Gilbert v NSW Air Pty Ltd
[2017] FCCA 493
•16 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILBERT v NSW AIR PTY LTD | [2017] FCCA 493 |
| Catchwords: INDUSTRIAL LAW – Application in a case – applicant failed to appear – application in a case to set aside orders pursuant to Rule 16.05(2)(a) – explanation for failure to appear – whether reasonable explanation – no evidence from applicant –whether prejudice – application in a case dismissed. |
| Legislation: Fair Work Act 2009, ss.12, 548 |
| Cases cited: Clifford & Mountford [2006] FMCAfam 450 |
| Applicant: | PETER GILBERT |
| Respondent: | NSW AIR PTY LTD |
| File Number: | MLG 2201 of 2016 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 March 2017 |
REPRESENTATION
| The Applicant: | Mr Miller, Industrial Advisor |
| The Respondent: | No appearance |
ORDERS
The application in a case filed 17 November 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2201 of 2016
| PETER GILBERT |
Applicant
And
| NSW AIR PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
Before the Court today, is an application in a case filed on behalf of Peter Gilbert (“the applicant”) by the Australian Federation of Air Pilots (“the Union”). The Union is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth), an industrial association as defined by s.12 of the Fair Work Act 2009 (Cth) (“the Act”), entitled to represent the applicant’s industrial interests and make an application to the Court. The respondent to the application in a case is NSW Air Pty Ltd (“the respondent”). The application in a case was filed on 17 November 2016. The application in a case was supported by an affidavit of Mr Simon David Miller an Industrial Advisor (“the Industrial Advisor”) from the Union who filed the application on behalf of the applicant.
Application in a case
Turning to the application in a case, the orders sought therein were as follows:
“1. That the proceedings for matter MLG2201/2016, which were dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001(Cth), be reinstituted; and
2. That a further hearing date be set.
Grounds
1. Due to an error, the Applicant’s representative was unaware of the hearing date, and as a consequence, the Applicant did not appear as required.”The affidavit of the Industrial Advisor sworn 17 November 2016 and filed in support of the application in case stated in paragraphs 1 through to 8 as follows:
“1. I am currently employed by the Australian Federation of Air Pilots (“AFAP”).
2. I am assisting the Applicant with these proceedings.
3. On 11 October 2016, I lodged an Application and Form 5 – Small Claim under the Fair Work Act 2009 (“Application”) in respect of this matter through the Federal Circuit Court’s online “e-Lodgment” portal.
4. The Application was processed on the same day, and was assigned the file number MLG2201/2016, with a hearing date of 11 November 2016.
5. At the time the listing was made, I was unaware that the hearing details in this matter were contained in the Court’s online “e-Lodgement” portal, and was therefore unaware that it had been listed for hearing.
6. On 11 November 2016, as he was not aware of the details, the Applicant was not present at the hearing and the matter was dismissed by Judge O’Sullivan for non-appearance, pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
7. On 16 November 2016, it came to my attention through close examination of the “e-Lodgement” portal, that on 11 October 2016, the matter had been assigned file number MLG2201/2016 and a hearing date of 11 November 2016.
8. In error, I had expected to be notified of the hearing details separate to the “e-Lodgment” portal.”
Background to application in a case
On 11 November 2016 the Court made orders in small claims proceedings which had been commenced by application filed by the Union on 11 October 2016 which named Mr Gilbert as the applicant. That application made allegations of contraventions by the respondent of the Fair Work Act 2009 (Cth). In that application it was said that the applicant had been employed by the respondent as a pilot from September 2012 until October 2014.
On 11 November 2016 there was no appearance by or on behalf of both the applicant, the Union that had filed the small claims application, or the respondent. There had been no affidavit of service filed. In the absence of both parties (and as there was no explanation for their absence, or that of their solicitors or those acting on their behalf, no contact with the Court by or on behalf of any of the parties to explain their absence or that of their solicitors) the provisions of r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”) were applied and an order was made dismissing the application filed 11 October 2016, as follows:
“1. The application filed 11 October 2016 be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001.
On 17 November 2016 the Industrial Advisor then filed the application in a case on behalf of the Applicant that is before the Court today.
Approach to application in a case
Clifford & Mountford [2006] FMCAfam 450 (“Clifford & Mountford”), sets out the principles to be applied in relation to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), which is as follows:
“34. From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a. The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b. There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:
i. a reasonable explanation for the applicant's absence at the trial or hearing;
ii. material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii. no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
c. Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i. Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii. Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii. the conduct of the applicant since the judgment or order sought to be set aside was made.”
Consideration
Turning then to a consideration of the relevant factors in light of the principles set out earlier in these reasons, and the material and submissions made in support of the orders sought by the applicant today.
The applicant’s small claims application was governed by s.548 of the Act which states:
“(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and
(b) the order relates to an amount referred to in subsection (1A); and
(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2) In small claims proceedings, the court may not award more than:
(a) $20,000; or
(b) if a higher amount is prescribed by the regulations--that higher amount.
Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
(4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
…”
In McShane v Image Bollards Pty Ltd[1], Lucev FM (as His Honour then was) said this process:
“Section 548(3) of the FW Act provides as follows:
5. Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
[1] McShane v Image Bollads Pty Ltd [2011] FMCA 215
6. Rule 45.11(2) of the FMC Rules provides as follows:
(2) The Court is not bound by the rules of evidence when dealing with a small claim application, but may inform itself of any matter in any manner as it thinks fit.
7. Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force. The necessity to prove the claim was pointed out with particularity to the parties at the directions hearing on 18 March 2011. That particularity was necessary because Mr McShane had described the hearing, which the Court had just ordered be listed for 31 March 2011, as the “next get-together” (or words to that effect). The Court was at pains to point out that it was in fact a hearing at which the claim would need to be proved. Thus, Mr McShane was on notice that he would need to attend the hearing and prove his claim.” [FOOTNOTES OMITTED].
Any application of a technical kind such as this requires the Court to consider the practical effect, and to do so 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 Act 1999 (Cth),[2] and the Federal Circuit Court Rules, as prescribed by the objects of the FCC Act,[3] and the objects of the FCCA Rules[4], 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.[5]
[2] “FCC Act”.
[3] FCC Act, ss.3 and 42.
[4] FCCA Rules, r.1.03
[5] FCC Act, s.3; FCCA Rules, r.1.03
The Court must also take into account the following principles when determining whether or not to grant an application of a technical kind, such as this. Those are:
(a)the doing of justice between the parties, which remains a paramount consideration, to achieve a just resolution which 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.[6]
[6] Aon Risk Services Australia Ltd 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 French CJ and parags.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman V Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
It can be accepted that as a general proposition the fault of a solicitor should not be visited on the client (See Stollznow v Calvert [1980] 2 NSWLR 749, Andresakis v Alexus HoldingsPty Ltd [2006] NSWCA 294). An order made at a hearing against a party in the absence of a solicitor due to the solicitor’s fault may breach a fundamental principle of natural justice and be liable to be set aside (Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1).
In Jess v Scott (1986) 12 FCR 187 in relation to whether an error by a solicitor as to the date of delivery of the judgment from which leave to appeal was sought constituted special reasons supporting the grant of leave. The Full Court of the Federal Court found that such an order did amount to special reasons, and ordered the respondent’s costs of the application be borne by the applicant’s solicitor personally. It is not an immediate answer to a party which asks the Court to set aside an order made against it in its absence, to say that it has a remedy against its lawyers because of incompetence or some other reason (Jowett v Kelly [2008] NSWSC 1009).
However, this matter is not analogous to a case where the evidence of the applicant is the error was made by a solicitor in failing to attend a hearing, or misapprehending a certain date. There is no evidence from the applicant about the circumstances regarding the hearing on
11 November 2016, the subsequent events, the error of the solicitor or Union, or any prejudice because of that. Importantly, there is no evidence from the applicant he was not aware of the hearing on 11 November 2016, and no explanation from the applicant for his absence. Given the time that has elapsed since the orders were made, and the time that has elapsed since this matter was fixed for hearing, the explanation that has been provided is deficient and unsatisfactory.In my view, that is a significant matter telling against there being a finding of a reasonable explanation for the absence of the applicant at the hearing. In terms of material arguments available to the applicant and subject to what is said below, I accept the applicant may have a claim to make. However, those are only a summary of the allegations made by the applicant.
The submissions on behalf of the applicant did not address prejudice to the respondent. However, insofar as it is an accepted proposition, that normally the fault of the solicitor should not be visited on the client, the case of Amos v Wiltshire [2014] QCA 218 (which had referred to Taylor v Taylor (supra)) at paragraph 19 said this:
“I would not wish, however, to encourage the view that incompetence, inefficiency or neglect must be endured by the innocent party and comes without sanction. There will be many cases in which delay alone, with or without the added burden of costs, may be a decisive factor against relieving a party from the consequences of its own error. Courts are increasingly conscious of the financial and emotional impact on parties of the avoidable prolongation of litigation and are thus more ready than in the past to infer prejudice for which costs cannot provide full compensation.”
This is such a case, and I am unable to find there would not be prejudice to the respondent for which costs (even if the exceptions to s.570 of the Act applied) were full compensation. It was not submitted that there were any other relevant matters for the purposes of the Court exercising its discretion under r.16.05(2)(a) of the Rules.
Conclusion
In any event given the passage of events since it was filed, the appointment of a liquidator to the respondent,[7] the provisions of s.500(2) of the Corporations Act 2001 (Cth), and that the applicant would need leave of a Court (as defined) to proceed against the respondent, the application faces insuperable difficulties in prosecuting any proceeding in this Court[8] and is another independent basis on which the application in a case should be dismissed.
[7] A liquidator was appointed to the respondent on 16 February 2017.
[8] See s.58AA of the Corporations Act 2001 (Cth) which defines “Court”.
Therefore, and having considered all of the factors relevant to the exercise of the discretion, the material upon which the applicant relied and the submissions made on his behalf, I am not satisfied the orders made on 11 November 2016, should be set aside. For those reasons, the application in a case filed 17 November 2016, will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 16 March 2017
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