Bostan v European Operations Company Pty Ltd (No 3)
[2023] FedCFamC2G 1026
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bostan v European Operations Company Pty Ltd (No 3) [2023] FedCFamC2G 1026
File number(s): MLG 2218 of 2022 Judgment of: JUDGE O'SULLIVAN Date of judgment: 3 November 2023 Catchwords: FAIR WORK – Penalty hearing – adjournment application – defaults by respondents – inappropriate communication with Chambers – penalty hearing adjourned. Legislation: Fair Work Act 2009 (Cth), s.570
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss.190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr. 1.04, 13.04, 13.05
Cases cited: ANZ v James [2021] FCA 768
Bostan v European Operations Co Pty Ltd & Anor [2023] FedCFamC2G 262
Bostan v European Operations Company Pty Ltd(No.2) [2023] FedCFamC2G 312
Buljubasic & Buljubasic [1999] FLC 92-865
Irwin v Irwin [2016] FCA 1565
Pauga v Chief Executive of Queensland Corrective Services(No 2) [2022] FCA 252
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 3 November 2023 Place: Dandenong Counsel for the Applicant: Mr Bunce Solicitor for the Applicant: Job Watch Inc. Appearance for the Respondents: No appearance ORDERS
MLG 2218 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALEXANDRU-ANDREI BOSTAN
Applicant
AND: THE EUROPEAN OPERATIONS CO. PTY LTD (ACN 637 644 467)
First Respondent
MARIO DI NARDO
Second Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to Rules 13.04(2)(ii), (vii) and 13.05(2)(d) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (‘the Rules’), the applicant have leave to proceed this day with the application in a proceeding filed on 18 October 2023 in the absence of the respondents and in the face of their defaults for the purposes of the Rules.
2.The penalty hearing listed this day be adjourned to 18 April 2024 commencing at 10:30 am (with an estimated hearing time of 2 days) at the Federal Circuit and Family Court of Australia in Melbourne and:
(a)evidence in chief on the question of penalty be by way of affidavit;
(b)the applicant file and serve evidence and submissions relating to penalty by no later than 35 days prior to the date of the hearing; and
(c)the respondents file and serve evidence and submissions relating to penalty no later than 21 days prior to the date of the hearing.
3.In the event that the respondents fail to comply with order 2(c) then the penalty hearing listed on 18 April 2024 will be vacated and the issue of the appropriate penalty will proceed undefended and be dealt with on the papers in Chambers.
4.The application in a proceeding filed 18 October 2023 be otherwise dismissed.
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
(Revised from transcript)
On 3 November 2023 the Court adjourned the penalty hearing in these proceedings to 18 April 2024 and gave ex tempore reasons for doing so. A transcript of those reasons were ordered, and amendments made to render those orally delivered reasons more amendable to being read. These are those reasons.
BACKGROUND
The background to these proceedings is set out in Bostan v European Operations Co Pty Ltd & Anor [2023] FedCFamC2G 262 (‘the default judgment’) and Bostan v European Operations Company Pty Ltd (No.2) [2023] FedCFamC2G 312 (‘the slip rule judgment’).
These reasons, which assume a familiarity with both the default and slip rule judgments (and in which the parties will be referred to in the same terms) concern another application in a proceeding filed by the applicant. On this occasion the applicant seeks that the penalty hearing listed this day be adjourned to a date not before 8 March 2024.
HEARING ON 3 NOVEMBER 2023 AND EMAILS
Before addressing that application, the reasons for it and why it should be granted, it is necessary to say something about the sadly all too frequent behaviour by parties (both in this case and more generally) sending a nimiety of email correspondence to the Judge’s Chambers email address, and all too often without properly filing documents.
Order 5 of the orders dated 14 April 2023 (and as amended 26 April 2023) provided for the penalty hearing to be listed to 18 August 2023. However, due to judicial availability the parties were advised on 25 July 2023 that the penalty hearing would be relisted to 3 November 2023.
There the matter lay so far as the Court was concerned (despite the applicant’s solicitor being aware of the timeline in the extant directions) until 13 October 2023 when the second respondent, in an email to my Associate, said:
Dear Associate Judge O’Sullivan,
Re the matter listed for Friday 3, November at 10.30am.
We have not received any correspondence or filings from the Applicant as of today. For the listed penalties hearing.
We respectfully ask the Judge to consider our comments whilst considering the penalties.
Background -
Covid and the Aftermath in 2020 - 2021/2022 caused all our troubles in hospitality industry.
In March 2020 Covid came upon us and The Hospitality Industry suffered immensely, with 7 lockdowns, and not able to open for trade since March 2020-mid November 2021. Unfortunately for Mr Di Nardo he did not receive any government support during this period as he just finished full renovations in all of 2019 in the hope of opening in March 2020, however Covid came.
When the hotel opened in mid November of 2021, we believed it would be great, however Omnicrom Virus arrived in January 2022, this caused extreme difficulties, as there were major staff shortages, customer cancellations and trading conditions were the worst and most unprecedented and unpredictable that Mr Di Nardo saw in 40years.
With the experience of Bostan, Mr Di Nardo is extremely remorseful as he has not experienced any wage claim or difficulties in 40years of being in the industry.
Mr Di Nardo is extremely remorseful of the situation he finds himself in. As he was not totally himself, having experienced a family members death and with all the points mentioned above.
Mr Di Nardo is experiencing financial hardship. And has tried his utmost to try and sell the business. But has not been able to and now is closed and is up for Lease.
We send this email to ask the Judge O’Sullivan to consider a minimum penalty as it is the first time in 40 years Mr Di Nardo has had an Employment Claims against him.
Please consider this in Chambers.
Sincerely,
Mario.
In an effort to try and preserve the penalty hearing date the parties were advised of the following:
Dear Sir/Madam,
We refer to the above matter.
We note the email below send on behalf of the respondents and that it does not appear to have been copied to the applicant or his representatives. We forward that email below because of this oversight.
We also note the email dated 8 August 2023 from the applicant’s representatives (which was copied to the respondents) and also attach that email again.
The applicant’s representatives in that email set out their understanding of the extant court orders for the filing of material for the purposes of the upcoming penalty hearing.
We note that it would appear (as the respondents note below) that the applicant’s representatives have not filed anything (as yet) for the penalty hearing.
Given all of the above (and what the respondents’ position in the email below appears to be (i.e. that the penalty hearing proceed on the paper in chambers)) the Court suggests the following:
(1)the applicant confirm by return email (copied to all parties) no later than c.o.b on 16 October 2023 that it wishes to continue to pursue the imposition of a penalty (for the contraventions found in the previous court orders);
(2)the respondents also confirm by return email (copied to all parties) no later than c.o.b on 16 October 2023 that they are content for the issue of any penalty to be dealt with on the papers in chambers (i.e. without the need of a court hearing);
(3)(subject to the response to (1) above time be extended for the applicant to comply with Order 5(b) of the Court’s Orders dated 14 April 2023 (as amended 26 April 2023) until c.o.b. on Friday 20 October 2023;
(4)time be extended for the respondents to comply with Order 5(c) of the Court’s Orders dated 14 April 2023 (as amended 26 April 2023) until c.o.b. on Friday 27 October 2023 (i.e. to file and serve any material (beyond the email below) it wishes to rely on);
(5)the applicant have until c.o.b. 2 November 2023 to file anything further in reply;
(6)the issue of penalty be thereafter determined on the papers in chambers.
His Honour has requested that parties carefully read the suggested timetable set out above and respond in accordance within the requested timeframe/s.
Failing this the existing court date will be maintained and the matter will have to proceed and be dealt with (to the extent it can be) in accordance with the existing orders and directions in open court where an appearance (in person) from all parties will be required.
Kind regards,
Chambers of Judge O’Sullivan
Essentially, that email contained a proposal to try to keep today’s date in place and give the parties an opportunity, provided it was by agreement, to get material properly before the Court. Notwithstanding the timeline set out in that latter email, there was nothing received by the Court from any of the parties on 16 October 2023.
On 17 October 2023, the applicant’s solicitors sent an email to the Court at 2:20pm which said:
Dear Associate
I refer to the above matter and to your email to the parties from last Friday afternoon (below).
JobWatch made an FOI application to the FWO back in May 2023, hoping that the materials could be used in the pending penalty hearing. Unfortunately there have been delays with the materials being released to us as appeals have been lodged by an interested third party and accordingly we are in the process of preparing an application to postpone the penalty hearing on 3 November 2023.
If you have any urgent queries, please do not hesitate to contact me on my mobile: 0415 048 336.
Otherwise, please note that Katie Gamble no longer works at JobWatch and my JobWatch colleague, John O’Hagan, should be included in any correspondence.
Kind regards,
Gabrielle Marchetti
Principal Lawyer
JobWatch Inc
Some 23 minutes later, the second respondent replied in the following terms:
Dear Associate,
Please be advised we are happy for the Penalty hearing to be cancelled and Judge O’Sullivan can deal with the matter in Chambers.
We believe the Applicant has had ample time to submit their filing as they requested the time extension as per their previous email already once before.
We respectfully ask the Penalty hearing be dealt with on November 3rd in Chambers.
Your sincerely,
Mario
Some 18 or 19 minutes later, the applicant’s solicitor responded as follows:
Dear Mr Nardo
We are happy to see that you do in fact receive our emails. We haven’t received any replies to our previous correspondence and we note that the Respondents have failed to pay the amounts ordered by His Honour Judge O’Sullivan in this matter.
If you have any queries, please do not hesitate to contact us.
Yours sincerely,
Gabrielle Marchetti
Principal Lawyer
JobWatch Inc
On 18 October 2023, the applicant’s solicitor sent another email at 2:20pm purporting to file an adjournment application. My Associate responded to this email in the following terms:
Good Afternoon,
Please be advised that Chambers cannot accept any material via email as this is inappropriate correspondence.
Any applications made should be filed in the correct manner via the Federal Court Registry.
For further information about filing material with the Court, please see below information that can be found on the Court’s website:
Filing (fedcourt.gov.au)
Kind regards,
Chambers of Judge O’Sullivan
The applicant’s solicitor subsequently filed with the Court the application in a proceeding for an adjournment supported by an affidavit of Mr John O’Hagan, on 18 October 2023.
Still, the email communication from and between the parties with the Court did not stop.
At 3:30 that day, the second respondent sent the following email:
Dear Associate,
As per our previous communication, we acknowledged and accepted The Honourable Judge O’Sullivans suggestion in the email dated 13th October, and accepted his suggestion for the penalty hearing to be dealt with in Chambers on November 3rd.
The Applicant has had more than enough time to file, it has requested more time extension in previous correspondence an a further extension we believe is inappropriate and disrespectful.
Kind Regards,
Mario
On 19 October 2023, the second respondent sent yet another email which said:
Dear Associate,
We like to bring further background and attention to the Honourable Judge O’Sullivan.
Re the - Alex Bostan affidavit.
Whilst Mr Di Nardo is extremely remorseful. He missed the opportunity for you to hear his side of the case, due do many trading difficulties and tragic business events caused by Covid and the aftermath of Covid including the death of a sibling. He simply was not in his natural state of mind. Mr Di Nardo apologies for this.
Mr Di Nardo accepted his failure to appear at the hearing, he would have liked to have attended, following the Default Judgment Order he would have liked to appeal, however their were no grounds for appeal as he simply did not see the correspondence due to all the difficulties he was facing and this was not grounds for an appeal.
Background-
With regard to Alex Bostan claim.
Mr Di Nardo did speak with a mediator from the Fairwork Obudsman, prior to this being brought to the Federal Circuit Court and the mediator believed there was a case for abandonment.
Alex Bostan (AB) was employed for 5-6weeks.
1.According to Mr Di Nardo he was not dismissed for the reason Alex Bostan claimed, Alex Bostan was dismissed for abandoning his position.
2.In interviews with Alex Bostan (AB) prior to accepting the position, he was well informed of the financial difficulties the business was having and how quite it was due to lack of customers during this extremely difficult unprecedented and unpredictable period. He accepted the position fully well knowing this.
3.When AB commenced his position, first week he was punctual. After the first week, he started to arrive 20-30minutes late frequently and this was a cause of concern, as he was the Venue Manager on a Probationary Period and the junior staff started to mention their concerns in this and also his lack of product knowledge, skill set and leadership concerns, they mentioned this to Mr Di Nardo. Also at this time Mr Di Nardo acknowledged that Pays were late and apologised for the lateness, Mr Di Nardo was embarrassed by this as he has never experienced such financial difficulties as with this Covid, Customer shortage, difficult time. Which AB understood.
4.From this Mr Di Nardo had many meetings with Alex Bostan around 9.30 - 10am to discuss why he was late all the time, and also trying to provide help with him Managing and working with the team.
5.After a few further weeks, it was more noticeable that he was more absent minded in the work place, and staff continued to discuss this with Mr Di Nardo. Mr Di Nardo tried to encourage him to show support.
6.There was a function, approximately 30 guest on Wednesday night with a set menu and set wines which Mr Di Nardo prepared and AB handled the service only and there was good feedback from the guests, Mr Di Nardo complimented AB, to encourage him, however this was a simple function that a normal waiter or waitress can do, as it was all pre set. AB was a Venue Manager, whereby there was many other skill sets and knowledge required as per ABs Resume.
7.On the Wednesday night for the function, Mr Di Nardo was not at the Venue, Mr Di Nardo was told the next day that ABs Wife attended the Venue and AB was showing her around and she was going into all areas where the function was held (crudino). Mr Di Nardo thought this was strange as it is not the professional thing to do during work trading hours without prior permission.
8.On the next day Thursday evening AB was working at around 9-9.30pm he told a Marcello, Mr Di Nardo’s 20 year old son that he was feeling unwell, he might have Covid as his wife has Covid, Marcello told him you should ring my Father Mr Di Nardo, Marcello said to AB he was just a bar tender / waiter and not in the position to comment.
9.Mr Di Nardo received a phone call from AB that evening, about 9.30pm Alex Bostan mentioned to Mr Di Nardo that he was not well and he believes he has Covid, Mr Di Nardo said, send through your test results and –
“AB said I don’t have too.” Mr Di Nardo said we need record for our files. AB was rude and hung up.
10.Apparently AB then texted a copy of the initial Test Result to Marcello I believe on Thursday or Friday, however Marcello was not aware of the reason he received the text and was not aware of the discussion between Mr Di Nardo and AB, so Marcello never forwarded the text to Mr Di Nardo. And the text did not show who the initial Test Result was from.
11.We believe it was unusual for AB to bring his wife to work on the Wednesday evening who had Covid, without permission knowing she had Covid and Thursday evening this all transpired. How were we to know the initial test result was not his Wife’s.
12.We understood that AB would not work on the Friday, however he mentioned he would come in on the Saturday, when he didn’t arrive without notice we believed he Abandoned his position, and with the strange, confusing and unusual behaviour we believed he was not coming back as the reason why Mr Di Nardo sent the text to AB referring to being not successful during the trial period as he was in the Probation period.
13.From this Mr Di Nardo believed he Abandoned his position, as we had no evidence that the Initial Covid Test result was AB or his Wife’s, and he didn’t not send through a confirmation of a official Covid Test Result certificate.
Mr Di Nardo understands there was he didn’t attend the initial hearing because of the noted points above, and apologies to the Honourable Judge O’Sullivan and all the parties.
We bring this to the Judges attention as we believe the Judge should understand the full picture whilst considering the Penalty. We ask the Honourable Judge O’Sullivan to consider a minimum penalty.
Mr Di Nardo is extremely remorseful in this difficult time.
Sincerely,
Mario.
Given that the email communication appeared to be ‘growing like topsy’, my Associate was directed to email the parties and say that further inappropriate email communication was not acceptable. On 23 October 2023 at 10.56am, my Associate wrote to all parties in this matter as follows:
As was foreshadowed in the final paragraph of the previous email, and as the parties did not comply with the suggested timetable and there appears to be no agreement on how the matter should progress, the proceedings will remain listed on Friday, 3 November 2023 in Dandenong, and an appearance in person will be required. In order to avoid any further inappropriate email communication, we attach for the information of the parties the Court’s policy on same.
Again, unfortunately, notwithstanding the very clear direction in that email, the second respondent continued to send email communication to the Court, the most recent of which was on 1 November 2023. Given the above and as it was both prolix and inchoate it was only marked for identification. The second respondent did not file any affidavit material with the Court and has not made any proper application to excuse or explain the defaults by the respondents and their absence today.
In light of that tawdry background, it is appropriate to stress that requests by parties seeking an indulgence of the Court, such as an adjournment, are generally required to be made formally and in accordance with the Rules which govern the operation of this Court. It is well to be reminded of the observations of the Full Court of the Family Court in a case published as Buljubasic & Buljubasic [1999] FLC 92-865 at pages 86-221 to 86-222, which were:
…I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.
Obviously, that judgment is somewhat dated, although the observations remain relevant, where parties frequently communicate, or seek to communicate, as they have done in this case, with the Chambers of a Judge by emailing the Judge’s Associate. It has long been the protocol of the Federal Circuit and Family Court of Australia (Division 2) that communications with Chambers is only to occur with the prior consent of all parties to the litigation and only to concern matters of case management. Most unfortunately, this has not occurred in this case.
In Irwin v Irwin [2016] FCA 1565 the following comments were made about the appropriate use of email:
59.A party to proceedings before this Court does not have an absolute right to correspond with the chambers of a presiding judge by way of email correspondence to the judge’s associate. The liberty to send correspondence to the associate to a judge is to be exercised sparingly and with the utmost professional courtesy. The email inbox of an associate to a judge of the Court is not an arena for combat or rhetoric. Nor is the associate’s inbox to be regarded as a repository for uninvited submissions, assertions of fact or accusations of fraud or misconduct against another party or third parties to the proceedings.
60.Practice Note CPN-1 prescribes some of the protocols in respect of such communications. It provides:
15.1….
15.2In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications.
61.The protocols are not to be regarded as expressing a mere convenience on the part of the Court. Rather, the protocols are designed to promote fairness, integrity and efficiency in litigation. Where emails from one party are sent to an associate of the presiding judge without the foreknowledge or consent of the other party, the potential for unfairness, whether real or apprehended, is obvious. Absent the leave of the Court, submissions of substance in an action are to be made in a proceeding by way of oral argument transcribed in open court or written submissions properly filed and served in the action, and not by way of unsolicited emails. The efficient use of the judicial and administrative resources of the Court is not served by parties expecting that lengthy and unsolicited submissions directed to the associate of a presiding judge (often expressed in a discourteous tone) will be considered, read and responded to.
The exponential growth of inappropriate email communication with the Court can be traced back to at least the COVID-19 pandemic and the restrictions that that forced on a number of courts conducting hearings using online technologies. However, both during that time and certainly since, parties and practitioners should not have been able to labour under the misapprehension that the use of a medium which can be used for almost instantaneous communication can also be used as a means of conducting and filing documents for court proceedings.
Litigants should also not be allowed to labour under the misapprehension that they can make applications to courts by email to the Judge’s Chambers rather than filing applications and affidavits properly. It is a mistake in legal proceedings to confuse the ease of use of email as giving rise to a correlative relaxation of those requirements. The advent of the use of email between legal practitioners, parties and the courts was to enable the parties to approach chambers swiftly for case management purposes only. Emails containing applications, allegations or matters of substance should not be forwarded to chambers without the agreement of all parties John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; R v Fisher (2009) 22 VR 343 at [38]. Expedience and formality are not mutually exclusive. Email cannot be used to make applications to a Judge’s Associate instead of properly filing and serving the application. None of those matters contradict the overarching purpose of this Court’s practice and procedure as set out in sections 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’) and rule 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’).
Returning then, to the application in a proceeding before the Court this day.
DEFAULT BY THE RESPONDENTS
Rule 13.04 of the Rules relevantly provides:
(1) …
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claims; and
(b) fails to:
(i)give an address for service before the time for the respondent to give an address has expired; or
(ii)file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
As stated earlier, neither of the respondents have properly participated in these proceedings.
This is so in circumstances where the respondents have been notified of these proceedings and the various procedural steps taken in these proceedings on numerous occasions.
The respondents have been given numerous opportunities to properly participate in and defend these proceedings. They can only be taken to have chosen not to do so and instead prefer to send interminable email correspondence. In these circumstances, I find that the respondents are in default for the purposes of rule 13.04.
Rule 13.05(2) of the Rules further provides:
(2) If a respondent is in default, the Court may:
(a) …
(b) …
(c) …
(d) give judgment or make any other order against the respondent; or
(e) …
Rule 13.05(6) goes on to provide that:
(6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
In this instance, the applicant has attended Court represented by Counsel, has properly filed an application in a proceeding with the Court and served the material on which it relies on the respondents, indicated the nature of the application it would be making and why and done so all in a way that the respondents had time to properly reply. Further, the respondents were on notice that if they failed to attend Court the matter may proceed in their absence.
Given this, the applicant was granted leave to apply this day for the orders sought in the application in a proceeding filed 18 October 2023.
ADJOURNMENT APPLICATION
Counsel for the applicant identified the material that he relied on and supplemented the evidence in support of the adjournment application with brief submissions.
In Pauga v Chief Executive of Queensland Corrective Services (No 2) [2022] FCA 252 the relevant principles to be applied when considering this application were set out as follows:
Relevant principles
20The principles to be applied in considering an application of this kind are well-established. They were recently summarised by Cheesman J in ANZ v James [2021] FCA 768 at [44] to [47] and are as follows (excluding reference to authority):
The considerations relevant to whether a Court ought to exercise its discretion to grant an adjournment are similar to the matters a Court will have regard to for the purposes of an application to amend pleadings. Any application for an adjournment must be considered in the relevant statutory, factual and case management context…
The Court may make an order adjourning the proceedings if it considers doing so would be appropriate in the interests of justice... The discretion to do so must be exercised in a way that best promotes the overarching purpose of civil practice and procedure provisions, namely the just resolution of disputes according to law and as quickly and inexpensively as possible. Relevantly, the overarching purpose includes the following objectives…:
Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(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; and
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
…
When determining whether to grant or refuse an adjournment, the doing of justice between the parties is a paramount consideration. If an adjournment is necessary to allow a party that opportunity it ordinarily should not be refused unless it would result in irremediable prejudice or injustice to the other party and an order for costs would not be sufficient compensation to that party…
Further, in considering the question of an adjournment, the Court is not required to limit itself to the competing interests of the parties. Rather, the Court may consider the effect of an adjournment on its resources and the competing claims of litigants in other cases as well as the interests of the parties. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources…
Those principles, in effect, require a decision to be made in the interests of justice, but informed by the modern approach to case management which places more emphasis on the need for parties to have the resources in place and to undertake the steps necessary in order to avoid, wherever possible, adjournments and delays of court hearings.
CONSIDERATION
In considering this application I have taken into account the factors in the above-mentioned decisions. I have had regard to the reasons for the adjournment, any delay in bringing the application, any prejudice to another party that cannot be compensated by an order for costs and the effect upon the Court and other litigants. The material relied on by the applicant establishes that there is a valid reason for an adjournment. The application is made as set out in Mr O’Hagan’s affidavit, to do justice between the parties and allow time for the FOI application to be determined so that all relevant information for the purposes of a penalty hearing can be before the Court. The respondents can only be taken to have abjured the opportunity yet again to properly participate in these proceedings, and I accept the submission by Counsel of the applicant today that there is nothing properly before the Court to say that they would be prejudiced by the adjournment of today’s hearing.
In this particular matter, I accept that the matters that have been deposed to give rise to difficulties for the applicant (absent the results of the requests it has made of the Fair Work Ombudsman via FOI) being able to present a case for an appropriate penalty. It is also necessary to have in mind the subject matter of these proceedings. These are proceedings which concern deemed breaches of the Fair Work Act 2009 (Cth) and as a result the necessary sentencing process when imposing an appropriate civil penalty. Any prejudice that may be suffered in the conduct of these sort of applications (given s.570) is one that must be weighed in the context of that subject matter and the public interest in enforcement of statutory norms.
CONCLUSION
In my view weighing the considerations to which I have referred, the application for an adjournment should be allowed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 10 November 2023
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