Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare
[2022] FedCFamC2G 129
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare [2022] FedCFamC2G 129
File number(s): PEG 318 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 1 March 2022 Catchwords: PRACTICE & PROCEDURE – Application for adjournment of listed hearing and revised programming orders – overarching civil practice and procedure provisions – factors for consideration
INDUSTRIAL LAW – Alleged contravention of workplace right – alleged adverse action
Legislation: Education and Care Services National Law (WA) Act 2012 (WA)
Fair Work Act 2009 (Cth) ss 190, Pt 3-1, Div 3, Pt 2-2, Div 5, Pt 2-2, Div 7, Sub-Div A, Pt 2-2, Div 11, Pt 6-4B, s 340
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 131, 134, 139, 190
Occupational Safety and Health Act 1984 (WA)
Workers Compensation and Injury Management Act 1981 (WA)
Education and Care Services National Law (Western Australia)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 9.04
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
Annese v General Crane Services Pty Ltd [2019] FCCA 2661
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
Evans v Oxford Shop Pty Ltd [2020] FCCA 2730
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Papas v Westpac Banking Corporation [2014] FCA 290
Singh v Minister for Immigration and Border Protection [2016] FCA 108
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472
Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423
WZARX v Minister for Immigration and Border Protection [2014] FCA 423
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 16 February 2022 Date of hearing: 16 February 2022 Place: Perth Applicant: In person by telephone via CISCO Webex Counsel for the Respondent: Mr R French via CISCO Webex Solicitor for the Respondent: Jackson McDonald ORDERS
PEG 318 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANNABEL BONJOUR
Applicant
AND: CACHET HOLDINGS PTY LTD T/AS MULBERRY TREE CHILDCARE
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
16 FEBRUARY 2022
THE COURT ORDERS THAT:
1.All previous programming orders to the extent that they have not been complied with, or are not yet required to be complied with, be set aside.
2.The hearing dates listed for 9 and 10 May 2022 be vacated.
3.The Applicant have leave to file and serve any amended application and Form 2 by 9 March 2022.
4.The Respondent have leave to file and serve any amended defence by 30 March 2022.
5.By 30 April 2022 the Applicant file and serve any affidavit upon which it intends to rely at hearing.
6.By 31 May 2022 the Respondent file and serve any affidavit upon which it intends to rely at hearing.
7.By 14 June 2022 the Applicant file and serve any affidavit in reply.
8.Any affidavit filed stand as evidence-in-chief unless otherwise ordered.
9.By 28 June 2022:
(a)each party provide to the other party any objections to affidavits;
(b)each party provide the other party with a copy of any document not annexed to an affidavit which the party intends to produce and rely upon at hearing;
(c)each party advise the other party of any witnesses required for cross-examination.
10.By 5 July 2022 the Applicant file and serve an outline of submissions and list of authorities.
11.By 12 July 2022 the Respondent file and serve an outline of submissions and list of authorities.
12.By 19 July 2022 the Applicant file and serve any outline of submissions in reply.
13.The matter be listed for hearing at 10.00am AWST on 4, 5, 25, and 26 August 2022.
14.Save as prescribed in Orders 1-13 inclusive, the Applicant’s Application in a Proceeding filed 18 January 2022 be dismissed.
15.Costs, if any, reserved.
16.Parties have liberty to apply by way of Application in a Proceeding supported by affidavit on three days’ notice.
17.Reasons for Judgment in relation to these orders be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
THE ADJOURNMENT APPLICATION
On 18 January 2022 the applicant in these proceedings, Ms Annabel Bonjour (“Ms Bonjour”), filed an Application in a Proceeding seeking interlocutory orders in the following terms (reproduced unaltered):
1. Extension of time to appoint legal representative to take the case forward
.2. Adjournment of trial dates to be relisted upon further application
On 16 February 2022 an interlocutory hearing was held to consider Ms Bonjour’s adjournment application. At that hearing orders were made which had the effect of:
(a)vacating the existing listed hearing dates of 9 and 10 May 2022 for the originating application;
(b)re-listing the originating application for hearing on 4, 5, 25 and 26 August 2022;
(c)amending the dates for the filing of various documents prior to hearing; and
(d)providing for Reasons for Judgment for the orders made at the interlocutory hearing to be published from Chambers at a later date.
These are the Reasons for Judgment referred to in the orders made on 16 February 2022.
THE ORIGINATING APPLICATION
Before proceeding further it is convenient to note that the originating application:
(a)was filed by Ms Bonjour on 23 October 2020;
(b)alleges that Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (“Mulberry Tree”) terminated Ms Bonjour’s employment as an assistant early childhood educator on 24 July 2020 contrary to the General Protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”); and
(c)claims compensation from, and the reinstatement of Ms Bonjour’s employment at, Mulberry Tree on the basis that Ms Bonjour was dismissed in contravention of s 340 of the FW Act for exercising a workplace right. Ms Bonjour claims that she was bullied, and discriminated against, at work on the basis of her pregnancy, and that her employment was terminated due to a temporary absence from work that was authorised leave.
BASIS FOR THE ADJOURNMENT APPLICATION AND OPPOSITION THERETO
In an affidavit affirmed on 17 January 2022 (“Ms Bonjour’s Affidavit”), and filed with the Application in a Proceeding, Ms Bonjour said that:
(a)with effect from 17 December 2021 she had not had legal representation: at [5];
(b)she had actively been trying to appoint a lawyer but due to the Christmas holidays, had been unsuccessful, and had been told that most lawyers would only be able to discuss the matter from 17 January 2022 onwards, or even later; at [6];
(c)she needed to appoint a lawyer “to submit the claim with the correct changes, and to work on witness statements and affidavits”: at [7]; and
(d)she has been diagnosed with a psychiatric injury including depression and post-traumatic stress disorder due to stress and anxiety, to be further assessed in February 2022, but that she was “determined to see this matter through to a proper resolution”: at [8].
At the hearing of the Application in a Proceeding, Ms Bonjour submitted that:
(a)she needed an adjournment to obtain the services of a lawyer, having previously had three lawyers act for her in relation to proceedings concerning the termination of her employment by Mulberry Tree: one lawyer for the Fair Work Commission proceedings (“FWC” and “FWC Proceedings” respectively), a second for the mediation in this Court, and a third to take the matter to hearing in this Court;
(b)she had fallen out with the third lawyer, seemingly as a result of a what was said to be a conflict of interest arising from that third lawyer’s professional relationship with the lawyers acting for Mulberry Tree;
(c)she needed the assistance of a lawyer with the preparation of the various documents to be filed and served prior to hearing, and that this would take time, particularly because of the complexities of allegations of corruption she intended to make; and
(d)she sought an adjournment of the hearing to November 2022, or at the very least, to September or October 2022, but was not prepared to agree to an adjournment to August 2022 as proposed by Mulberry Tree.
Mulberry Tree filed written submissions, and further brief oral submissions were made by its Counsel, Mr French, at the hearing of the Application in a Proceeding, opposing the adjournment as sought by Ms Bonjour, and, in summary, submitting that:
(a)there was a lack of evidence regarding Ms Bonjour’s attempts to obtain legal assistance;
(b)Ms Bonjour had already received significant legal assistance from three different lawyers in relation to the termination of her employment by Mulberry Tree;
(c)a very substantial proposed amended claim (“Proposed Amended Claim”) provided to Mulberry Tree’s lawyers by one of Ms Bonjour’s former lawyers provided an appropriate framework for the preparation of further documents by, or on behalf of, Ms Bonjour;
(d)further delay:
(i)was inconsistent with the overarching civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”); and
(ii)caused prejudice to Mulberry Tree, and strain to the individuals involved in the proceedings, including a proposed individual second respondent; and
(e)Mulberry Tree did not, however, oppose a briefer adjournment to a hearing to be listed in, or before, August 2022.
CONSIDERATION OF THE ADJOURNMENT APPLICATION
Civil practice and procedure provisions - adjournment - principles
When considering whether to adjourn a hearing, the Court must have regard to the overarching purpose of the civil practice and procedure provisions inserted into the FCFCOA Act and, in particular, s 190 of the FCFCOA Act. The Court refers to and adopts what it said in COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145 at [13] to [19] and [21] per Judge Lucev with respect to those civil practice and procedure provisions, as follows:
13 With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
14 The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
15 The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a) in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the … [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b) in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
16 As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons(Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
17 Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
18The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
19 It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a) facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b) avoid undue delay, expense and technicality.
…
21 In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; 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 [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants who might be denied a final hearing date if this matter were to be listed for final hearing now, and which final hearing might then have to be vacated if Ministerial intervention resulted in the grant of a Protection Visa. That is a particularly cogent consideration when regard is had to the number of migration judicial review applications in the Melbourne Registry not presently allocated to a Judge of the Court for hearing: see [4] above, many of which were filed upwards of four years ago.
The need for a lawyer
Ms Bonjour seeks a very lengthy adjournment of the hearing date in order to retain the services of a new lawyer. There is a fundamental problem with that proposition: an individual has no right to legal representation in proceedings in this Court: Papas v Westpac Banking Corporation [2014] FCA 290 at [56] per Rangiah J (and cases there cited); WZARX v Minister for Immigration and Border Protection [2014] FCA 423 at [13] per McKerracher J; SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J. By contrast, a corporation cannot appear in this Court other than by a lawyer, unless otherwise statutorily provided or with leave of the Court: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”), r 9.04; Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423 (“Dong Lai Sun Massage”) at [15]-[20] per Judge Lucev. The desire of an applicant, who is otherwise competent, to be legally represented is not therefore a factor which necessarily weighs in favour of an adjournment.
The Court when exercising the discretion as to whether to grant an adjournment must, however, also take into consideration the fact that Ms Bonjour is now self-represented and does not presently have a lawyer to assist her: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J.
Mulberry Tree points to the assistance that Ms Bonjour has already had from lawyers in relation to:
(a)the FWC Proceedings;
(b)in these proceedings, both in relation to:
(i)their initiation and up to the time of mediation; and
(ii)the drafting of a proposed amended originating application and the Proposed Amended Claim, the Proposed Amended Claim running to some 45 pages, including 98 paragraphs in Part G dealing with alleged contraventions, and a further 20 paragraphs setting out the remedies sought in relation to alleged unlawful adverse action and alleged contravention of National Employment Standards (“NES”): see Affidavit of Kathleen Mary Warren affirmed 11 February 2022 (“Warren Affidavit”), at [7] and Annexures 3 and 4.
The fact that Ms Bonjour has been legally represented in relation to the FWC Proceedings, and in relation to mediation in this Court, are not necessarily matters which would be of assistance to Ms Bonjour in the preparation for hearing of this matter, as both of those types of proceedings focused upon dispute resolution, without necessarily focusing upon matters of law, evidence, proof and the drafting of legal submissions necessary for the purposes of preparation for the hearing and judicial determination of Ms Bonjour’s claims.
It is however often beneficial to both the parties and the Court to have all parties legally represented, particularly in proceedings under the FW Act, as it may assist in facilitating an efficient and just resolution of a dispute. This Court has often observed that assistance is to be derived from the appearance of lawyers in proceedings under the FW Act involving matters of some legal and evidentiary complexity and large volumes of evidentiary material: see, for example, Dong Lai Sun Massage at [35] per Judge Lucev; Whitfield v One Key ResourcesPty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [6] per Judge Lucev; Annese v General Crane Services Pty Ltd [2019] FCCA 2661 at [24]-[28] per Judge Kendall; Evans v Oxford Shop Pty Ltd [2020] FCCA 2730 at [24]-[30] and [47] per Judge Kendall.
Taking the Proposed Amended Claim (although it has not yet been filed) as indicative of the issues to be raised in the proceedings, it is evident that, in addition to the usual complexities attached to adverse action general protections claims under Pt 3-1, Div 3, and NES claims under Pt 2-2, Div 11, of the FW Act, there are particular complexities in this case by reason of:
(a)the reliance upon a number of additional statutory provisions in the FW Act, including the anti-bullying provisions in Pt 6–4B, the paid personal/carer’s leave provisions in Pt 2-2, Div 7, Sub-Div A, and the parental leave provisions in Pt 2-2, Div 5;
(b)the reliance upon a number of additional statutory provisions, including from the Workers Compensation and Injury Management Act 1981 (WA), the Occupational Safety and Health Act 1984 (WA), the Education and Care Services National Law (WA) Act 2012 (WA) (“ECS Act”) and the Education and Care Services National Law (Western Australia) set out in the ECS Act, said to relate to Ms Bonjour’s alleged workplace rights;
(c)the number and nature of the alleged workplace rights said to be relied upon, including the “Anti-Bullying Workplace Right”, the “Complaint and Inquiry Workplace Right”, the “Workers Compensation Workplace Right”, the “Flexibility Request Workplace Right”, the Personal/Carer’s Leave Workplace Right”, and the “Parental Leave Workplace Right”;
(d)the volume of evidentiary material likely to be associated with the adverse action general protections claims and NES claims and particulars, as set out, over 33 pages, in the Proposed Amended Claim at [1]-[96] of Annexure 4 to the Warren Affidavit; and
(e)the nature of the remedies sought which include six declarations, 11 orders, and claims for damages and costs.
The Court also notes that in oral submissions Ms Bonjour made multiple references to alleged “corruption” 0said to involve Mulberry Tree and the Department of Communities. It is not evident from the Proposed Amended Claim that any such matter is pleaded, properly or otherwise, or how it is that this Court might have jurisdiction to deal with allegations of this type, unless of course they arise out of those matters which are within the Court’s jurisdiction or associated jurisdiction: FCFCOA Act, ss 131, 134 and 139. It is also not evident whether any such allegations, if pleaded or otherwise arising from material properly put before the Court, might give rise to a necessity to add further parties to these proceedings, or to put particular persons, whether individuals, statutory bodies or corporations, on notice of any potential adverse findings sought to be made against them at the behest of Ms Bonjour.
The complexity inherent in the Proposed Amended Claim makes it plain that Ms Bonjour’s case would be likely to be better organised and presented if a lawyer were to represent her, and it follows from that that there would likely be judicial and administrative efficiencies if a lawyer represented her, thus fulfilling one of the objects of the overarching civil practice and procedure provisions in the FCFCOA Act: FCFCOA Act, s 190(2)(b).
Mulberry Tree argued that there was a lack of evidence concerning Ms Bonjour’s attempts to obtain legal assistance. It is fair to observe that Ms Bonjour’s evidence about attempting to obtain legal assistance is limited. She says that after her previous lawyer ceased to represent her on 17 December 2021, she has not been successful in appointing a lawyer, primarily due to the Christmas holidays and the break taken by the law firms she contacted: Ms Bonjour’s Affidavit at [5]-[6]. But that evidence, in so far as it goes, was not sought to be challenged by cross-examination, perhaps sensibly so, because it is, in the Court’s view, common knowledge that many lawyers in Perth take a two to three week break over the Christmas and New Year period, leading to many of them being unavailable at or about that time.
In the above circumstances, the Court is of the view, that it would be preferable if Ms Bonjour were to be represented by a lawyer in these proceedings. Obviously that will require some time for a lawyer to be appointed, read the papers, take instructions and be in a position to properly conduct the case on Ms Bonjour’s behalf. This therefore is a factor which weighs in favour of the grant of an adjournment, subject to the Court’s consideration of issues of the delay and whether there is sufficient time for compliance with existing program orders and to be in position to proceed with the presently listed hearing on 9 and 10 May 2022.
Delay
In circumstances where the overarching civil practice and procedure provisions have as their overarching purpose the facilitation of the just resolution of disputes quickly, and with the objective of the disposal of proceedings in a timely manner and without undue delay: FCFCOA Act, s 190(2)(b); GFL Rules, r 1.04(2), consideration must be given to the effect of an adjournment, and any consequent adjustment of dates for compliance with existing programming orders.
The originating application was filed on 23 October 2020. Following a failure to mediate a resolution in conference before a Registrar of the Court, orders were made by the Court differently constituted on 3 August 2021 for:
(a)the filing of affidavits by Ms Bonjour by 29 November 2021, by Mulberry Tree by 31 January 2022, and Ms Bonjour in reply by 21 February 2022;
(b)for objections to affidavits, list of documents to be produced and relied on at hearing, and advice of witnesses required for cross examination, to be provided by each party not less than 28 days prior to the hearing; and
(c)for outlines of submissions and list of authorities to be filed by Ms Bonjour and Mulberry Tree respectively 21 and 14 days prior to hearing, and for an outline of submissions in reply to be filed by Ms Bonjour seven days prior to hearing, so by 16 and 23 April 2022 and 1 May 2022 respectively.
With respect to the filing of affidavits the Court orders of 3 August 2021 were not complied with, and the Court, by consent on 24 November and 9 December 2021, extended time for the filing of affidavits, to times which have now passed, and which had in fact passed at the time the Application in a Proceeding was filed. On 21 January 2022, following the filing of the Application in a Proceeding, the Court ordered a stay of compliance with the Court’s orders of 3 August, 24 November and 9 December 2021. Thus, no matter what happens in relation to the outcome of the Application in a Proceeding, it will be necessary to make new programming orders, because it is evident that if new programming orders of the ilk previously made are to again be made (and there is no suggestion they ought not to be) then there is insufficient time for them to be made with a timeframe sufficient to allow compliance by the parties prior to the presently listed hearing on 9 and 10 May 2022. In that regard, it is probably therefore inevitable that the 9 and 10 May 2022 hearing would have had to be adjourned in any event.
A further issue arises, and that is the time required for the hearing of the originating application. The matter was listed, by consent, for a two-day hearing pursuant to order 1 of the Court’s orders of 3 August 2021. As indicated to the parties at the hearing of the Application in a Proceeding, the Court, having read the papers, and having particular regard to the Proposed Amended Claim and some of the issues adverted to at [14]–[18] above, has come to the view that even if a lawyer were to represent Ms Bonjour the matter is more likely to take four days rather than two days. Inevitably, therefore, the hearing would have to be split. As the next available fair work hearing dates are 4 and 5 August 2022 the hearing would therefore extend into August 2022. In that regard, the Court notes that there are available dates on 25 and 26 August 2022, in addition to the 4 and 5 August 2022 dates, and therefore the matter could be listed for a four-day hearing on 4, 5, 25 and 26 August 2022. This means that the net effect of an adjournment would be to delay the completion of the hearing by only three weeks from 5 August 2022. dTo delay the completion of the hearing of the matter by only three weeks, is, in context, a minimal, and arguably in this case, unavoidable delay.
The fact that this is the first time Ms Bonjour has sought an adjournment of the hearing, is a matter which weighs slightly in favour of, or at least not against, the granting an adjournment. Further, the additional time for preparation resulting from an adjournment to August 2022, is likely to result in a better use of judicial and administrative resources because the matter is likely to be better prepared for hearing by both parties, and Ms Bonjour’s case better prepared whether she is represented by a lawyer or not.
Mulberry Tree submitted that due to the stress of the impending hearing there was prejudice to it, and to the proposed second individual respondent, and also to potential witnesses, if the matter were to be delayed by reason of an adjournment. This is a relevant matter for consideration on an application for an adjournment: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk Services”) at [100]-[101] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Having regard to the overall effect of an adjournment to August 2022 resulting in the delay of three weeks, the alleged prejudice would not be at all significant.
The effect on other litigants must also be considered: Aon Risk Services at [30] per French CJ and [94]-[95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. In this case it is not apparent that a relisting of the matter to four days in August 2022 will deprive any other litigant of a hearing date.
The Court notes, and it is very important to do so, that Mulberry Tree opposes an adjournment of the hearing to November 2022, but not to August 2022. In effect, that is a concession, properly made in the circumstances, that an adjournment to August 2022 will not prejudice Mulberry Tree.
Having regard to the matters set out at [19]–[26], the Court does not consider that the overall effect of an adjournment of the hearing to 4, 5, 25 and 26 August 2022, namely a delay of three weeks, would be an “undue” delay: GFL Rules, r 1.04(2), or that it would impede a just resolution of the matter, and this therefore weighs in favour of adjourning the hearing to August 2022.
By contrast an adjournment to November 2022 is to a field too far away. It delays the presently listed hearing by a further six months, and thus results in a substantial delay in the hearing of the matter. That delay would, in circumstances, be likely to impose additional litigation stresses on Mulberry Tree, its employees and witnesses, and the proposed individual second respondent. And, even though this matter has complexities of the type referred to at [14]–[18] above, those complexities are not such as to warrant delaying the hearing by six months, when, in the Court’s view, everything that needs to be done to bring the matter to hearing can be done by August 2022. Further, if Ms Bonjour is unable to secure the services of a lawyer within the next few weeks there is nothing to indicate that a lengthy delay would improve the prospects of her doing so. In the circumstances, an adjournment to November 2022 would constitute an undue delay, and not otherwise fulfil the overarching purpose and objectives of the civil practice and procedure provisions in s 190 of the FCAFCOA Act.
Finally, the Court notes that Ms Bonjour asserts that she has been diagnosed with a “psychiatric injury”, to be further assessed in February 2022, but that she is “determined to see this matter through to a proper resolution”: Ms Bonjour’s Affidavit at [8]. In the Warren Affidavit at Annexure 21 there appears a medical certificate from a general practitioner dated 3 December 2021 setting out certain symptoms said to be indicative of “panic attack” lasting 15 minutes, and then resolving spontaneously. The general practitioner indicates that she will re-examine on 17 December 2021 and reassess, and suggests for the period of a fortnight between 3 and 17 December 2021 that any litigation deadlines be extended to allow Ms Bonjour to provide her lawyer with clear instructions. The bare assertion of psychiatric injury in Ms Bonjour’s Affidavit, and the limited period covered by the general practitioners medical certificate, afford no proper basis for an adjournment of the hearing or extensions to prescribed dates in programming orders: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, Singh v Minister for Immigration and Border Protection [2016] FCA 108, and AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815. In the circumstances, the medical issues do not, on the evidence presently before the Court, provide a basis for an adjournment of the existing hearing date, or for any extension of prescribed dates in existing programming orders.
CONCLUSION AND ORDERS
For the above reasons the Court made orders on 16 February 2022 to the effect set out at [2] above.
These Reasons for Judgment should not be taken as requiring that Ms Bonjour be legally represented in these proceedings in any event. If Ms Bonjour is unable to find a lawyer willing to represent her she must represent herself. No assumption ought therefore to be made that any further adjournment or amendment to programming orders might be granted if Ms Bonjour is unable to find a lawyer willing to represent her.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 1 March 2022
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