Huynh v Pettis
[2012] VSC 368
•5 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2011 6271
| THONG HUYNH | Plaintiff |
| v | |
| HER HONOUR JUDGE HANNAN | First Defendant |
| RUSSELL PETTIS | Second Defendant |
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JUDGE: | DALY AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2012 | |
DATE OF JUDGMENT: | 5 September 2012 | |
CASE MAY BE CITED AS: | Huynh v Pettis | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 368 | |
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JUDGMENT
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr B.J. Murphy | Gadens Lawyers |
HER HONOUR:
Mr Huynh was employed by Australian Automotive Air Pty Ltd (now Denso Automotive Systems Australia Pty Ltd (“Denso”)), an automotive component manufacturer, between 2002 and 2005. The second defendant, Mr Russell Pettis, is the managing director of Denso. According to Mr Pettis, during 2005 there were a number of complaints and concerns expressed by Mr Huynh’s work colleagues and supervisors regarding his behaviour in the workplace.
Mr Huynh was ultimately dismissed by Denso in November 2005. Prior to and after his dismissal, he made a number of complaints to the Victorian Equal Opportunity Commission and WorkSafe, claiming that Denso had discriminated against him on the grounds of his racial origin. Ultimately, Mr Huynh brought a proceeding in VCAT which was heard over five days in April 2008. He alleged that he lost his employment on the basis of racial discrimination by Denso and its officers. The claim was dismissed.
Mr Pettis deposed that during 2010 and until March 2011, Mr Huynh would regularly send faxes and make telephone calls to him and his staff. Mr Pettis instructed Mr Ian Dixon, a partner of Gadens Lawyers, to seek an intervention order under the Stalking Intervention Orders Act 2008 (Vic) (“SIO Act”). On 24 May 2011, the Magistrates’ Court granted an intervention order.
In support of his application to the Ringwood Magistrates’ Court, Mr Pettis stated as follows:[1]
My name is Russell Pettis and I am seeking an intervention order against Thong Huynh. Mr Huynh is a former employee of Denso Automotive Systems, the company of which I am a managing director. The respondent was an employee between 2002‑2005, in which time numerous complaints were made by co‑workers in regards to the behaviour and attitude displayed by the respondent. Mr Huynh has previously made complaints to the Human Rights and Equal Opportunity Commission, WorkSafe and VCAT regarding bullying, stress and racial discrimination in the workplace, all of which have been dismissed/rejected. On March 4th 2011, the respondent phoned the company incessantly, asking to speak to the managing director in Australia. The receptionist that had been fielding his calls informed the respondent on all occasions that I was unable to speak to him, that he should address any concerns to me in writing and to stop phoning the company. As on other occasions, this angered Mr Huynh and he began to hurl abuse at the receptionist causing her to hang up. The respondent has constantly become abusive towards those he has spoken to on the phone as well as continuous faxes making false accusations, causing great distress for the receptionists. Accordingly, on behalf of the associates of the company, I have no choice but to make this application, as I am concerned at his continuing behaviour of rude and abusive telephone calls + sending of faxes/emails, which cause distress to employees at the company. I am also concerned about his mental wellbeing as the respondent has previously been admitted to psychiatric facilities on 3 occasions and I fear his behaviour will become further more erratic unless stopped.
[1]See exhibit “M3” to the affidavit of Russell Pettis sworn 25 January 2012.
The terms of the intervention order were as follows:
The Court orders that the respondent [Mr Huynh] is prohibited from
1.stalking assaulting harassing threatening or intimidating the affected person [Mr Pettis];
2.publishing on the internet by email or other electronic communication any material about the affected person;
3.contacting or communicating with an affected person by any means;
4.going to or remaining within 500 metres of any address where an affected person lives, works or attends school.
The intervention order expires at midnight on 23 May 2013, unless extended or varied prior to that time. It is apparent from the notations upon the intervention order that Mr Huynh was served with a copy of the application, was present at the hearing of the application, and did not agree to the intervention order being made.
Mr Huynh appealed the making of the intervention order to the County Court. The appeal was listed for a first mention on 22 August 2011 at 9.00am at the County Court in Melbourne. Mr Huynh’s notice of appeal stated as follows:
there is no evidence of stalking only ‘an assumption’ … fear of personal ‘hate’ of my stand up against racism.
Mr Pettis deposed that he attended the County Court with Mr Dixon on 22 August 2011. The matter was mentioned before Her Honour Judge Hannan. There was no appearance by Mr Huynh and the hearing date of 21 October 2011 was confirmed. He deposed that as he and Mr Dixon left the court precinct Mr Huynh arrived at the entrance to the Court. Mr Dixon attempted to inform him that the matter had been heard, but Mr Huynh did not wish to speak with him. Mr Pettis instructed Gadens to write to the Court on his behalf to request a further mention hearing to ensure that Mr Huynh would appear on 21 October 2011. The matter was listed for mention on 12 September 2011. On or about 2 September 2011, the Court sent a notice to Mr Huynh informing him that the matter had been listed for mention on 12 September 2011 at 10.30am. On that date, the matter was heard by Chief Judge Rozenes. There was no appearance by Mr Huynh, and Chief Judge Rozenes struck out the appeal.
Mr Huynh lodged an application to set aside the strike out order. The application was listed for hearing on 24 October 2011. Prior to the hearing date, Mr Huynh sent Gadens a letter dated 17 October 2011, stating that his non‑appearance on 12 September 2011 was due to a medical condition of his right foot, being gout. Gadens wrote to Mr Huynh seeking proof of his medical condition.
Mr Huynh swore a statutory declaration in support of his application to set aside the strike out of the appeal, which stated as follows:
1.The failure to appear at the hearing at the Victorian County Court at Melbourne on the date of 12 September 2011 was not due to fault or neglect on my part of an appellant of Case No. AP-11-1100 made against me on 24 May 2011.
2.A medical condition for “gout” at joints at toe area on my right foot caused pain that affecting my mobility to walk to the County Court.
3.On 20 September 2011 I submitted an application – Form 3F and Form 4E following my telephone call to the County Court of Melbourne to express reason of not able to appear on the date of 12 September 2011.
4.The incapacity for “gout” is treated with a dose of medication per instructed with the local general practitioner.
5.The original application mentioned above at No. 3 was sent to for Russell Pettis on 4th October 2011 by mail at [address].
On 24 October 2011, the matter was listed again before Chief Judge Rozenes, who referred the hearing of the application to set aside the strike out order to Judge Hannan. Mr Dixon appeared on behalf of Mr Pettis. Mr Huynh gave sworn evidence, and was questioned by her Honour regarding the reasons why he was unable to appear on 12 September 2011, and to seek an explanation for Mr Huynh’s failure to provide any medical evidence to support his claims that he had been incapacitated by gout. At the conclusion of the hearing, Judge Hannan ordered that the appeal be reinstated, subject to the condition that Mr Huynh pay to Gadens the sum of $750 on account of Mr Pettis’ costs thrown away at the hearing of 12 September 2011. It is from that order, and in particular the imposition of the condition that Mr Huynh pay $750 in respect of costs, that Mr Huynh seeks to review before this Court.
In his summons on originating motion dated 22 November 2011, Mr Huynh stated as follows:
the Remedy set out in my application for review to the Supreme Court under the act of Administrative Decision (Judicial Review) Act 1977 Principles of natural justice.
1.Being given a reasonable opportunity to be heard (the “fair hearing rule”); and
2.Having a decision made by a decision maker who is free from actual bias or the appearance of bias (the “bias rule”).
The Administrative Decisions (Judicial Review) Act 1977 (Cth) is Commonwealth, not State legislation. However, I have treated this as an application for judicial review under order 56 of the Supreme Court Rules.
It is apparent from his written materials and oral submissions that Mr Huynh is aggrieved that the Court did not wholeheartedly accept his explanation for his failure to attend the hearing on 12 September 2011 (although it is apparent from her Honour’s ruling that she did ultimately accept Mr Huynh’s evidence). He did not believe it was proper to request his general practitioner to prepare what he described as a “backdated” medical certificate after the relevant date (that is, 12 September 2011). He is generally aggrieved by what he perceives to be the racist and discriminatory attitudes of his former employer. He considers the making of the intervention order to be frivolous and unfair. He did not expressly give evidence or submit that he was unable to pay the $750 in respect of costs or that payment of such costs would impose financial hardship, but I can infer that might well be the case given that he is a pensioner and was successful in obtaining a fee waiver to bring this proceeding. He did submit that the imposition of such a condition was unfair.
Mr Huynh did not specifically address the grounds of appeal set out in his notice of appeal, that is, why it was said that he was not given a reasonable opportunity to be heard, and why it was said her Honour was biased or might be seen by a reasonable observer as having prejudged Mr Huynh’s application before hearing all of the evidence and submissions. However, he did say words to the effect that it was unfair that Judge Hannan seemed to immediately accept that $750 was an appropriate sum in respect of costs without any supporting evidence. [2]
[2]T8 L30-31, T9 L1-4.
Further, in his affidavit sworn 22 November 2011, Mr Huynh referred to s 50 of the SIO Act, which provides as follows:
(1)Each party to proceedings under this Act must bear the party’s own costs of those proceedings, unless the court decides that exceptional circumstances warrant otherwise in a particular case;
(2)Despite sub-section (1), if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
Counsel for Mr Pettis submitted that s 78A of the County Court Act1958 (Vic) gives the Court a broad discretion with respect to costs, which must of course be exercised judicially. In any event, notwithstanding the flexibility provided by s 78A, it was entirely open for her Honour to make a finding that the failure of Mr Huynh to appear at court on two occasions without contacting the other parties or the Court would be “exceptional circumstances” within the meaning of s 50(c)(i) of the SIO Act, and in fact she did make such a finding, which was more than open for her to make on the available evidence.
I agree. It is apparent from the transcript of the hearing that her Honour provided Mr Huynh with a more than ample opportunity to call evidence and make submissions regarding his failure to attend court, his failure to contact the Court and the parties, and upon whether he ought pay Mr Pettis’ costs. Indeed, given the confusing and vague nature of Mr Huynh’s evidence and the lack of corroborative evidence about Mr Huynh’s physical health on the second occasion he was absent from court (on 12 September 2011) she may well have been justified in refusing to reinstate the appeal, rather than simply imposing a condition that Mr Huynh pay Mr Pettit’s costs. During the course of questioning by both her Honour and Mr Dixon, who appeared for Mr Pettis, it became apparent that:
(a)despite having experienced symptoms of gout in the days leading up to the hearing on 12 September 2011, Mr Huynh did not make any effort to contact either Gadens Lawyers or the Court to attempt to vacate the hearing date;
(b)Mr Huynh did not make any effort to contact his general practitioner until the actual day of the hearing, and he was in fact unsuccessful in obtaining an appointment. He was under the mistaken belief that visiting his general practitioner after the event in order to obtain a report about his condition generally would be inappropriate;
(c)it was unclear whether Mr Huynh’s condition was so severe as to warrant the taking of medication, whether it could have been improved by medication, or whether in fact he had taken any medication; and
(d)Mr Huynh was not in a position to call any other witnesses to give evidence about his condition and its effects upon his mobility.
On the basis of this evidence, her Honour made the following ruling:
This is an application for an order setting aside an order striking out an appeal. The appeal in this matter was struck out on 12 September 2011 on which date the appellant did not appear. During the course of cross‑examination, the appellant has admitted that that was the second time he had failed to appear in relation to this matter.
On 12 September it is the appellant’s sworn evidence that he had a gout condition such as would prohibit him from being able to walk from his car into the court room in order to prosecute his appeal. He says that he went to the doctor on that date or the doctor’s office but was unable to gain an appointment with the doctor. Thereafter he went home and treated the condition himself. He made no effort on the date of the hearing to contact this court, nor did he make any effort on the date of the hearing to contact the respondent. Importantly, it was the appellant’s own evidence that the condition had in effect pre‑existing over the previous few days. Even in those circumstances he made no effort to contact any other party with a view to ensuring that they did not incur costs as a result of his non appearance.
The test for setting aside an order striking out an appeal requires that the applicant satisfy me that it was not due to any fault or neglect on his behalf.
Whilst I have some concerns in relation to Mr Huynh’s explanations, at the end of the day I find no reason to outright reject them. In those circumstances, I am going to set aside the order striking out the appeal but in relation to this matter, given what I regard as exceptional circumstances where the appellant made no effort over a period of days to contact the other side in order to ensure that they did not incur costs in circumstances where he had previously failed to appear, it is appropriate to make that conditional upon the appellant paying to the respondent the sum of $750 within 30 days.
It was also apparent that while her Honour was reluctant to shut Mr Huynh out of pursuing his appeal, she was concerned about the unnecessary expense to which Mr Pettis had been put by Mr Huynh’s failure to appear at Court on two occasions.
It is apparent from the transcript that her Honour provided Mr Huynh with a preliminary indication of her thinking regarding the issue of costs, and invited him to make submissions regarding the question of why she should not impose a condition that Mr Huynh pay costs in the sum of $750 as a precondition to the reinstatement of the appeal. No suggestion was made during the course of the hearing before her Honour that she was biased against Mr Huynh or gave the appearance of bias, and that allegation was not pressed before me. Her Honour did uncritically accept the estimate of $750 provided by Mr Dixon in respect of Mr Pettis’ claim for costs, but the sum itself seems unremarkable.
Accordingly, there is no basis for disturbing the decision of her Honour to impose a condition upon the reinstatement of Mr Huynh’s appeal on either ground of appeal. She offended neither the bias rule or the fair hearing rule, and the decision was well and truly open to her based upon the absence of conclusive evidence from Mr Huynh about his condition, the failure of Mr Huynh to provide a sufficient or any notice to the Court and to Mr Pettis’ solicitors regarding his inability to appear, and the obvious cost and inconvenience to Mr Pettit of his conduct in that regard.
In any event, even if there had been some discernible error in the finding and reasoning of her Honour, in the absence of any clear evidence that the imposition of the payment condition would prevent Mr Huynh from pursuing his appeal, there would be strong grounds for not setting aside the decision to impose the condition on discretionary grounds. This is an application for judicial review of an interlocutory decision. There have already been three hearings in relation to this matter at the County Court. Substantial judicial resources have been consumed in dealing with what is a relatively routine interlocutory matter, and there is a general public interest in finality in litigation.
Accordingly, I will dismiss the application for judicial review, and seek submissions on the question of costs, and whether an order should be made extending the time for Mr Huynh to meet the condition imposed by Judge Hannan, thus giving Mr Huynh a further opportunity to have his appeal reinstated.
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