Burgess v Unique Support Services Pty Ltd
[2022] FedCFamC2G 414
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burgess v Unique Support Services Pty Ltd [2022] FedCFamC2G 414
File number(s): PEG 223 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 26 May 2022 Catchwords: INDUSTRIAL LAW – general protections application – applicant’s failure to appear at Court ordered mediation – matter again referred to mediation – reasons for orders made. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 9.04 & 13.05
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 18 May 2022 Place: Perth Applicant: In person Representative for the Respondent: Mr M Loly (IR Consultant) ORDERS
PEG 223 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KRISTY BURGESS
Applicant
AND: UNIQUE SUPPORT SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.The respondent be granted leave to have Mr Mike Loly (IR Consultant) appear on behalf of the respondent for the purposes of this directions hearing.
2.The matter again be referred to mediation before a Registrar of this Court on a date to be fixed by that Registrar.
3.The respondent be granted leave pursuant to r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) to appear without legal representation for the purposes of the mediation referred to in order 2 only.
4.Should the mediation referred to in order 2 be unsuccessful, the matter be adjourned for further directions on a date to be fixed.
5.Should the applicant not appear at the mediation referred to in order 2, the Court may dismiss the application pursuant to r 13.05(1)(a) of the Rules.
6.Costs, if any, be reserved.
7.Liberty to apply.
8.Written reasons for these orders to 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 KENDALL:
INTRODUCTION
This matter was listed before the Court for a directions hearing on 18 May 2022.
At that directions hearing, the Court made the following orders:
1.The respondent be granted leave to have Mr Mike Loly (IR Consultant) appear on behalf of the respondent for the purposes of this directions hearing.
2.The matter again be referred to mediation before a Registrar of this Court on a date to be fixed by that Registrar.
3.The respondent be granted leave pursuant to r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) to appear without legal representation for the purposes of the mediation referred to in order 2 only.
4.Should the mediation referred to in order 2 be unsuccessful, the matter be adjourned for further directions on a date to be fixed.
5.Should the applicant not appear at the mediation referred to in order 2, the Court may dismiss the application pursuant to r 13.05(1)(a) of the Rules.
6.Costs, if any, be reserved.
7.Liberty to apply.
8.Written reasons for these orders to be published from Chambers at a later date.
These reasons are those referred to in order 8 above. They explain why the Court convened the directions hearing and ultimately proceeded as it did.
BACKGROUND
Before the Court is an application filed in the Perth Registry of this Court on 22 October 2021 (the “application”).
The application alleges dismissal in contravention of a general protection under the Fair Work Act 2009 (Cth). The applicant seeks compensation and pecuniary interest.
The respondent opposes the application.
The matter was listed for a first court date on 11 November 2021 and orders were made on that date allowing the applicant additional time to serve the respondent. The matter was listed for a further a directions hearing on 20 December 2021.
At the directions hearing on 20 December 2021, orders were made allowing the respondent time to file and serve a response and the matter was referred to mediation before a Registrar of this Court on a date to be fixed by that Registrar.
After consultation with the parties, mediation was convened by a Registrar on 3 May 2022 at 10.00am.
The applicant did not appear at that mediation.
On 11 May 2022, my chambers contacted the parties noting that the mediation had been terminated because the applicant did not attend the mediation and listing the matter for a further directions hearing (via video link) on 27 May 2022.
On 15 May 2022, my chambers contacted the parties advising that the directions hearing had been re-listed to 18 May 2022 at 11.15am.
On 16 May 2022, Mr Loly, Industrial Relations Consultant, contacted by chambers seeking leave to represent the respondent at the directions hearing.
My chambers responded and confirmed that leave would be granted.
On 18 May 2022, the applicant appeared via video link. Mr Loly also appeared (again, via video link) on behalf of the respondent.
A brief history of the matter was provided and the applicant was asked why she had not attended the initial mediation scheduled for 3 May 2022.
The applicant explained that she had had technical difficulties and was thus unable to attend via video link. No explanation was given as to why the applicant did not contact the Registrar or attempt to re-schedule the mediation.
Noting that both parties had appeared at the directions hearing, the Court considered it be beneficial to again refer the matter to mediation. The Court noted, however, that if the applicant again failed to appear at the mediation, the Court might dismiss the application pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
CONCLUSION
In the circumstances, the Court made orders as outlined at [2] above.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 26 May 2022
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