Duma v Mader International Pty Ltd

[2013] FCCA 292

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUMA v MADER INTERNATIONAL PTY LTD [2013] FCCA 292

Catchwords:
INDUSTRIAL LAW – Applicant seeking to reinstate proceeding dismissed for non-attendance in 2008 – consideration of issues relevant to exercise of Court’s discretion. 

Legislation:
Workplace Relations Act 1996
Fair Work Act 2009
Federal Circuit Court Rules 2001, r.13, 16.05

Cases cited:
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Applicant: MIHAI DUMA (AKA MICHAEL DUMA)

Respondent: MADER INTERNATIONAL PTY LTD

File Number: MLG 508 of 2007

Judgment of: Judge Burchardt

Hearing date: 8 April 2013

Date of Last Submission: 8 April 2013

Delivered at: Melbourne

Delivered on: 8 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Connell

Solicitors for the Applicant: Simon Legal

The Respondent: No appearance

ORDERS

1. The interlocutory application filed on 26 November 2012 be dismissed. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 508 of 2007

MIHAI DUMA (AKA MICHAEL DUMA)

Applicant

And

MADER INTERNATIONAL PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter commenced in this Court on 2 March 2007, now over six years ago.  At that time the applicant was legally represented and his application was supported by a statement of claim.  The application was made for penalties and compensation pursuant to the relevant provisions of the Workplace Relations Act 1996 (“the WR Act”), which was the then legislation in force. It has, of course, subsequently between overtaken by the Fair Work Act 2009 (“the FW Act”), although there are quite complicated transitional provisions.

2. The Statement of Claim articulated a number of breaches of the Vehicle Industry – Repair Services and Retail - Award 2002 (“the Award”) arising out of the applicant’s employment by the respondent between May 2001 and July 2006.  The breaches were said to have occurred in the form of underpayments of relevant award entitlements, and a comprehensive schedule was annexed to the Statement of Claim showing the amounts underpaid in part of 2004 in the total of $1,277.  (Further particulars arising from the periods not itemised in the schedule were to be provided following discovery). 

3. The matter was the subject, in due course, of a Response and Defence.  The Defence put in issue some of the factual assertions made by the applicant as to his employment between 2001 and 2004.  The Defence also put in issue a number of facts going to the basis upon which the applicant was employed throughout the period that he may have been employed from 2001 to 2006.  The proceeding was complicated by issues to do with discovery, because it would appear that documents were, in part, in the possession of a third party, and in due course I ordered that a representative of that party attend Court to answer the applicant’s subpoena.

4. However, once again, things proceeded in a rather haphazard fashion. But on 5 August 2008, I made orders by consent that the requirement of a Mr Hopkins from GE Fleet Services to appear before the Court be determined not to be necessary, as GE Fleet Services had produced all the documents to the Workplace Ombudsman. The proceeding was listed for further directions on 2 December 2008. On that date, the applicant did not attend and was not represented. Pursuant to r.13 of the Federal Circuit Court Rules 2001 (“the Rules”), I dismissed the application for his non-attendance.

5. Nothing thereafter occurred until 26 November 2012, when Mr Duma lodged an Interlocutory Application.  That Application sought, relevantly, that the proceeding be reinstated and listed for directions hearing, and was supported by an Affidavit of Mr Duma.  Mr Duma’s affidavit also filed 26 November 2012 deposed that he is an aged pensioner, having gone onto a pension after being on a disability pension from Centrelink, and that he was continuing to have psychiatric treatment.  Mr Duma asserts he is in financial hardship and has a claim against him from his former solicitor, Victorian Workplace Lawyers, arising from cost claims relating to his work cover and common law claims against Mader International, the respondent in this proceeding. 

6. Mr Duma also deposes that he had not been able to obtain legal aid and was being represented pro bono, and he also deposed that he had obtained his pay and hours worked records from the respondent and said that true copies of these were annexed.  It is fair to say that the document annexed does not meet that description.  The affidavit continues:

   “I also suffered discrimination due to my physical and psychological conditions at the workplace.  I believe that I was unlawfully dismissed from my employment and also suffered demotion and change of my employment conditions without my consent.  I had my pay rate reduced by the respondent and at no time consented to this.”

7. The matter was listed for today.  I have been informed by counsel that the respondent got the wrong date and their counsel is not available.  I am asked to infer that the ACC, with whom the communication has been had, are acting as agents on behalf of the respondent, and I am prepared to make that assumption in favour of the applicant for these purposes.

8. In response to questions from the bench as to how it was that matters reached this stage, counsel handed up two affidavits, one from 2010 from Mr Duma, which takes the matter in my view no further, and a further Affidavit sworn on 19 February 2013 by Mr Duma.  The affidavit says that the respondent has not provided full discovery or disclosure of employment records and refers to the GE Corporation in Sydney.  I note that that assertion sits rather awkwardly with the assertion in his affidavit last year that he has received all his records, and the consent minutes to which I have already referred which suggest that GE had already provided all relevant documents to the Workplace Ombudsman. 

9. The affidavit goes on to assert that Mr Hopkins was required to attend Court but failed to do so.  Once again, that assertion runs into the consent orders made.  Mr Duma then deposes:

   “4.    I did not attend the previous directions hearing in this proceeding because I was not aware it was listed.  This is because I believed that the proceeding had been adjourned because the respondent had not provided through GE Fleet Services, a company acting on behalf of the respondent, pay and employment records relevant to the claim.  I believed that the matter would not be relisted until these documents were provided and that the proceeding also had to proceed to a mediation.”

10. Once again, I am afraid this assertion runs totally contrary to the orders made by consent to which I have referred.  The affidavit goes on to assert – and I fully accept that the applicant is receiving psychiatric treatment, and that his health is unfortunately very poor – and he then goes on to say, relevantly, that he wishes to amend his Statement of Claim to claim compensation for pain and suffering and loss of enjoyment of life and a redundancy payment of 27 weeks to which an entitlement is asserted.

11. Counsel tells me that although it is not on affidavit the respondent has been served and has been aware of these proceedings since late last year. It is further asserted that the applicant is disabled and has not had, as it would have been in his interests to have, a litigation guardian. For present purposes, I am prepared to make assumptions in the applicant’s favour that those assertions are correct. The difficulty with the matter, though, is this: both the WR Act and the FW Act have six year time limits for claims for civil remedies of this sort.

12. The applicant’s case was plainly pleaded as being exactly the sort of claim to which the six year time limit applies.  To permit the application to be reinstated for the purposes not of amending the original claim by asserting larger underpayments of the sort originally claimed, but by substituting a wholly new and unannounced one is, in my view, improper.  That goes also for the claims to the extent that they are articulated in relation to personal injuries claims which this Court would have no prima facie jurisdiction over and claims also of an equal opportunity human rights sort. 

13. One needs to bear in mind that the respondent would be required to respond as to facts now well over six years ago, coming up towards seven if the employment ended in the middle of 2006, as I believe it did. In my view, an application to reinstate under r.16.05 of this Court’s Rules draws to itself many of the sort of considerations that arose in the well-known judgment of Wilcox J in the Hunter Valley Developments case (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344). The Court is required to consider whether there has been an adequate explanation for the delay.

14. While I accept that the applicant may very well have been seriously unwell throughout, it does not immediately explain his failure to attend in 2008, because he was otherwise fully participating in the matter up to that point and had been represented.  Nonetheless, I am prepared to assume in Mr Duma’s favour that he has been very unwell and unfortunately remains very unwell and accordingly the failure to attend in 2008 and the very lengthy delay until this application was filed in November 2012 is not, of itself, decisive.

15. Another matter to be considered is the merits of the claim.  It is not possible to say more than it is possible that there was an award provision for redundancy and that it may have given rise to the sort of claim that the applicant makes.  The difficulty, however, is that there is nothing in the Statement of Claim as originally articulated and which was drawn by legal representatives that suggests that redundancy was in any way an issue in the matter.  It is a surprising oversight, given that the Statement of Claim otherwise exhibits some familiarity with the relevant industrial instruments and one would not have expected it to have been overlooked.  It is not possible to say more about the merits of the claim than that.  They are difficult to evaluate any further. 

16. The decisive consideration, though, in my view, is the prejudice to the respondent in the event that I was to reinstate the proceeding, and to consider permitting the amendments that are now foreshadowed.  The respondent would legitimately have assumed from 2008, at the very least, until late-2012 that all claims against it were at an end.  The respondent conducted itself in the proceeding in a perfectly proper way.  It complied with Court orders and was represented throughout.  It would now be required to try and find witnesses, were witnesses to be required, for a period well-over the normal limitation period and over the statutory limitation period, assuming that that applies.

17. In my view, it would be wholly inappropriate for the Court to exercise its discretion in Mr Duma’s favour.  It follows that the interlocutory application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  15 May 2013