Farac v Pendal Group Limited (No 2)

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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

  1. 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.

  2. On 5 August 2022, the matter was listed for a five-day hearing commencing today. 

  3. 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

  4. 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…

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Details
Case
[2023] FedCFamC2G 215
Decision Date

CaseChat Overview and Summary

In the case of Farac v Pendal Group Limited (No 2), Mr Farac filed an application seeking an adjournment of the hearing due to the respondents' alleged failure to respond adequately to a notice to produce served on them on 22 December 2022. The respondents opposed the adjournment and the vacation of the listed dates. The dispute centred on whether the respondents' failure to respond promptly to the notice to produce warranted an adjournment of the hearing and the vacating of the hearing dates. The court had to determine whether the respondents' failure to respond to the notice to produce, despite being served shortly before the Christmas break, constituted a sufficient ground for an adjournment. Additionally, the court needed to consider the impact of the respondents' delay in responding on Mr Farac's ability to prepare and present his case.

The court considered the chronology of events and the reasons provided by both parties for their positions. It noted the timeline of events, including the suggestion of discovery, the informal exchange of documents, the respondents' refusal to agree to discovery, and the subsequent notice to produce. The court also took into account the respondents' explanation for the delay in responding, which was attributed to the holiday season and the unavailability of their counsel. The court examined the principle of ensuring justice in the circumstances and the need to balance the rights of both parties. Ultimately, the court concluded that justice did not require an adjournment in this case. The court held that the respondents' delay in responding to the notice to produce did not sufficiently prejudice Mr Farac's ability to prosecute his case, and therefore, the application for an adjournment was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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