Gee v Macmahon Underground Pty Ltd
[2014] FCCA 2560
•7 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEE v MACMAHON UNDERGROUND PTY LTD | [2014] FCCA 2560 |
| Catchwords: 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 |
| 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 and serve and an [sic] witness statements on the Respondent by 24 October 2014.
8.At around 8:40am on 28 October 2014 I contacted that [sic] Applicant’s legal representative Steve Heathcote by telephone in relation to the Applicant’s witness statements.
9.I recall Mr Heathcote saying words to the effect that the Applicant was not in a position to file and serve any witness statements as at 28 October 2014 and that Mr Heathcote could not provide a definitive date upon which any witness statements would be filed and served by the Applicant.
10.As of the date of this affidavit as far as I am aware the Applicant is yet to file and serve any witness statements.
11.The Orders provide that the Respondent is to file and serve any of its witness statements at least 21 days before the trial date listed for 1 and 2 December 2014.
12.In light of the Applicant’s failure to comply with the Orders, I believe that the Respondent’s ability to adequately prepare for the trial (which in part includes considering the Applicant’s evidence) is now prejudiced as a result of the Applicant’s failure to comply with the Orders.
3 June 2014 orders
Orders 1-6 of the Court’s orders made on 3 June 2014 were as follows:
1. The matter be listed for hearing for two days on 1 and 2 December 2014 at 10.15am.
2. The evidence-in-chief in this matter be adduced by way of witness statements that stand as the evidence-in-chief of the witnesses who gave the statement. No further evidence -in-chief may be adduced from that witness without the Court’s leave.
3. At least 35 days before the scheduled date of the hearing, the Applicant file and serve upon the Respondent any witness statements including any other documents upon which he intends to rely.
4. At least 21 days before scheduled date of the hearing, the Respondent file and serve upon the Applicant any witness statements including any other documents upon which it intends to rely.
5. At least 10 days before the scheduled date of the hearing, the Applicant file and serve upon the Respondent any supplementary witness statements, including any other documents upon which he intends to rely. Any supplementary witness statements must be confined to responding to material set out in the Respondent’s witness statement(s) or any other documentary material upon which it intends to rely.
6. At least 7 days prior to scheduled date of the hearing each party:
(a) informs the other party about which witnesses that party requires to attend the proceedings for the purpose of cross-examination;
(b) file and serve an Outline of Submissions and a List of Authorities upon which he or it intends to rely.
The Court has set those orders out because in addition to what is said in Mr White’s Affidavit it is apparent that:
a)the applicant had the capacity to file and serve supplementary witness statements and documents by way of responding material; and
b)there was an expectation that the parties:
i)would advise each other which witnesses were to attend for cross-examination; and
ii)file and serve outlines of submissions and lists of authorities prior to the hearing.
No responsive material from the applicant
Although the applicant is not obliged to do so, there has been no responsive material filed, whether by way of a response or affidavit evidence in relation to the respondent’s application in a case.
Concerningly, neither the applicant, nor Mr Heathcote, the lawyer on the record for the applicant, has appeared today, notwithstanding that the time and date for today’s hearing was set out on the face of the application in a case, and the respondent’s Counsel has indicated that the applicant’s lawyer communicated with the respondent’s lawyers by email yesterday evening in a manner which would indicate that they were aware of the hearing today. Other than an indication to the respondent’s lawyers prior to the application in a case being filed (about which the Court was told by the respondent’s Counsel) that the applicant lived in New South Wales, and an indication in the email sent to the respondent’s lawyers by the applicant’s lawyer last night that the applicant’s lawyer intended to write to the Court with respect to the reasons for the failure to comply with the 3 June 2014 orders, no evidence as to the reasons for the failure to comply with the 3 June 2014 orders have been put before the Court by the applicant. It is difficult in the absence of any evidence to understand the precise factual matrix in which the applicant failed to file witness statements and documents in relation to an application filed nine months, and orders made almost five months, before they were due to be filed.
Adjournment of the hearing date
The application in a case seeks adjournment, really vacation, of the hearing dates set for 1 and 2 December 2014.
The application for an adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules2001 (Cth) (“FCC Rules”) and as prescribed by the objects of the FCCA Act in ss.3 and 42 and the objects of the FCC Rules in r.1.03 provide for the Court 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)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
The Court must also take into account the following when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to 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,
and the Court refers to the High Court judgment in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne Crennan, Kiefel and Bell JJ.
An adjournment in these proceedings:
a)is arguably contrary to the principles of case management where the usual programming orders were made five months ago and two days were set aside next month for the hearing in this matter;
b)delays the matter in circumstances where the delay ought not to have occurred, and, albeit without the benefit of any evidence from the applicant as to the reasons for the failure to comply with the Court’s orders, would seem to have been avoidable; and
c)importantly, might result in the wastage of public resources, and disadvantage to other litigants who might have, but will now not be able to, utilise the two days which had been listed for this matter.
Against those not inconsiderable reasons for not granting an adjournment must be balanced the doing of justice, and in that context, the interest of the parties, and the doing of justice between the parties.
Mr White’s Affidavit asserts prejudice by reason of the failure of the applicant to file and serve its witness statements to stand as evidence-in-chief and documents. Whilst that prejudice is not expounded in detail beyond the need to consider the applicant’s evidence, it can be said that in the circumstances of this case the prejudice is self-evident. The 3 June 2014 orders set out a regime for the filing of witness statements and documents to be relied upon by both parties, and which also affords the applicant an opportunity to file further witness statements and documents in response to the respondent’s witness statements and documents. By the Court’s calculations the applicant was to file witness statements and documents by 26 October 2014, the respondent was to file witness statements and documents by 9 November 2014, and the applicant was to file and serve witness statements and documents in response to the respondent’s witness statements and documents by 21 November 2014. It is now 23 days before the listed first day of hearing, and the applicant has not filed witness statements and documents. It is evident that in terms of what the Court considered on 3 June 2014 to be an appropriate timetable, that that timetable can no longer be met. No doubt a timetable of sorts could be crafted to fit in with the existing hearing dates. Were it the respondent who were in default that might still be an appropriate course of action. In the present circumstances, however, it is the applicant who is in default (and who has provided no proper explanation as to why), and the respondent who would be forced to comply with a short timetable both in respect of the filing of its witness statements and documents and outline of submissions. In that respect the respondent would be doubly disadvantaged by having to prepare witness statements and documents and the outline of submissions under the pressure of a hearing which is effectively three weeks away in circumstances where the default is not of its making. The Court notes that in all of the circumstances of this case, which include the respondent writing to Chambers seeking a further directions hearing prior to making the application in a case, rather than making an application in a case to adjourn the hearing, the respondent has not delayed in taking steps to endeavour to deal with the applicant’s default.
The Court notes with concern the failure of the applicant, and particularly the applicant’s lawyer, to attend today. As indicated above the applicant would have been aware of the time for the hearing of this application in a case from the face of the application in a case which the Court is satisfied was served. That the applicant was aware of today’s hearing is also evident from what the Court has been told by the respondent’s Counsel with respect to the email sent to the respondent’s lawyers last night. The fact that the applicant might suffer by reason of the delay is a factor of the applicant’s, and the applicant’s solicitor’s, own making.
It follows, particularly from the degree of prejudice to be suffered by the respondent, that the Court considers that a sufficient case has been made out that the interests of justice would not be served by proceeding to hearing on 1 and 2 December 2014, and, therefore, there ought to be an order vacating the hearing listed for 1 and 2 December 2014. There should be a further directions hearing in relation to the substantive matter, and that will be listed for 10.15am on 1 December 2014.
Costs
The Court notes that the respondent seeks the costs both of the vacated hearing and of the application in a case but does not press the costs application today. Whether costs are awarded under the Fair Work Act 2009 (Cth) (“FW Act”) will depend upon whether or not the applicant’s acts or omissions can be characterised as an unreasonable act or omission causing the other party to incur costs: s.570(2)(b) of the FW Act. The federal courts exercising FW Act jurisdiction have held that the failure to comply with court orders can constitute an unreasonable act or omission: Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392 at 403 per Tracey J; [2007] FCA 879 at para.37 per Tracey J; Torpia v Zarfati (2009) 178 IR 325 at 326-327 per Barnes FM; [2009] FMCA 166 at para.6 per Barnes FM. Of course, in each case whether a party has engaged in an unreasonable act or omission will depend upon the particular circumstances of the case: Construction, Forestry, Mining and Energy Union& Ors v Clarke (2008) 170 FCR 574 at 582 per Tamberlin, Gyles and Gilmour JJ; [2008] FCAFC 143 at para.28 per Tamberlin, Gyles and Gilmour JJ. Although the applicant has not filed any affidavit evidence in relation to the application in a case (which included the application for costs) the Court acknowledges that the time in which to do so has been very short, and further observes that any proper consideration of the particular circumstances of this case will require consideration of affidavit evidence from the applicant and the applicant’s lawyer, at least, if the Court is to be put in a position to make a considered judgment as to whether there was an unreasonable act or omission by the applicant resulting in the incurring of costs by the respondent. Likewise, the respondent might also have to put on some short evidence as to the costs incurred. In the circumstances, the Court is of the view that the proper, and fair, course is to direct the parties to confer concerning costs, and if the parties can reach agreement as to costs the Court can be informed at the next directions hearing. If the parties do not reach agreement with respect to costs prior to the next directions hearing then the Court will hear from the parties at that directions hearing as to appropriate orders to be made for the filing of affidavits and submissions in respect of costs. The costs, if any, of the application in a case and the vacated hearing dates of 1 and 2 December 2014, will therefore be reserved and adjourned to the 1 December 2014 directions hearing.
There will therefore be orders as follows:
a)the hearing dates of 1 and 2 December 2014 be vacated;
b)there be a directions hearing at 10.15am on 1 December 2014; and
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.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 7 November 2014
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