Filitonga v P/T Constructions WA Pty Ltd
[2015] FCCA 1956
•17 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FILITONGA v P/T CONSTRUCTIONS WA PTY LTD | [2015] FCCA 1956 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment of hearing – whether medical evidence in support current – consideration of nature of claim – small claims proceeding. |
| Legislation: Fair Work Act 2009 (Cth), s.548 Federal Circuit Court of Australia Act 1999 (Cth), s.42 |
| Cann v Commonwealth Bank of Australia (No.3) [2011] FMCA 303 Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 Myers v Myers [1969] WAR 19 |
| Applicant: | HETA FILITONGA |
| Respondent: | P/T CONSTRUCTIONS WA PTY LTD |
| File Number: | PEG 254 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 17 July 2015 |
REPRESENTATION
| For the Applicant: | No appearance |
| For the Respondent: | No appearance |
ORDERS
That the Respondent’s Application in a Case filed 14 July 2015 be dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 254 of 2014
| HETA FILITONGA |
Applicant
And
| P/T CONSTRUCTIONS WA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Application in a Case
The Court has before it an Application in a Case by the respondent filed 14 July 2015 in which an order is sought to adjourn a hearing of this matter which is listed for 4 August 2015, having been so listed by order of the Court dated 2 June 2015.
When the matter was called, there was no appearance by either party, and the matter having been called outside the Court, the non-appearances were unchanged. The Court is satisfied that the Application in a Case filed by the Respondent has been stamped with a court location, date and hearing time. The Court determined that, having read the papers filed, it should determine the matter and did so by indicating that the respondent’s Application in a Case would be dismissed and that there would be an order for no order for costs. The reasons for so determining follow.
Affidavit evidence and medical reports
The Application in a Case is supported by an affidavit of Jane Burke who is the former wife of Mr Tierney (the director of the respondent with primary carriage of this matter for the respondent) but who still resides together with Mr Tierney in the matrimonial home: see Ms Burke’s Affidavit sworn 26 May 2015 in the Magistrates Court of Western Australia (Civil Jurisdiction), Kalgoorlie Registry, annexed to her affidavit.
Several documents are annexed to Ms Burke’s Affidavit, but most critically a medical report dated 22 May 2015, and a letter dated 29 May 2015, both from Dr Anu Bagwe, a Consultant Psychiatrist. The 22 May 2015 report and 29 May 2015 letter were prepared in connection with a hearing in which the respondent was involved with another company (Fantastic Building Works Pty Ltd (“Fantastic”)) in the Kalgoorlie Registry of the Magistrates Court of Western Australia in its civil jurisdiction, that hearing being listed for 8 to 12 June 2015. Fantastic is a company with which Mr Jackson, the partner of the applicant Ms Filitonga, is involved: see Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [18] per Judge Lucev.
Relevantly, in the 22 May 2015 report (which is in question and answer format) the Consultant Psychiatrist says as follows:
3.Whether you believe Mr. Tierney’s condition will impede his ability to actively participate in a court hearing from 8 to 12 June 2015 in the manner set out above and if so please advise:
a) the extent to which Mr. Tierney will be prevented from so participating, and
b) on what basis you believe this to be the case
Mr. Tierney suffers from a Major Depressive Episode (Severe) and is gradually recovering. In my opinion, Mr. Tierney is not to participate in the court hearing from 8 to 12 June 2015 as it will significantly increase stress which will hamper the recovery of his illness. Lawrence’s severe Major Depressive Episode with low mood, poor concentration, anxiety, memory concerns, physiological shift symptoms and anhedonia will compromise his ability to perform, give oral evidence at the court hearing and/or he may not be able to provide instruction to his lawyers.
4.If you do not believe that Mr. Tierney will have ability to actively participate in a court hearing from 8 to 12 June 2015, how long you consider it will be likely be before Mr. Tierney does have the capacity to participate in a court hearing in the manner set above.
Mr. Tierney suffers from a Major Depressive Episode (severe) and alcohol dependence. I would anticipate Mr. Tierney’s recovery from this Major Depressive Episode to be six to eight weeks.
His complete recovery is certainly dependent on his compliance with medications, continued alcohol abstinence, continued psychological intervention, management of his psychosocial stressors and social integration.
In the letter of 29 May 2015 the Consultant Psychiatrist indicates that:
There has been deterioration in his [Mr Tierney’s] mental state which appears to be in a direct response to the ongoing legal stressor.
Consideration
The Court makes the following observations:
a)there is no evidence before the Court specific to these particular proceedings;
b)the medical evidence which is before the Court is at least seven to eight weeks old;
c)the 22 May 2015 report indicates a recovery period of six to eight weeks (in respect of a report written eight weeks ago). On the evidence, and even allowing for a further week in respect of the letter of 29 May 2015, there is no evidence that Mr Tierney will not be fit for the hearing two and a half weeks hence on 4 August 2015;
d)it is also relevant to take into account the fact that these are small claims proceedings under s.548 of the Fair Work Act 2009 (Cth) which are supposed to be informal and determined without regard to legal technicalities, the object of those provisions being to assist in achieving a speedy disposition of small claims matters. In that regard the Court notes that this application was made almost 11 months ago on 25 August 2014, and any ongoing delay is inconsistent with the object of the small claims proceeding provisions in the FW Act, and the objects and intent behind s.42 of the Federal Circuit Court of Australia Act 1999 (Cth), applied to a claim of this type; and
e)whether an adjournment is granted is a matter of discretion, which is a wide discretion to be exercised in the interests of the administration of justice: Cann v Commonwealth Bank of Australia (No.3) [2011] FMCA 303 at [9]-[11] per Lucev FM; Myers v Myers [1969] WAR 19 at 21 per Jackson J.
Conclusion and orders
In conclusion, and having regard to the observations set out above, the Court does not think that it is in the interests of the administration of justice for a matter to be adjourned where there is no current medical evidence indicating that Mr Tierney is not going to be available on 4 August 2015 to participate in the proceedings, and where the proceeding is a small claim which ought, if possible, to be resolved speedily. That would not prevent a further application for an adjournment being made if there were fresh medical evidence.
The respondent’s Application in a Case will therefore be dismissed. Given that it is a small claims proceeding with no legal representation for either side there will be an order for no order as to costs.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 17 July 2015
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