Fair Work Ombudsman v NSW Motel Management Services Pty Ltd
[2019] FCCA 1055
•15 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v NSW MOTEL MANAGEMENT SERVICES PTY LTD & ORS | [2019] FCCA 1055 |
| Catchwords: INDUSTRIAL LAW – Respondents’ application for an adjournment of penalty hearing – choice of counsel – applicant does not oppose – relevant considerations – penalty hearing adjourned. |
| Legislation: Fair Work Act 2009 (Cth) |
| Cases cited: Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2) [2018] FCCA 1935 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | NSW MOTEL MANAGEMENT SERVICES PTY LTD |
| Second Respondent: | MICHAEL PARKES |
| Third Respondent: | ROWENA SIOCO PARKES |
| File Number: | MLG 661 of 2016 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 15 April 2019 |
| Date of Last Submission: | 15 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Avallone |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondents: | Ms Stonier |
| Solicitors for the Respondents: | Stonier & Associates |
ORDERS
THE COURT ORDERS THAT:
The penalty hearing listed on Wednesday, 17 April 2019 be vacated and adjourned to Monday, 29 July 2019 commencing at 10:00am at the Federal Circuit Court in Melbourne.
No further material is to be filed by either party without leave of the Court being obtained.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 661 of 2016
| FAIR WORK OMBUDSMAN |
Applicant
And
| NSW MOTEL MANAGMENT SERVICES PTY LTD |
First Respondent
| MICHAEL PARKES |
Second Respondent
| ROWENA SIOCO PARKES |
Third Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
These reasons concern an application filed on 12 April 2019 by the respondents to adjourn the penalty hearing currently fixed for Wednesday, 17 April 2019.
Background
On 20 July 2018, the Court published reasons for judgment in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2) [2018] FCCA 1935 (“the Liability decision”).
On 22 August 2018, declarations were made to give effect to the findings in the Liability decision, that the respondents had contravened various civil remedy provisions of the Fair Work Act 2009. Those declarations were made for the reasons set out in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.3) [2018] FCCA 2330, (“the Declarative decision”). On 22 August 2018, there was also a date fixed for a hearing on 14 March 2019 for the Court to determine the appropriate civil penalties that should be imposed on the respondents for that contravening conduct.
Subsequently, and either pursuant to orders of the Court or by agreement, the parties filed material for the purposes of the penalty hearing. Shortly before the date fixed for the penalty hearing in March 2019, the solicitor for the respondents sought to adjourn the hearing due to the illness of Counsel who had been briefed to appear.
At a telephone mention on 28 February 2019, and as the applicant consented to the request made on behalf of the respondents, the penalty hearing was adjourned to 17 April 2019.
On 4 April 2019, and following discussions between the parties’ solicitors, the respondents’ solicitor emailed the Court seeking to again adjourn the penalty hearing which had been fixed for 17 April 2019.
At a telephone mention on 5 April 2019, the parties were advised the Court would not entertain the adjournment request without a proper application with supporting affidavit material. Pursuant to directions made at that mention, the respondents filed an application in a case supported by an affidavit of their solicitor Ms Stonier on 10 April 2019. On 12 April 2019, the applicant filed a response and an affidavit of Ms. Evyenia Vegarkis, a lawyer employed by the applicant involved in the carriage of the matter.
Pursuant to the directions made on 5 April 2019, the respondents’ application in a case was listed for hearing today, Monday, 15 April 2019. Ms Stonier appeared on behalf of the respondents and Mr Avallone of Counsel appearing on behalf of the applicant.
Submissions
The respondents’ position
The orders sought in the application in a case filed on 10 April 2019 were:
“1.Order 1 of the orders made on 28 February 2019 be amended and the date of 17 April 2019 be deleted and replaced with a date to be fixed.
2.Such further or other order as the Court sees fit.”
In the affidavit in support of the respondents’ application in a case, their solicitor Ms. Stonier deposed:
“3.On 2 April 2019 I received a telephone call from Ms Aggy Kapitankiak who advised me she had against been hospitalised and would be unavailable for the penalty hearing listed for 17 April 2019.
4.On 2 April 2019 I telephone (sic) Mr. Matthew Albert and asked if he was available on 17 April 2019, he having previously advised me he was unavailable. Mr. Albert confirmed he remained unavailable by reason of having an appearance in the Northern Territory Civil and Administrative Tribunal that day.
5.I contacted the applicant in this case and by email on 4 April 2019 I obtained written advice the applicant would not oppose my clients’ application for an adjournment.
6.On 4 April 2019 I emailed His Honour Judge O’Sullivan with my client’s request for an adjournment.
…
8.In anticipation of the Penalty hearing being heard as currently listed the respondents made arrangements for work, travel and medical procedures.
…
13.Ms Kapitaniak is unavailable on 17 April 2019 due to a medical condition. Now produced and shown to me and marked SS16 is a letter supporting her unavailability on medical grounds.
14Although Mr. Albert is not briefed for the penalty hearing I advise he is next available from 5 August 2019. Mr. Albert’s wife is due to give birth on 29 May 2019 and he will be on paternity leave and overseas from then until 5 August 2019. Mr. Albert is briefed in seven Federal Court appeals in May 2019, with the result that he is not otherwise available that month having regard to the due date for his next child.
15.I humbly request the Penalty Hearing be adjourned to enable the Respondents to brief their Counsel of choice Mr Kapitaniak. The Respondents submit the granting of the adjournment will allow them to present their case properly to the court and will ensure justice between the parties.”
The applicant’s position
In her response to the application in a case, the applicant’s position was:
1.The Applicant does not oppose the orders sought by the Respondents in their application in a case of 10 April 2019.
2.If the Court considers it appropriate to adjourn the hearing currently listed for 17 April 2019, the Applicant seeks that the matter be listed for a hearing on the earliest date convenient to the Court when those of the Applicants witnesses who are required for cross examination, and counsel for the Applicant, are available.
…
5.If the Court considers it appropriate to adjourn the hearing currently listed for 17 April 2019. The Court might consider it appropriate to set a date which gives the Respondents a reasonable opportunity to brief new counsel, to deal with the limited question of the appropriate penalties to be imposed for declared contraventions of the Fair Work Act 2009 (Cth). The parties have each filed evidence and detailed submissions on this issue.
6.In circumstances where three of the Applicant’s witnesses are currently required for cross-examination, and counsel for the Applicant is briefed, available and prepared to appear on 17 April 2019, the Applicant seeks that any adjourned hearing be listed on a date when those of the Applicant’s witnesses who are required for cross-examination, and counsel for the Applicant, are available so as to limit the prejudices and cost to the Applicant as a consequence of any adjournment.”
In her affidavit filed in support of that response, Ms. Vegarkis deposed to the background to the penalty proceedings, the arrangements made for the penalty hearing and witness and Counsel’s availability.
Consideration
It has been made clear that courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (“Aon”)). In Aon their Honours made a number of points, which included that:
a)the conduct of litigation is not merely a matter for the parties. The need to avoid disruptions in the court’s lists, with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
b)when considering an application such as this the court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Circuit Court Act 1999 (Cth)[1] and the Federal Circuit Court Rules 2001 (Cth),[2] as prescribed by the objects of the FCC Act[3] and the objects of the FCCA Rules,[4] provide for the Court to operate in a manner:
·as informal as possible in the exercise of judicial power;
·which is not protracted in its proceedings;
·which resolves proceedings justly, efficiently and economically;
·which uses streamlined procedures; and
·that avoids undue delay, expense and technicality.
[1] FCCA Act
[2] FCCA Rules
[3] FCCA Act, ss.3 and 42.
[4] FCCA Rules, r.1.03.
Also relevant is the history of this matter and the stated reasons for the orders sought in the respondents’ application in a case. In Australian Competition and Consumer Commission v Bon Levi (No.2) (2008) FCA 788 at paragraphs [15], [16] and [23] it was said:
“15.Whether an adjournment is granted is a matter of discretion. In exercising that discretion the Court will take into account the circumstances giving rise to the application for the adjournment and the prejudice that may be suffered. The Court will exercise its discretion in the interests of justice.
16.In this case, the major ground relied upon by Mr Levi is that counsel of his choice will be unavailable. Whilst it is the case that the Court will try to facilitate a party being represented by counsel of his or her choice, particularly in a quasi-criminal case such as this, there is no absolute right to be represented by counsel of one’s choice. (See, R v Williams (2007) 16 VR 168 (R v Williams).) In considering whether to grant an adjournment on the basis of the unavailability of counsel, the Court takes into account in exercising the discretion, whether the non-availability of counsel arises from any fault on the part of the applicant for the adjournment, any history of delay, any prejudice and the public interest.
…
23.The observations of King J in R v Williams at 180, at [70] are apposite:
Whilst the court can and will do all they can to accommodate counsel of choice for accused persons, it cannot be that they are entitled to select a counsel who will not be available for a lengthy period and thereby compel the court to adjourn matters that are capable of being heard.””
The decision of the Victorian Supreme Court in R v Williams (2007) VSC 2 referred to above was to the effect that:
“69.I have considered all of those matters together with the desirability of Williams being represented, not only for himself, but in relation to the problems that it will create for the crown and the court in providing the necessary assistance that must be provided to Williams. I have considered the relationship that it is said Mr. Faris enjoys with Williams and the confidence that he has in Mr. Faris, but on balance, I do not accept that it is in the interests of justice to adjourn this trial for a period of at least six months, on the expectation that Williams may brief Mr. Faris to conduct his trial.
70.I wish to add that even if the Charter had been operative, my decision would have been the same. Whilst the Court can and will do all they can to accommodate counsel of choice for accused persons, it cannot be that they are entitled to select a counsel who will not be available for a lengthy period and thereby compel the court to adjourn matters that are capable of being heard. This matter has been the subject of decisions in other countries and I will refer only to one, that of the Canadian decision of R v McCallen a decision of the Ontario Court of Appeal which stated:
Many of the same factors come into play in decisions whether to adjourn a trial date in order to permit an accused’s counsel of choice to be available. The emphasis is on the reasonableness of the delay involved in accommodating the accused’s choice; if the counsel of choice is not available within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required, if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time; see R v Lai; Barette v The Queen and R v Smith.
46. In determining what is a reasonable period of time, the court will balance many factors including the reason counsel is not available sooner, the previous involvement of the particular counsel in the case, the public interest in having criminal cases disposed of in an expeditious manner, the age and history of the case, the availability of judicial resources and the best use of courtroom facilities, the availability of the complainant the witnesses, the availability and use of Crown counsel and law enforcement officers...
47. There is no formula that can be rigidly applied in balancing these different factors and what is reasonable in one case may not be reasonable in another. Rigid rules defeat the very nature of the discretionary decision that is required. However, guidelines are helpful because they bring a measure of predictability to scheduling decisions that will assist the various participants in the process. It is the trial courts that are in the best position to assess and balance the circumstances and resources that are available in a particular region and to develop guidelines that make the most sense for that region.””
Conclusion
In determining the respondents’ application in a case, I have considered the factors in Aon along with the factors referred to in the aforementioned decisions. Given the stated reason for the adjournment and weighing the prejudice to the respondents if it was refused, against the further delay to the proceedings because of the availability of the respondents’ counsel of choice and that all the material for the scheduled penalty hearing has already been filed I am prepared to yet again adjourn the penalty hearing but not for a considerable period of time.
The material relied on by the respondents in support of their application in a case does leave something to be desired. However, given the position of the applicant, the penalty hearing will be adjourned to Monday, 29 July 2019. This will enable both parties, as I am presently advised, to retain their counsel of choice and have the penalty hearing within a reasonable period of time. For those reasons, I so order.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 17 April 2019
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