Hagos v Volvo Group Australia
[2013] FMCA 1252
•29 November, 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAGOS v VOLVO GROUP AUSTRALIA | [2012] FMCA 1252 |
| INDUSTRIAL LAW – Application to strike out claim – costs. |
| Fair Work Act2009, ss.340, 352 Fair Work Regulations 2009, reg.3.10(5) Federal Magistrates Act 1999, s.17A |
| Applicant: | BERHANE HAGOS |
| Respondent: | VOLVO GROUP AUSTRALIA |
| File Number: | BRG 1109 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 8 November, 2012 |
| Date of Last Submission: | 8 November, 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 29 November, 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondent: | Mr Parsons |
| Solicitors for the Respondent: | Clinch Long Letherbarrow |
ORDERS
Strike out paragraphs 1, 2, 3, 4, 5, 7(e), 8, 9(a) and 10 of part (g), annexure A of the applicant’s amended claim filed on 23 August, 2012.
The respondent produce to the applicant the 59 page IHR Australia report in relation to the applicant’s workplace complaint in its entirety.
The costs to be paid by the applicant to the respondent pursuant to the order of 9 August, 2012 be fixed in the sum of $12,598.05.
The respondent file and serve any further affidavit material by 4:00pm 4 February 2013.
No later than 4.00pm on 9 April, 2013, the Applicant shall file and serve upon the Respondent an outline of argument setting out:
(a)all issues of fact and law that the Applicant contends are raised by the application and the response thereto;
(b)the findings of fact and conclusions of law contended for by the Applicant; and
(c)all relevant authorities (including references to particular passages of those authorities) relied upon by the Applicant.
No later than 4.00pm on 30 April, 2013, the Respondent shall file and serve upon the Applicant an outline of argument setting out:
(a)all issues of fact and law that the Respondent contends are raised by the application and the response thereto;
(b)any agreed findings of fact or conclusions of law the Court will be invited to make having regard to the Applicant’s outline;
(c)the findings of fact and conclusions of law otherwise contended for by the Respondent; and
(d)all relevant authorities (including references to particular passages of those authorities) relied upon by the Respondent.
No later than 4.00pm on 14 May, 2013, the Applicant shall file and serve upon the Respondent a further document setting out any agreed findings of fact or conclusions of law that the Court will be invited to make having regard to the Respondent’s outline.
The application be adjourned to 21 May 2013 at 10.00 a.m. for final hearing (with an estimated hearing time of 4 days) in the Federal Magistrates Court of Australia sitting at Brisbane.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1109 of 2011
| BERHANE HAGOS |
Applicant
And
| VOLVO GROUP AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(Revised from the transcript)
I have before me three matters to deal with this afternoon. The first is in an application in a case filed by Volvo on 23 October, 2012. The second is an application in a case filed by Mr Hagos on 6 November, 2012 and the third is a matter which arises out of some orders that were made earlier this year in respect of some costs thrown away by an adjournment. I will deal with Volvo’s application first, Mr Hagos’ application next and then the question of costs.
By its application in a case filed on 23 October, 2012 Volvo seeks an order that certain parts of Mr Hagos’ amended claim filed on 23 August, 2012 be dismissed. Alternatively it seeks an order that the same paragraphs be struck out. In the further alternative, it seeks orders that Mr Hagos pay Volvo’s costs thrown away by reason of the amendments and that the respondent have until 4:00pm on 20 December, 2012 to file and serve its response to the amended application. Some other orders are sought and in particular that the application generally be stayed until such time as the costs that were ordered consequent upon an adjournment of this matter on 9 August this year are paid by Mr Hagos to Volvo.
Mr Hagos’ principal application is one for declarations and relief consequent upon what he alleges to be contraventions of the Fair Work Act 2009. The matter came before me for trial on 9 August, 2012 at which point it was adjourned for reasons which at the moment are not particularly relevant. What is relevant is that Mr Hagos was represented legally on that day and quite properly his representative suggested that the material that was filed for the purposes of the trial might have gone beyond what was in the claim as it was originally framed and so there was a suggestion that there might be an amended application filed, which broadened or in some other way augmented the claim made by Mr Hagos.
The transcript reveals that Volvo, by its Counsel, was concerned about any amendments, but ultimately I permitted Mr Hagos to file an amended application. Volvo’s right to argue about whether the amendments made by the amended application should be allowed was clearly reserved. It is by this application that Volvo now seeks to challenge some of the amendments Mr Hagos seeks to be made. There is in my view no impediment to Volvo doing so. It was not the position that on 9 August, 2012 I gave Mr Hagos some form of unfettered or unlimited leave to amend his claim without it being subject to opposition from Volvo in due course.
I turn then to that opposition. By the application in a case Volvo challenges paragraphs 1, 2, 3, 4, 5, 7(e), 8(a), 9(a) and 10, with part (g) in annexure A to Mr Hagos’ amended claim filed on 23 August, 2012. The principal submission is that those paragraphs focus upon a dismissal of Mr Hagos by Volvo from his employment with Volvo. The point made by Volvo is that there was no dismissal. Mr Hagos was employed with Volvo on a fixed term contract and on 25 November, 2010 the term of his employment contract came to an end.
Volvo correctly points out that for there to be “dismissal” as that term is used in the Fair Work Act and in particular in Part 3 of the Act, the dismissal needs to be at the instigation of Volvo. Sometimes an applicant will leave his or her employment and resign, but sometimes it can be said that that termination of the employee’s employment has been occasioned at the behest of or at the instigation of the employer and so there has been what is described in the authorities as a constructive dismissal. This case is different.
It is clearly the case it seems on the evidence that there was a fixed term contract between Mr Hagos and Volvo. It has not been suggested in the course of argument and I was taken to nothing in the evidence which suggested that there was any obligation at all on Volvo to renew Mr Hagos’s employment contract for any particular period or indefinitely. It is difficult then to see how it can be suggested that there has been a dismissal as pleaded in paragraph 4 or a termination as pleaded in paragraph 4 of part (g) of annexure A.
To the extent that the claims set out in paragraphs 1, 2, 3, 4, 5, 7(e), 9(a) and 10 all hinge on the notion that Volvo took adverse action against Mr Hagos, because it dismissed him from its employment the claim is, in my view, misconceived. It has, in terms of s.17A of the Federal Magistrates Act 1999, no reasonable prospect of success and so in my view those paragraphs ought to be struck out. I strike out paragraphs 1, 2, 3, 4, 5, 7(e), 8, 9(a) and 10 of part (g), annexure A of Mr Hagos’ amended claim filed on 23 August, 2012.
I accept also Volvo’s argument that additionally Mr Hagos’ claim under s.352 of the Fair Work Act is fatally flawed. There seems to be no dispute about the fact that Mr Hagos was absent from work for three and a half months between 10 September, 2010 and 24 December, 2010. Regulation 3.10(5) of the Fair Work Regulations 2009 provides that an absence is not a temporary absence if an employee is absent from work for more than three months. Section 352 applies to dismissals where an employee is temporarily absent from work. Having regard to the matters to which I have just referred, it seems to me very clear that Mr Hagos cannot succeed on that claim either.
Volvo also seeks an order that Mr Hagos be given 28 days from 8 November, 2012 to pay Volvo’s costs of the adjournment ordered on 9 August, 2012 and if the costs are not paid by that date then the proceedings be stayed until such costs are paid. I decline to make that order. In this case Mr Hagos is self represented, he is pursuing a claim in a jurisdiction where ordinarily costs orders are not made.
A costs order has been made in this case, but it seems to me that there is no warrant to impose further burdens on Mr Hagos when there is no real suggestion at this point that he is either unable to or unwilling to pay the costs within a reasonable time. The amount that he has to pay is not yet settled and so until the amount is settled and until there is some clear evidence, which might support such an application, I am disinclined to make such an order.
I turn then to the application in a case filed by Mr Hagos on 6 November, 2012. He seeks a number of orders; the first is a declaration that Volvo is in breach of the Fair Work Act 2009 for taking adverse actions against him in contravention of s.340 of the Act in line with his amended application that was filed on 23 August, 2012. I decline to make that order because that is an order which can only be made after there has been a full hearing of this case. One can only make a determination about the final relief sought and the basis upon which that relief might be granted once all of the evidence is in and the Court has had the forensic advantage of the trial process.
For similar reasons I decline to make orders 2 and 3 set out in Mr Hagos’ application in a case.
Having regard to the orders that I have already made in Volvo’s application in a case it is inappropriate to make order 4 set out in Mr Hagos’ application in a case.
Order 6 in the application in a case is an order which seeks that the costs order of 9 August, 2012 be set aside. I decline to set aside the costs order. I can see no basis for doing so. It was suggested in argument by Mr Hagos that the order does not reflect the intention of the Court, but it does. In those circumstances, no occasion arises to set the order aside.
Paragraph 7 asks for the Court to fix a reasonable amount to be paid by Mr Hagos as the costs thrown away by the adjournment. I intend to do that.
The only other order of any substance that remains in Mr Hagos’s application in a case is an order that Volvo produce the 59 page IHR Australia report in relation to Mr Hagos’ workplace complaint in its entirety. I see no reason not to make that order and I will make it.
That then leaves for consideration the question of the costs to be paid as a result of the adjournment of the trial of 9 August.
In that respect, exhibit 2 before me is a bill of costs prepared by an organisation describing themselves as Quantum Cost Assessors. The bill as delivered totals $21,545.36, but in my view that amount is unreasonable. Turning to page 2 of the bill I have difficulty in the notion that I ought to make an allowance for solicitors travelling from Sydney to Brisbane for a hearing when this case centres upon conduct and actions which occurred in Brisbane and where there are local solicitors and counsel who could attend to the matter. Alternatively agents may have been engaged. In those circumstances I do not intend to allow travel costs for a solicitor.
Turning to page 3 I do not intend to allow the lost earnings for Volvo’s witnesses. I was taken to no authority which suggests that it is an appropriate allowance on a party and party basis to allow such disbursements. Ordinarily a witness is paid witness expenses and witness expenses at least in my experience are modest. I see no basis in law and none has been explained to me to justify the amounts claimed for Mr Georgiardis or Mr Graham. For the reasons I have already indicated in respect of the item on page 2 I do not intend to allow the solicitor and counsel accommodation and meals for attendance on hearing, the solicitor’s flight fee for attendance on hearing, the cab charges, counsel’s expenses, airfare, cab and hotel expenses. The amount therefore in my view that ought to be taxed off the bill, although I hesitate to use that term, is $8,944.31.
The amount to be paid by Mr Hagos to Volvo being the costs thrown away by the adjournment ought to be $12,598.05. I order accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 22 January 2013
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