Farac v Pendal Group Limited (No 2)
[2023] FedCFamC2G 215
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farac v Pendal Group Limited (No 2) [2023] FedCFamC2G 215
File number(s): SYG 2443 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 8 February 2023 Catchwords: PRACTICE AND PROCEDURE – Application to adjourn trial – refused. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Dove v Everforex [2022] FedCFamC2G 752
Division: General Number of paragraphs: 11 Date of hearing: 8 February 2023 Place: Sydney Counsel for the Applicant: Ms R. Francois Solicitor for the Applicant: Kennedys Counsel for the Respondents: Mr D. Mahendra Solicitor for the Respondents: MinterEllison ORDERS
SYG 2443 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER ADAM FARAC
Applicant
AND: PENDAL GROUP LIMITED (ACN 126 385 822)
First Respondent
RICHARD BRANDWEINER
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
8 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application in a proceeding dated 7 February 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
On 28 October 2020 this matter was commenced by the applicant, Mr Farac, who alleged breaches of the Fair Work Act 2009 (Cth). At that time, the case was smaller than it is now because, in the intervening period, the first respondent, Pendal Group Limited, has dismissed Mr Farac from its employment on the stated basis that his position had been made redundant as a result of a restructure.
On 5 August 2022, the matter was listed for a five-day hearing commencing today.
On 7 February 2023 Mr Farac filed an application in a proceeding seeking adjournment of the hearing by reason of the respondents’ alleged failure to respond adequately to a notice to produce which he had served on them on 22 December 2022, the Thursday before Christmas last year. The respondents, unsurprisingly, have objected to an adjournment of the hearing and the vacation of the listed dates.
BACKGROUND FACTS
The relevant chronology arising from the affidavits relied upon by the parties today on the adjournment application is as follows:
(a)on 5 August 2022 at a directions hearing Mr Farac suggested discovery and on 16 August 2022 the respondents’ solicitors suggested an informal regime for the exchange of documents;
(b)on 13 September 2022 Mr Farac’s solicitors suggested informal discovery and an exchange of categories of documents for discovery on or before 27 September 2022 and on 19 September 2022 followed up that inquiry;
(c)on 20 September 2022 the respondents’ solicitors replied advising that they were seeking instructions;
(d)on 10 October 2022 Mr Farac’s solicitors followed up as nothing had been heard. They also inquired whether the respondents would consent to a variation of the hearing dates due to the unexpected unavailability of senior counsel briefed for Mr Farac;
(e)on 13 October 2022 the respondents’ solicitors advised that their clients did not agree to discovery, informal or otherwise. They invited requests for specific documents if they could be identified, advising that the respondents would consider the request without requiring Mr Farac to file a notice to produce or a subpoena;
(f)on 20 October 2022, the respondents’ solicitors responded to the invitation to consider varying the hearing date advising that their clients did not consent because:
(i)the availability of their three witnesses was challenging to co-ordinate and it was difficult to find a mutually convenient time, noting that one of the witnesses had retired and has planned a number of overseas trips in 2023;
(ii)all the respondents’ witnesses, counsel and solicitors are available and committed to the hearing commencing on 8 February 2023; and
(iii)the respondents wanted the matter to be determined expeditiously, given it commenced two years ago;
(g)on 20 December 2022 Mr Farac’s solicitors wrote to the respondents’ solicitors notifying them that they had been advised that their counsel then briefed, who I infer is Ms Francois who appears today, had become unavailable to appear on 10 February 2023 and implicitly inquired whether the Court would not sit on 10 February 2023 but take an additional hearing date on 15 February 2023 instead;
(h)on 21 December 2022 the respondents’ solicitors wrote to Mr Farac’s solicitors rejecting the suggestion of an amendment to the listing and reiterating the reasons why it would be, at the very least, inconvenient to the respondents were the matter not to proceed as listed;
(i)on 22 December 2022 Mr Farac’s solicitors served on the respondents’ solicitors a notice to produce, purporting to require the respondents to produce documents on or before 4pm on 19 January 2023. The notice to produce contained 37 numbered paragraphs;
(j)on 23 December 2022 the respondents’ solicitors wrote to Mr Farac’s solicitors advising that, given the time of year, it would be difficult to take instructions and, in any event, their offices would be closed until 9 January 2023. They went on to say that, given that their counsel was on leave until 18 January 2023, they would respond to the notice to produce as soon as practicable after that date. An answer was provided on 31 January 2023 with a detailed response to each of the numbered paragraphs; and
(k)on 7 February 2023 Mr Farac’s solicitors wrote to the respondents’ solicitors complaining about when a response had been received to the notice to produce (noting that at that point, no documents had been produced in answer to the notice) and advised that, in their view, Mr Farac was “overwhelmingly prejudiced and disadvantaged” and “not able to properly prosecute his case at the hearing”, leaving him with no course but to seek vacation of the hearing date. They also replied to the respondents’ response to the notice to produce.
CONSIDERATION
Overall, I am not impressed by the manner in which the parties have prepared the matter in the period since it was listed for hearing. There was a delay in the respondents withdrawing their initial indication of agreement to informal discovery, and there was a very similar delay in Mr Farac serving his notice to produce. However, at the end of the day, it is ultimately for an applicant to prosecute their case and, in this case, it seems to me that Mr Farac could have been more assertive than he was and brought the matter to a head earlier than this.
Mr Farac’s argument that the respondents did not take steps to remedy such deficiencies as there were in his preparation or the diligence with which he prosecuted his case is clever but cannot distract from the fact that it is Mr Farac’s obligation to prosecute his case. It should be noted in this regard that this is not a case of prevarication or intentional delay on the respondents’ part.
I have regard to the prejudice identified by the respondents in the letters to which I have referred. I also note the prejudice that Mr Farac has identified were the matter to proceed to a hearing, namely that he still does not have the documents which he sought and which he requires for cross-examination of the respondents’ witnesses. I note, in that regard, that the respondents say that the documents which they have already indicated they would produce have been brought to Court and will be produced in answer to a call, but, with respect, in circumstances where the notice to produce sought the production of the documents last month, rather than at the hearing, it is unhelpful to stand on the formalities of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). It is perhaps regrettable that it was a notice to produce which was issued rather than a subpoena, which would have left the respondents with no option.
But even if most of the documents are only produced today, I doubt that the prejudice likely to be suffered by Mr Farac will be as great as feared. The reasons I have reached that conclusion are that:
(a)not all the documents which had been sought will be produced today;
(b)there is likely to be detailed argument over the notice to produce this morning with objections to Mr Farac’s affidavit to follow;
(c)the evidence is not going to start before lunch today; and
(d)the matter is listed in such a way that a weekend falls in the middle of the trial which would, in all probability, and subject to anything which Ms Francois might wish to say, provide an opportunity for proper consideration to be given to the respondents’ documents when they are produced.
Further, if any of the documents need to be perused before the matter starts today, then time would have to be allowed for that. There is also the possibility that the matter will not proceed on Friday, subject to what Ms Francois might wish to submit in that regard.
In considering these matters, I have had regard to the guidance provided in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, relevant portions of which I summarised in Dove v Everforex [2022] FedCFamC2G 752 at [20].
CONCLUSION
In all the circumstances, I feel that justice requires that the application for an adjournment be refused.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 21 March 2023