Bency George v Northern Health
[2011] FMCA 445
•6 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GEORGE v NORTHERN HEALTH | [2011] FMCA 445 |
| INDUSTRIAL LAW – General protections application – application for adjournment of trial – trial directions not complied with – considerations as to adjournment – matter adjourned. |
| Fair Work Act 2009 (Cth) s.340, 341, 369 Federal Magistrates Act 1999 (Cth) s.3 Federal Magistrates Court Rules 2001 |
| Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 |
| Applicant: | BENCY GEORGE |
| Respondent: | NORTHERN HEALTH |
| File Number: | MLG 1571 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 6 June 2011 |
| Date of Last Submission: | 6 June 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2011 |
REPRESENTATION
| The Applicant: | Appeared by telephone link |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Middletons |
ORDERS
The applicant’s adjournment application be granted.
The respondent’s costs thrown away as a result of the adjournment be fixed at $1,320.00 and those costs be reserved.
The hearing be adjourned to 20 October 2011 at 10.00am (with an estimate of 2 days) at the Federal Magistrates Court of Australia at Melbourne.
The applicant file with the Court and serve on the respondent all affidavit material 28 days prior to adjourned date.
The respondent file with the Court and serve on applicant any further affidavit material on which it seeks to rely 14 days prior to adjourned date.
The applicant and respondent file and serve an outline of submissions 72 hours prior to adjourned date.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1571 of 2010
| BENCY GEORGE |
Applicant
and
| NORTHERN HEALTH |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today are proceedings which were commenced by
Ms Bency George (“the applicant”) by application filed on
12 November 2010. The respondent to the application is Northern Health (“the respondent”). The application was accompanied by a Form 4. The applicant made allegations that the respondent had contravened sections 340 and 341 of the Fair Work Act 2009 (Cth) (“the FW Act”).
Background
The application was given a first return date of 28 January 2011.
On 23 November 2010 the respondent filed a notice of address of service. On 27 January 2011 the first return date for the application was vacated by consent. The matter was adjourned for a directions hearing on 11 March 2011. On 25 February 2011 there was a response filed on behalf of the respondent.
On 11 March 2011 the applicant appeared in person at the directions hearing and the respondent was represented by its solicitors.
The following orders and directions were made that day:
“1.The proceedings shall be subject to mediation to be held by 1 May 2011 with the mediation to be conducted by a Registrar of the Court as mediator appointed by the Registrar of the Court.
2.The trial shall proceed on affidavit evidence with the affidavits of each witness if adopted to stand as the evidence in chief of the witness.
3.The Applicant file and serve any affidavit material and any documents upon which he intends to rely at final hearing on or before 13 May 2011.
4.The Respondent file and serve any affidavit material and any documents on which it intends to rely at final hearing on or before 20 May 2011.
5.The Applicant have until 27 May 2011 to file any further affidavit material in reply.
6.The parties to file and serve an outline of submissions addressing relevant legislative provisions and a minute of orders sought on or before 3 June 2011.
7.The proceeding be listed for trial in the Federal Magistrates Court at Melbourne at 10:00 am on 6 June 2011 with an estimated hearing time of 1 day.
8.There be general liberty to apply for both parties.”
On 28 April 2011 a notice of address service was filed on behalf of the applicant. The parties received notice of the mediation by letter dated 19 April 2011 and the mediation was fixed for 10 May 2011.
It appears that the parties that attended a mediation which took place initially on 10 May 2011 and was adjourned part heard to 18 May 2011.
On, and after receipt of notice from the registry the mediation had been unsuccessful, 20 May 2011 the Court convened at its initiative a directions hearing by telephone. On that occasion the applicant appeared in person and the respondent was again represented by its solicitor. The following orders were made at that directions hearing:
“1.Jobwatch have leave to withdraw as solicitors for the applicant forthwith.
2.Time be extended for the applicant to comply with order 3 of the orders made on 11 March 2011 to 27 May 2011.
3.Time be extended for the respondent to comply with order 4 of the orders made on 11 March 2011 to 3 June 2011.
4.The Applicant has leave to issue any subpoenas which should be made returnable by 3 June 2011.
AND THE COURT NOTES:
A.The orders made on 11 March 2011 fixing the matter for final hearing on 6 June 2011 otherwise remain in full force and effect.”
Adjournment application
On 26 May 2011 the applicant requested that the respondent consent to the adjournment of the trial that had been fixed by orders of 11 March 2011. On 27 May 2011, the applicant filed an application in case which was supported by an affidavit sworn the same day. The application sought the following orders:
“Orders made by Federal magistrate O’Sullivan on 20 May 2011 be varied as follows:
1.submission of affidavit from 27 May 2011 to in 2 months;
2.trial to be changed from 27 May 2011 to in 2 months.”
This morning on the day fixed for the first day of the trial and on the basis of correspondence received by the Court which had also been provided to the respondents, the applicant has appeared by telephone. The respondent has been represented by counsel. The Court has heard submissions in support of the applicant’s application for an adjournment of a trial that had been fixed over three months ago.
Material relied upon and submissions
For the purpose of the adjournment application, the applicant relied on the application in a case, her affidavit and two letters from her psychologist, dated 24 May 2011 and 2 June 2011.
The correspondence from Jemma Barber, Consultant Psychologist dated 24 May 2011 states:
“I consulted with Bency George today, following a phone call from her requesting an appointment on the previous night.
I discussed with Bency that she needed to go to her doctors to request a mental health care plan (MHCP) and then call to confirm the appointment with myself for 1pm on the 24th May. Bency attended the session without confirming the appointment and without the MHCP presenting in a highly distressed state; she was visibly emotional and described her physical symptoms (heart palpitations). Bency reported that in the past she has called an ambulance because of these symptoms as she felt she was having a heart attack; she was informed that she was experiencing stress during these times and not a physical condition.
Bency detailed her impending court procedures and discussed her limited social support. Bency reported experiencing high levels of stress and anxiety; she reported that she was not sleeping and could not focus on anything, as she felt too overwhelmed. Bency reported that she is the sole carer of her two children.
From the information that Bency reported on the 24th may, it would appear that Bency is not going to be able to cope with any additional stress and would need some time to reduce her significant anxiety and stress levels. The writer would note that Bency has only attended an appointment on one occasion and the information provided is based upon only this session; additional information may be required to further support Bency appropriately. Bency has a further session scheduled on Monday 30 May.”
A further letter from Jemma Barber, dated 2 June 2011 states:
“I have consulted with Bency George on two occasions, following a phone call from her requesting an appointment. Bency attended the first session in a distressed state; she was visibly emotional and described her physical symptoms (heart palpitations). Bency was more composed at the beginning of the second session; however it was soon evident that she was highly emotional and confused as to her options and course of action. Bency reported that in the past she had called an ambulance because of these symptoms as she felt she was having a heart attack; she was informed that she was experiencing ‘severe’ stress/anxiety during these times and not a physical condition.
Bency detailed her impending court procedures and discussed her limited social support. Bency reported experiencing high levels of stress and anxiety; she reported that she was not sleeping and could not focus on anything, as she felt too overwhelmed. Bency reported that she is the sole carer of her two children.
From the information obtained to date it would appear that Bency is not going to be able to cope with any additional stress and would need some time to reduce her significant anxiety and stress levels. Therefore in my opinion Bency would not be able to attend court scheduled for Monday 6th June 2011 due to her significant anxiety, stress and reported panic attacks.”
The submissions made before the Court by the applicant as to why the trial should be adjourned, in addition to those contained in material to which I have just referred, were that she was very stressed, that she couldn’t focus, that she is having difficulties breathing, talking and that she needed time to prepare for trial. The applicant said there was too much work to be done. The applicant said if she got time, if she had at least two months, she could get her paperwork together, but at the moment she was too stressed. She said to the Court that she didn’t have any supporting documentation as yet, she had no time to get material ready after the mediation, and she claimed she relied on advice she’d been given by a solicitor who had previously been on the record for her. The applicant said as she no longer has a solicitor and the mediation was unsuccessful, she has been too stressed out, and if she had two months she hoped to be in a position to have her material before the Court.
The respondent has opposed the adjournment. The respondent’s submissions in opposing the adjournment application were put on three basis. Firstly, the adjournment application was procedurally, it was submitted, irregular. Whilst counsel acknowledged that his client had had notice of the applicant’s intention to apply for an adjournment Counsel told the Court his client had not been served with the application in the case or the affidavit. Whilst this may have been the case Counsel had, it appears from what transpired in Court, clearly been instructed that his client had some of the correspondence from the psychologist upon which the applicant relied. Nonetheless, it was clear that not all of that correspondence had been provided to his client and/or his instructor. The adjournment was also opposed on the basis that it was submitted, that the material in support of the adjournment was unconvincing. It certainly wasn’t supported by an affidavit from the psychologist. In any event, it was submitted, that if the grounds for the adjournment were claimed stress and anxiety, they appeared on their face to be linked to the conduct of these proceedings, and the question was posited, albeit rhetorically, would the situation be any different in two months’ time?
The submission was further put, and again albeit rhetorically, that if that is the situation would the only way to bring an end to this stress and anxiety claimed by the applicant, be to bring these proceedings to an end? Finally, the third ground upon which the opposition to the adjournment application was put was that the applicant had had ample opportunity, it was submitted, to prepare for trial.
The applicant hasn’t complied with earlier orders. The Court had by way of orders made at the last mentioned directions hearing, extended time for the applicant to comply, and still there had been no compliance. In those circumstances where it was said that the respondent was here and ready to deal with the application, it was submitted albeit inferentially that it was necessary for all involved to bring this matter to a conclusion. Whilst acknowledging the applicant was entitled to an opportunity for a hearing, it was submitted that she had done little, that she had not filed any material and there would be logistical difficulties for the respondent were the hearing to be adjourned where the respondent had filed material in accordance with the Court orders.
Approach to adjournment application
Against the background of those submissions, the Court turns to consider the principles to apply in relation to the application for an adjournment.
Adjournments are not readily granted in this Court. However, if an adjournment application is made then the Court will hear and determine it. The question of adjournment requires the Court to balance issues such as case management and prejudice.
It has been made clear courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (Aon)).
In Aon their Honours made a number of points, which included that:
a)
the conduct of litigation is not merely a matter for the parties.
The need to avoid disruptions in the court’s lists, with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
b)when considering an application such as this the court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Magistrates Act 1999 (Cth)[1] and the Federal Magistrates Court Rules 2001 (Cth),[2] as prescribed by the objects of the FM Act[3] and the objects of the FMC Rules,[4] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[1] “FM Act”.
[2] “FMC Rules”.
[3] FM Act, ss.3 and 42.
[4] FMC Rules, r.1.03.
The substantive application is brought under the jurisdiction given to the Court by the FW Act. The applicant alleges adverse action was taken against her by the respondent. The principles and object of the FW Act are relevant. However, the Court also needs to have regard to the principles I have already indicated which is that this Court should operate as informally as possible, it shouldn’t be protracted in its proceedings, it should endeavour to resolve proceedings justly, efficiently and economically, using streamlined procedures to do so, and doing so in a way that avoids undue delay, expense and technicality.
I’ve already set out earlier in these reasons the procedural background to this application. This matter has been fixed for a trial today by directions made over three months ago. It appears the applicant is no longer represented and from the material upon which she relies today is finding the conduct of these proceedings stressful. All Court proceedings for all involved are of their nature stressful. The need to comply with Court orders in this matter has been balanced against the principles that I’ve already referred to, and the last mentioned directions that were made by the Court were made with a view to try and preserve a trial date fixed over three months ago and done with a view to avoiding these proceedings becoming protracted and resolving the proceedings as justly, efficiently and economically as possible, to avoid undue delay, expense and technicality.
Unfortunately, today it appears that has not been possible. The applicant’s filed no affidavit material for trial. The applicant has not complied with the orders for which she was given further time in the most recent directions hearing. The stated reason why the Court is asked to grant the adjournment application is that the applicant finds these proceedings unduly stressful.
In considering the application for an adjournment I’ve got to weigh prejudice to the applicant if the adjournment was refused. I’ve also got to consider if the adjournment was granted prejudice to the respondent. I also have to have regard to the principles in Aon and whether any adjournment granted today would involve a waste of Court resources and other case management considerations.The Court as currently constituted has a docket not only in general federal law but also family law. If today’s trial which been given two days in the Court’s docket is vacated, that would be a significant waste of Court resources and a delay in the trial date to later in the year. However, balanced against that is the stated purpose for the adjournment application. The applicant is at least in the view of the psychologist upon which she relies suffering anxiety, stress and reported panic attacks and not able to attend Court today and needs more time. The applicant has asked the Court to accept today that if this matter is adjourned for two months, she will be able to come to terms to comply with Court orders and have her material ready for Court.
In this matter the Court balances the prejudice caused to the respondent if the adjournment is granted as against prejudice to the applicant if the adjournment is refused, taking into account the case management considerations and the Court resources principles including those set out in Aon. Whilst the matter is finally balanced in this case the benefit of the doubt falls at least on this occasion for the applicant and tells on this occasion in support of her application for an adjournment.
In giving these reasons for why the Court finds in favour of the application for an adjournment, it should be stressed that this should not be taken to indicate that the Court would adjourn any further proceedings or would be prepared to consider adjourning for the same reasons any future hearing. I take this opportunity also to remind the applicant that while she is a litigant in person, she is required to observe the Court processes and cannot seek to excuse her non-compliance and indeed her repeated contact with my associate by telephone by a claim to not being aware of the processes.
If she wishes, and this was referred to by counsel for the respondent, to make applications to the Court and put material before the Court, she’s got to do so properly. I take this opportunity to inform her and the respondent that my associate will be specifically instructed not to entertain any further telephone calls from the applicant other than to refer her to any orders made by the Court. The applicant should in future refrain from contacting my associate and instead take the opportunity afforded by the adjournment that’s she has been granted to exhaust all the options of obtaining advice or representation through the range of community legal services. A sheet detailing those which will be enclosed in the orders issuing from the Court as a result of today’s hearing.
Consequential upon the applicant obtaining the adjournment which she has sought, it’s necessary however to fix the respondent’s costs thrown away as a result of the adjournment but reserve the question of those costs. I’ve indicated during the exchange with the applicant today that I would do this as I was satisfied there would be no prejudice to her in doing so. So I fix the respondent’s costs thrown away at $1,320 and reserve the question. It is also necessary to consider the adjourned date.
I will adjourn the hearing to 20 October 2011 and two days will be set aside. I will make the orders set out at the beginning of these reasons.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 6 June 2011
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