Kape v The Golden Mile Loopline Railway Society Inc

[2016] FCCA 2906

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPE v THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC & ORS [2016] FCCA 2906

Catchwords:
INDUSTRIAL LAW – Alleged contravention of general protections – whether jurisdiction – whether respondent constitutional corporation – liability of various respondents.

PRACTICE AND PROCEDURE – Default judgment application – whether to make orders concerning filing of evidence and submissions – Court’s first duty to determine jurisdiction – whether to move hearing forward.

Legislation:

Fair Work Act2009 (Cth) s.570
Federal Circuit Court Rules 2001 (Cth) r. 13.03A

Cases cited:

Federated Engine-Drivers and Firemen's Association of Australia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398; (1911) 17 ALR 285
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1994) 58 ALR 305; (1994) 7 ALD 315
Re Bolton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 73 ALJR 129; (1998) 85 IR 468
Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 190 IR 207; (2009) 236 FLR 231

Applicant: STEVEN JAMES KAPE

First Respondent: THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC

Second Respondent: TONY CROOK

Third Respondent: MIKE LUCAS

Fourth Respondent: DEBBIE SHORT

Fifth Respondent: THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC EXECUTIVE COMMITTEE

File Number: PEG 252 of 2016

Judgment of: Judge Lucev

Hearing date: 10 November 2016

Date of Last Submission: 10 November 2016

Delivered at: Perth

Delivered on: 10 November 2016

REPRESENTATION

For the Applicant:	In person
Counsel for the Respondents:	Mr H O'Sullivan

Solicitors for the Respondents: SRB Legal

ORDERS

1. That time for the filing of the respondents' submissions filed 23 September 2016 and the affidavits of Mr Crook and Mr Bishop filed 30 September 2016 be extended to the date of actual filing.

2. That the applicant’s application in a case filed 27 October 2016 be dismissed.

3. Costs of the application in a case, if any, be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 252 of 2016

STEVEN JAMES KAPE

Applicant

And

THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC

First Respondent

TONY CROOK

Second Respondent

MIKE LUCAS

Third Respondent

DEBBIE SHORT

Fourth Respondent

THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC EXECUTIVE COMMITTEE

Fifth Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Introduction

1. This is an application in a case by the applicant, Mr Kape in these proceedings filed on 27 October 2016. The application in a case seeks three orders:

   1. An Default order against respondents for not complying with FCC-rule (13.03A)orders made on 7 JULY 2016.

   2. An Order to provide the merits and evidence of my case.

   3. An Order to move any future hearings forward, as I may have to relocate to Overseas for better employment options.

   (extracted from the application in a case without amendment).

Order 1

1. The first of those orders seeks a default order against the respondents for not complying with r.13.03A of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) in respect of orders made on 7 July 2016.

2. Order 2 of Court’s orders made 7 July 2016 (“7 July Orders”) obliged the first to fifth respondents to file and serve:

   a)any affidavits; and

   b)an outline of submissions

   by 7 September 2016 with respect to the preliminary issues only.

3. The Court notes that there is a preliminary issue which is adverted to in order 1 of the 7 July Orders as to whether or not the first respondent is a constitutional corporation and whether the second, third, fourth and fifth respondents are properly named and whether they are liable or jointly liable for any remedy sought by the applicant, and that preliminary issue has since been set down for hearing before the Court in Kalgoorlie on 4 August 2017.

4. The Court notes that the respondents have filed affidavits and submissions. Their submissions were filed on 23 September 2016 and two affidavits, one by Mr Crook and one by Mr Bishop, were filed on 30 September 2016, and in that respect there was non-compliance with order 2 of the 7 July Orders. The lateness of that filing in relation to the preliminary issue does not in the Court's view provide a basis for making any form of default order at this stage, in particular because the preliminary issue is some nine months away from being heard.

5. The law generally deals with substance and not trifles. It would be something of a travesty of justice or otherwise inequitable to make a default order which might include an order for summary judgment under the FCC Rules in respect of a week and a fortnight's lateness in filing affidavits and submissions in respect of a preliminary issue which is months away from hearing. It would also be inappropriate if what is, in fact, sought is summary judgment on the merits in circumstances where the default relates to the preliminary issue and the Court does not yet have evidence before it in relation to the substantive merits of the case as such, or certainly not such evidence as would be put before the Court in relation to any final hearing. It is sufficient to say that there is no prejudice to Mr Kape and Mr Kape could point to no prejudice to him when asked by the Court in relation to the lateness in filing affidavits and submissions. It is sufficient to say that there is sufficient substance or merit in what is presently before the Court with respect to the preliminary issue to warrant an extension of time for the filing of the affidavits and submissions of the respondent based on the usual principles as outlined in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1994) 58 ALR 305; (1994) 7 ALD 315.

6. There will, therefore, be an order to extend time for the filing of the respondents' submissions filed 23 September 2016 and the affidavit of Mr Crook and Mr Bishop filed 30 September 2016 to the date of actual filing.

7. The Court raised with Mr Kape the fact that it appeared that he had not filed submissions in accordance with the 7 July 2016 orders, those submissions to be filed according to that order by 7 November 2016. In that regard, it appears that Mr Kape's position is that what is styled as an affidavit and appears to be in part affidavit and very large part submissions and which was filed on 1 November 2016 is intended to stand, at least in relation to the submissions part of that affidavit as the submissions in Mr Kape's case and it is, therefore, unnecessary to make any order extending the time under order 3 of the orders of 7 July 2016.

Order 2

1. The second order sought in the application in the case is an order to provide what is described as, and I quote, "The merits and evidence of my case", by which the Court assumes that Mr Kape intended to refer to affidavits and outlines of submissions to be filed, probably not only by him, but also by the respondent. The Court has already indicated that the matter is set down for a preliminary hearing as to jurisdiction, it being necessary to resolve that jurisdictional issue at the outset as it necessarily impacts upon any evidence to be led and the relief to be obtained.

2. The jurisdictional issue having been raised, it must be dealt with first, as the Court's first duty is to be satisfied that it has jurisdiction to deal with the subject matter of the proceedings and the Court refers to the High Court's judgments in Federated Engine-Drivers and Firemen's Association of Australia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398; (1911) 17 ALR 285, and in Re Bolton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 73 ALJR 129; (1998) 85 IR 468 and to the judgment of this Court in Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 190 IR 207; (2009) 236 FLR 231 In this case, it is necessary to determine if the Court has jurisdiction before the merit can be determined.

3. The parties should not therefore be put to the expense of preparing merit cases and argument in circumstances where there is an outstanding issue as to whether the Court actually has jurisdiction. Therefore the order sought in this regard will not be granted.

Order 3

1. The third order which is sought is an order to move any future hearings forward, ostensibly on the basis that the applicant may have to relocate overseas for better employment options.

2. The order sought is not practicable for a number of reasons. The location of the parties and the hearing being in Kalgoorlie, means that this Court, being a federal court, has limited times at which it can sit in the State court in Kalgoorlie, and the coordination of those matters is not necessarily easy. That also has to be viewed in conjunction with the work load of this Court, and in the Perth Registry there is, in normal circumstances, only a single Judge sitting. With presently more than 400 cases docketed to that Judge, as the hearing Judge for these proceedings, it means that it is simply not practicable to shift a hearing or list a multi-day hearing, in the manner which the application in a case suggests might occur, and in that regard the Court noted as it did in argument that fair work cases in the Perth Registry are presently being listed well into 2018.

3. The basis suggested for the movement of the hearing has not been made out. That basis is, or appears to be, entirely hypothetical at this stage, and is not supported by any evidence filed by the applicant, and is therefore not made out on the evidence. Even if the evidence did make it out, the applicant would have needed to explain why it was not feasible for him to return from overseas, wherever that might be, to a hearing, whenever that might be, given that he would have been likely to have had, by reason of the listing issues referred to above, significant notice of any such hearing. So, in the circumstances, there will be no order made to move the hearing.

Conclusion

1. For the above reasons, there will, in relation to the application in a case filed 27 October 2016 be orders as to extension of time as indicated, but otherwise the application in a case will be dismissed.

2. With respect to costs, given the provisions of s.570 of the Fair Work Act2009 (Cth) (FW Act”), and given that the provisions of s.570(2) of the FW Act might be affected by the outcome of the preliminary issue as to jurisdiction, namely that if the Court has no jurisdiction there may be a case for the costs of the entirety of the proceedings to be paid by Mr Kape, whereas if he is successful in establishing the Court has jurisdiction, he will not be entitled to costs by reason of the fact that he is self-represented, it is appropriate to reserve the costs of the application in a case pending the hearing and determination of the preliminary issues. So in the circumstances there will be orders in terms of the extension of time as indicated. Otherwise the application in a case will be dismissed and the costs of the application in a case today will be reserved. There will be orders in those terms.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 14 November 2016