Hydes v BGA Agriservices Ltd (Northern Agriservices Pty Ltd)
[2021] FedCFamC2G 383
•12 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hydes v BGA Agriservices Ltd (Northern Agriservices Pty Ltd) [2021] FedCFamC2G 383
File number(s): BRG 303 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 12 October 2021 Catchwords: PRACTICE AND PROCEDURE – Application to reinstate – where applicant failed to attend first court date – where orders made under r.13.03C(1)(c) – where insufficient evidence proffered as to non-attendance – where no utility in making an order to set aside judgment – application in a case dismissed. Legislation: Fair Work Act2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021
Federal Circuit Court Rules 2001, r.16.05(2)(a)Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 8 October, 2021 Date of hearing: 8 October, 2021 Place: Brisbane Counsel for the Applicant: Mr Shepley Solicitor for the Applicant: Alexander Industrial Relations Solicitor for the Respondent: Mr Monroe Solicitor for the Respondent: K & L Gates ORDERS
BRG 303 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAUN HYDES
Applicant
AND: BGA AGRISERVICES LTD (NORTHERN AGRISERVICES PTY LTD)
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
12 OCTOBER 2021
THE COURT ORDERS THAT:
1.All outstanding applications be dismissed.
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 JARRETT:
This is an application for an order to set aside some orders that I made on 21 August, 2020 which dismissed an application commenced by Mr Hydes in this Court seeking relief pursuant to the Fair Work Act 2009 (Cth).
On 21 August, 2020 the application commenced by Mr Hydes on 6 April, 2020 was first before the Court. However, there was no appearance for or on behalf of Mr Hydes. There was no appearance by the respondent. In circumstances where Mr Hydes did not appear, pursuant to the Federal Circuit Court Rules I dismissed his application for want of appearance.
The present application was filed on 30 July this year – so nearly 12 months later – and by this application Mr Hydes seeks an order that the orders made on 21 August, 2020 be set aside. As the submissions made on behalf of the respondent demonstrate, if one is to successfully prosecute an application pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, (rules which do not apply in this Court any longer by reason of the commencement of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and associated rules in which there is a cognate rule), then the applicant for relief needs to establish generally speaking three things:
(a)was there an adequate explanation for the absence of the party from the relevant court event?
(b)secondly, does the applicant demonstrate an arguable case that different orders might be made if the dismissal orders are set aside, and the matter determined by a trial?
(c)third, whether there is any prejudice to the respondent to the application that is not able to be adequately addressed by the Court.
Here there are two relevant delays that require explanation: the first is the delay or the failure to appear. The second is the delay in making the application to set aside the orders made in August, 2020.
As to the first matter, there is evidence before me from an industrial relations practitioner called Steven Alvin Alexander. Mr Alexander has deposed an affidavit on 22 May this year. It was filed on 30 July this year. In that affidavit Mr Alexander says that he received instructions to act for Mr Hydes in 2018 and he then, quite improperly, gives evidence about offers and attempts to resolve the claim made by Mr Hydes against the respondent. Nothing came of those attempts, and so, he says on 6 April, 2020 he filed an application and a statement of claim in the Federal Circuit Court of Australia at Brisbane.
The balance of his affidavit then goes on to talk about his medical condition and he says that he commenced to suffer serious bouts of pain in June, 2020. It has resulted in his hospitalisation and his subsequent discharge at the end of June, 2020. He says that he was discharged with a cocktail of drugs including painkillers which led to a dulling of his mental facilities such that he was not able to attend to things that he ordinarily would have attended to. He says that during this period of being affected by his medication he missed the email dated 20 August, 2020 from my associate, “Which notified me of the fact that the directions hearing was to occur 24 hours later.”
That assertion in paragraph 26 of his affidavit coupled with the assertion earlier in paragraph 9 tends to carry the impression that no notification had been given to the applicant or his industrial relations consultant that there was a court date on 21 August, 2020 until an email from my associate on 20 August, 2020 is really quite disingenuous. The court file records that the application was filed on 6 April, 2020 and in accordance with the usual practice, a sealed copy was made available to the applicant for the purposes of service on the respondent.
Attached to the application was a notice of filing. It includes details of when the document was lodged electronically and includes details of hearing dates. It is not the case that the first time the applicant or his advisor was notified of the direction date on 21 August, 2020 was an email from my associate on 20 August, 2020. The purpose of that email was to notify the parties that they could appear by telephone or some other electronic means and to provide the details for that to occur. In the ordinary course of things, were it not for the imposition of the need to appear electronically by reason of the COVID-19 pandemic, there would have been no notification given to the parties at all.
They would have simply been expected to appear as is usually the case. So there really is no explanation for the failure to appear. I do not accept that there was no notification to the applicant or the applicant’s advisors of the first court date. Notification was made in the usual way to the applicant’s advisor when he filed the proceedings in April well before he became ill in June.
Further, there is no explanation for the delay in applying to have the orders made on 20 August, 2020 set aside. Almost a year has elapsed. The applicant seeks the grant of discretionary relief from the Court. One might have thought that to secure a favourable exercise of the discretion there would be some explanation from the applicant as to why the application was not made much sooner. There is none. More than that, one of the requirements generally seen as needing to be satisfied to secure an order under rule 16.05(2)(a) as I have already indicated is the requirement to satisfy the Court that some different orders would be made if the orders under attack are set aside and there was to be a trial in the proceedings.
That is ordinarily done by providing to the Court some evidence that there is an arguable case – that there is a claim to be advanced. Here there is no evidence at all from the applicant. At best, there is an application and a statement of claim filed in April, 2020. But the facts alleged in the statement of claim are not sworn to. There is no evidence that supports any of them, apart from the evidence that falls from the respondent in the affidavit of Mark Sinclair. That evidence is entirely consistent with the proposition that Mr Hydes was a casual employee.
Mr Hydes’ claim in these proceedings is that he was a permanent, part-time employee and as such was entitled to annual leave and annual leave loading. But the only evidence I have before me is that he was in fact a casual employee and entitled to none of those things.
Because of the delay there has been between the making of the orders sought to be set aside and the application to set those orders aside, because there is no satisfactory explanation for the failure to appear in the first place, and because there is simply no basis upon which I could conclude that Mr Hydes is likely to secure different orders from the Court if this proceeding was allowed to continue further, the application to set aside the orders made on 21 August, 2020 must be dismissed and I so order.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Dated: 21 January 2022
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