested a “read receipt”. The applicant did not provide one (although the Court has evidence that the message was delivered). The applicant appears not to have “read” the emails when they were sent. In any event, the Court does not consider a 58 minute delay to be prejudicial or to weigh against an adjournment.
Third, the “four folders of documents” contain the exhibits that are referred to in the affidavits of the respondent’s witnesses. The respondent’s witnesses have set out in their substantive affidavits (which are not lengthy) the particular parts of the exhibits upon which they rely. Further, as the respondent submits, much of this evidence is repetitive and overlaps.
Fourth, the documents in the exhibits that form part of the “four folders of documents” include the respondent’s policies, which the applicant is already aware of by reason of his employment and which, in fact, were the subject of complaints and difficulties that arose in the course of the applicant’s employment. He can, therefore, be assumed to have some knowledge of these documents.
Fifth, the respondent’s outline of submissions provides a comprehensive guide or reference to the specific paragraphs of the affidavit materials on which it intends to rely to support its argument. The submissions cross reference not only the legislation and case authorities, but also identify the specific paragraphs of the evidence on which the respondent relies. The applicant need not be overwhelmed as the respondent’s submissions provide a signpost to the critical parts of the respondent’s case that he will be required to respond to: Simjanovska v Department of Human Services [2019] FCA 499 at [11] and [13].
Sixth, the Court does not doubt that the applicant suffers from a medical condition and that this litigation has been stressful. Unfortunately, the applicant himself agreed to the timetable for filing documents. The Court is sympathetic to the predicament unrepresented applicants face to prepare for a hearing. However, the Court is also bound to have regard to the respondent’s interests when determining whether or not to accede to further requests for time for preparation.
The Court is prepared to overlook the fact that the medical evidence is not provided in affidavit form. However, Exhibit 1 in the Court’s view is insufficient to establish that the applicant is unable to prepare, participate or attend to this matter and the final hearing. As Counsel for the respondent submitted, the medical evidence is entirely deficient and was of no assistance. The sleep study was dated at a time prior to the applicant agreeing to the amended timetable for filing and serving documents. It also indicates that the applicant “may or may not” suffer symptoms. It is, with respect, entirely deficient. The medical certificate also suffers from the same flaws as identified in numerous Federal Court authorities (see for example, Luck; NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6]; Singh v Minister for Immigration & Border Protection [2016] FCA 108). It fails to address the critical question as to whether, and if so why, an asserted medical condition prevents a person from attending Court or participating effectively in any Court hearing: Luck at [48]-[50].
The fact that the applicant agreed to the timetable, the lack of sufficiently probative medical evidence and the fact that the applicant did not raise issue with the volume of respondent’s evidence (which he was in possession of in entirety since 1 November 2019) until 11 November 2019 (when he was served a hard copy of the documents) indicates to the Court that he has had sufficient opportunity to be able to prepare and that he was capable of doing so.
Seventh, in light of the Court’s current listings, if the matter is adjourned the hearing cannot be relisted until October/November 2020 at the earliest. This is an unacceptable delay, not only for the respondent, but also for the applicant, who deserves to have his matter resolved. As the respondent submits, the issues in this case will turn on the witnesses’ recollection of events and a further delay will comprise this evidence.
It is common knowledge that there is limited hearing capacity in this Court. Fair work matters are listed in November 2020. Some of those matters were filed prior to the applicant filing his case. An adjournment will result in judicial resources being wasted as other litigants could have made use of the time now allocated. It is also the case that a large amount of technical preparation has already been undertaken in relation to this matter. Witnesses will be appearing by video-link form international sites. This has required a number of test links. Further, witnesses will be appearing from Sydney and Brisbane and the Court has had to enquire about assistance from the Federal Court in Brisbane to provide resources to enable a video-link as this Court’s Brisbane Registry is, at this stage, fully occupied.
Eighth, the Court, in its duty to the self-represented litigant, notes that it is familiar with the materials and will be astute to providing him with assistance to the extent that it is able to do so. The respondent will also be represented by experienced Counsel who, as evidenced by his written submissions, has provided the applicant with a comprehensive and accessible outline of the respondent’s argument. Counsel will undoubtedly conduct himself in a way that will ensure that the applicant does not feel overwhelmed or feel that he cannot participate in the proceedings. Further, the Court will ensure that the applicant has a meaningful opportunity to understand what is occurring and address the issues relevant to this matter.
Ninth, the Court notes that the applicant raised issue with being asked to produce documents for the hearing. Counsel for the respondent submitted that at his instruction a Notice to Produce documents in relation to mitigation of loss was issued to the applicant. The Court indicated that, in order to allow the applicant to focus on the materials already filed, the Notice to Produce need not be addressed at this time. Counsel for the respondent agreed this was an appropriate course. The hearing on 28 and 29 November 2019 will be restricted to liability. Hence, the applicant need not tend to the Notice of Produce and can focus instead on the issue of liability and the respondent’s evidence. Hence, any difficulty that arose from the Notice to Produce has now been resolved.
The applicant also indicated that the respondent had not provided him with documents that he believes are critical. It appears that the applicant is referring to a list of documents that were previously requested by his legal representatives. The respondent indicated that they considered the documents irrelevant and would not be providing them. Unfortunately for the applicant, he has had what appears to be almost two months to issue a subpoena for the documents or seek orders for discovery. He did not do so. On that basis, the Court is not satisfied that an adjournment to obtain “critical documents” warrants an adjournment.
Finally, this being a fair work matter, the ability of the respondent to obtain a costs order for costs thrown away is somewhat more difficult (in light of s.570 of the FW Act). The prejudice to the respondent not only extends to the delay in the proceedings being resolved, but also the possibility that the costs incurred in preparation for the substantive hearing will be thrown away without possible recourse.
Conclusion
The Court notes that the applicant is unrepresented and that this litigation has undoubtedly caused him stress. Unfortunately, the Court is not satisfied that the interests of justice require that an adjournment be granted. The potential delay and prejudice that would result, which would impact not just the respondent but also the applicant are such that the adjournment must be refused.
The application in a case filed 15 November 2019 is dismissed. The matter remains listed for final hearing on 28 and 29 November 2019 at 9.30am.
The Court drew the respondent’s attention to two affidavits that were filed outside of the time specified in the Court’s orders dated 22 August 2019. It is noted that those affidavits, despite not being filed, were served on the applicant on 1 November 2019. There was no prejudice to the applicant as a result of the late filing. Ms Dearing’s affidavit at [27]-[28] explains the reasons why those affidavits were late. The Court is satisfied that the plausible explanation, the minimal prejudice and the significance of the evidence warrant the time to file those affidavits being extended to the date of filing.
The Court further notes that the applicant has not filed written submissions in accordance with the orders of 22 August 2019. The respondent, as indicated, has filed submissions. In the circumstances, the Court is prepared to allow the applicant more time in which to file any written submissions. He will now have until 26 November 2019 to do so. He is not required to do so, but can if he so wishes.
Noting that this is a fair work matter costs, if any, will be reserved.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 21 November 2019
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