Groves v Chadwick
[2013] FCCA 1269
•4 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GROVES v CHADWICK | [2013] FCCA 1269 |
| Catchwords: PRACTICE AND PROCEDURE – Service in small claims list matters – expedition and efficiency. COURTS AND JUDGES – Jurisdiction – jurisdiction to order an apology and reference in small claims list proceedings. WORDS AND PHRASES – “amount” – “amount that an employer was required to pay to … an employee”. |
| Legislation: Fair Work Act 2009 (Cth), ss.548, 570(2)(b), 772 Fair Work Bill 2008 (Cth), Explanatory Memorandum, para.2167 |
| Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392; [2007] FCA 879 Kanapathy on behalf of Rajandran Kanapathy v in de Braekt (No.3) [2012] FMCA 1213 |
| Applicant: | GEOFFREY PHILIP GROVES |
| Respondent: | MARGARET ALDONNA CHADWICK |
| File Number: | PEG 35 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 4 September 2013 |
| Date of Last Submission: | 4 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 4 September 2013 |
REPRESENTATION
| For the Applicant: | In person (by telephone) |
| For the Respondent: | No appearance |
ORDERS
There be summary judgment for the Applicant, save as to the application for an apology and a reference from the Respondent.
The Respondent pay the Applicant the sum of $7,695 by 17 September 2013.
The Respondent pay the Applicant’s travel costs pursuant to Item 16 of Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) in the sum of $1683 by 17 September 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 35 of 2013
| GEOFFREY PHILIP GROVES |
Applicant
And
| MARGARET ALDONNA CHADWICK |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
This is a small claims list matter under s.548 of the Fair Work Act 2009 (Cth).[1]
[1] “FW Act”.
The applicant, Geoffrey Philip Groves:
a)alleges unlawful termination of employment under s.772 of the FW Act; and
b)seeks $7,695 as compensation for loss of income, subsequent to his termination of employment by the respondent, Margaret Aldonna Chadwick, on 13 November 2012.
The claim was filed on 1 March 2013.
Affidavits in support of the application were filed by Mr Groves on 5 April 2013 dealing with the circumstances of the unlawful termination and his medical history.
At a first directions hearing before the Court on 10 April 2013 there was no appearance by the respondent, and the matter, which was heard by telephone-link between Perth and Melbourne by Federal Magistrate Riethmuller (as he then was), was adjourned to 7 May 2013.
At a second directions hearing on 7 May 2013 by telephone-link between Melbourne and Perth Judge Riley ordered that the matter be adjourned to 7 June 2013 for directions, but also ordered that:
2.The respondent [sic: applicant] ensure that a sealed copy of this order is personally served on the respondent with:
a.the application filed on 1 March 2013;
b.the Form 3 Claim under the Fair Work Act 2009 alleging unlawful termination of employment filed on 1 March 2013; and
c.the two affidavits sworn by the applicant on 26 March 2013.
There was no appearance by the respondent at the 7 May 2013 directions hearing.
There appears on the file, albeit seemingly not processed by the registry, and without any apparent indication as to how the copies (as opposed to originals) came to be on the file, affidavits from Mr Groves and Melinda Kaye Wilson, a person residing at the same address as Mr Groves in Donnybrook in the south-west of Western Australia. These two affidavits sworn on 6 June 2013 and 27 May 2013 respectively attest to service on Ms Chadwick in accordance with the orders of 7 May 2013. Having regard to the provisions of s.548(3) of the FW Act which provides as follows:
(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,
there is no good reason why these two affidavits ought not form part of the Court file, and the Court will direct that they be accepted as having been filed on or about 6 June 2013.
At the next directions hearing on 7 June 2013, again heard between Perth and Melbourne by telephone-link, Judge Riley ordered the adjournment of the matter to 25 June 2013 for directions, and that Mr Groves ensure that a sealed copy of the order then made was “personally served on the respondent on or before 18 June 2013.” The Court’s order of 7 June 2013 had a note following the orders which was in the following terms:
The reason for the adjournment is to permit the applicant to file and (sic) affidavit of service that proves service on the respondent.
There was no appearance by the respondent at the 7 June 2013 directions hearing.
On 21 June 2013 an affidavit of service was filed by Mr Groves indicating that the application for unlawful termination, an affidavit of annexures, and a subpoena dated 7 June 2013, were handed by him to Ms Chadwick, whom he knew personally, at 85 Morgans Street, Ravensthorpe. The Court observes that Ravensthorpe is in the south-east of Western Australia, some 468 kilometres by road from where Mr Groves now lives in Donnybrook.[2]
[2] Google.com.au/maps.
On 25 June 2013 there was a further directions hearing by telephone-link between Melbourne and Perth before Judge Riley, at which directions hearing the matter was adjourned to 5 August 2013 for “interim hearing” before the Court as presently constituted. There was a further order requiring that a sealed copy of the order be “personally served on the respondent on or before 18 July 2013.” Again, there was no appearance by the respondent at the 25 June 2013 directions hearing.
On 30 July 2013 Mr Groves filed an affidavit of service indicating that he had served the unlawful termination application, an affidavit of annexures, and the Court’s order dated 25 June 2013, personally on Ms Chadwick at 87 Martin Street, Ravensthorpe on 10 July 2013.
On 5 August 2013 the matter came before the Court as presently constituted. Once again, there was no appearance by the respondent.
The Court made the following orders, amongst others:
1.The Respondent file and serve a Response by 26 August 2013.
2.If the Respondent fails to file and serve a Response in accordance with order (1) then the matter be listed for hearing for summary judgment on 4 September 2013 at 9:15am with liberty to the parties to appear by telephone.
5.The Applicant serve a copy of this order on the Respondent by Registered Post to Ravy Country Kitchen, 90 Morgans Street, Ravensthorpe, WA 6346.
The Court is informed by Mr Groves, who appeared today by telephone, that service of the order of 5 August 2013 has been sought to be effected by Registered Post, and having checked the Registered Post tracking facility yesterday, the order of 5 August 2013 sent by Registered Post on 19 August 2013 still awaits collection by Ms Chadwick from the Ravensthorpe Post Office. In these circumstances, the Court is satisfied that Mr Groves has sought to effect service in accordance with order 5 of the Court’s orders of 5 August 2013, and Ms Chadwick ought not be advantaged by a failure to collect Registered Post.
There is once again, and consistent with the appearance history for the entirety of these proceedings, no appearance today by the respondent, the matter having been called outside the Courtroom. Nor has there been a filing of a notice of address for service providing any address for service or other contact details for the respondent. Further, the record reveals no evidence or attempt by Ms Chadwick to contact the Court, or Chambers, or the Court registry.
In accordance with order 2 of the Court’s orders of 5 August 2013 Mr Groves has today moved for summary judgment.
In circumstances where:
a)there is evidence, sufficient for a small claims list matter, that the Court’s orders of 5 August 2013, 25 June 2013, 7 June 2013 and 7 May 2013, have all been served on Ms Chadwick; and
b)Ms Chadwick has not filed an address for service or any other contact details with the Court; and
c)Ms Chadwick has not appeared at any of the proceedings in this Court,
it is appropriate that summary judgment be granted to Mr Groves, save that the Court will not make an order requiring Ms Chadwick to provide an apology or a reference to Mr Groves.[3] There are two reasons for not doing so:
a)the Court is of the view that it does not have jurisdiction to do so as an apology and a reference is not an “amount” in the context of an “amount that an employer was required to pay to … an employee” in s.548(1) and (1A) respectively of the FW Act, and cannot, therefore, be the subject of an order of the Court; and
b)even if the Court had jurisdiction to order that an apology or reference be provided, it is not appropriate to order that an apology or a reference be provided in circumstances where there is no indication before the Court that the apology or reference will be given freely by Ms Chadwick.[4]
[3] Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides that summary judgment may be given “on any part of a proceeding”.
[4] See Kanapathy on behalf of Rajandran Kanapathy v in de Braekt (No. 3) [2012] FMCA 1213 at para.56 per Lucev FM (a decision made in the context of this Court’s human rights jurisdiction).
In circumstances where the distance between the parties, in this case Ms Chadwick the respondent in Ravensthorpe, and Mr Groves the applicant in Donnybrook, is 468 kilometres, it is arguably unfortunate that earlier orders of this Court required personal service of orders of this Court, where those orders did little more than adjourn the proceedings to subsequent directions hearings. That is particularly so having regard to the fact that the matter is one in the small claims list in which the Court is provided with a discretion to act informally and without regard to legal forms and technicalities, and where it was intended that claims for relatively small amounts of money be dealt with efficiently and expeditiously by the Court.[5] Notwithstanding the importance of ensuring that the respondent, Ms Chadwick, was aware of the proceedings, their nature and what was periodically occurring in relation to them in this Court, the necessity to have Mr Groves, or someone on his behalf, undertake a journey exceeding 900 kilometres return, in order to personally serve documents which might equally have been served by Registered Post is not obvious in the context of a small claims list matter, when more expeditious and economical means of service, such as Registered Post, are available. In the circumstances, where Ms Chadwick has not acknowledged the existence of the proceedings, nor appeared, whether personally or by telephone, the Court’s view is that it is appropriate for there to be an order that Mr Groves be paid travelling costs pursuant to Item 16 of Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth), that is $561 for each of the three occasions on which it appears he has been required to personally serve documents on Ms Chadwick. There should therefore be an additional order that Ms Chadwick pay Mr Groves’ travel costs in the sum of $1683 by 17 September 2013. The Court makes that order on the basis that the failure of Ms Chadwick to take any steps to participate in the proceedings is an unreasonable act for the purposes of s.570(2)(b) of the FW Act.[6]
[5] Explanatory Memorandum to the Fair Work Bill 2008 (Cth), para.2167.
[6] Australian and International Pilots Association v Qantas Airways Ltd (No. 3) (2007) 162 FCR 392 at 402-403 per Tracey J; [2007] FCA 879 at paras.36-37 per Tracey J.
There will therefore be orders that:
a)there be summary judgment for Mr Groves in relation to monetary compensation only, that is save as to the application for an apology and a reference from Ms Chadwick;
b)Ms Chadwick pay Mr Groves the sum of $7,695 by 17 September 2013; and
c)for travel costs in the sum of $1683 to be paid by Ms Chadwick to Mr Groves by 17 September 2013.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Deputy Associate:
Date: 4 September 2013
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