Fair Work Ombudsman v Buffalos Cairns Operations Pty Ltd
[2022] FedCFamC2G 871
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Buffalos Cairns Operations Pty Ltd [2022] FedCFamC2G 871
File number(s): BRG 446 of 2021 Judgment of: JUDGE EGAN Date of judgment: 13 October 2022 Catchwords: FAIR WORK – Where Respondent filed an application for adjournment due to alleged Covid-19 diagnosis – where no appropriate medical certificate put before the Court – where arrangements made for Respondent to appear by Microsoft Teams – Application for adjournment dismissed. Cases cited: MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 13 October 2022 Place: Brisbane Date of hearing: 13 October 2022 Counsel for the Applicant: Ms A Low Solicitor for the Applicant: Fair Work Ombudsman Solicitor for the Respondent: No Appearance by or on behalf of the Respondent ORDERS
BRG 446 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: BUFFALOS CAIRNS OPERATIONS PTY LTD
Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
16 November 2022
THE COURT ORDERS THAT:
1.The Respondent’s email application for an adjournment of the trial listed for 13 and 14 October 2022 be dismissed.
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 Egan
Introduction
The matter was called this morning for final hearing.
Ms Lowe of counsel appeared on behalf of the applicant but there was no appearance either via Microsoft Teams, or in person, by or on behalf of the respondent company.
By way of relevant history, for some time appearances in this matter by the leave of the Court have been made by one Mr Dabboussi, who was a director of the respondent.
When this matter was listed for directions on 19 July 2022, Mr Dabboussi sought an adjournment of such directions hearing due to his having allegedly contracted COVID. No appropriate medical report substantiating that assertion was put before the court, and accordingly the matter proceeded. Directions progressing the matter were made on that day.
The order made on 19 July 2022 included an order for the setting down of the final hearing of this matter to commence today for two days. Prior to the hearing, the respondent had sent to the court emails dated 10 October 2022, and a medical certificate from one Dr Mohammed Awal dated 29 September 2022 which indicated that Mr Dabboussi:
…has been suffering from anxiety with panic attack. He is not fit for work from 29 September 2022 to 29 October 2022.
Also attached to one email of 10 October 2022 was a referral letter signed by Dr Awal to one Dr John Roberts dated 29 September 2022.
There was attached to a second email sent by Mr Dabboussi on 10 October 2022 to chambers a further medical certificate which was purportedly signed by the medical practitioner Dr Awal which again certified that the patient Dabboussi was unfit for work/study from 10 October 2022 to 10 December 2022. In response to receipt of that medical certificate, the court asked the associate to respond to that email by indicating that the medical certificate attached was unsatisfactory to warrant an adjournment of the hearing in that it did not address Mr Dabboussi’s ability to attend a court hearing or not.
Arrangements were made by the court for Mr Dabboussi to appear at the trial via Microsoft Teams, but no such appearance before the court via that medium was effected by Mr Dabboussi, or by someone else on behalf of the company.
In MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 Logan J dealt with the question of applications for adjournments made based upon the production of medical certificates. His Honour referred to a judgment of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 particularly at paragraphs [6] – [8] of that judgment where Lindgren J at paragraph 8 said as follows:
“If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.”
Lindgren J refused the application for the adjournment in NAKX. At paragraph 11 of the judgment of Logan J in MZAKQ, when referring to the opportunity cost in terms of public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of the proceeding, his Honour said as follows:
“Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited[1993] HCA 47; (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
... the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.”
In this particular matter the medical reports which were produced to the court did not satisfactorily address the ability of the representative of the company Mr Dabboussi to adequately appear before the court today. In such circumstances, there is no basis for adjourning the hearing and it is ordered that the application for an adjournment, such as it was, is refused.
That being so, the trial was adjourned on the basis that the applicant was required to amend its Statement of Claim.
In such circumstances, appropriate orders progressing the matter were separately made.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 15 November 2022
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