Dyson v LC Dyson's Bus Services Pty Ltd
[2023] FedCFamC2G 834
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dyson v LC Dyson's Bus Services Pty Ltd [2023] FedCFamC2G 834
File number: MLG 1932 of 2022 Judgment of: JUDGE FORBES Date of judgment: 31 August 2023 Catchwords: PRACTICE AND PROCEDURE – Fair Work – application to vacate trial dates – application made on morning of trial – applicant’s inability to secure counsel – consideration of case management principles – prejudice to respondent – where respondent had prepared for trial – trial dates vacated – applicant to pay respondent’s costs – proceedings stayed until costs paid Legislation: Fair Work Act 2009 (Cth) s 340,
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190, 191
Cases cited: Aon Risk Services v Australian National University (2009) 239 CLR 175 Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 31 August 2023 Place: Melbourne Solicitor for the Applicant: Esser Legal Counsel for the Respondent: Mr Minucci Solicitor for the Respondent: Hall & Wilcox ORDERS
MLG 1932 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHERYL DYSON
Applicant
AND: L.C. DYSON'S BUS SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
31 AUGUST 2023
THE COURT ORDERS THAT:
1.The trial listed to commence on 31 August 2023 on an estimate of 2 days shall be vacated and relisted for hearing on a date to be fixed.
2.The Applicant shall pay the Respondent’s costs of the vacated trial thrown away, such costs to include the Respondent’s costs of preparing for the trial incurred from 22 August 2023.
3.Costs as per Order 2 above shall be assessed and paid on a party/party basis.
4.The Applicant’s representative shall within 7 days of the making of these orders, provide a written submission (not exceeding 5 pages in length) addressing the question of why the Respondent’s costs thrown away ought not be paid by him pursuant to Rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
5.After receipt of any submissions from the Applicant’s representative, the Court will determine whether any of the costs ordered pursuant to Order 2 should be paid by the Applicant’s representative.
6.Subject to any further order of the Court, the Applicant is to take no further step in the proceeding until such time as the costs ordered pursuant to Order 2 have been paid to the Respondent in full.
7.Liberty to apply.
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
(Delivered Ex Tempore – Revised from Transcript)JUDGE FORBES
In this matter, the applicant seeks relief against the respondent in relation to alleged contraventions of section 340 of the Fair Work Act 2009 (Cth) (the FW Act). I do not think it is presently necessary for me to say more about the nature of the proceeding.
The matter was listed for trial to commence this morning. The applicant, by her solicitor, Mr Esser, seeks an order that the trial be vacated and relisted at a future date. The basis for the application is that the applicant has been unable to secure appropriate counsel to present her case to the Court. The application for an adjournment and vacation of the trial dates is opposed by the respondent.
These proceedings were commenced by an application filed in August 2022. In October 2022, orders were made by Registrar Luxton for the matter to be listed for trial and for various pre-trial steps to be taken prior to the trial. I note that those pre-trial steps included, among other things, that the application file and serve an outline of submissions 14 days before trial. That does not appear to have occurred.
On 2 November 2022, the parties were notified by my chambers that the matter had been listed before me on 31 August 2023 at 10.15am, on an estimate of two days. The parties were also informed that a pre-trial case management hearing would be held on 17 August 2023.
Over the course of the past few months, various orders were made by consent, providing extensions, or changing the time for filing of various relevant documents.
On 16 August 2023, my chambers received correspondence from the applicant’s solicitor which noted that he had received instructions from his client to request a vacation of the trial date and for the matter to be referred to mediation. The matter came before me at the case management hearing on 17 August 2023, two weeks ago, at which those matters were discussed and dealt with. It will be recalled that I rejected the application for the trial date to be vacated, but I acceded, with some reluctance and for reasons which I gave that day, to the applicant’s request for a pre-trial mediation.
It would have been apparent to the applicant on that day, from what I said, that the trial date would not be vacated. Indeed, I recall asking the applicant’s representative whether there was any reason why the matter could not proceed if mediation failed and he said that there was not. It should also have been apparent to the applicant on that day that mediation had limited prospects. The attitude of the respondent’s counsel made that fairly plain at the time and I infer that other communications between the parties has probably been consistent with the parties being at some distance.
In any event, I am informed that the matter did not resolve at mediation on 21 August 2023.
The application for an adjournment is made by the applicant and supported by an affidavit from her solicitor, Mr Esser. Mr Esser has deposed, in his affidavit, to various attempts made by him to obtain counsel to be available for the trial date today. In that affidavit, which was addressed orally further this morning, Mr Esser said that he had briefed Mr Millar of counsel in May this year to provide an opinion on quantum and that he had an expectation that Mr Millar would be available to appear at trial - although it is plain that Mr Millar was never formally briefed for trial and it would appear that when inquiries were made, he was unavailable.
There does not appear to have been any steps taken by the applicant’s solicitor between 17 August 2023, which was the last case management hearing and 21 August 2023, which was the mediation. Mr Esser has deposed to taking steps to commence the process of engaging counsel on 21 August 2023 while the mediation was underway but not looking favourable. I will not rehearse all the evidence contained in Mr Esser’s affidavit, save that it deposes to various attempts made to engage at least four members of counsel over the period of last week.
Mr Esser has also deposed to having made inquiries of a number of barrister’s clerks seeking counsel in a particular price range and experience. Mr Esser deposes and further submits that in at least one or two of the cases where counsel had been approached and discussions had been had, that there was at least an “understanding” that counsel had accepted a brief. Mr Esser says that understanding then put on hold the need to search out further counsel.
The affidavit filed by Mr Esser paints, what appears to me to be, a part of the picture of the various communications which have occurred. In my view, it is not necessary for me in dealing with this application to make any findings as to whether barristers have, in fact, been engaged; or whether any barrister has breached a retainer. Suffice to say, I accept that during the course of last week, various efforts were made by Mr Esser to retain counsel, although my view on the material is that those efforts were targeted - perhaps not unsurprisingly, to retaining counsel with experience in industrial and employment matters, and at a particular level of seniority - but certainly do not satisfy me that efforts to retain more junior counsel, or to approach all barristers’ clerks within Melbourne had been done. There is no evidence as to what further steps had been taken since midday last Friday.
The respondent oppose the application for an adjournment and, unsurprisingly, say that the current circumstances in which the applicant finds herself are entirely of the making of the applicant and/or her solicitor. The respondent’s counsel Mr Minucci used the expression that the applicant and her solicitor have “run the gauntlet”, which I think is an apt description of what has occurred here. It seems to me that what the applicant has done is to live in the hope that the mediation of this matter might have resolved things and if that had materialised there would, in fact, be no necessity to engage counsel to run a trial. I accept that there may well have been economic reasons for adopting that position. Nonetheless, adopting that position in the circumstances of this case was a very high risk strategy and ran the very real risk of the applicant finding herself in the situation in which she is now in. The respondent is entirely blameless.
In dealing with an application for an adjournment made at a very late stage in proceedings, the Court has to take into account a number of matters. Those matters are articulated in the well known High Court case in Aon Risk Services v Australian National University (2009) 239 CLR 175 (‘Aon Risk’). The principles in Aon Risk sit comfortably with and, in fact, were probably the impetus for provisions in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules), which require conduct of proceedings to be taken and managed in accordance with an overarching purpose. Section 190 of the FCFCOA Act provides that:
The overarching purpose of civil practice and procedure is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and as efficiently as possible.
That overarching purpose includes a number of important objectives, namely:
(1)the just determination of all proceedings in this Court,
(2)the efficient use of the judicial and administrative resources for the purposes of the Court;
(3)the efficient disposal of the Court’s overall case load;
(4)the disposal of all proceedings in a timely manner; and
(5)the resolution of disputes at a cost which is proportionate to the importance and complexity of the matters in dispute.
There is a corresponding obligation on parties and practitioners in proceedings before this Court to conduct proceedings in a way which is consistent with that overarching purpose, and that is set out at section 191 of the FCFCOA Act. The overarching purpose imposes an obligation on not only parties but also practitioners, to ensure that matters are brought to this Court as quickly, inexpensively and as efficiently as possible; and that, at all times, parties and practitioners be mindful of the efficient use of the Court’s resources.
Suffice to say, what the High Court said in Aon Risk is that when exercising discretion in a matter of this kind, where a discretion is sought very late in a proceeding, the Court’s discretion is not to be exercised solely by reference to whether there is a prejudice to one or other parties which could be compensated by costs. Other matters have to be taken into account, such as the unfair prejudice to a particular party that might be irreparable, caused by delay; the time devoted by the Court, which is a publicly funded resource; any inefficiencies in the use of the Court’s resources arising from vacation of trials; and maintaining public confidence in the judicial system.
There is imposed upon a party which seeks an indulgence from the Court at a late stage in a proceeding an obligation to provide an explanation which satisfies the Court of the need for that indulgence, in this case, being an adjournment. All of that said, the Act, the Rules and the appropriate authorities make it clear that the attainment of justice is a two way street and that the interests of the applicant cannot be considered without also considering the impact of an adjournment on the party who has been brought into the litigation.
The matters to which I turn my mind are, first of all, the reasons for the adjournment. It seems to me that the reasons for the application and the adjournment lie entirely at the foot of the applicant, and as I say, the respondent should consider themselves blameless.
I accept that the applicant’s solicitor has made efforts, albeit very late in the piece, to obtain counsel and has been unsuccessful in that endeavour. That places the applicant herself in a very difficult position, and that is a matter that I also have to take into account.
Secondly, I should also consider any delay in bringing the application. The application has been formally pressed today, but I note that Mr Esser did flag with the respondent last week that this application would be made. That does not make the application itself any stronger but, at least, I note that it was not brought upon the respondent by surprise and that the applicant at least took some steps to address the matter with the respondent.
Thirdly, any prejudice to the respondent that cannot be compensated by an order for costs. The traditional view in the Courts was that where a matter was adjourned or a trial vacated, that that could simply be addressed by and ameliorated by an order for costs in favour of the inconvenienced party. However, I accept what Mr Minucci submitted to the Court, namely that in matters of this kind, a very substantial amount of work goes into the proceeding, including bringing witnesses to the Court, briefing witnesses. I have no doubt, Mr Minucci and his instructing solicitor have prepared themselves to be able to run the matter today, and Mr Minucci has indicated to me that the respondent is ready to go.
There is also the effect of any adjournment upon the Court and other litigants before the Court. I think I observed a week or two ago that it may not be possible for this matter to be relisted for certainly many, many months. That might change, but as things presently stand, if the matter remains in my docket, it will be months before the matter can come before me again.
There is also – can I just say – perhaps a lack of appreciation on the part of parties about the work that a Court has to do to prepare before these matters come on. I do not just turn up on the bench. There is a load of material to be looked at. There is preparation that is done. There are objections to be looked at, and that might be bad luck for me, but it is a use of the Court’s resources that could otherwise be deployed to doing other things. I will not labour the points any further.
Having regard to the submissions that I have received from both parties today and having regard to all the circumstances of the case, I have decided to exercise my discretion as follows:
(a)The trial listed to commence this day on 31 August 2023 on an estimate of two days shall be vacated and relisted on a date to be fixed;
(b)The applicant shall pay the respondent’s costs thrown away, such costs to include the respondent’s costs of preparing for trial incurred from 22 August 2023. The costs ordered pursuant shall be assessed and paid on a party-party basis;
(c)The applicant’s representatives shall, within seven days, provide a written submission not exceeding five pages addressing the question of why the respondent’s costs thrown away ought not be paid by him pursuant to Rule 22.06 of the Rules;
(d)After receipt of any submission from the applicant’s representative, the Court will determine whether the costs should be paid by the applicant’s representative;
(e)Subject to any further order of the Court, the applicant is to take no further step in this proceeding until such time as the costs ordered have been paid in full; and
(f)Further, I will grant liberty to apply.
I am mindful of the consequences of any other order I might make and the potential consequences of that order upon the applicant today. What I have endeavoured to do is to strike a balance by granting the adjournment. The applicant, should she wish to, can continue pressing her case. The inconvenience to the respondent by reason of the adjournment has been be accommodated as best the Court can do so.
Those are the orders I will make.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 31 August 2023
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