Jurkin v Printing Industry Association of Australia

[2017] FCCA 2123

FEDERAL CIRCUIT COURT OF AUSTRALIA

JURKIN v PRINTING INDUSTRY ASSOCIATION OF AUSTRALIA [2017] FCCA 2123

Catchwords:
INDUSTRIAL LAW – Small claims – hearing adjourned because of inadequate exchange of documents – orders made for exchange of certain documents – those orders not complied with – on resumed hearing respondent adducing no evidence – applicant proved her claim – respondent led no defence – judgment for the applicant.

COSTS – Calderbank offer – applicant bettering amount in Calderbank offer.

COSTS – Conduct of respondent – appropriate to make costs order against respondent.

Legislation:

Fair Work Act 2009 (Cth)

Applicant: ANITA JURKIN

Respondent: PRINTING INDUSTRY ASSOCIATION OF AUSTRALIA

File Number: MLG 430 of 2017

Judgment of: Judge Wilson

Hearing dates: 9 June and 11 August 2017

Date of Last Submission: 11 August 2017

Delivered at: Melbourne

Delivered on: 11 August 2017

REPRESENTATION

Solicitors for the Applicant: SOS Safety and Legal

Respondent in person

ORDERS

1. The application by the respondent for an adjournment of today’s proceeding is refused.

2. The respondent pay the applicant the sum of $6,752.00 forthwith.

3. The respondent pay the applicant’s costs fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 430 of 2017

ANITA JURKIN

Applicant

And

PRINTING INDUSTRY ASSOCIATION OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. In this proceeding, the applicant sought payment of the sum of $6,752.00.

2. In her application filed to commence this proceeding, she quantified the total of the claim to have been made up of two parts. The first was commission in the sum of $4,977.60 in respect of membership sales from October 2015 to December 2016. The second category was product specific commission on a product entitled Make It Cheaper, in which she claimed commission in the sum of $1,775.00. In total, she asserted that unpaid commission amounted to $6,752.00. She said that sum was outstanding.

3. This case has suffered a very lamentable history. When the case was first called on, Ms Bottrell, with leave, appeared for the applicant.

   
   

   Mr Mitchell, an employee of the respondent, not a qualified legal practitioner, was granted leave to appear on behalf of the respondent. During the course of the evidence of the applicant, it became apparent that significant documents had not been provided and which were within the custody, power or control of the respondent. 

4. As a result, I extended an invitation to the respondent to endeavour to prove its case, first of all, by disclosing the existence of documents within its possession, power or control to the applicant. I made an order that documents that corresponded to paragraph 3 of my orders on

   
   

   9 June 2017 be provided by the respondent to the applicant by

   
   

   4.00 p.m. on 23 June 2017. That order was not complied with.

5. Today, on the resumed hearing of this application, Mr Mitchell endeavoured to explain why that was not done in accordance with my order. The reasons given fluctuated. He said he did not know of the order that was made, despite the fact that he appeared before me when I pronounced the order, and despite the fact that a copy of the order was entered on the court portal, which almost every litigant in cases in this court consult. He also said that the order may have been sent to an employee who no longer works for the respondent. Neither submission were at all attractive to me.

6. On behalf of the applicant, Ms Bottrell said that in the face of that state of affairs, the case should proceed. Today on the resumed hearing of this claim for the modest amount of a little over $6,700.00, faced with the fact that no evidence had been adduced by the respondent,

   
   

   Mr Mitchell renewed his application for an adjournment. I refused it on the basis that his employer had had an abundance of opportunity to get its house in order and that it had failed to conduct this litigation in a way that was to be expected in this court. I therefore proceeded to deal with the case on its merits, there being no evidence on behalf of the respondent.

7. I am persuaded that in this case there has been a contravention of the relevant award and that the applicant is, in fact, and in law, entitled to the claim that she seeks. When she gave evidence before me on

   
   

   9 June 2017, in considerable detail she explained the way in which that claim was made up. There was no sensible challenge to that evidence and, indeed, the respondent has adduced no evidence in this proceeding which I could sensibly take into account to demonstrate a contrary position. In those circumstances, I am satisfied that the claim is proved, and I order the respondent to pay the applicant the sum of $6,752.00.

8. On behalf of the applicant, Ms Bottrell applied for an unusual order for the payment of costs in the fixed sum of $5,000.00. She put the claim on the basis that her client had, in substance, obtained an order for more than the amount which was the subject of a Calderbank offer. She is correct as to both propositions, that is to say, that the Calderbank offer was for a sum less than the amount that I have ordered in this case. On Calderbank principles, ordinarily that would entitle her client to costs of the proceeding.

9. Of course, that is subject to the observation that, in this jurisdiction, ordinarily costs do not follow the event. However it is competent for a court to make an order for the payment of costs by one party to the other if there is evidence, relevantly here, as to the conduct of one party to the litigation which has in some way prolonged or exhibited a disregard for the court process.

10. In this case, for the reasons that I have already given, I am satisfied that the respondent has not conducted itself in conformity with the standards one expects of a respondent in this proceeding. I do not accept Mr Mitchell’s proposition that documents that were sought have been available to the applicant somehow. None of the documents that he said were provided appear on the court file, as one would expect.

11. I am not persuaded that the applicant should be shut out from a costs order. To the contrary, I am satisfied that the respondent has not behaved in an appropriate way in the conduct of this proceeding with the consequence that a costs order will be made, and I order that in the sum of $5,000.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  4 September 2017