D'Sylva v Ellenbrook Family Medical Centre Pty Ltd (No.2)
[2020] FCCA 3132
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| D’SYLVA v ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD (No.2) | [2020] FCCA 3132 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case seeking default judgment – where respondent has failed to file affidavit evidence within time ordered – factors for consideration – application in a case dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03A, 13.03B Fair Work Act 2009 (Cth), s.548 |
| Cases cited: D’Sylva v Ellenbrook Family Medical Centre Pty Ltd and Bibok v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171 Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745 |
| Applicant: | RELISSA D’SYLVA |
| Respondent: | ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD |
| File Number: | PEG 394 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the papers |
| Date of Last Submission: | 13 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | Dr S Wamono |
ORDERS
The application in a case dated 12 October 2020 is dismissed.
The time within which the respondent has to comply with order 3 of the orders dated 17 March 2020 is extended to 13 October 2020.
The applicant has leave to file and serve any further affidavit evidence by 1 December 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 394 of 2019
| RELISSA D’SYLVA |
Applicant
And
| ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings, Ms Relissa D’Sylva (“Ms D’Sylva”), commenced proceedings in the Fair Work Small Claims Division of this Court on 7 October 2019. She claims that the respondent, Ellenbrook Family Medical Centre Pty Ltd. (“Ellenbrook”), owes her $9,664.81 in unpaid wages and annual leave. Ellenbrook denies that any money is owing.
The matter was referred for mediation on 30 October 2019. That mediation was unsuccessful.
The matter returned to the Court on 17 March 2020. On that occasion, the Court made orders in the following terms:
1. The respondent file a response by 31 March 2020.
2. The applicant file and serve any affidavit evidence on which she intends to rely at hearing by 28 July 2020.
3. The respondent file and serve any affidavit evidence on which it intends to rely at hearing by 25 August 2020.
4. The applicant file and serve any affidavits in response by 8 September 2020.
5. The applicant file and serve an outline of written submissions 14 days prior to the hearing.
6. The respondent file and serve an outline of written submissions 7 days prior to the hearing.
7. The matter be listed for hearing on a date to be fixed.
8. Liberty to apply.
On 16 April 2020, Ellenbrook sought leave to be represented by a legal practitioner. Lawyers are not permitted to represent a party in the Court’s Small Claims Division unless the Court grants leave: Fair Work Act 2009 (Cth), s.548(5).
The Court made orders on 16 April 2020 directing the parties to file and serve any evidence and submissions on the issue of legal representation. It was agreed that the issue would be decided on the papers.
On 15 May 2020, the Court made orders refusing leave for Ellenbrook to be represented by a lawyer: D’Sylva v Ellenbrook Family Medical Centre Pty Ltd and Bibok v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171.
On 2 June 2020, the parties were advised by Chambers via email that the matter had been listed for final hearing on 16 February 2021.
On 17 July 2020, Ms D’Sylva filed her affidavit evidence as per order 2 of the orders dated 17 March 2020.
On 8 October 2020, Dr Wamono (a representative for Ellenbrook) emailed Chambers. The email attached an affidavit from Dr Wamono sworn 7 October 2020. In the email, Dr Wamono stated that, due to:
…unavoidable circumstances, with Covid19 and major medical conditions in the family and friends, there has been a delay in submitting this affidavit for which I apologise.
Dr Wamono was advised that emailing documents to Chambers was not an appropriate filing method and was directed to the Registry for further information and assistance.
On 9 October 2020, Ms D’Sylva emailed Chambers as follows:
I feel Mr. Wamona has been given enough time and leniency when dealing with this matter and unfortunately it doesn’t seem like he’s taking it seriously. We are equally stressed and time poor at this point with Covid-19, without having to deal with the additional burden of Mr. Wamono trying to push this case further.
I therefore humbly request his claim to lodge at this late stage be dismissed and request, if possible, an earlier verdict to be considered.
Chambers responded to Ms D’Sylva advising that if she wished to make an application for default judgment, she needed to file an application in a case with supporting affidavit.
On 12 October 2020, Ms D’Sylva filed an application in a case seeking two orders, as follows:
1. Default Judgement in for the amount of $9,664.81
2. Reimbursement of Application in case fee of $405.00
On 13 October 2020, Dr Wamono’s affidavit was accepted by Court Registry for filing.
On 3 November 2020, the application in a case was listed for mention. On that occasion, Ms D’Sylva appeared in person. No one appeared from Ellenbrook. The Court made orders in the following terms:
1. The parties file any affidavits and outlines of submissions in relation to the application in a case dated 12 October 2020 by 13 November 2020.
2. The application in a case dated 12 October 2020 be determined on the papers.
These reasons concern whether the Court should allow the application in a case and make the orders that Ms D’Sylva seeks.
Applicant’s Position
In her application, Ms D’Sylva states:
This application is supported by an affidavit made by [ Relissa D’Sylva ] dated [ 12/10/ 19 ] # and filed in the Court on [14/10/2019] in support of [Application-Fair Work Division, Form 5 Small Claims under the Fair Work Act 2009]
The “affidavit” Ms D’Sylva refers to is an affidavit of service she filed confirming that she had served Ellenbrook with the originating application. It is not relevant to the issues addressed here.
Pursuant to the orders of the Court made on 3 November 2020, Ms D’Sylva filed an affidavit which provides:
3. The respondent was served documents on the 12th of Oct 2019.
4. The respondent failed to file a response within the 14 day period
5. On the first hearing dated 30/10/19 orders were made for a response to be filed by the 14th of Nov.
6. The respondent yet again failed to lodge documents within the stipulated time.
7. We attended a mediation on the 25th of Feb 20, at which point The respondent still had not filed his response and failed to come adequately prepared for the mediation.
8. Consequently at the next directions hearing on the 17th of Mar 20 The respondent requested for leave of court and finally filed his response 5 months later.
9. Following that, his request was rejected and we were instructed to follow the orders set out on the 17/03/2020. 1
10. My Affidavit of evidence was filed with the court on the 20th of July 20. The respondent was meant to file his Affidavit of Evidence by the 25th of Aug 20 which he once again failed to complete.
11. Following which I applied for a application in case for default judgement on the 12th of Oct 20.
12. The court set out a directions hearing on the 3rd of Nov 20, which the Respondents fail ed to attend.
13. This has been a pattern throughout this case and the respondent has failed to provide any structured evidence. I therefore humbly request the court to rule in my favour in the amount of $10069.81.
In Ms D’Sylva’s submissions filed 12 November 2020, she argues:
1. The respondent has failed to comply with Subrule 13.03A(2) (ii), (iii) and (iv) and further failed to attend the directions hearing dated 3 November 2020 to address the application for default judgement.
2. The respondent failed to comply with the Court's direction to submit an affidavit by 25 August 2020 to address the claim of underpayment of wages. The Respondent's delayed submission on 13 October 2010 has been found to contain hearsay evidence with insufficient particulars to substantiate his position.
3. The respondent has been non-compliant in the majority of proceedings and has failed to abide by directions of the Court.
Respondent’s Position
Ellenbrook has not filed any materials in relation to the application in a case seeking default judgment.
The Court’s Power to Award Default Judgment
The Court’s power to award default judgment is found in r.13.03B of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). Relevantly, r.13.03B(2) provides:
(2) If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages--grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate--costs; or
(c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d)give judgment or make any other order against the respondent; or
(e) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
In this matter, the Court assumes that Ms D’Sylva is seeking an order pursuant to r.13.03B(2)(d).
What is meant by the term “default” is defined in r.13.03A(2) as follows:
(2) For rule 13.03B, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; 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.
In order to enliven the discretion to award default judgment, the Court must be satisfied that:
a)self-evidently, a default has occurred; and
b)the defaulting party (here, the respondent) has been put on notice of the application for default judgment: Walker v Government of the Republic of Vanuatu [2015] FCA 490 at [55].
If the Court is satisfied in relation to these two matters, the discretionary power to award default judgment in favour of a party is enlivened.
There are no set factors for consideration when determining whether to exercise the discretion. Nonetheless, it is clear that it must be in the interests of the administration of justice for the Court to exercise the discretion. Indeed, it has been said that the power should be exercised with caution: Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [20]. Further, the exercise of the power is not “commonplace”: Welsh v Digilin Pty Ltd & Ors (ACN 078 278 449) & Ors [2008] FCAFC 149 at [33].
Consideration
Has a default occurred?
Here, the default upon which Ms D’Sylva appears to rely is a failure by the respondent to file affidavit evidence in accordance with the Court’s orders.
In relation to subparagraph (a) of r.13.03B(2) (whether Ellenbrook has failed to satisfy Ms D’Sylva’s claim), Ms D’Sylva has a prima facie case. Ellenbrook has not paid Ms D’Sylva what she says she is owed.
In relation to subparagraph (b), the late filing of Dr Wamonos’s affidavit can be characterised in two ways:
a)a failure to comply with an order of the Court in the proceeding (as per r.13.03B(2)(b)(iii)); and/or
b)a failure to defend the proceeding with due diligence as per r.13.03B(2)(b)(vii)).
Ellenbrook has plainly failed to comply with Court’s orders dated 17 March 2020. It filed an affidavit 49 days after the time in which the Court’s orders required it to do so.
Further, the failure to file the evidence within the time limit demonstrates a lack of due diligence in defending the proceeding. Ellenbrook has essentially failed to place evidence before the Court (noting that Ellenbrook will require leave to rely on Dr Wamono’s affidavit as it was filed outside of the stipulated time limit).
The Court is satisfied that Ellenbrook is in default.
The Court notes that Ms D’Sylva makes reference in her submissions to Ellenbrook being in default pursuant to r.13.03A(2)(ii) and (iv). This default relates to Ellenbrook having failed to file a response to the application within 28 days: the Rules, r.4.03. If Ms D’Sylva wanted default judgment to be entered on the basis of a failure to file a response, she should have made that clear when the default occurred. She cannot do so after Ellenbrook has filed a response and some 11 months after the default occurred.
To the extent Ms D’Sylva relies on a failure to file a response this will be discussed below when considering the exercise of the Court’s discretion.
Is Ellenbrook aware of the application?
There is no evidence before the Court to indicate that Ms D’Sylva has served the application in a case on Ellenbrook.
Ellenbrook did not attend a mention on 3 November 2020. While the time and date of this mention would have been on the filing page of the application in a case (noting that the Court has no evidence before it which indicates that the application was actually served on Ellenbrook), Chambers nevertheless sent an email to the parties indicating that the matter had been listed on 3 November 2020 at 11.00am and that the parties were to appear by telephone.
In the orders made on that day (3 November 2020), the Court gave the parties an opportunity to file and serve any supporting documents in relation to the application in a case. Those orders were sent to the last provided email address provided by Ellenbrook.
The Court is satisfied that Ellenbrook was on notice of the application in a case. The Court is also satisfied that Ellenbrook was aware that it had the opportunity to put on evidence and submissions opposing default judgment.
Exercise of the Discretion
In Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745, the Full Court of the Federal Court considered an appeal from a decision of the primary judge to dismiss an application for want of compliance with pre-trial directions. Although the Court in that case was considering whether default judgment should be given for the respondent, the Court’s observations are nonetheless applicable when an applicant seeks default judgment. The Court stated:
36… As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
37. In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court’s directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.
It is to be noted that the default is not continuing. That is, while the affidavit was filed past the time allowed, it was nonetheless filed.
Ms D’Sylva refers to the fact that it “doesn’t seem like [Ellenbrook] is taking it seriously.” She refers to the Court having demonstrated “leniency” previously.
This concern requires a brief overview of the history of this matter.
On 30 October 2019, the Court ordered that Ellenbrook file a response to the claim by 14 November 2019. Ellenbrook did not do so. Instead, Ellenbrook filed a response on 17 March 2020, the same day that a lawyer first sought leave to appear on behalf of Ellenbrook. Ellenbrook filed an amended response on 20 May 2020. However, they did not seek leave to do so.
Most recently, Ellenbrook purported to file affidavit evidence 49 days after they were required to do so. Ellenbrook did not appear at the mention of the application in a case on 3 November 2020.
The Court notes that an explanation for the non-compliance which was the catalyst of the application in a case (i.e., the failure to file affidavit evidence) has been provided. Ellenbrook had not previously explained why it did not file a response.
Dr Wamono, for Ellenbrook, explained that the delay in this matter was due to “COVID19” and “major medical issues”. There is no evidence to support the assertion that these matters affected Ellenbrook’s ability to comply with the orders and defend the proceedings. Accordingly, the Court gives this little weight.
There is, regrettably (as Ms D’Sylva’s affidavit rightly notes) a history of non-compliance in this matter.
However, despite this history the Court does not consider it appropriate for an order of default judgment to be made.
Here, there has not been any unnecessary delay or expense brought about by the lack of timeliness in filing materials. The hearing of the matter on 16 February 2021 has not been impacted by non-compliance. Further, the parties are not represented and costs are not an issue in this matter.
In terms of prejudice to Ms D’Sylva, the Court accepts that, at the time that Ellenbrook filed the affidavit from Dr Wamono (on 13 October 2020), the time for Ms D’Sylva to file any evidence in reply had passed. Accordingly, the late filing deprived Ms D’Sylva of a right of reply. However, the Court does not consider this to be sufficient reason to award default judgment. The Court can remedy any unfairness to Ms D’Sylva by providing her additional time to file any evidence. This additional time will not have any impact on the matter proceeding to hearing on 16 February 2021.
The Court also notes that the Small Claims Division is designed to operate in an informal matter. While this does not provide an excuse for non-compliance, it does arguably set a high bar for exercising the discretion. That is not to say that default judgment can never be awarded in a Small Claims matter. It certainly can. Rather, the circumstances of the default must be something more than a default which, while frustrating for Ms D’Sylva, has little impact on the fairness and timeliness in which the matter proceeds to hearing.
To the extent that Ms D’Sylva also states that the affidavit filed by Ellenbrook “has been found to contain hearsay evidence with insufficient particulars to substantiate his position” (emphasis added), no finding has been made in this regard. Further, s.548(3)(b) specifically states that the Court is not bound by the “rules of evidence”. As such, “hearsay” is not strictly applicable to these proceedings.
The Court does not consider this to be an appropriate case in which to award default judgment. The default in this matter is, in the Court’s view, minor and any prejudice to Ms D’Sylva can be alleviated by additional orders. The fact that Ellenbrook did file an affidavit also indicates a willingness to defend the claim.
The Court does not disregard the frustrations articulated by Ms D’Sylva. Ellenbrook has arguably taken a somewhat cavalier approach to this matter. However, the circumstances here do not warrant the exercise of the Court’s power to award default judgment.
Accordingly, the Court will dismiss the application in a case seeking default judgment.
Costs of the Application in a Case
Ms D’Sylva also seeks an order that Ellenbrook reimburse her for the filing fees associated with the application in a case (being $405).
Ms D’Sylva has been unsuccessful in relation to her application in a case. There is no reason to reimburse her for any costs associated with the application in a case.
The request for reimbursement is also denied.
Conclusion
Ms D’Sylva has not satisfied the Court that it is appropriate to award default judgment in her favour. The Court also declines to order that she be reimbursed the filing fee.
The application in a case dated 12 October 2020 is, accordingly, dismissed.
The Court notes the reference made above to giving Ms D’Sylva an opportunity to file any affidavit evidence in response. The Court will provide Ms D’Sylva with two weeks to file any affidavit evidence in reply.
Ellenbrook requires leave to rely on the affidavit of Dr Wamono (as it was filed outside of time). Given that Ms D’Sylva has had over one month to review that affidavit, she has been given an opportunity to respond with her own affidavit evidence and both parties are yet to file written submissions, the Court will grant leave for Ellenbrook to rely on the affidavit of Dr Wamono.
The matter will remain listed for final hearing on 16 February 2021 at 10.00am before a judge of this Court.
Postscript
After the Court prepared these reasons for judgment and had listed the matter for judgment, Dr Wamono emailed Chambers advising that he didn’t understand what the judgment related to. He expressed concern that the hearing date had been “brought forward”. The Court explained that the judgment related to an interlocutory application filed by Ms D’Sylva and that the substantive hearing would still proceed in February 2021.
Ellenbrook then lodged an affidavit from Dr Wamono sworn 17 November 2020 that related to the interlocutory application. The affidavit was filed outside of the time allowed by the orders dated 3 November 2020 (orders which, it is noted, were sent to Ellenbrook’s nominated email address for service).
The Court has not had any regard to Dr Wamano’s affidavit as it was filed late. The Courts notes, however, that Ellenbrook has not been disadvantaged by that decision as the Court has dismissed the application in a case filed by Ms D’Sylva.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 18 November 2020
0
4
3