Gunawardane v Hormel Foods Australia Pty Limited
[2013] FCA 955
FEDERAL COURT OF AUSTRALIA
Gunawardane v Hormel Foods Australia Pty Limited [2013] FCA 955
Citation: Gunawardane v Hormel Foods Australia Pty Limited [2013] FCA 955 Parties: LAGATH GUNAWARDANE v HORMEL FOODS AUSTRALIA PTY LIMITED File number: VID 844 of 2013 Judge: TRACEY J Date of judgment: 17 September 2013 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – where proceeding dismissed for applicant’s failure to comply with discovery order – whether substantial injustice would result if leave to appeal were refused – whether decision attended by sufficient doubt – whether decision attended by error of the kind identified in House v The King (1936) 55 CLR 499 – application dismissed Legislation: Fair Work Act 2009 (Cth)
Federal Court Rules 2011 (Cth) – r 5.23Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 - cited
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 - applied
Gunawardane v Hormel Foods Australia Pty Limited [2013] FCA 864 - considered
Hogan v Australian Crime Commission (2010) 240 CLR 651 - cited
House v The King (1936) 55 CLR 499 - appliedDate of hearing: 17 September 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr S Moore Solicitor for the Respondent: Corrs Chambers Westgarth
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 844 of 2013
BETWEEN: LAGATH GUNAWARDANE
ApplicantAND: HORMEL FOODS AUSTRALIA PTY LIMITED
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
17 SEPTEMBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 844 of 2013
BETWEEN: LAGATH GUNAWARDANE
ApplicantAND: HORMEL FOODS AUSTRALIA PTY LIMITED
Respondent
JUDGE:
TRACEY J
DATE:
17 SEPTEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant has applied to the Court for leave to appeal from an order made by Justice Marshall on 2 August 2013. His Honour ordered that the proceeding should immediately be dismissed. He acted pursuant to rule 5.23(1)(b)(i) of the Federal Court Rules 2011: see Gunawardane v Hormel Foods Australia Pty Limited [2013] FCA 864.
The proceeding was commenced on 5 June 2012. The applicant claimed to have been dismissed from his employment with the respondent for reasons proscribed by the Fair Work Act 2009 (Cth). He sought various forms of relief including compensation and reinstatement.
On 29 April 2013 Middleton J ordered that the parties give discovery by 31 May 2013. The respondent complied with this order; the applicant did not.
On 14 June 2013 Marshall J extended the period within which the applicant was required to provide discovery until 15 July 2013. He did so after receiving an assurance from the applicant that he would be able to comply with the order and his Honour had advised the applicant of the potential consequences of a failure to comply.
The applicant failed to give discovery by 15 July 2013 and has not since done so.
About that time the applicant sought the consent of the respondent for a further extension of one week within which he could give discovery. The Respondent refused to consent to this proposal.
The respondent applied to Marshall J for an order of the kind which he ultimately made. As already noted the hearing of this application took place on 2 August 2013. The applicant did not attend the hearing.
In determining to make the orders sought by the respondent Marshall J had regard to a range of considerations. These included:
·The applicant’s failure to appear to oppose the application.
·The failure of the applicant to provide any material opposing the orders sought or any medical or other evidence to support a claim that he was unable to attend by reason of illness.
·The applicant’s “voluminous correspondence” with the Respondent’s solicitors at the time when he should have been attending to giving discovery.
·The failure of the applicant to give discovery well after the additional week which he had proposed had passed.
·The fact that three months had passed since the original deadline for giving discovery.
The application for leave to appeal was made on a number of grounds. In essence the applicant asserted that his failure to appear at the hearing on 2 August 2013 was attributable to a medical condition. He was not able to provide any medical evidence to support the claim that he was prevented by illness from appearing on that day. He also asserted that the same undisclosed illness had prevented him from complying with the orders made by Middleton J and Marshall J. None of the grounds alleged error on the part of Marshall J.
The application for leave to appeal was supported by an affidavit which was sworn by the applicant on 16 August 2013. The affidavit sought to provide the factual foundation for his principal application. It also ranged more widely by making allegations of professional misconduct against a number of solicitors including those acting for the respondent and those who had been acting for him in prosecuting a WorkCover claim against the respondent. Relevantly, the affidavit contained the assertion that: “The delay of around 3 months was predominantly caused due to my medical and financial problems.” No medical evidence was tendered to support this assertion.
Rule 5.23(1)(b)(i) provides that:
“(1)If an applicant is in default, a respondent may apply to the Court for an order that:
(a)...
(b)the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:
(i)immediately; or
(ii)…”
The applicant can only succeed on his present application if he is able to demonstrate that the order made by Marshall J is attended by sufficient doubt to warrant intervention by the Full Court, and that substantial injustice will result if leave to appeal were refused, supposing his Honour’s decision is wrong: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. The power exercised by Marshall J was discretionary in nature and his exercise of that discretion will be reversed on appeal only if attended by error of the kind identified in House v The King (1936) 55 CLR 499 at 505. It is also to be borne in mind that the matter involved is one of practice and procedure. Appellate courts exercise particular caution before overturning the exercise of a judicial discretion in this area: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Hogan v Australian Crime Commission (2010) 240 CLR 651 at 665.
The applicant submitted that his medical condition, which he identified as an adjustment disorder, had inhibited his capacity to comply with the orders made by Middleton and Marshall JJ. He alleged that the respondent’s solicitors had placed undue pressure on him to comply with the orders. He stressed that he was unrepresented.
The Court should always be mindful of the problems faced by unrepresented litigants. It must not, however, overlook the rights of other parties to be accorded justice according to law including the right to have litigation proceed in accordance with the timetables laid down in directions made by the Court. In the present matter considerable leniency has been granted to Mr Gunawardane. He failed to comply with the deadline set by Middleton J, and despite this Marshall J was prepared to grant him a further period of time within which to comply. His Honour fixed a period of about a month having first been assured by the applicant that he would be able to comply within that period. His Honour made sure that the applicant understood that there were potential adverse consequences for the applicant in the event of failure by him to comply with the requirement to give discovery within the extended period. When the applicant failed to meet his obligation to give discovery by 15 July 2013 the matter came back before his Honour. Before that hearing took place the applicant was advised in writing by the Registry of the Court that, if there was any impediment to his attendance before Marshall J on 2 August 2013, he should place that evidence before the Court and make an application for an adjournment. Neither of these steps was taken. On 2 August 2013 the applicant failed to attend to resist the application that had been made by the respondent.
All of these matters were taken into account by Marshall J in making his decision to order that the proceeding be dismissed. His reasons disclose no appellable error of the kind identified in House v The King and the applicant’s grounds for his present application identify no such errors.
In these circumstances I am not persuaded that his Honour’s decision was attended by sufficient doubt as to warrant intervention by the Full Court.
Accordingly, the application for leave to appeal will be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 17 September 2013
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