Donnelly v Hewlett-Packard Australia Pty Ltd - [2011] FMCA 523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONNELLY v HEWLETT-PACKARD AUSTRALIA PTY LTD

[2011] FMCA 523

INDUSTRIAL LAW – Practice and procedure – application for summary dismissal – default in filing pleadings to identify material facts and causes of action – repeated non-compliance by applicant with court directions – proceedings dismissed generally on grounds of default.

Fair Work Act 2009 (Cth), s.570
Federal Magistrates Act 1999 (Cth), s.17A(2)
Federal Magistrates Court Rules 2001 (Cth), rr.13.03B(1)(c), 13.10

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Applicant:

CIARAN DONNELLY

Respondent:

HEWLETT-PACKARD AUSTRALIA PTY LTD (ABN 74 004 394 763)

File Number:

SYG 2546 of 2010

Judgment of:

Smith FM

Hearing date:

1 July 2011

Delivered at:

Sydney

Delivered on:

1 July 2011

REPRESENTATION

Counsel for the Applicant:

Applicant In Person

Solicitors for the Applicant:

Leslie Hargrave Lawyers

Counsel for the Respondent:

Mr D Cross

Solicitors for the Respondent:

Norton Rose

ORDERS

The proceeding is dismissed generally under r.13.03B(1)(a).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2546 of 2010

CIARAN DONNELLY

Applicant

And

HEWLETT-PACKARD AUSTRALIA PTY LTD
(ABN 74 004 394 763)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This application by Mr Donnelly has had an unhappy history since it was commenced on 24 November 2010. It has now reached the stage in its case management where the respondent has established a clear case for summary dismissal of the application on grounds of default, and also, it appears to me, a present lack of reasonable prospects.
The application originally filed in the Court’s Fair Work Division said that it was accompanied by a statement of claim which indicated the orders sought, but in fact it was not so accompanied. The application stated its grounds only as:
There is a legal issue as to what constitutes an employer where there is a transfer of business and a person works solely for the company which is subject to the transfer and a question arises as to direction and control notwithstanding that a third party has been paying the worker at the time of transfer. See also the supporting affidavit giving further details of the claim made upon the Respondent.
The affidavit in support of the application attached correspondence indicating that Mr Donnelly’s employment with Hewlett-Packard Australia Pty Ltd was terminated on notice on grounds of redundancy. He was paid redundancy entitlements calculated by reference to an employment agreement between Hewlett-Packard and Mr Donnelly, based on the commencement of his employment on 1 July 2003. Mr Donnelly’s affidavit indicated that he wished to claim that they should have been calculated by reference to earlier periods of employment by other entities whose businesses had, it appears, ultimately been acquired by Hewlett-Packard Australia Pty Ltd. The affidavit left completely obscure as to how that claimed additional liability came about, or could come about as a matter of fact and law.
Mr Donnelly’s application was filed by a firm of solicitors, and a member of that firm attended the First Court Date on 17 December 2010 before me. He acknowledged the need for an adequate pleading of the basis of Mr Donnelly’s claims, and I made an order in the following terms:
3. The applicant must file and serve an amended application and a statement of claim, which include the precise orders sought in the proceedings, and identify the causes of action relied upon by reference to the material facts and any statutory provisions, and all further affidavits on which he intends to rely, including full particulars and evidence in support of any compensation or other relief claimed, on or before 7 February 2011.
I also directed a timetable for other procedures, leading to a final hearing on 12 May 2011.
However, Order 3 was not complied with, and the matter was re-listed on 11 March 2011. Mr Donnelly was represented by the same solicitor, who consented to an extension of the time provided in the previous Order 3, to 25 March 2011. The timetable was adjusted so as to maintain the proposed hearing date.
However, the direction for a properly pleaded case was again not met, and the matter was re-listed on 8 April 2011.
On that occasion, Mr Donnelly was again represented by a member of the firm of solicitors whom he had engaged, although it was not the person who had appeared previously. I made orders, which specifically noted that the applicant was in default under Order 3 made on 17 December 2010, as extended. I vacated the orders leading to a hearing because it was then impossible for the full timetable to be met. I directed that “the applicant must comply with order 3 made on 17 December 2010 no later than 15 April 2011”, and I also ordered that “if the applicant fails to comply, then the application is dismissed under r.13.03B(1)(c) as for the whole of the relief claimed by the applicant”. There was, therefore, a guillotine order based on non-compliance.
I ordered Mr Donnelly to pay the respondent’s costs of that listing because I was satisfied that the pre-condition under s.570(2)(b) of the Fair Work Act in relation to costs was satisfied, due to the complete absence of any justification for the previous non-compliances. I directed the next listing of the matter for directions on 10 June 2011.
An amended application and purported pleading by way of statement of claim was filed by Mr Donnelly’s solicitors on 8 April 2011. However, when examined, it did not meet the requirements of the previous orders. The amended application now stated as its grounds:
There is a legal issue as to what constitutes an employer where there is a transfer of business and a person works solely for the company which is subject to the transfer and a question arises as to direction and control notwithstanding that a third party has been paying the worker at the time of transfer.
The Applicant seeks a declaration, pursuant to Section 16 of the Federal Magistrates Act 1999 that he was employed by the Respondent from 1 December 1990 for the purpose of calculating his entitlements to redundancy, notice of termination of employment and long service leave in accordance with the Fair Work Act, 2009.
For that purpose, the Applicant relies upon Section 567 of the Fair Work Act 2009 to confer jurisdiction upon the Court to make the declaration of employment for the purpose of the Fair Work Act, 2009.
The purported statement of claim pleaded Mr Donnelly’s employment agreement with Hewlett-Packard Australia Pty Ltd entered into on 7 January 2003 and operative until 21 May 2010, without making any assertion that the agreement, whether expressly or implicitly, extended its entitlements by reference to previous periods of employment by other entities. However, the pleading also asserted:
6. Notwithstanding the subsequent employment agreement, the Applicant maintain that in view of his prior continuing service with Compaq which was subsequently acquired by the Respondent, he was an employee of Compaq [sic: the Respondent] for the purposes of calculating any remuneration entitlements.
However, that assertion was not explained by reference to material facts or legislative provisions, which would have imposed a contractual or statutory liability on Hewlett-Packard referable to earlier periods of employment by different legal entities. The assertions of fact in relation to the earlier periods of employment themselves left it obscure as to the legal entity which was Mr Donnelly’s employer at the earlier times. No better clarity was given in relation to the pleading by an affidavit which was sworn and filed on 8 April 2011 by Mr Donnelly.
The defects in relation to the purported statement of claim were pointed out to Mr Donnelly’s solicitor in a letter from the solicitors for Hewlett-Packard dated 11 April 2011, shortly before a further re-listing of the matter before me on 6 May 2011.
Mr Donnelly was represented on that occasion, again, by the solicitor who had appeared at most of the previous listings. He again acknowledged that Mr Donnelly’s case had not yet been adequately pleaded or presented in a manner comprehensible to the respondent or the Court.
Notwithstanding that I was invited to dismiss the matter, or to confirm the operation of my previous guillotine order, I gave Mr Donnelly a further opportunity to properly plead his case. I accepted assertions by his solicitor that counsel had been briefed to draft pleadings or would be briefed urgently. I repeated the order I had made on 17 December 2010, by ordering:
2. The applicant must file and serve an amended application and a statement of claim, which include the precise orders sought in the proceedings, and identify the causes of action relied upon by reference to the material facts and any statutory provisions, and all further affidavits on which he intends to rely, including full particulars and evidence in support of any compensation or other relief claimed, no later than 23 May 2011.
I gave a further timetable, and listed the matter for further directions today. My order listing the matter today expressly said “the respondent may make any application for summary dismissal returnable on that date”. I drew the attention of Mr Donnelly’s solicitor to the likelihood that I would entertain such an application favourably, if there was further non-compliance.
Notwithstanding this history, and my warnings, there was further non-compliance. In fact, Mr Donnelly has not yet filed an adequate pleading, and is today not able to present one in any form, nor suggest when one will be forthcoming.
Hewlett-Packard filed an application for summary dismissal on 16 June 2011, which is returnable today. I assume that was it was served in accordance with the Rules on Mr Donnelly’s solicitor. Certainly, it appears that Mr Donnelly became aware of it in some fashion from his solicitor, since he has appeared personally today. There has been no attendance by the solicitor, and no explanation for his absence has been offered by him to the Court.
The application for summary dismissal relies on either r.13.03B(1)(c) based on default, or under s.17A(2) of the Federal Magistrates Court Act and r.13.10 based on no reasonable prospect of success. The affidavit in support deposes to the history which I have narrated above. It attaches the most recent letter from the solicitors for Hewlett-Packard to Mr Donnelly’s solicitor’s, dated 24 May 2011. The letter notes the non-receipt of the pleading directed on the last occasion, and indicates that instructions had been received to bring an application for summary dismissal. I accept the deponent’s statement that no response had been received prior to today’s listing.
Today’s listing was at 9:30 am and, due to a long list, was not reached until 11 o’clock. At that time there was no appearance on behalf of Mr Donnelly by his solicitor, but Mr Donnelly appeared in person. He tells me that he had anticipated that his solicitor would be in attendance, or a barrister instructed by his solicitor, but that he became aware that this had not happened from his wife who had been in court as an observer, and he had therefore come to court himself. I gave him a further opportunity to procure the attendance of his solicitor or another legal representative this morning, but he was unable to do that.
In the circumstances, I decided to proceed with the application for summary dismissal, which was presented to me by Hewlett-Packard’s solicitor and fully explained to Mr Donnelly.
Mr Donnelly said to me from the bar table, that he had no explanation for the defaults in filing proper pleadings to formulate his case. He was unable himself to offer the Court any such formulation, nor any assistance to understand any merits in his matter, apart from his belief that he deserved to have received more extensive termination payments than he received from Hewlett-Packard.
I am not in a position to make firm findings as to the explanation for the failure of Mr Donnelly to comply with the Court’s directions, particularly in the absence of sworn evidence from him and an explanation from his solicitor on the record. On the material before the Court, it is plain and not contested, that the repeated and protracted defaults which I have outlined above have occurred. In my opinion they show a complete disregard for the Court’s directions, and for its efforts and responsibility to bring the proceedings to a proper state of preparation and finality.
There are important public interests, which require litigants in Australian courts to take seriously directions given by courts by way of case management. These were recently emphasised by the High Court of Australia in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, albeit in a different situation.
It appears to me that Mr Donnelly has now been given more than six months to get his case into a shape where it should have been at commencement, that is, presenting a comprehensible assertion of rights by reference to material facts and the identification of relevant statutory provisions. His defaults, in my opinion, are so serious, repeated, and continuing as to justify the exercise of the Court’s powers under r.13.03B(1).
Considering the alternative responses to such a default which are indicated in that rule, I have already given Mr Donnelly several opportunities to rectify similar defaults. I have already previously imposed guillotine orders, which I have vacated by way of indulgence. There is no indication that Mr Donnelly has any intention or capacity ever to rectify the continuing default. In my opinion, the situation has reached the stage where the interests of the administration of justice, and of the rights of a respondent who has been brought to Court to have the applicant’s case adequately pleaded and brought to finality, require the Court to exercise the power of summary dismissal under r.13.03B(1)(a).
An exercise of that discretion is confirmed by consideration of the present prospects of the matter. In my opinion, the documents filed by Mr Donnelly have not presented a case showing prospects of success, and, by reason of Mr Donnelly’s default, that failure to show a case with merit continues at a stage where he should be expected to show reasonable prospect by reference to proper pleading and evidence. I am therefore inclined to accept that grounds for summary dismissal under r.13.10(a) have also been established. However, I do not need to exercise that power, since I am satisfied that summary dismissal is appropriately ordered by reason of the defaults alone.
I note that Hewlett-Packard has not pressed for additional cost orders against Mr Donnelly or his solicitors.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 12 July 2011