Holland v HBMC Services Pty Ltd
[2025] FedCFamC2G 1193
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Holland v HBMC Services Pty Ltd [2025] FedCFamC2G 1193
File number(s): SYG 2317 of 2018 Judgment of: JUDGE KAUR-BAINS Date of judgment: 25 July 2025 Catchwords: INDUSTRIAL LAW – FAIR WORK – application – dismissal from employment in contravention of general protections – dormant proceedings – no steps taken for six years – whether the applicant satisfied the Court that the proceeding should not be dismissed – application dismissed. Legislation: Fair Work Act 2009 (Cth), s 544
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.16(1) and 13.16(2)
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 25 July 2025 Place: Sydney Applicant: In person Solicitor for the Respondent: No appearance ORDERS
SYG 2317 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN HOLLAND
Applicant
AND: HBMC SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The application is dismissed pursuant to r 13.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KAUR-BAINS
INTRODUCTION
The matter was listed before me pursuant to r 13.16(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules) at the Court’s own initiative as no steps had been taken in the proceedings for six years.
The applicant’s claims arose in the context of his employment with Hardy Bros Mining & Civil Pty Ltd, a subsidiary of the respondent, as project manager under a written contract dated 28 February 2018. For ease of reference in this judgment, both HBMC Services Pty Ltd and Hardy Bros Mining & Civil Pty Ltd are referred to as the respondent.
PROCEDURAL HISTORY
On 30 August 2018, the applicant filed his application together with Form 2 in the Fair Work Division of this Court (application), alleging that his dismissal from employment by the respondent was in contravention of a general protection.
On 5 December 2018, the applicant filed an affidavit sworn on the same day in support of his application (2018 Affidavit). The applicant’s letter of engagement and letter of termination were included. The affidavit included details of the following:
(a)the applicant’s full-time employment commenced on 12 March 2018 as a project manager (Annexure B at [1.1] of 2018 Affidavit);
(b)the applicant’s position was subject to an initial six-month probation period, which was subject to review by the respondent and subject to termination (Annexure B at [2] of 2018 Affidavit);
(c)the applicant had concerns about the respondent’s safety practices in the work sites, and raised several work incidents involving the respondent’s employees as well as issues as to compliance with employee entitlements ([99] to [269] of 2018 Affidavit); and
(d)on 19 May 2018 at 11:23am, the applicant received an email from the respondent, which attached a letter of termination dated 18 May 2018 signed by the respondent’s general manager ([270] to [275] of 2018 Affidavit).
On 19 February 2019, an affidavit of service sworn by the applicant on 18 February 2019 was accepted for filing. In that affidavit, the applicant stated that he served his application and the 2018 Affidavit at the respondent’s registered office at 1/35a The Boulevarde, Toronto, NSW 2283 on 11 January 2019.
The matter was docketed to his Honour Judge Driver. On 26 September 2018, Driver J made an order that the first court date be adjourned to 9:30am on 22 October 2018.
On 22 October 2018, Driver J made the following orders:
1.The Court notes that a certificate under s.368 of the Fair Work Act 2009 (Cth) was issued in this matter by Commissioner Cirkovic on 6 August 2018 and an application to this Court or the Federal Court for a civil remedy order was to be made within 14 days thereafter.
2.The Court further notes that an application and accompanying Form 2 were lodged electronically in the Court Registry in Sydney on 19 August 2018 but were not filed until 30 August 2018.
3.To the extent that an extension of time for the application is required in these circumstances, an extension of time is granted up to and including 30 August 2018.
4.The Court further notes that a return date on the application was fixed for 26 September 2018 but at that time there was no appearance by or on behalf of either party and the first court date was adjourned to 9.30am on 22 October 2018. There was no appearance by either party today.
5. The first court date is adjourned to 9.30am on 5 December 2018.
6.The Court notes that if there is no appearance by or on behalf of the applicant at that time, the application will be dismissed on account of that non-appearance.
On 5 December 2018, Driver J made orders that the name of the respondent be changed to “HBMC Services Pty Ltd” and the matter was listed for directions at 9:30am on 19 February 2019.
On 19 February 2019, Driver J made orders that the direction hearing scheduled on that day be adjourned to 2 April 2019 at 9:30am and the applicant was granted leave to file an amended application attaching his claim within seven days.
On 2 April 2019, Driver J made the following orders:
1. The applicant is to serve on the respondent a sealed copy of his amended application no later than 9 April 2019.
2. The respondent is to file and serve on the applicant a response to the amended application no later than 23 April 2019.
3. The matter is listed for directions at 9.30am on 6 May 2019.
4. If the respondent fails to comply with order 2, the applicant has leave and liberty to apply for default judgment at the next directions hearing on 6 May 2019.
On 6 May 2019, Driver J ordered that the proceedings be stayed in view of the respondent’s liquidation pursuant to ss 471B and 500 of the Corporations Act 2001 (Cth).
Between 6 May 2019 and 22 April 2025, no steps had been taken in the proceedings. On 22 April 2025, the matter was docketed to me. The Court sent a letter dated 15 May 2025, by registered post, to the applicant and the external administrator of the respondent, notifying the parties that the matter had been listed at 10:00am on 6 June 2025 and at that time, the parties would have the opportunity to make submissions before the Court as to why the proceedings should not be dismissed as no steps had been taken in the proceedings for six years.
On 30 May 2025 at 3:08pm, the applicant sent an email to my chambers advising that he was seeking commercial resolution of his company’s project in Papua New Guinea and requested an adjournment of the hearing which was listed at 10:00am on 6 June 2025. On 2 June 2025, the applicant sent further emails attaching his travel documentations, including his electronic plane ticket booking confirmation, proof of additional baggage allowance and application documents for an extension of visa period for his stay in Papua New Guinea due to delays in his commercial negotiations.
On 2 June 2025 at 9:27am, my chambers sent an email to the parties stating that the hearing was relisted at 10:00am on 18 July 2025 in Court 9.3, 80 William Street, Woolloomooloo, NSW 2011. On 30 June 2025 at 5:05pm, my chambers sent an email to the parties that the hearing was further adjourned to 10:00am on 25 July 2025 due to timetabling issues.
DISMISSAL HEARING
The dismissal hearing took place before me at 10:15am on 25 July 2025. At that time, the matter was called three times outside the courtroom and there was no appearance for the respondent. In support of the application, the applicant relied on his affidavit sworn on 23 July 2025 and filed on 25 July 2025 (2023 Affidavit), which was read into evidence. The applicant supplemented the affidavit by oral submissions.
CONSIDERATION
The applicant in his 2023 Affidavit, which comprised of 142 paragraphs and 13 annexures, deposed that on 6 May 2019, his Honour Judge Driver stayed the proceedings on the basis that a provisional liquidator had been appointed to the respondent. Driver J notified the applicant that should the applicant identify other persons who were involved in the alleged contravention by the respondent, those parties could potentially be joined in the proceedings.
At the hearing before me, the applicant said that he had identified four other potential persons who were involved in the alleged contraventions by the respondent, being:
(a)Robert Hardy (director and 50% shareholder of HMBC);
(b)Danny Hardy (director and 50% shareholder of HMBC);
(c)Matthew Hardy (general manager); and
(d)Sarah Hardy (human resources manager).
(four individuals)
The applicant said that from about 2019, he had been attempting to obtain details as to the residential addresses of the four individuals, for the purpose of serving the said individuals, once he had obtained evidence as to their involvement in the alleged contravention by the respondent. The applicant said that he tried to obtain information from the liquidator for the respondent to obtain evidence that implicated the four individuals in the alleged contravention by the respondent, but the liquidator would not provide the information because the applicant was not an employee of the respondent.
The applicant tendered two documents from Australian Securities & Investments Commission (ASIC), being a “Statutory report by a liquidator to creditors” (Exhibit 1) and “Report on Company Activities and Property” (Exhibit 2). I note that the said documents were filed respectively at ASIC on 6 May 2019 at 4:40pm and 16 July 2019 at 3:53pm. The applicant said he only obtained the documents a few weeks ago, as he was not aware of their existence. The applicant noted the liquidator in the request to creditors stated the following (Exhibit 1, p 8):
I received a Proof of Debt from the Australian Taxation Office in respect of outstanding superannuation for the period 1 July 2017 to 31 December 2018 in the amount of $1,130,697.23. I have not at this stage been provided with the breakdown of employees that the ATO has claimed on behalf of. As the company is in liquidation the ATO claims outstanding unpaid superannuation contributions on behalf of employees together with appropriate penalties and interest.
The applicant also referred to a number of tragic events in his 2023 Affidavit, including the loss of his mother and other personal matters not directly associated with the alleged contraventions by the respondent or the four individuals.
The applicant conceded that there had been delay in the proceedings but the reasons are reasonable, just and fair. He contended that he continued to suffer emotionally from the tragic loss of his mother on a daily basis and does his best to function. The applicant said he would follow through his application in a more diligent manner.
Relevant legislative provisions
Rule 13.16(2) of the GFL Rules provides as follows:
13.16 Dormant proceedings
(2) The Court must not make an order under subrule (1) if:
(a) there is a future listing for the proceeding or a part of the proceeding; or
(b) an application in a proceeding relating to the proceeding has not been determined; or
(c) a party to the proceeding satisfies the Court that the proceeding, or the part of the proceeding, should not be dismissed; or
(d) the Court has not given the parties to the proceeding notice under subrule (3).
I am satisfied the requirements of r 13.16(2) of the GFL Rules have been satisfied in that:
(a)there is no future listing for the proceeding or a part of the proceeding;
(b)there are no outstanding applications in a proceeding to be determined;
(c)a party to the proceeding has not satisfied the Court that the proceeding, or the part of the proceeding, should not be dismissed; and
(d)the Court had given the parties to the proceeding notice of the hearing by registered post as referred to at [13] of this judgment.
For the reasons that follows, the applicant has not satisfied me that the proceedings should not be dismissed pursuant to r 13.16(1) of the GFL Rules:
(a)First, Driver J on 6 May 2019 told the applicant as to the possible joinder of other parties who may have been involved in any contravention by the respondent.
(b)Second, in the last six years, the applicant has taken limited steps to actually bring an application for leave to amend the proceedings to join the said four individuals.
(c)Third, I note that the applicant would need to seek leave to amend the current proceedings to join the said individuals in circumstances where s 544 of the Fair Work Act 2009 (Cth) requires proceedings to have been commenced within six years from the time the alleged contravention occurred and that limitation period has expired.
CONCLUSION
For these reasons, this matter will be dismissed with no order as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 28 July 2025
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