Fair Work Ombudsman v Nagpal trading as Affordable Movers Brisbane
[2021] FedCFamC2G 38
•7 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Nagpal trading as Affordable Movers Brisbane [2021] FedCFamC2G 38
File number(s): BRG 305 of 2021 Judgment of: JUDGE EGAN Date of judgment: 7 September 2021 Catchwords: INDUSTRIAL LAW – First Court date – no appearance by or on behalf of the respondent – orders made in the absence of the respondent in the interests of the due administration of justice. Division: Division 2 General Federal Law Number of paragraphs: 8 Date of last submission/s: 7 September 2021 Date of hearing: 7 September 2021 Place: Brisbane Solicitor for the First Applicant: Mr D. Welsh of the Fair Work Ombudsman’s Office Respondent: There being no appearance by or on behalf of the Respondent ORDERS
BRG 305 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: FAIR WORK OMUDSMAN
Applicant
AND: RAHUL NAGPAL TRADING AS AFFORDABLE MOVERS BRISBANE ABN 70 223 473 561
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
7 SEPTEMBER 2021
IT IS DECLARED THAT:
1.Pursuant to the provisions of s. 45(1) of the Federal Circuit Court of Australia Act 1999 (Cth), and r. 14.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), it is appropriate, in the interests of the administration of justice, to allow discovery by all parties in this proceeding.
IT IS ORDERED THAT:
2.The Respondent shall file and serve a Notice of Address for Service on or before 4:00pm on 10 September 2021.
3.The Respondent shall file and serve a Defence on or before 4:00pm on 24 September 2021.
4.The Applicant shall file and serve a Reply on or before 4:00pm on 1 October 2021.
5.The parties are to each make, file and serve an affidavit of disclosed documents on or before 4:00pm on 11 October 2021.
6.The parties shall undertake mutual inspection of the opposing party’s disclosed documents on or before 4:00pm on 18 October 2021.
7.Pursuant to s. 34 of the Federal Circuit Court of Australia Act 1999 (Cth), and r. 30.14 of the Federal Circuit and Family Court Rules (Division 2) (General Federal Law) 2021 (Cth), this matter be referred to mediation before a Registrar of this Court, with such mediation to be held in Brisbane on a date to be fixed by the Registrar after:
a. 1 November 2021; and
b. Liaising with the parties as to their availability.
8.The matter be listed for directions on a date to be fixed following the mediation.
9.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
10.The costs of and incidental to today’s hearing be reserved.
IT IS NOTED THAT:
A. The Court, in deciding to make the declaration in Paragraph 1 of these Orders, had regard to:
(i) The likelihood that ordering discovery would contribute to the fair and expeditious conduct of the proceeding; and
(ii) That discovery by all parties would fairly result in the disclosure of all relevant documentation for the purposes of the trial of the proceeding.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE EGAN:
This matter was called on for a directions hearing today at 9:45am. The respondent has without good reason failed to appear before the Court today.
Exhibit 1 is a series of emails sent by the Associate, Mr Welsh on behalf of the applicant, and the respondent, concerning the listing of the matter before the Court today. The earliest email in the exhibit was an email from the Associate to Mr Welsh, dated 26 August 2021. The Court was informed by Mr Welsh that when it was known to him that the matter was listed for directions today, the applicant took steps to send an email to the respondent, advising him of that fact. I have no reason to doubt that what Mr Welsh has said to the court was true.
Yesterday, Judge’s Chambers received an email from the respondent, addressed to the Associate, which said as follows:
“Sorry. I can’t make it. Can we do this over the phone?”
In response to receiving that email, the Associate was yesterday instructed to send an email to the respondent asking him as to why he had said that he would be unable to appear in person today. As can be seen from the email below, the respondent this morning replied as follows:
“Hi, I am sorry. I don’t feel well, and I don’t want to take the risk by coming there due to COVID. But I am more than happy to speak over the phone.”
It should be noted that at the time of the hearing, there were no travel restrictions in place throughout Queensland, and no Court access restrictions in place, due to Covid.
As a result of the receipt of that email correspondence from the respondent, the Associate telephoned the respondent on a mobile number provided to him by Mr Welsh. The telephone call made by the Associate was not answered, and the call went to the respondent’s message bank.
In circumstances where the respondent has not availed himself of the opportunity to be before the Court and make any submissions he may have wanted to make on his own behalf, the Court considers that it is appropriate that, in the interests of justice, orders ought to be made progressing the matter.
In the light of the contact to date from the respondent, the Court was not reassured that any adjournment of the directions hearing would result in any better outcome in terms of the respondent’s appearance than there was today. Accordingly, the Court makes orders as per the draft sent to the parties, save that in respect of order number seven (7), the mediation provided for shall take place before a Registrar of the Court, rather than before a private legal practitioner.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 10 September 2021
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