Fair Work Ombudsman v New Image Photographics Pty Ltd and Anor (No.3)
[2013] FCCA 1016
•26 March 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v NEW IMAGE PHOTOGRAPHICS PTY LTD & ANOR (No.3) | [2013] FCCA 1016 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave to file and read a further affidavit of evidence in chief by the second respondent – no explanation for respondent’s failure to file the affidavit in accordance with earlier directions. |
| Legislation: Fair Work Act 2009 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | NEW IMAGE PHOTOGRAPHICS PTY LTD (ACN 010 823 042) |
| Second Respondent: | BRYAN CHARLES BEDINGTON |
| File Number: | BRG 166 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 26 March 2013 |
| Date of Last Submission: | 26 March 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 26 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pratt |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Solicitor for the First and Second Respondents: | Mr Copely |
| Solicitors for the First and Second Respondents: | Milner Lawyers |
ORDERS
The application for leave to file and read an affidavit sworn by the second respondent, Bryan Charles Bedington on 26 March 2013 is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 166 of 2012
| FAIR WORK OMBUDSMAN |
Applicant
And
| NEW IMAGE PHOTOGRAPHICS PTY LTD |
First Respondent
| BRYAN CHARLES BEDINGTON |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application for leave to rely on an affidavit that was sworn by the second respondent, Bryan Charles Bedington this morning.
It is worth recounting the history of the matter. The proceedings were commenced in February of 2012 when the applicant filed an application and a statement of claim. It came before the Court on 15 March, 2012 for directions.
On that day, the Court ordered that the respondent file and serve a defence in accordance with rule 4.05 of the Federal Magistrates Court Rules 2001 by 4:00pm on 16 April, 2012 and a direction was thereafter made for the applicant to file and serve any reply by 26 April, 2012. There was then to be a mediation to be held on or before 30 June, 2012.
Neither respondent ever filed a defence. There is no explanation for the respondents not filing a defence in accordance with the orders made by the Court. Indeed, today the respondents’ legal advisers did not even know the direction had been made.
On 12 July, 2012 and after the mediation that had occurred between the parties had come to nothing, the Court made some further directions. The first was for the applicant to file and serve affidavit material upon which he intended to rely by 5 August. The respondents then had to file and serve any affidavit material upon which they intended to rely by 26 August. There was a direction for the filing of an outline of submissions by each of the parties.
The matter was adjourned to 18 October for directions, but it was otherwise fixed for trial for 5 November. On 18 November, some further directions were made for the filing and serving of outlines of submission: the applicants by 29 October, the respondents by 2 November and a reply, if any from the applicant by 29 October. There is obviously an error with that last date. The trial, however, had to be adjourned for reasons that had more to do with the Court than anything else and it was adjourned to today.
More directions issued on 26 October 2012. No directions were made for the filing and service of any material because the parties, I think on at least three occasions, told the Court that all of their material had been filed. There were directions made for the exchange of outlines of issues of fact and law which have to a greater or lesser extent been complied with.
Against that background then, today, on the morning of the trial, the respondents seek leave to rely on a further affidavit of evidence in chief. I am told that the affidavit of evidence goes mainly to two issues in the case.
The first is the identity of the relevant employer. That is a significant issue in this case because the respondents say that if there were ever any breaches of the Fair Work Act 2009, it was not committed by New Image Photographics Pty Ltd, but by another company. There is new evidence apparently which goes to a second issue, namely the hours worked by an employee who is one of the central characters in this case and there is some new evidence that goes to a third issue, an issue of record keeping under the Fair Work Act.
There is also some other evidence which it is said, “adds to” the earlier evidence given by the first respondent, none of which it is said should take the applicant by surprise and in respect of which the applicant can give instructions, put relevant documents to his witnesses and be ready to commence the trial.
In my view, the application ought to be refused. There is no evidence which explains in any way, shape or form the failure of the respondents to place this evidence before the Court before today. The fact that it raises new evidence in relation to the crucial issues in the case on the day of the trial means that the applicant has not been given a proper opportunity to prepare his case.
In the course of submissions, I suggested to Mr Pratt on behalf of the applicant that he might stand down, talk to his witnesses, put the relevant matters and documents raised by the new material to them and perhaps even seek an adjournment if that was necessary, but on reflection, that is an inappropriate course. The applicant is here ready to proceed. The applicant is entitled to approach the case on the basis that all of the evidence has been filed.
In those circumstances, there is no basis upon which, it seems to me, leave ought to be granted to file the affidavit. The application is refused.
RECORDED: NOT TRANSCRIBED
The application for an adjournment is refused. There is still no evidence produced to me to explain the delay in filing what is said to be “crucial” affidavit material. One would have thought that if an adjournment application was to be pursued, there would be some evidential material placed before the Court for granting it. The only reason that appears at the moment is that I have refused the respondents leave to rely on a further affidavit of evidence in chief that ought to have been filed last year.
There is no explanation as to why it was not. It is apparently evidence which consists of documents, one of which has been in existence since 2006. In those circumstances, I see no basis to grant an adjournment. The adjournment is refused.
I do not propose to enter judgment, in default of the filing of the defences, Mr Pratt.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 2 August 2013
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