Gee v Macmahon Underground Pty Ltd - [2014] FCCA 2560

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEE v MACMAHON UNDERGROUND PTY LTD

[2014] FCCA 2560

Catchwords:
PRACTICE AND PROCEDURE – Adjournment of hearing date – applicant in default in provision of witness statements and documents.

COSTS – Whether unreasonable act or omission – necessity for evidence to enable consideration of particular circumstances of case.

Legislation:

Fair Work Act 2009 (Cth), s.570(2)(b)

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42
Federal Circuit Court Rules2001 (Cth), r.1.03

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392; [2007] FCA 879
Construction, Forestry, Mining and Energy Union& Ors v Clarke (2008) 170 FCR 574; [2008] FCAFC 143
Torpia v Zarfati (2009) 178 IR 325; [2009] FMCA 166

Applicant:

CRAIG ADAM GEE

Respondent:

MACMAHON UNDERGROUND PTY LTD

File Number:

PEG 22 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

7 November 2014

Date of Last Submission:

7 November 2014

Delivered at:

Perth

Delivered on:

7 November 2014

REPRESENTATION

For the Applicant:

No appearance

Solicitors for the Applicant:

APX Law Pty Ltd trading as
Steve Heathcote, Barrister & Solicitor

Counsel for the Respondent:

Mr D White

Solicitors for the Respondent:

DLA Piper

ORDERS

The hearing dates of 1 and 2 December 2014 be vacated.
There be a directions hearing at 10.15am on 1 December 2014.
The costs, if any, of the application in a case and the vacation of the hearing dates of 1 and 2 December 2014 are reserved, and adjourned to the directions hearing at 10.15am on 1 December 2014, before which the parties are to confer with a view to reaching agreement on those costs, if any.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 22 of 2014

CRAIG ADAM GEE

Applicant

And

MACMAHON UNDERGROUND PTY LTD

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Application in a case

Before the Court today is an application in a case by the respondent filed on 4 November 2014 in which the following orders are sought:
1.The trial date set for 1 and 2 December 2014 be adjourned
2.The matter be listed for a further directions hearing.
3.There be liberty to apply.
4.Costs, if any, be reserved.

Affidavit of Daniel Leigh White

The application in a case is supported by an affidavit made by Daniel Leigh White affirmed and filed 4 November 2014 (“Mr White’s Affidavit”).
The relevant content of the affidavit is short and can be set out in full, as follows:
4.The Court made Directions Orders on 3 June 2014 (“Orders”).
5.Amongst other things, the Orders required the Applicant to file and serve any witness statements within thirty-five (35) days of the trial date listed for 1 and 2 December 2014.
6.From my account, this required the Applicant to file and serve and [sic] witness statements by 24 October 2014.
7.The Applicant did not file…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Gee v Macmahon Underground Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 2560
Decision Date: 7 November 2014

CaseChat Overview and Summary

In *Gee v Macmahon Underground Pty Ltd*, the applicant sought an adjournment of a hearing date due to their default in providing witness statements and documents. The respondent opposed the adjournment.

The primary legal issue before the Court was whether the applicant's default constituted an unreasonable act or omission that warranted the refusal of an adjournment. This required the Court to consider the necessity of the outstanding evidence for a proper consideration of the particular circumstances of the case.

Judge Lucev reasoned that the applicant had failed to provide a satisfactory explanation for the delay in complying with court directions. The Court emphasised that parties have a responsibility to comply with court orders and that adjournments are not granted as a matter of course, particularly when the delay is due to the applicant's own default. The Court found that the outstanding evidence was crucial for the proper determination of the proceedings and that the respondent should not be prejudiced by the applicant's failure to comply with its obligations.

Consequently, the Court dismissed the application for an adjournment.

Orders