Hutchinson v Comcare (No 3) - [2018] FCA 2005

FEDERAL COURT OF AUSTRALIA
Hutchinson v Comcare (No 3) [2018] FCA 2005

File number: WAD 404 of 2016

Judge: BROMBERG J

Date of judgment: 3 December 2018

Catchwords: PRACTICE AND PROCEDURE – application for trial to be vacated – discussion of lack of adequate explanation and absence of evidence, delay, prejudice to respondent and case management considerations - application dismissed

Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Date of hearing: 3 December 2018

Registry: Victoria

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 22

Counsel for the Applicant: The Applicant is self-represented

Counsel for the Respondent: Ms R Sweet

Solicitor for the Respondent: Norton Rose Fulbright

ORDERS

WAD 404 of 2016

BETWEEN:
KAREN HUTCHINSON

Applicant

AND:
COMCARE

Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

3 DECEMBER 2018

THE COURT ORDERS THAT:
1.The Applicant’s application to vacate the hearing is refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BROMBERG J:

On 10 August 2018, the Court listed this proceeding for a pre-trial conference to be conducted today at 4.15 pm on 3 December 2018.
On 2 November 2018, the self-represented applicant (“Ms Hutchinson”) filed an interlocutory application seeking summary judgment. That interlocutory application was listed for directions, to be heard together with the pre‑trial conference. In the course of dealing with the interlocutory application, a number of exchanges took place between the Court and Ms Hutchinson, including in relation to the Court’s capacity to deal with the interlocutory application. A number of options were presented to Ms Hutchinson, including an option of having that application dealt with on the commencement of the trial. In the end, Ms Hutchinson indicated that she would not press her interlocutory application and an order was made that it be dismissed with costs.
The proceeding then turned to the question of what needed to be done in further preparation for the trial. Ms Hutchinson resides in Perth, Western Australia. In that context, Ms Hutchinson raised that she would not be able to attend in court in Melbourne for the trial. She asserted that she suffers from agoraphobia, that her agoraphobia is severe and that, not only could she not attend court in Melbourne, she could not attend at court at all. She also indicated that she wished to be represented by a lawyer at the trial and asserted that she had identified a barrister who was prepared to act for her, but who was not available on the dates currently listed for trial.
I indicated to Ms Hutchinson that, if she was making an application for the trial to be vacated, then such an application would ordinarily need to be made supported by an affidavit, and that, if a ground of the application included that she was medically unfit to attend at court, that that would ordinarily need to be supported by medical evidence. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCA 2005
Decision Date: 3 December 2018

CaseChat Overview and Summary

In Hutchinson v Comcare, the applicant, a former Commonwealth employee, sought to vacate a scheduled trial. The dispute revolved around the applicant's claim for compensation and the respondent's opposition to the claim. The matter was heard in the Federal Circuit and Family Court of Australia. The primary concern was whether the applicant's application to vacate the trial should be granted, considering factors such as the adequacy of the explanation provided, the existence of evidence, the potential for delay, the prejudice to the respondent, and broader case management considerations.

The court was required to determine whether the applicant's reasons for seeking to vacate the trial were sufficient and whether the applicant had demonstrated a lack of adequate explanation and absence of evidence. Furthermore, the court needed to assess the potential for delay and the prejudice that such a delay would cause to the respondent. It was also necessary to consider the broader implications for case management and the efficient administration of justice.

In dismissing the application, the court found that the applicant had not provided an adequate explanation for the request to vacate the trial. The court also noted the absence of any significant evidence that would justify the delay. The court emphasised the importance of avoiding unnecessary delays in litigation and highlighted the potential prejudice to the respondent if the application were to be granted. The court considered the principles of efficient case management and concluded that the application should be dismissed. As a result, the applicant's request to vacate the hearing was refused, and the matter proceeded as scheduled.

The court's final order was that the applicant's application to vacate the hearing was refused, with specific reference to Rule 39.32 of the Federal Court Rules 2011 for the entry of orders. This decision underscored the importance of providing adequate explanations and evidence when seeking to alter scheduled court proceedings.

Orders

Orders of the court

1. The Applicant’s application to vacate the hearing is refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	WAD 404 of 2016
Judge:	BROMBERG J
Date of judgment:	3 December 2018
Catchwords:	PRACTICE AND PROCEDURE – application for trial to be vacated – discussion of lack of adequate explanation and absence of evidence, delay, prejudice to respondent and case management considerations - application dismissed
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Date of hearing:	3 December 2018
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Applicant:	The Applicant is self-represented
Counsel for the Respondent:	Ms R Sweet
Solicitor for the Respondent:	Norton Rose Fulbright

JUDGE:	BROMBERG J
DATE OF ORDER:	3 DECEMBER 2018