Fair Work Ombudsman v Proplas Ndustries Pty Ltd & Anor and Fair Work Ombudsman v Blacklight Investments Pty Ltd & Anor (No.2)
[2011] FMCA 976
•1 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v PROPLAS NDUSTRIES PTY LTD & ANOR AND FAIR WORK OMBUDSMAN v BLACKLIGHT INVESTMENTS PTY LTD & ANOR (NO.2) | [2011] FMCA 976 |
| PRACTICE AND PROCEDURE – Adjournment – principles – interests of justice – case management considerations. |
| Federal Magistrates Act 1999 (Cth), ss.3, 64(4), (5) and (6) Federal Magistrates Court Rules 2001 (Cth), r.1.03 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 DCT v Barnes (No.2) [2008] FMCA 1229 Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Jet World Holdings Pty Ltd v Proplas Industries Pty Ltd [2011] WADC 163 Westlawn Finance Ltd v Bennell [2009] FMCA 915 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | PROPLAS INDUSTRIES PTY LTD |
| Second Respondent: | BRENDAN RAYMOND LEPPARD |
| File Number: | PEG 253 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 1 December 2011 |
| Date of Last Submission: | 1 December 2011 |
| Delivered at: | Perth |
| Delivered on: | 1 December 2011 |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | BLACKLIGHT INVESTMENTS PTY LTD |
| Second Respondent: | BRENDAN RAYMOND LEPPARD |
| File Number: | PEG 254 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 1 December 2011 |
| Date of Last Submission: | 1 December 2011 |
| Delivered at: | Perth |
| Delivered on: | 1 December 2011 |
REPRESENTATION
PEG 253 of 2010
| Counsel for the Applicant: | Ms A Becroft |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| For the First Respondent: | No appearance |
| For the Second Respondent: | Mr B Leppard |
PEG 254 of 2010
| Counsel for the Applicant: | Ms A Becroft |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| For the First Respondent: | No appearance |
| For the Second Respondent: | Mr B Leppard |
THE COURT ORDERS THAT:
PEG 253 of 2010
The applicant to file and serve:
(a)any further written submissions; and
(b)any further affidavits,
in relation to penalty and costs by 8 December 2011.
The first respondent and the second respondent file and serve:
(a)submissions; and
(b)any affidavits,
in relation to penalty and costs by 27 January 2012.
The matter be determined on the submissions and affidavits relied upon, with no cross-examination on the affidavits, subject to sub-sections (4), (5) and (6) of section 64 of the Federal Magistrates Act 1999 (Cth).
Liberty to apply by 3 February 2012 to cross-examine deponent of affidavits filed with respect to penalty and costs.
Otherwise the matter be adjourned to 9.00am on 2 March 2012 for judgment as to penalty and costs.
PEG 254 of 2010
The applicant to file and serve:
(a)any further written submissions, and;
(b)any further affidavits,
in relation to penalty and costs by 8 December 2011.
The second respondent file and serve:
(a)any submissions, and
(b)any affidavits,
in relation to penalty and costs by 27 January 2012.
The matter be determined on the submissions and affidavits relied upon, with no cross-examination on the affidavits, subject to sub-sections (4), (5) and (6) of section 64 of the Federal Magistrates Act 1999 (Cth).
Liberty to apply by 3 February 2012 to cross-examine deponents of affidavits filed with respect to penalty and costs.
Otherwise the matter be adjourned to 9.00am on 2 March 2012 for judgment as to penalty and costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 253 of 2010
| FAIR WORK OMBUDSMAN |
Applicant
And
| PROPLAS INDUSTRIES PTY LTD |
First Respondent
| BRENDAN RAYMOND LEPPARD |
Second Respondent
PEG 254 of 2010
| FAIR WORK OMBUDSMAN |
Applicant
And
| BLACKLIGHT INVESTMENTS PTY LTD |
First Respondent
| BRENDAN RAYMOND LEPPARD |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore edited from the transcript)
Introduction
The Court has before it an application by the second respondent, Mr Leppard, in each of these matters for an adjournment of a hearing with respect to penalty and costs. The adjournment sought is for a period of three months or such period as the Court otherwise determines.
On 6 October 2011, the Court made orders in the following terms:
1. The penalty hearing be adjourned to 2:15pm on 1 December 2011.
2. No further application for adjournment of the proceedings by the second respondent be considered by the Court unless the application is supported by an affidavit of a medical practitioner or an allied health professional annexing a report as to the reasons for any further adjournments, and subject to:
(a) the medical practitioner or allied health professional attending this Court for cross-examination by the applicant; and
(b) the filing and service of the affidavit of the medical practitioner or allied health professional not later than 4:00pm on 28 November 2011.
3. Costs, if any, of today be reserved.
The Court observes that Mr Leppard appeared as the second respondent in each matter on 6 October 2011, and as a consequence of his appearing visibly upset on that day and not being in a state to continue, the hearing was, as the above orders indicate, adjourned. The Court did, however, observe at that time that the matter which, as a consequence of a default judgment on liability, now only relates to penalty and costs must inevitably proceed. So, on 6 October 2011 the Court adjourned the matter to today. The Court, however, put in place orders which provided for Mr Leppard to seek an adjournment today only if there was medical evidence that he was not fit to appear, and which also allowed the Fair Work Ombudsman to test that particular evidence if given.
Mr Leppard did not file an application in a case in either matter with respect to an adjournment. Likewise, no affidavit was accepted for filing by the Registry. It would appear that there was an attempt by Mr Leppard to file an affidavit either yesterday or the day before, but it was not the affidavit of a medical practitioner or an allied health professional, but rather what purported to be an affidavit by him requesting an adjournment for a further period of three months and attaching to it what was said to be two medical certificates. That purported affidavit and the medical certificates were before the Court today. The Registry apparently refused to accept the purported affidavit for filing and therefore no affidavit was, in fact, filed.
Order 2(a) of the orders of the Court of 6 October 2011 also required that any medical practitioner or allied health professional who filed an affidavit attend Court for cross-examination. That was ordered so as to allow the Fair Work Ombudsman the ability to test the evidence in support of the adjournment application. No medical practitioner or allied health professional and, in particular, nor were the authors of the medical certificates in Court today, or otherwise available to the Court. That is hardly surprising in circumstances where they appear to have examined Mr Leppard on either 28 or 29 November 2011 – that is the day on or after any affidavit required from them was required to be filed, and two to three days before they were expected to appear.
Mr Leppard made a submission that they would not have attended by reason of expense in any event. But in the Court’s view, they probably would not have attended, or been able to attend, simply due to the lack of time between examining Mr Leppard, and this Court hearing.
As to the orders of 6 October 2011, they have therefore not been complied with. It is fair to observe that there appears to have been little attempt to comply with them, and what little attempt there has been, has been very late. Mr Leppard nevertheless sought today to tender the affidavit in support of the adjournment application and the medical certificates said to be attached to it. In substance, the affidavit, in fact, contains no evidence; it is simply a request for an adjournment of three months with reference to the attached medical certificates. In strict terms, the affidavit and its annexures are probably not admissible,[1] although given that this is an interlocutory proceeding, the Court has taken the view that the medical certificates may be admissible, even though they are, for strict purposes, hearsay at best.
[1] Contrast Jet World Holdings Pty Ltd v Proplas Industries Pty Ltd [2011] WADC 163 (“Jet World Holdings”) where a medical report as to the second defendant’s psychiatric condition was sought to be tendered during the hearing, and was rejected: Jet World Holdings at paras.63-64 per Bowden DCJ, with the following observation made: “It is simply not acceptable to hand documents to the court on the morning of a special appointment, unaccompanied by any affidavit and without giving the opposing party sufficient notice to consider its contents”, at para.65 per Bowden DCJ.
The medical certificates comprise, firstly, a short note from Dr Andrew Stewart at the Swan Street Surgery, dated 29 November 2011, in the following terms:
29/11/11
To Whom It Concern
RE: Mr Brendan Leppard
93 Wordsworth Ave
Yokine WA 6060DOB: 01/02/50.
Current Problems:
Acute Anxiety State
Depression
Current Medications:
Circadin one nocte when neededThis letter confirms that Mr Leppard has recently been attended to/reviewed at this medical surgery. He clearly has had acute anxiety with severe insomnia issues, with background depressive features that are related to complex psychosocial issues. I have stabilized his insomnia, and I organized urgent counselling with probable cognitive behavioural therapy, with a clinical psychologist (Karen Goodall-Smith). Should more detailed information or report be required – I suggest this should come from Ms Goodall-Smith)
What is perhaps striking about Dr Stewart’s certificate in the context of the adjournment application is that it does not say that Mr Leppard is not capable of attending Court.
There is also a report from clinical psychologist, Ms Karen Goodall-Smith, dated 28 November 2011, in the following terms:
To whom it may concern
Re: Brendan Leppard
DOB: 1/2/1950Mr Leppard has been attending Psychological Health Care since October 2011. He was previously seeing a colleague, clinical psychologist Lauren Grayson from August, 2011 at a different practice. Ms Grayson referred Mr Leppard to me as she felt that my level of expertise, over the past 20 years would benefit Mr Leppard.
Mr Leppard has described a lifetime of various successful and unsuccessful business ventures. In the past, Mr Leppard said that he previously felt confident, in control of himself and his actions and had a clear direction in his life. He was able to cope with the ups and downs of business, any disputes or confrontations, and he felt that he could cope with whatever life presented him with.
In the last year or so, he has described himself as having high levels of anxiety, being very emotional, and having some anger issues. In my opinion, Mr Leppard is also depressed. There are a range of issues within his life involving court and lawyers and litigation which he is currently not coping with. He has lost confidence in himself and his ability to perform well both in business and in his personal life. He experiences a certain amount of self-negativity and frustration. He said that he wants to restore his self-belief, a constant approach to his life and business and he wants to build up a solid and ethical way of working with and dealing with other people. He wanted psychological strategies to achieve this.
Mr Leppard has a very black and white approach to life and to business. He sees himself as very “straight down the line” and he does not tolerate it when he feels that he has been “wronged”. Within the sessions, he presents as stressed, emotional, anxious, unfocused and negative about himself. He appears unable to concentrate. His sense of self-worth is very low at the current time.
Mr Leppard needs help to restore his self-confidence and self-esteem and to create a sense of direction which he can work towards. He needs to deal with his depression, and he also needs anger and frustration management techniques. I have discussed with him the possibility of antidepressants, but he feels that he would lose focus and control even more should he have this. He does not see himself as having an anger problem, as he believes that his anger is generally justified. He needs insight and motivation to modify his anger reactions, which are part of the psychological treatment required for successful anger management. More work needs to be done in this area.
I am unclear about the legal implications, should Mr Leppard not attend the court case on Thursday the 1st of December 2011. However, Mr Leppard’s confidence and self-esteem and self-loathing is at such a point that I believe that he may experience anxiety attacks and emotionally break down within the court environment as he did at a previous court appearance. This could result in his depression becoming even worse. He believes that if he breaks down, that it will confirm to himself and others that he is weak and inadequate.
The fact that he is attending psychological treatment on a regular basis is in my opinion, evidence that he wants to do something about his problems. There has been some improvement with his sleep and since he has been attending Psychological Health Care, there has been good psychological progress, but it has been somewhat slower than Mr Leppard would like. If it is possible for the legal proceedings to continue in his absence, it is my opinion that this would be the best scenario for his psychological well-being and progress.
Please do not hesitate to contact me on [telephone number] if you would like to discuss this client in more detail.
…
28/11/11.
Ms Goodall-Smith’s letter points to the possibility, and it is no more than that, that Mr Leppard may experience anxiety attacks and emotional breakdown within the Court environment. It is not a definite opinion and it does not indicate that Mr Leppard cannot appear today. Admittedly, the opinion goes on, albeit in a qualified way, to indicate that if it is possible for the legal proceedings to continue in his absence, that would be the best scenario for his psychological well-being and progress. As the Court has observed, that is a qualified opinion. Ms Goodall-Smith says that she is unclear about the legal implications of Mr Leppard attending or not attending Court today, and there is nothing in her letter which indicates any understanding of today’s proceedings, which are relatively straightforward penalty and cost proceedings in this Court, following the handing down of a default judgment.
Ms Goodall-Smith’s opinion is, therefore, as the Court has observed, an opinion which is heavily qualified, delivered in a partial factual vacuum. The letter amounts, ultimately, to little more than an expression of a preference that Mr Leppard not be required to make an appearance in Court, and does not say that he cannot appear in Court. Therefore, the Court does not consider that the medical certificates necessarily support or provide grounds for the adjournment which has been sought by Mr Leppard, be it for three months or some shorter period.
The Court further notes that:
a)Dr Stewart and Ms Goodall-Smith were not available for cross-examination, contrary to the orders of the Court. That, in the circumstances, is not their fault, for as the Court has observed, they were consulted by Mr Leppard very late, and too late to allow their appearance today;
b)there is no explanation for the delay in consulting Dr Stewart and Ms Goodall-Smith;
c)Dr Stewart and Ms Goodall-Smith have not been subpoenaed to attend, which was an option available to Mr Leppard, which would have required them to attend Court upon payment to them of a bus or taxi fare;
d)there is no prognosis as to when, or if, Mr Leppard might recover sufficiently to allow him to appear in Court. This, of course, gives rise to the possibility that were there an adjournment of three months, or some other period, the Court and the parties might be in precisely the same position in three months time; and
e)the necessity for a three month adjournment is unexplained.
The Court also observes that Mr Leppard did appear today and that he put the adjournment argument in a logical and coherent manner, and it is therefore not readily apparent to the Court why he would not be able to listen to the submissions made by the Fair Work Ombudsman and then make submissions in reply.
The principles with respect to the adjournment of proceedings in this Court are relatively well established.[2] The Court has a discretion as to whether or not to allow an application to adjourn proceedings.
In exercising the discretion, the Court must take into account the objects and purposes of the Federal Magistrates Act 1999 (Cth)[3] and the Federal Magistrates Court Rules 2001 (Cth)[4] and those rules have previously been described by this Court as follows:
[2] “Adjournments are not to be granted merely because they are asked for.” Jet World Holdings at para.68 per Bowden DCJ.
[3] “FM Act”.
[4] “FMC Rules”.
Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court has intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.[5]
[5] Goodall v Nationwide News Pty Ltd (2007) FMCA 218 at para.21 per Lucev FM (“Goodall”).
Further the Court is obliged to take into account the following principles when determining whether or not to grant leave to allow an adjournment. The paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to:
a)any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[6]
[6] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 192 per French CJ; [2009] HCA 27 at para.30 per French CJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 para.2 per McKerracher J.
Looking at the issue of case management and litigation history, this matter, is the subject of an application filed over 11 months ago, on
30 December 2010. There was a default judgment entered on 13 July 2011 with respect to liability in favour of the applicant, and there was no application to set aside that default judgement. On 22 July 2011, there was a directions hearing on which the matter was set down for a penalty hearing on 6 October 2011. The respondent filed no materials in accordance with the orders of the Court from that time until the filing, or purported filing, of the affidavit and medical certificates in the last day or two. And, as the Court has already observed, the orders of 6 October 2011, which have been set out above, were not complied with. It is fair to observe in the circumstances that the second respondent has failed to engage in these proceedings, save for seeking adjournments on 6 October 2011 and again today.
By reason of:
a)
Mr Leppard’s failure to comply with the orders of the Court of
6 October 2011;
b)the fact that, in any event, the medical evidence does not necessarily support the assertion that Mr Leppard cannot appear; and
c)proper principles of case management in relation to a matter which has been on foot for 11 months, and in which liability has been determined more than four months ago, and in respect of which only penalty and costs remain to be determined,
the Court is of the view that a three month adjournment of this matter is not justified, nor is any adjournment justified, and insofar as Mr Leppard seeks an adjournment, that application is refused.
In the Court’s view, a different approach can be taken to the matter. That approach was canvassed with the parties during submissions which were made for and against the adjournment application. It is an approach that will not necessarily have Mr Leppard appearing to argue his case and thus, it is fair to him if he has medical difficulties with appearing in Court. But it is nevertheless a process which will allow both parties to make full submissions and to put affidavit evidence before the Court, and for the Court to determine the matter on those papers. It would not entail cross-examination of deponents of the affidavits, subject to s.64(4), (5) and (6) of the FM Act, which allows a request to be made for deponents to be cross-examined, and if the person then does not appear to be cross-examined, their affidavit will be given such weight as the Court considers appropriate.[7]
[7] DCT v Barnes (No. 2) [2008] FMCA 1229 at paras.28-38 per Lucev FM; Westlawn Finance Ltd v Bennell [2009] FMCA 915 at paras.23-39 per Lloyd-Jones FM.
The process is one which, in terms of case management, allows the matter to progress and will facilitate the delivery of a judgement within a reasonable timeframe consistent with the objects and purposes of the FM Act and FMC Rules.[8] When the suggested process was put to the parties in the course of the hearing, the Fair Work Ombudsman agreed to the process suggested by the Court, and Mr Leppard, at the very least, did not object to it.
[8] FM Act, s.3; FMC Rules, r.1.03.
The process is also one which the Court considers:
a)fair; and
b)appropriate in terms of:
i)Mr Leppard’s apparent medical condition;
ii)case management principles; and
iii)the interests of justice.
Unless either party has any further observations, there will be orders accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 13 December 2011
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