Cockburn v Canberra Institute of Technology (No 2)
[2022] FedCFamC2G 866
Federal Circuit and Family Court of Australia
(DIVISION 2)
Cockburn v Canberra Institute of Technology (No 2) [2022] FedCFamC2G 866
File number(s): CAG 58 of 2015 Judgment of: JUDGE W J NEVILLE Date of judgment: 6 October 2022 Catchwords: PRACTICE & PROCEDURE – Whether to adjourn the resumed part-heard Final Hearing following the self-represented Applicant sending an unofficial email to the Court requesting the Hearing be adjourned due to a medical certificate – where the Applicant or Counsel did not attend at the resumed part-heard Final Hearing - prejudice to the Respondent –ongoing and history of non-compliance with Court Orders and directions over 7 years– whether to dismiss the proceedings following the Applicant not attending the Hearing or continuing his cross-examination – Proceedings dismissed but Order stayed providing one final opportunity for the Applicant to file submissions on time – In the event of further defaults the stay will be lifted and all Applications dismissed – matter to be determined on the basis of evidence currently heard following the filing of written submissions – potential mis-leading of Court by the Applicant regarding continuing involvement of Counsel when Counsel’s brief had been recalled. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 139, 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Div 13.2, r13.04, 13.05 and 13.06
Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cockburn v Canberra Institute of Technology [2022] FedCFamC2G 646
Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162
Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 6 October 2022 Place: Canberra Solicitor for the Applicant Self-represented with no appearance Counsel for the Respondent Ms A Costin Solicitor for the Respondent ACT Government Solicitor ORDERS
CAG 58 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK LEA COCKBURN
ApplicantAND: CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
6 October 2022
THE COURT NOTES THAT:
A.So far, there have been four attempts to conduct or to conclude a final hearing in this matter, in November 2017, August 2021, July 2022, and October 2022. On three of these occasions, in November 2017, July and October 2022, the trial either could not proceed, or conclude, due to the Applicant’s psychological/emotional well-being, despite assurances from the Applicant and/or his GP that he was, or would be, able to proceed with the hearing;
B.This matter has been the subject of multiple appeals to the Federal Court of Australia. The most recent appeal was partially allowed in respect of a litigation guardian Order, on the basis that the Applicant has, and otherwise indicated would continue to have, Counsel representing him. In these circumstances, the Full Court held that there was an extremely limited role remaining for the Applicant to finalise these proceedings, especially on the basis that Counsel’s preparation for the final cross examination should already have been done, especially since the Respondent’s Affidavits were filed in 2017;
C.As matters have recently turned out, and only advised to the Court by the Applicant’s Counsel during a telephone call from the Court on the morning of the resumed hearing on 6th October 2022, Counsel confirmed that he was no longer briefed by the Applicant, as of approximately 7 days ago. Counsel confirmed that he would no longer have anything to do with, or otherwise be involved in, the matter;
D.In the week leading up to today, Chambers received a significant number of essay- length emails from the Applicant, contrary to previous Orders and the Full Court’s comments of the inappropriate nature of this conduct, complaining again about his state of burnout and notifying the Court that he was not going to attend Court and instead would be attending upon his GP at the time of the hearing;
E.In the emails from the Applicant referred to, which were copied to Mr Duc, as recently as 5th October 2022, he made regular comments regarding Mr Duc’s ongoing involvement in the matter, thereby arguably misleading the Court regarding his representation and the future conduct of the proceeding. It only needs to be observed the obvious inconsistency between Counsel’s confirmation in open Court that he was no longer briefed in the matter, and the Applicant’s repeated representation that he and Mr Duc would be preparing the matter for the adjourned future hearing;
F.At the hearing today, the matter was stood down until 2pm. At the Court’s request, the Respondent’s solicitor emailed the Applicant to advise him of the Applications before the Court regarding (a) an adjournment, (b) dismissal for default under Part 13.2 of the Court’s Rules, and (c) the alternative course of the matter to conclude on the basis of the evidence having concluded, and that written submissions would be provided, which would be predicated upon matters being confined strictly to issues under the Fair Work Act 2009 (Cth) and the Collective Agreement. Within 7 days of the date of these Orders, the Court will identify the issues to be determined based upon the confinement of issues taken from the previously filed State of Agreed Facts and List of Issues; and
G.Upon the resumption of the matter at 2pm, there was still no attendance by the Applicant or his Counsel. The Respondent foreshadowed that if the matter is dismissed on the basis of default, a costs application would be made. The Court delivered brief oral reasons (which would be revised and published), which led to the following Orders; accordingly,
until further order, the court orders that:
1.The Applicant’s informal Application by email for an adjournment of the hearing listed on 6th and 7th October 2022 be rejected and dismissed.
2.Because of the ongoing default of the Applicant, and that he chose not to attend today or continue the cross-examination of the Respondent’s witnesses, the proceedings be dismissed pursuant to Rule 13.06(1)(c), 13.04(1)(a)(b)(e), and 13.05(1), of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth).
3.Order 2 be stayed pending compliance with Order 4.
4.Within 28 days from the date of these Orders, being by 4:00pm on 3rd November 2022, the Applicant is to file and serve written submissions of no more than 15 pages in length. On the basis of Order 6 of the Orders dated 4th August 2022, which was not disturbed on appeal, these submissions are to be confined only to issues arising directly under the Fair Work Act 2009 (Cth) and/or the Collective Agreement.[1]
[1] The page limit on submissions, for both parties, is made pursuant to Section 182(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
5.Defaults:
(a)in the event that the Applicant does not file his submissions within the time prescribed, subject to submissions explaining why, the stay at Order 3 will be lifted and the proceedings may be dismissed in accordance with Order 2;
(b)in the event that the Applicant files submissions within the prescribed time but they exceed the prescribed page limit, the Court will only have regard to the first 15 pages.
6.Within 21 days thereafter, being by 4:00pm on 24th November 2022, the Respondent is to file and serve written submissions of no more than 15 pages in length, also limited to the outstanding issues arising under the Fair Work Act 2009 (Cth) and the Collective Agreement.
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 W J NEVILLE
Introduction
These reasons are revised from the ex tempore oral reasons delivered in open Court on 6th October 2022.
Earlier judgments, and recorded further below, have noted that there have been four attempts at a final hearing in this matter: in November 2017, August 2021, July 2022, and a resumed final hearing commencing on 6th October 2022. The hearings in 2017 and July 2022 did not proceed, or did not conclude, because of the Applicant’s mental health issues or emotional “burn-out” as described by his general practitioner (“GP”). Assurances have been given by the Applicant and/or his GP on multiple occasions that, in certain circumstances, the Applicant will be able to undertake whatever is necessary to commence, or to conclude, his case, which commenced in 2015. The Applicant and/or his GP have previously also assured the Court on multiple occasions that he is eager to conclude the litigation. The Respondent and its witnesses, and the Court, simply continue to wait upon the Applicant for these assurances to be realised.
Neither the Applicant, nor his Counsel, attended the resumed final hearing on 6th October 2022. The Court only learnt of the non-attendance of Counsel on the morning of the hearing notwithstanding that these dates had been fixed since July 2022 at the Applicant’s request. The Court briefly telephoned Counsel for the Applicant, who confirmed that he no longer had a retainer in the matter.
The Applicant’s (intended or foreshadowed) non-attendance was indicated in the course of a small but steady supply of very long emails sent to the Court in the days leading up to the hearing on 6th October 2022, again on the basis of a degree of emotional and other related “burn-out”. Having not attended the last two days of the final hearing in late July 2022, and the Applicant’s Counsel at that time indicating that he could not proceed without the Applicant or his instructions, obviously the Applicant has now twice not attended the final hearing.
Statutory and other regulatory provisions
The following provisions from the Court’s principal Act, together with relevant parts of the Court’s Rules, are apposite to record here as central points of reference for the purposes of the immediate, but obviously acute issues that arise out of the Applicant’s and his Counsel’s non-attendance at the resumed final hearing.
Section 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides as follows:
In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d)all multiplicity of proceedings concerning any of those matters may be avoided.
Section 190 of the same Act outlines the “overarching purpose of civil practice and procedure provisions” in the following terms (emphasis added):
190(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.
…
(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).
Section 191 of the FCFCOA Act requires parties to act consistently with the “overarching purpose” of s.190.
Simply as a statement of fact, in the light of the matter having been on foot for 7 years and continuing, and the number of attempts to conduct, or to conclude, a final hearing, it is difficult to say that there has been compliance with s.190 of the FCFCOA Act. For the same reason(s), there has been little compliance with similar, or related, principles articulated by the High Court in AON Risk Services Australia Limited v Australian National University (“AON v ANU”) regarding (among other things) the impact of delays and costs for parties, and the flow-on effects for other litigants.[2] I have referred to the principles set out in this decision of the High Court multiple times in earlier judgments, thus far, to little actual or practical effect.
[2] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
To speak somewhat colloquially, it is a case of “so near, yet so far” with the trial having proceeded for two days in late July 2022, the Applicant’s evidence having concluded, and the cross examination of one of the Respondent’s witnesses having commenced. But just before the resumption of the trial on day three, the Applicant sent an email advising that he was physically, emotional and/or psychologically, unable to proceed and advised that the matter would [again] have to be adjourned. His Counsel agreed that he could not get instructions to enable to trial to continue (on which, more later). The long-time listed four day trial stopped abruptly. All that was left to conclude this long-running matter was to finish the remainder of the cross examination of the Respondent’s witnesses and for submissions. It was not to be.
As noted by the Full Court in one of their recent judgments, (a) the evidence of the Applicant’s GP was unpersuasive regarding the Applicant’s state of health, and (b) under his terms of employment, the Applicant is entitled to take up to 20 hours per week as a form of ongoing leave pursuant to the “ongoing certificate for capacity for work” (issued by his GP) to assist him. Unfortunately and surprisingly, he does not take this palliative or recuperative leave. Such matters are canvassed in more detail later in these reasons as considered by the Full Court.
Further, as noted by Counsel for the Respondent today, the last 2 weeks have been school holidays, thereby giving the Applicant further respite and opportunity to prepare for the resumed final hearing on 6th and 7th October. Moreover, by email on the third morning of the trial in July, the Applicant confirmed to the Court that he would be ready and fully prepared for the current hearing dates in October. Further still, accepting that a number of Applications before the Full Court have taken place in the meantime, notwithstanding his professed fatigue and much else, he ran those Applications. Indeed, he sought to adjourn his appeal regarding the Order for the appointment of a litigation guardian. The Full Court refused that Application, which was run on the basis of his fatigue, relying upon the medical evidence of his GP who was also cross examined. The Appeal proceeded, notwithstanding the Applicant’s professed fatigue and “burn-out”. As already noted, he ran the both the adjournment Application, and the appeal, himself.
The following Rules of Court are immediately relevant to the proceeding. From the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”). The Rules here applicable are all from Division 13.2 in relation to “Order or Judgment on Default”:
13.04 When a party is in default
(1)For the purposes of rule 13.05, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
Rule 13.05(1) provides:
13.05 Orders on default
(1) If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
Rule 13.06 provides (emphasis added):
13.06 Default of appearance of a party
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii)any other steps that the Court or the Registrar directs are taken;
(c) if the absent party is an applicant—dismiss the application;
(d)if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(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 or the Registrar thinks just.
It is as well to record here a few matters from the recent Full Court judgments.
Recent Full Federal Court decisions
There are two principal issues to highlight from the two Full Court decisions.[3]
[3] Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162; Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169.
First, regarding the medical evidence relied upon by the Applicant to adjourn his appeal regarding the Court’s earlier Order for the appointment of a litigation guardian, the Full Court noted the following (emphasis added):[4]
[29] First, Dr Wessell’s evidence that the applicant, “will be unfit to attend to court matters”, is unpersuasive. She told the Court that the applicant’s symptoms include poor sleep, poor concentration, feeling overwhelmed and blackouts (of concentration). Her evidence indicates that the applicant may have difficulty in preparing and presenting his case, but not that he is incapable of doing so.
[30] Second, the applicant’s detailed and lengthy correspondence with the Court indicates that he is able to attend to “court matters”. It is evident that the applicant understands what is required to prepare for the hearing and was able to apply concentration and focus to addressing his application for an adjournment. The applicant logically and lucidly presented his submissions in support of his application for an adjournment. In addition, the applicant appears to have been able to carry out his demanding work as a mathematics teacher. There is no adequate reason to suppose that his submissions in respect of the substantive hearing would be less competent. We are not satisfied that the applicant’s condition would deny him a real and meaningful opportunity to present his case.
…
[32]Fourth, even if the hearing were adjourned to a later date, there would be a distinct possibility that the applicant, again confronted with the pressures of preparing for and presenting his argument, would experience similar symptoms of “burnout”. Delaying the hearing will not relieve the applicant of the stresses of the litigation, but will prolong them. It is unlikely that granting an adjournment will ultimately allow the applicant to better prepare for and conduct his application.
[33]Fifth, Dr Wessell’s evidence was to the effect that she considered that the applicant could continue (and indeed had continued) to attend to his duties as a teacher. It emerged in re-examination that the applicant has the benefit of an ongoing medical certificate to the effect that he may have 20 hours each week away from the workplace, and may end his work days (or at least days on which there is a staff meeting) at 3.30pm. The applicant’s evidence was to the effect that he had not taken any substantial time away from his workplace in the previous fortnight, as he was entitled to do. He instead sought to attend to the needs of his students over what he told the Court was an examination period. Whilst that is admirable, it does support an inference that the applicant prioritised the needs of his students over his responsibilities in these proceedings. We are not satisfied that Dr Wessell’s opinion that the applicant had suffered from burnout took into account the circumstance that he had not taken time away from the workplace as he was entitled to do.
[4] Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162 at [29] – [33]. It might be observed that a number of the matters raised here by the Full Court have been stated in earlier judgments of this Court.
The medical evidence, and the claims by the Applicant that gave rise to it, are essentially the same as he has given on multiple times in recent years. As will have been observed from the Full Court’s decision, the Court considered (at [29]) it to be “unpersuasive.”
The most recent medical certificate from the Applicant’s GP raises the same issues. I take the same view of it as did the Full Court regarding similar evidence that was put before it.
Secondly, regarding the involvement of Counsel on behalf of the Applicant, the Full Court made the following observations (emphasis added):[5]
[106]However, as we have already observed in the context of the bias argument, it is highly relevant that Dr Drummond was represented by Mr Duc for the purpose of the trial (and there is no suggestion he does not continue to be briefed in that regard). In the absence of a solicitor Dr Drummond had been undertaking some work assisting Mr Duc. He had also undertaken aspects of the conduct of the proceedings by himself, in effect as a self-represented litigant.
…
[116]Mr Duc did not suggest in his correspondence to the Court or submissions that he had concerns as to taking instructions from Dr Drummond during the first two days of the hearing. Nor did he suggest he had such concerns should the hearing resume after an adjournment. The Court should not lightly disregard the role of counsel and the potential for Mr Duc to raise any concerns as to Dr Drummond's capacity to instruct him.
[117]In our view, had the primary judge properly considered the role of Mr Duc and the impact of his involvement, his Honour would have considered implementing other options that were available in the circumstances.
[118]For example, the primary judge may have required Mr Duc to continue with the trial on 28 July 2022, it being fair to say that Mr Duc should have been prepared to undertake cross examination on that date as planned (albeit that he submitted to the contrary). To that end, it was necessary to consider the tasks that Dr Drummond was required to undertake and those tasks that were properly the responsibility of Mr Duc. It was not the role of Dr Drummond to conduct the cross-examination of CIT's witnesses. The work required to assist Mr Duc to undertake that task was simply not explored. The primary judge did not ask why Mr Duc did not already have adequate instructions for the conduct of what remained of the proceeding.
[119]….The hearing could have been adjourned to the dates in October 2022 and either Dr Drummond would attend on those dates or he would not. His non-attendance would not of itself prevent the hearing continuing. There was no suggestion Mr Duc would not appear.
[5] Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169 [106] – [109].
In short, the Full Federal Court noted that the Applicant had directly briefed Counsel. The Full Court noted that Counsel could, and should, have taken the brief only on the basis that Counsel could properly complete the tasks under it. The Court also recorded that, because of preparation that had presumably already been undertaken, and presumably completed, by Counsel, the final hearing in late July, and a fortiori on the adjourned dates in early October, the final hearing should have proceeded even in the physical absence of the Applicant. Moreover, because of the occasional disappearance of Counsel from the matter in the past, this Court had sought formal confirmation in July 2022 that Counsel would remain in the proceeding until its conclusion. This confirmation was given by Counsel – orally and in writing.
On the first morning of the resumed hearing in October, Counsel for the Respondent confirmed that she had a conversation with the Applicant’s Counsel earlier in the week. She confirmed to the Court that the Applicant’s Counsel would readily take a call from the Court. As noted earlier, the Applicant’s Counsel was called by telephone. He confirmed that his instructions [or brief] were withdrawn approximately 7 days prior to the hearing. This was not communicated to the Court either by the Applicant, or by Counsel, until this revelation during the telephone call with Counsel. This was and remains in circumstances where, in multiple pieces of correspondence from the Applicant (noted earlier) in very recent days, the Applicant referred to he and Mr Duc being in a position to prepare and run the further hearing upon the adjournment being granted.
In the light of the Full Court’s comments noted above, and now in the light of confirmation from the Applicant’s former Counsel that (a) he is no longer briefed in the matter and (b) he will no longer be involved in it in any respect (including in the preparation of submissions, it would seem clear that a significant cornerstone of the Full Court’s decision of the continued involvement of Counsel no longer applies.
The following exchange with the Applicant’s [former] Counsel regarding him no longer being briefed in the matter by the Applicant is noteworthy:[6]
[6] Transcript (6th October 2022) pp.5-7.
HIS HONOUR: Mr Duc, good morning.
MR DUC: Your Honour.
HIS HONOUR: Ms Costin is here with her instructor and Mr Johnston, who was under cross-examination the last time as you will recall. Ms Costin has confirmed that you and she had a brief conversation not that long ago this morning. Perhaps if you would be kind enough to put on the record what the state of play is as far as you know it.
MR DUC: Your Honour, my partner and Ms Costin and I had a brief discussion this morning. I reconfirmed with Ms Costin that my instructions have been withdrawn in this matter. We communicated a few days ago about this very state as well, so that is the position as I understand it. And I understand the court has been informed that Dr Drummond will be attending Dr Wessell this morning at 10.45, as I understand it. And that’s where I understand the matter is up to, your Honour.
HIS HONOUR: So let me ask this, Mr Duc. When were your instructions, or your retainer, when was it terminated?
MR DUC: I understand your Honour might have been formed in by email that I would not be appearing, perhaps several days ago. But my retainer has been terminated for perhaps a week, your Honour.
HIS HONOUR: And that was by email or orally, or how?
MR DUC: That was orally confirmed, your Honour.
HIS HONOUR: To the degree that you’re able to tell me, was any reason given why? Especially in circumstances where, you will recall, we’ve had this discussion many times over the years. And the court even has on the court file a note from you confirming that you would remain in the matter until the end.
MR DUC: I understand that, your Honour. My instructions have been withdrawn and I’m not at liberty to go into the matters that were discussed between my client and myself.
HIS HONOUR: So it follows from that, does it not, that whatever the court does or doesn’t do today or beyond today, you will not be involved?
MR DUC: That’s right, your Honour. I won’t be involved. My instructions have been withdrawn.
HIS HONOUR: And does that include, for example, doing any written submissions?
MR DUC: Your Honour, I will not be participating further in this matter.
HIS HONOUR: At all?
MR DUC: My instructions have been withdrawn, your Honour.
HIS HONOUR: Very well. So unless there was anything else that you wished to say, Mr Duc, in those circumstances we should probably let you go.
MR DUC: If I might be excused, your Honour.
HIS HONOUR: Did you have any questions for Mr Duc, Ms Costin?
MS COSTIN: No, your Honour. Thank you.
HIS HONOUR: Thank you, Mr Duc. And also thank you for your assistance along the way from time to time.
MR DUC: As the court pleases.
Issues for immediate consideration
Formally, there are three procedural issues for the Court to consider in the light of the Applicant’s non-attendance at Court this morning, and similarly, confirmation by his Counsel that he is/was no longer briefed by the Applicant. Counsel confirmed that he had his “instructions” removed or withdrawn (perhaps more correctly described as his retainer ended and/or that he was no longer “briefed” in the matter) approximately 7 days ago. More on these matters shortly.
The first matter to consider is the Applicant’s unparticularised and unformalised Application for a further adjournment, communicated only by very long, multiple emails, sent over the last few days, and usually sent very late at night or very early morning – such unusual times of communication perhaps indicate some issue that is likely to be contributing to the Applicant’s fatigue and “burn-out”. These same emails again promise, or provide assurance, that in a few weeks’ time, he is sure that he will be ready to proceed with the hearing. The assurances given also regularly refer to his directly briefed Counsel, Mr Duc, working with the Applicant to prepare for the [presumed or sought] adjourned final hearing. The correspondence referred to has been mostly sent through the Registry, but occasionally sent to Chambers directly, which flouts previous Orders prohibiting this. The Full Court also noted that it was improper for the Applicant to be corresponding directly with Chambers in circumstances where Counsel was retained.[7]
[7] Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169 [61].
The second issue for the Court to consider is the Respondent’s oral Application for the primary Application to be dismissed for the multiple defaults by the Applicant pursuant to Division 13.2 of the Rules, including his non-attendance at Court today, and for him prioritising a medical appointment on the morning of the resumed hearing.
The third issue for consideration, proposed by the Court, is simply to provide directions for the parties to file written submissions that deal with the remaining substantive issues (i.e. those issues that arise directly, and only, under the Fair Work Act 2009 (Cth) (“the FW Act”), and/or the Collective Agreement, as recorded in earlier Orders of the Court and not disturbed by the Full Court). These submissions would proceed also on the basis that the evidence will be as it stands today where the Applicant has deliberately forgone his opportunity (for the second time) to continue the cross examination of the Respondent’s witnesses.
Regarding this third possible procedural course, directions would be made for the filing of submissions, both regarding the time-frame for doing so and their length. There would also be self-executing Orders regarding any relevant defaults (e.g. filing out of time, non-compliance with page length etc). Those defaults could range from reading only those pages that conform to the directed length of submissions, through to dismissal of the Application.
Consideration & disposition
Until the morning of the resumed hearing, the Court was unaware that Counsel’s retainer had been withdrawn. He had advised Counsel for the Respondent of his changed circumstances a couple of days prior to the resumed hearing. Thus, particularly in the light of the multiple emails from the Applicant referring to the involvement of Counsel (and including Counsel in those emails), both the Applicant and Counsel, apparently, have misled the Court regarding who was conducting the trial, and in turn the Court’s understanding of the bases upon which it would run. Indeed, it is more than arguable that much of the Full Court’s recent decision was predicated upon the Applicant’s Counsel remaining in the matter. That is now patently not correct. The misleading conduct outlined here is a very significant matter for the Court in its considerations. So, too, is the failure to notify the Court of the Applicant’s Counsel having his brief withdrawn approximately one week prior to the resumed hearing. To repeat: these are very serious errors and omissions.
The [other] defaults of the Applicant over many years have been documented in multiple earlier judgments. They need not be repeated here. The latest default in the Applicant’s non-attendance, in my view, is particularly serious given the multiple assurances by the Applicant last July of his preparedness to finalise the hearing, and in the light of him running the Application and Appeal before the Full Court. To repeat further: how and why the Court could not, and should not, understand or take a view that the Applicant’s statements of Mr Duc being actively involved in the further preparation for the “adjourned final hearing”, in the light of Mr Duc confirming that he was no longer briefed in the matter, amounts to some form of mis-leading of the Court, is only the latest in a long litany of matters. In my view, that litany more than satisfies a significant number of the provisions in the Rules referred to regarding defaults of various kinds on multiple occasions.
Further still, given that the Respondent’s witnesses had filed their Affidavits in 2017 in anticipation of the final hearing then proceeding, it only makes the Applicant’s assurances (sometimes in the form of protestations) that [further] preparation for cross examination will proceed, or remains necessary, only more concerning. Surely preparation for cross examination regarding witnesses based on Affidavits filed in 2017 would have been completed (presumably with the assistance of, or indeed solely by, Counsel) quite some time ago. That such preparation has apparently not been done only adds to the ongoing concern, if not alarm, of the Court about the capacity of the Applicant to be ready to proceed with cross examination at any time in the future even if the Court was to grant a yet further indulgence and adjourn the hearing to some time well into the future, which would necessarily be the case because of the limited hearing dates available. The lack of further hearing dates has been observed on many occasions, including by the Full Court.
There are a range of discretionary considerations in a Court making Orders on the basis of the default of a party, many of which have been referred to in earlier decisions. I do not need to, and will not, refer to them again. I need only refer to High Court decisions such as Batistatos, Brisbane South Regional Health Authority v Taylor, and of course, AON v ANU, to name only a few.[8] The Full Court itself noted the concerns for the Respondent in having the litigation constantly prolonged.[9]
[8] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[9] Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162 at [34].
As already noted, in my view, there are significant grounds upon which the matter can and should be dismissed because of the ongoing defaults of the Applicant and the extraordinary number of times he has been granted every concession and indulgence, very significantly more than most other litigants. His recent non-attendance at the adjourned final hearing, together with the termination of his Counsel’s retainer, are matters of extreme concern, particularly in the light of the his non-attendance in late July for the final two days of the hearing. The potential mis-leading of the Court, and the failure to notify the Court of the removal of instructions from Counsel are especially egregious.
Notwithstanding the ample evidence that would justify the immediate dismissal of the proceeding in its entirety under Division 13.2 of the Rules in the light of the Applicant’s regular and persistent defaults over the past 7 years, in my view, the most appropriate procedural course is as follows:
(a)There will be an Order for the dismissal of the proceeding because of the Applicant’s ongoing defaults and in particular his non-attendance at the final hearing for the second time;
(b)That dismissal Order will be stayed pending compliance with the following Orders, namely, the matter will proceed to a conclusion on the basis of (i) the evidence as it stands today (the further adjournment sought by the Applicant being formally refused) and (ii) both parties filing written submissions on the limited substantive issues earlier referred to with detailed Orders providing for the stay to be lifted regarding any relevant defaults as earlier noted, such as filing submissions out of time and/or not reading any submissions that are in excess of the prescribed limit;
(c)The Court will provide a detailed time-table for the filing of written submissions, and the default provisions also earlier recorded, together with confirmation (by email) of the issues that are to be addressed as per the previously filed “Agreed List of Issues” and “Statement of Agreed Facts”.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 19 October 2022
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