Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (No 2)
[2022] FedCFamC2G 604
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (No 2) [2022] FedCFamC2G 604
File number(s): PEG 318 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 29 July 2022 Catchwords: INDUSTRIAL LAW – Fair work – general protections application
PRACTICE AND PROCEDURE – Application in a proceeding – leave to extend time for filing affidavit – leave to adduce expert evidence from a medical witness – where expert evidence relevant for purpose of remedy – separate remedy and penalty hearing if liability established
Legislation: Fair Work Act 2009 (Cth) s 570 Cases cited: Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2011] FMCA 139; (2011) 63 AILR 101-498
Forge v Australian Securities & Investment Commission [2004] NSWCA 448; (2004) 213 ALR 574; (2004) 52 ACSR 1; (2004) 23 ACLC 1
Lejmanoski v The University of Western Australia (No 4) [2016] FCCA 269
Trade Practices Commission v Madad Pty Ltd [1979] FCA 11; (1979) 40 FLR 453
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of hearing: 1 July 2022 Place: Perth Applicant: In person Counsel for the Respondent: Ms K Warren 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:
1 JULY 2022
THE COURT ORDERS THAT:
1.In relation to the Applicant’s Application in a Proceeding for an extension of time for filing of the Applicant’s Affidavit in Reply under Order 7 of the Court’s Orders of 16 February 2022, that that time be extended to 4 July 2022.
2.The Applicant’s Application in a Proceeding to adduce expert evidence for the purposes of the liability hearing on 4, 5, 25 and 26 August 2022 be dismissed.
3.Reasons for Judgment in relation to these orders to be published from Chambers at a later date.
4.Costs, if any, to be reserved.
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
ORDERS MADE
On 1 July 2022 the Court made the following orders:
1.In relation to the Applicant’s Application in a Proceeding for an extension of time for filing of the Applicant’s Affidavit in Reply under Order 7 of the Court’s Orders of 16 February 2022, that that time be extended to 4 July 2022.
2.The Applicant’s Application in a Proceeding to adduce expert evidence for the purposes of the liability hearing on 4, 5, 25 and 26 August 2022 be dismissed.
3.Reasons for Judgment in relation to these orders to be published from Chambers at a later date.
4. Costs, if any, to be reserved.
These are the Reasons for Judgment referred to in Order 3 of the above orders.
APPLICATIONS IN A PROCEEDING
Two applications in a proceeding are before the Court, one to extend time for the filing of an affidavit in reply, and the second for leave to adduce expert medical evidence. Both applications in a proceeding were filed on 25 June 2022 and listed for hearing on 1 July 2022.
AFFIDAVIT IN REPLY
The application in a proceeding with respect to an extension of time for the affidavit in reply related to an order made by the Court on 16 February 2022 providing for any affidavit in reply to be filed by 14 June 2022.
The actual extension of time was not opposed by the respondent, Cachet Holdings Pty Ltd trading as Mulberry Tree Childcare (“Mulberry Tree”), and in those circumstances the Court made an order extending time. Mulberry Tree did indicate that objection was taken to the content of the affidavit, but the Court indicated that that was a matter for hearing.
APPLICATION TO ADDUCE EXPERT MEDICAL EVIDENCE
An affidavit was filed by the applicant, Ms Bonjour, in support of the application to adduce expert medical evidence. It is not presently necessary to set out the content of that affidavit in any detail. The application to adduce expert medical evidence was opposed by Mulberry Tree, primarily on the basis that it went only to remedy, in circumstances where liability had not yet been determined, but would be determined in a forthcoming four day hearing.
At the hearing of the application in a proceeding it did emerge that the nature of the expert evidence sought to be adduced went to whether or not Ms Bonjour had been able to work since her employment was terminated. Thus, the expert evidence related only to the question of any remedy in the event that the Court determined that the substantive allegations on the general protections application (primarily of bullying or harassment) were made out, and liability was thereby established in relation to the alleged breaches of the Fair Work Act 2009 (Cth) (“FW Act”). Mulberry Tree also opposed the application on the basis that it was made late, but the Court need not determine that issue in circumstances where the evidence relates only to remedy.
Given the nature of these proceedings the Court will have to determine liability prior to determining remedy, and the determination of remedy will require a separate and subsequent hearing if liability is established, because in addition to seeking compensation as a remedy in relation to her dismissal from employment Ms Bonjour also seeks a pecuniary penalty to be imposed upon Mulberry Tree. Ordinarily, other than in the simplest of cases (which this is evidently not) the hearing of an application for a pecuniary penalty will only proceed after the determination of liability: Trade Practices Commission v Madad Pty Ltd [1979] FCA 11; (1979) 40 FLR 453 at 455-456 per Keely J; Forge v Australian Securities & Investment Commission [2004] NSWCA 448; (2004) 213 ALR 574; (2004) 52 ACSR 1; (2004) 23 ACLC 1 at [410]-[427] per McColl JA (with whom Handley and Santow JJA agreed at [1] and [2] respectively); Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2011] FMCA 139; (2011) 63 AILR 101-498 at [85]-[86] per Driver FM; Lejmanoski v The University of Western Australia (No 4) [2016] FCCA 269 at [4]-[15] per Judge Lucev.
In the above circumstances, granting leave to adduce expert medical evidence at this point in time would serve no good purpose in relation to the hearing presently listed, and may in fact disadvantage Ms Bonjour, a self-represented litigant, by distracting her from the task at hand with respect to the liability hearing.
In all of the above circumstances, the Court determined that application for leave to adduce expert medical evidence ought to be refused, at this stage. Insofar as Ms Bonjour seeks to rely upon expert medical evidence for the purposes of any remedy sought, that is a matter that can be dealt with at any directions hearing in relation to a hearing on remedy, including pecuniary penalty, if liability is first established.
Having regard to the provisions of s 570(2) of the FW Act costs, if any, were reserved.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 July 2022
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