Fair Work Ombudsman v D'Adamo Nominees Pty Ltd (No.3)

[2013] FMCA 183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v D’ADAMO NOMINEES PTY LTD (NO.3) [2013] FMCA 183

INDUSTRIAL LAW – Allegations of contraventions of Workplace Relations Act.

PRACTICE AND PROCEDURE – Adjournment-principles – the availability of Counsel.

Federal Magistrates Act 1999 (Cth)
Federal Magistrate Court Rules 2001 (Cth)
Workplace Relations Act 1996 (Cth), s.824

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Jet World Holdings Pty Ltd v Proplas Industries Pty Ltd [2011] WADC 163

Applicant: FAIR WORK OMBUDSMAN

Respondent: D’ADAMO NOMINEES PTY LTD

File Number: PEG 60 of 2010

Judgment of: Lucev FM

Hearing date: 13 March 2013

Date of Last Submission: 13 March 2013

Delivered at: Perth

Delivered on: 13 March 2013

REPRESENTATION

Counsel for the Applicant: Mr AJ Power

Solicitors for the Applicant: Mark Davidson, Office of the Fair Work Ombudsman

Counsel for the Respondent: Mr G McIntyre SC and Mr D Howlett

Solicitors for the Respondent: Westmont Legal

ORDERS

1. In relation to the Respondent’s Application in a Case filed 6 March 2013:

   (a)the time for completion of order (2) of the Court’s orders of 29 January 2013 be extended to 15 March 2013;

   (b)the time for completion of order (3) of the Court’s orders of 29 January 2013, be extended to 28 March 2013,

   but otherwise the Respondent’s Application in a Case be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 60 of 2010

FAIR WORK OMBUDSMAN

Applicant

And

D’ADAMO NOMINEES PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore reasons edited from the transcript)

1. On 21 December 2012, the Court handed down a judgment in this matter, in which it concluded that a no case to answer submission by the Respondents had been successful, but only to a limited extent and that it had otherwise failed and that it had raised issues in relation to matters of costs which ordinarily might not be raised in such a matter as this, given the terms of s.824 of the Workplace Relations Act 1996 (Cth), as it was. In the circumstances, rather than making declarations or orders of a substantive kind, the Court adjourned the matter to 29 January 2013 to allow the parties to confer with respect to appropriate declarations and orders.

2. On 29 January 2013, the parties were not at one with respect to the orders that the Court ought to make, and the Court, having regard to the length of time which the matter has been in the Court, essentially adopted the proposals of the Applicant with respect to the timeframes for the orders then made and those orders were as follows:

   1.   That the Applicant file and serve its written submissions by 20 February 2013.

   2.   The Respondent file and serve its written submissions by 6 March 2013.

   3.   The Applicant file and serve any written submissions in reply by 20 March 2013.

   4.   The matter be listed at 9:00am on 12 April 2013 for not more than 2 hours for final oral submissions.

3. More than five weeks later, on 6 March 2013, and relevantly to the exercise of the Court’s discretion with respect to these matters, on the very day on which the Respondents’ written submissions were due to be filed and served in accordance with order (2) of the orders of 29 January 2013, the Respondent filed and served an Application in a Case seeking orders including the following:

   1.   The hearing date of 12 April 2013 be adjourned to a date to be fixed.

   2.   The date for the Respondent to file and serve its written submissions be extended to 15 March 2013.

4. That Application in a Case was supported by an affidavit from Gavin Wayne Jahn a solicitor with the Respondent’s solicitor, which was relevantly as follows from paragraph 3 through to 13:

   3.   I have recently briefed Senior Counsel to settle the written submissions and represent the Respondent at the final hearing on liability.

   4.   Senior Counsel has had limited availability to settle the written submissions due to other prior commitments.

   5.   Both I and Counsel for the Respondent have been preparing the Respondent’s written submissions with a view to having them settled by Senior Counsel and meeting the due date.

   6.   However, at the time of making this affidavit I believe that the Respondent will not be able to file its written submissions by the due date.

   7.   Senior Counsel has sought an additional week to settle the Respondent’s written submissions.

   8.   Senior Counsel has indicated to me that he expects to be able to settle the Respondent’s written submissions by 15 March 2013.

   9.   At the directions hearing held on 25 [sic-29] January 2013 the Respondent sought orders which would have given him more time to file written submissions. However, the Court made the orders as proposed by the Applicant.

   10. The Applicant did not meet the due date for its submissions which I received on 22 February 2013.

   11. Senior Counsel is not available on 12 April 2013 as he will be outside the jurisdiction.

5. Paragraph 12 gives Senior Counsel’s unavailable dates before and after 12 April and in paragraph 13 there is an indication that at the time of writing the affidavit amended closing submissions of the Applicant had just been received from the Fair Work Ombudsman’s lawyers.

6. The Respondent, having filed the Application in a Case, then on 7 March 2013, the following day, wrote to the Fair Work Ombudsman, indicating that the Respondent had been unable to file submissions by the due date and indicating that the Application in a Case sought the orders that the Court has already referred to.  Paragraph 4 of that letter indicates as follows:

   We have briefed Senior Council [sic] on the matter. However, he is unable to settle our submissions until 15 March 2013 and we therefore seek the consent of the Applicant to extend the date the Respondent lodges its submissions until 15 March 2013.

7. The Fair Work Ombudsman responded to that letter on 11 March 2013, indicating that there was a preparedness to accept an extension of time for the filing of submissions to 15 March 2013, but that an Application to vacate the hearing date or to adjourn the hearing date to another date was not one that could be acceded to given the amount of time the Application had been outstanding, and that it was considered that any further delay was not in the public interest. The evidence before the Court from the Respondent’s instructing solicitor gives as the basis for the adjournment of the hearing date the unavailability of Senior Counsel because Senior Counsel is out of the jurisdiction. The Court also notes that Senior Counsel is said to have only recently been briefed with respect to appearing at the hearing of the matter.

8. The Court notes that it is not told any reason as to why Senior Counsel is out of the jurisdiction. It may or may not have made a difference as to the Court’s reasoning with respect to the matter if Senior Counsel had been out of the jurisdiction for a private or a public purpose, but the Court is told no more than that Senior Counsel is out of the jurisdiction. The Court also notes that it is not told why it is necessary to brief Senior Counsel who is out of the jurisdiction on the hearing date, and apart from what was indicated in the course of the hearing today, no other information is put before the Court as to whether or not there was any exploration by the Respondent’s instructing solicitors as to the availability of other Senior Counsel who might have been available on the hearing date.

9. As District Court Judge Bowden said in Jet World Holdings Pty Ltd v Proplas Industries Pty Ltd [2011] WADC 163, adjournments are not to be granted merely because they are asked for. The principles with respect to the adjournment of proceedings in this Court are relatively well established. The Court has discretion as to whether or not to allow an application to adjourn proceedings, and in exercising that discretion, the Court must take into account the objects and purposes of the Federal Magistrates Act 1999 (Cth) and the Federal Magistrates Court Rules 2001 (Cth), modern principles of case management, the avoidance of undue delay and the wastage of public resources: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ, [2009] HCA 27 at para.30 per French CJ.

10. The unavailability of a lawyer generally is not, of itself, reason to vacate a hearing date which has been set for some time and in respect of which matter the lawyer concerned has had no significant prior involvement either generally or in respect of the hearing itself. In this case, the position is different, however, in that the Respondent is and has been, and will continue to be, it would appear, represented by a solicitor on the record, who, if the record is any indication, appears to be a competent litigation solicitor, and is also represented by an experienced, particularly in relation to workplace relations matters, junior Counsel.

11. A number of factors influence the Court in its consideration of the impact of the unavailability of Senior Counsel briefed by the Respondent. The first is that there is no explanation as to why Senior Counsel is out of the jurisdiction, and as the Court indicated earlier, the quality of that reason might in some cases make a difference. Second, although it is a matter, generally speaking, for a party as to who they brief, given the nature of this matter, it is not apparent to the Court, as it made apparent in exchanges with Senior Counsel for the Respondent during the hearing, why it is necessary that Senior Counsel be briefed to argue the matter which is listed for a limited time following the filing of written submissions. The Court notes that the matter is one in respect of which the Respondent ran a no case to answer submission unsuccessfully and elected to lead no evidence, and penalty is in issue. The factors within relation to penalty in cases such as this are well known and well set out and well understood, and the Court simply does not understand why it is necessary or required by the Respondent for Senior Counsel to argue this matter. Thirdly, there is no evidence as to what, if any, steps have been taken to obtain an alternative Senior Counsel, if Senior Counsel is said to be warranted. The Court also has regard to other factors, such as the fact that the matter has been listed for some time, a number of weeks already, in a busy first instance federal trial Court. The time, even though it is only two hours, if now vacated, is unlikely to be able to be usefully put to work again by the Court given the limited amount of time between then and now. The Court also notes that the Application to adjourn the hearing date was made on the last day for the filing of the written submissions by the Respondent and there is no indication that it was made at the first time that the Respondent became aware of the unavailability of Senior Counsel. Indeed, the affidavit is silent as to when the Respondent became aware that Senior Counsel would be unavailable and the matter was not advanced much further in submissions today.

12. The Court also observes that there will be further delay if the present date is vacated. It would appear that the first common date available to both parties is 13 May 2013, on which the Court already has a listing, and it may, therefore, be some time, and the Court is talking a matter of months and not weeks, thereafter before the matter can again be relisted. The Court also takes account of the fact that there is no reason why, in its view, junior Counsel, who is an experienced workplace relations barrister, ought not to be able to argue the matter on the basis of submissions settled by Senior Counsel. It would certainly not be the first time that a junior has argued a matter on the basis of submissions that have been settled by a Senior, either known or unknown to a court. Also, the submissions to be settled by Senior Counsel, they will, no doubt, be settled with due care and consideration and the Respondent will have at least the benefit to that extent of Senior Counsel’s input.

13. Overall, the Court also takes account of the fact that, and the Court acknowledges that in some respects the blame lies with it, in part, that this matter has taken three years to reach this juncture; but there has been spirited opposition to date from the Respondent with respect to the matter. That opposition has been unsuccessful to date, and the Court is of the view that the matter should not be further delayed if that can be avoided. That is so especially in circumstances where the proceedings relate to events which will, in any event, be approaching their sixth anniversary by the time of the hearing which is presently scheduled.

14. So for all the above reasons, the Court, in the exercise of its discretion, refuses that part of the Application in a Case which seeks that the hearing date of 12 April 2013 be adjourned to a date to be fixed. With respect to the other orders that are sought with respect to submissions, the Court notes that what is sought in the Application in a Case is an extension of time in which to comply with order 2 to 15 March 2013, although in Senior Counsel’s oral submissions, it was sought to be extended to 22 March 2013. The Court takes the view that given the amount of time which has already expired, given that the Respondent is already past the time due for compliance with that order, given that the Application to extend that time is not made until, effectively, that time had expired, and that if the time is extended to a date beyond 15 March 2013, it will impact upon consequential orders to be made with respect to the Applicant’s submissions in reply and the hearing date, the Application for an order to extend time in order 2 ought only be granted to 15 March 2013. That has some consequential effect in terms of order 3, and the Court notes that in the orders of 29 January 2013, the Applicant was given two weeks in which to file and serve a reply. Two weeks, in this instance, would take the time up to Good Friday, so in those circumstances there will also be a consequential order that time for compliance with order 3 be extended to 28 March 2013, that is, the Thursday before Easter.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 22 March 2013