Kimhi v SA Drains Pty Ltd
[2022] FedCFamC2G 227
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kimhi v SA Drains Pty Ltd [2022] FedCFamC2G 227
File number(s): ADG 435 of 2019
ADG 167 of 2021Judgment of: JUDGE BROWN Date of judgment: 18 March 2022 Catchwords: INDUSTRIAL LAW – fair work – dismissal of an employee – general protections – adverse action – disability discrimination proceedings – where proceedings have been delayed as a consequence of the actions of the applicant’s solicitor – costs ordered made against the solicitor for the applicant. Legislation: Fair Work Act 2009 (Cth) ss 117, 125, 351, 365, 366.
Disability Discrimination Act 1992 (Cth) ss 3, 5, 6, 11, 15.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 13.2, 22.2, rr 13.04, 13.05, 22.06.
Cases cited: Aon Risk Services Australia Limited v Australian National University 239 CLR 175.
Kolozsvari v BIC Services Proprietary Limited [2021] FCCA 742.
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200.
Professional Administration Services Centre Pty Ltd v Commissioner for Taxation [2012] FCAFC 180.
Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159.
Welsh v Digilin Pty Ltd [2008] FCAFC 149.
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 18 March 2022 Place: Adelaide Counsel for the Applicant: Dr Gray, QC Solicitor for the Applicant: Starke Lawyers Counsel for the Respondents: Mr Belperio Solicitor for the Respondents: Welden & Coluccio Lawyers ORDERS
ADG 435 of 2019
ADG 167 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JORDAN STEVEN KIMHI
Applicant
AND: SA DRAINS PTY LTD ACN 610 792 062
First Respondent
SIMON LUKASZ MUCHA
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.Leave be granted to the Applicant to extend time to file his Trial Affidavit and the Annexure book from 22 February 2022 to 18 March 2022.
2.The Trial listed for 22, 23 & 25 March 2022 is hereby vacated.
3.Pursuant to Rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 costs in the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) do be paid by Mr David Starke of Starke Lawyers personally to the Respondent’s solicitors within 28 days of today’s date.
4.The matter is otherwise stayed until the payment of the sum indicated in paragraph 3 herein.
5.The matter is otherwise adjourned until a date and time to be advised upon the application of the Applicant’s solicitors.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This afternoon, I have to deal with an application in a case, which has been brought by Jordan Steven Kimhi in proceedings against South Australian Drains Pty Ltd and its proprietor Simon Lukasz Mucha. The application was filed this afternoon, I think, and handed to me.
Given the substantive application is listed for trial commencing next week, it is necessary for me to deal with the application expeditiously, as its outcome will determine whether next week’s trial will go ahead as scheduled.
In short, Mr Kimhi, in his application, wishes to seek an extension of time to file his trial affidavit in proceedings which he has instituted both pursuant to the Fair Work Act 2009 (Cth) (“the FWA”) and the Disability Discrimination Act 1992 (Cth) (“the DDA”).
The application is opposed by those representing South Australian Drains and Mr Mucha, who seek the summary dismissal of Mr Kimhi’s application on the basis that he has breached court orders and has demonstratively not pursued his application with due diligence.
BACKGROUND
By way of background, those proceedings have been amalgamated, I think, by order of Judge Cameron of this court, and they are scheduled to take place next week. Given the competing application of the parties, I have arranged for the matter to be listed before me today, at short notice.
By way of background, as I understand it in general terms, the applicant was employed by the first respondent as an apprentice plumber on 27 December 2018. Regrettably, it seems to be reasonably common ground between the parties, that he contracted dermatitis in April of 2019, and as a consequence of that, an application for workers compensation was made, and although there is some controversy about it, it seems that he was terminated in his employment on 6 September 2019.
The fair work proceedings were definitely commenced on 7 November 2019. The human rights proceedings seem to have been commenced on 8 June 2021. Originally, as I understand it, Mr Kimhi sought orders pursuant to section 351 of the FWA, claiming that he had been the subject of an adverse action because of his disability. There is now, I think, some controversy about what his precise claim is under the FWA, and I will come to that in a moment.
As a dismissed employee, he was entitled to go to the Fair Work Commission pursuant to section 365 of the FWA on the basis of his termination. However, there are time limits which are applicable to that and, in particular, an application in respect of a dismissal dispute has to be made within 21 days after the time the dismissal took effect.
The Fair Work Commission is entitled, as a discretion, to extend that time pursuant to section 366(2) when it considers the reasons for the delay, any action taken by the person to dispute the dismissal, the prejudice to the employer, the merits of the application and general considerations of fairness. The overall rationale is that if somebody is seeking to be reinstated, they should make such applications promptly.
In any event, it would seem to be the case that the application to the Fair Work Commission was made, I think, sometime in November. It was 44-odd days out of time, and the relevant commissioner declined to extend time. In those circumstances, it may very well be the case that the section 351 application has gone.
In any event, that has been the subject of earlier proceedings, and the applicant has amended his claim. He did that on 17 June 2021, and he has now brought claims under sections 117 and 125 of the FWA. In general terms, those are proceedings that relate to what are described as the national employment standards.
The FWA creates a number of national employment standards pursuant to section 125 of the FWA. An employer is required to give each employee what is called a Fair Work Information Statement when the employee starts work or as soon as practical thereafter, and that is a statement of an employee’s rights and entitlements in his workplace pursuant to the FWA.
In addition, section 117 of the FWA deals with an employee's rights on termination in terms of notice and payment. Those are designated as core provisions under the FWA, as I understand it, and they lead a person who is found to have contravened those provisions liable to a civil penalty. If it is a serious contravention, the penalty is 600 penalty units or otherwise 60 penalty units, and different provisions apply if it is an incorporated respondent as opposed to a natural individual.
As I say, the applicant amended his application on 17 June 2020. At an early stage, those advising SA Drains and its proprietor and, as I understand its sole operator, Simon Mucha applied for a summary dismissal of the section 351 application. That matter came before Judge Heffernan in December of 2020.
He was previously the docket judge. He is now a member of the District Court, and his Honour summarised that the amended claim filed 17 June 2020, the section 351 aspect, appears to have been abandoned and that is, of course, the position that the applicant has identified.
In general terms, Mr Mucha has deposed that he gave the information sheet to Mr Kimhi when he started his employment. He further asserts that the award - which is the Plumbing and Fire Sprinklers Award 2020 (“the Award”) was accessible to the applicant.
As I understand it, that the 351 aspect of the claim has gone. The disability discrimination aspect of the case remains. In his application, Mr Kimhi has indicated that he relies on section 3, 5, 6, 11, 15 of the DDA. Section 3, I think, is the overarching objectives of the DDA.
In general terms, the DDA renders it unlawful for any person to discriminate against a person on the basis of a disability in employment and other areas of human endeavour. Disability is defined extensively in the DDA.
As I understand it, Mr Kimhi has, as he is required to do under the Human Rights and Equal Opportunities Commission Act (“HREOC”), made a complaint to the commissioner of HREOC which was terminated, and, as a consequence of that, he made an application to this court. As I say, the two aspects of the claim have been amalgamated.
Mr Kimhi, at various stages, has had proceedings before the HREOC, before the Fair Work Commission and two distinct sets of proceedings in this court pursuant to two pieces of legislation. I fear that I may not have done justice to the background of the case, but I come into it after others have been dealing with it beforehand, and, as I say, it is not without its complexities.
At an early stage of the proceedings, as was eminently sensible given the nature of the claim, the parties were referred to a mediation with a Registrar of the court. That was unsuccessful in resolving the issues in dispute between the parties.
Mr Belperio, who appears for the first and second respondents - SA Drains and Mr Mucha, respectively, relies, to a significant degree, on a report the Registrar provided to - I think it was Judge Heffernan in respect of the mediations, which was essentially that the two mediations that had been scheduled were, in effect, abortive because those advising Mr Kimhi had not done or provided information which the Registrar considered was required to have an effective mediation.
On that basis, the proceedings have been fixed for trial. They have been fixed for trial on more than one occasion, regrettably. An earlier trial in August 2021 was vacated. A trial in November 2021 was vacated. I am not altogether sure what the reasons for that were, but, on 10 August 2021, which, on my calculations, is about six or seven months ago, the case was fixed before myself on 21, 22 and 23 March 2022 and orders were made that the trial affidavits be filed on or before 21 February 2022.
The proceedings have been on foot in a number of jurisdictions for a significant period of time. Clearly, Mr Kimhi is aggrieved that he lost his employment and, from his perspective, that occurred only because he had contact dermatitis.
As time has proceeded, to some degree, those aspects of his case have transmogrified, and now he relies on, as I say, breaches of the core provisions of the FWA and, in respect of the human rights aspect of the case that he has been subject to less favourable treatment as a consequence of his disability.
How it is ultimately asserted that the dermatitis is a disability, according to the provisions of the DDA, is not particularly clear to me at this stage, but that is not the issue for today.
The issue for today is that the case has been fixed for trial for a long time and directions were made for the filing of the trial material after the two aspects of the case were amalgamated by Judge Cameron on 18 June 2021. He said the fair work matter was to be heard concurrently with the disability discrimination matter.
As the factual situation is the same in each case, I can understand why that would be so. I can also understand, from the applicant's point of view, that - to use an expression that was attributed to Deng Xiaoping – he does not care if the cat is black or white, as long as it catches the mouse. He seeks some compensation from one or other of the respondents or both, because of what happened in the workplace.
At first blush, there seems to be some level of complexity about how he gets there, ultimately. As I say, that is not the issue for today, strictly speaking, although the strength of the case which he brings may have some application as to how I deal with the current application before me which is essentially brought pursuant to the provisions of Division 13.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Division 2 Rules”). Rule 13.05 provides that:
(1)If an applicant is in default, the court may order that
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.[1]
[1] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.05.
A party is in default if the court is satisfied that the applicant concerned has failed:
(a)to comply with the order of the court in the proceedings; or
(b)failed to file and serve a document required under these rules, or
(c)produce a document as required;
(d)do any act required to be done by these rules or (e) finally prosecute the proceeding with due diligence.[2]
[2] Ibid r 13.04.
It is effectively the submission of Mr Belperio, who appears for the respondents, that given the length of time these proceedings have been on foot and given the fact that it is only today that Mr Kimhi has filed his trial affidavit for these proceedings, that he is in default and therefore the court should exercise its discretion to dismiss his application.
It is a normal incident of case management in this court that, some weeks out from the trial, court officials begin to contact the parties concerned and/or their legal representatives to ask and inquire of them what is happening in respect of any particular case, and it seems to be accepted that my Associate did indeed contact the parties and inquire as to what was happening in respect of the preparation of trial documents.
In that context, Mr Belperio, who has been in the matter throughout, on the instructions of the same solicitors, filed his submissions in respect of the case, and he did that on 16 March 2022. He, in his written submissions, indicated that his clients had filed a trial affidavit and had done so, basically, in accordance with the orders, on 1 March 2022.
Mr Mucha had filed a lengthy affidavit indicating his evidence and the position – particularly his position – in respect of the provision of the relevant notices to his client. From his perspective, the prejudice that he felt under in the proceedings had been on foot for a long time, that he operated as a small business and it had been stressful for him to be involved in litigation in one form or another in several different fora.
It was also his evidence that, from his perspective, he had treated Mr Kimhi with respect during his employment and, in fact, had paid him more than the Award and the reason why the employment had come to an end was largely financial, in that the business which he operated had been subject to a significant downturn, from memory, from his perspective, relating to the pandemic emergency.
In his submissions, Mr Belperio pointed to the proceedings in the Fair Work Commission which, as I have indicated, were dismissed and at that stage there was an admission by those who were advising the applicant at the time and continued to do so that there had been omissions in dealing with the proceedings before the Fair Work Commission.
In addition, Mr Belperio, in his opening, relied on the report from Registrar Parkyn, in which he said that he intended to indicate that the applicant had failed to comply with mediation directions on two occasions, and it was the Registrar's view that he was not properly participating in the proceedings. It seems to be the applicant's position that he seeks the imposition of pecuniary penalties and that he be paid those pecuniary penalties rather than that they be paid to the Commonwealth.
It is also Mr Mucha’s evidence that, given that Mr Kimhi had only been in his employment for less than 12 months, he was only entitled to one week's pay on termination, and, in fact, he was paid two weeks in - which is, from his perspective, evidence of his bona fides. It is the submission of Mr Belperio that Mr Kimhi’s claim is without merit.
As I say, my staff made overtures to the parties and what was the effect of those I am not altogether sure. But Mr Belperio’s instructing solicitor made it clear that there would be opposition to the late filing of an affidavit on behalf of the applicant, and it would be the position taken when the matter came on for trial that there was no evidence to refute Mr Mucha’s assertion that he had provided the relevant notices and he had paid the relevant amounts due on termination. So, there was no case to answer and the application should be dismissed.
It seems to be the case that Mr Starke, who is Mr Kimhi’s solicitor, became aware of the difficulties and, today, an attempt was made to file the affidavit, I think, without annexures. Anyway, I have the affidavit. It was filed 17 March 2022, as indicated on the front of the file, which is yesterday. At best, two working days prior to the commencement of the trial.
Some significant annexures have also been filed, but separately from the affidavit, and I think Mr Belperio told me that he has not seen those in any great detail. He has made his position clear that he will not consent to the late filing of the affidavit. From his perspective and the perspective, of his client, it represents an abuse of the court's processes.
It is against that background that the application which I am presently dealing needs to be disposed of urgently. The application in that the matter has been listed before me today at 2.15 pm because, as I have already indicated, it was necessary for it be listed before me so I and the relevant parties could know what was happening next week and prepare accordingly.
Mr Kimhi has provided some 19 documents which relate to his employment. There are medical reports that deal with his skin condition. In basic terms, he gives evidence about his difficulties in his workplace, as he perceives it.
Mr Belperio complains that his clients have received the documents at the last minute and they have no time to obtain any material in rebuttal given the trial is scheduled for next week. This is particularly germane so far as the medical evidence is concerned.
In his affidavit, Mr Kimhi asserts that between February 2019 and March 2019, he was subject to a lot of abuse in the workplace, which he attributes to being mocked, I think, because of his skin condition and he got called “wussy,” “big baby,” “no balls,” and things of that nature.
From his perspective, he contracted some form of psychological condition, which he describes in lay terms as an inferiority complex. He asserts that his employment was terminated because of his disability and he was subject to some form of discrimination because of it.
Whether that is asserted to be in a disability discrimination context or under the provisions of the FWA is not completely clear to me. As I say, to a certain degree, Mr Kimhi’s claim is one that he has suffered some form of prejudice as a consequence of having contracted dermatitis, which he asserts is related to his employment, and it seems to be the case that he was subject to some bullying or offensive language or something of that sort related to his disability.
Significantly, in respect of the fair work aspect of the case, he simply asserts that he did not receive an information sheet. He concedes the copy of the Award is in position in the tea room. What precisely he says about the termination payment, I am not sure.
In support of the application to file his documents, his solicitor, Mr Starke, has filed an affidavit. Mr Starke concedes that he is the solicitor who is responsible for the applicant's matter.
He asserts that his office moved from a manual recording system to an electronic diary system at the beginning of 2022, and this has caused some difficulties in respect of the running of his practice. He also asserts that staff, whether singular or plural, have removed his personal diary to force him to rely on the electronic diary system.
I am not sure, to be frank, what that means, whether that means that somebody has done it maliciously, or whether Mr Starke is being compelled to use a system with which he is not adept. I do not know. In any event, he asserts that the delay in finalising the affidavit of his client was due to it not being diarised, and that it is not the fault of the applicant. He also asserts that the pandemic has impacted upon his practice.
He asserts that the new material is not prejudicial to the respondents. Mr Belperio has submitted that it is highly prejudicial because his client is not in a position to get alternative medical opinions. Whether there are some aspects of the case relating to the treatment of the applicant by other employees in the workplace, what are the ramifications of that in terms of the DDA – I do not know.
Regrettably, it is my impression that the litigation has not been well-handled from the applicant’s point of view and it also seems to have been delayed within the court itself, because of the appointment of Judge Heffernan to another court and the vacation of the trial.
I now have to consider whether to allow the affidavit, and given the concessions made by Dr Gray of Senior Counsel, counsel for the applicant, that it is now accepted that there is prejudice to the respondents and that the trial will have to be adjourned, what should follow if the affidavit is admitted.
THE LEGAL PRINCIPLES APPLICABLE
Dr Gray referred me here to a decision - one of my own - a matter called Kolozsvari v BIC Services Pty Ltd.[3] That was a case that related to proceedings under the FWA.
[3] See Kolozsvari v BIC Services Proprietary Limited [2021] FCCA 742.
It was an application for summary dismissal in similar circumstances to the present matter where an applicant concerned had not filed an affidavit setting out the evidence in support of her claim as directed, and an earlier process of mediation had been aborted due to the Registrar forming the opinion that the applicant had not complied with directions regarding the provision of material to allow the mediation to take place.
In that case, the relevant solicitor said he had lost track of the requirement. He had only learnt of his office’s default when the summary dismissal application had been filed and that he had thereafter met with his client and the default would be rectified.
To some extent, this is a little different in one would expect that the fact that a hearing is coming up would be diarised very carefully. Anyway, Mr Starke has indicated the fault is with him rather than his client.
Whether that is so or not, I am not in a position to really say. I know very little about Mr Kimhi. It is, after all, at the end of the day, his case, not Mr Starke’s case. Whether he was advised when it was fixed for hearing - you would imagine he would be.
Whether he agitated Mr Starke and said, “What is happening with my case?” or whether he was a person who was completely trusting and just expects everything to be okay on the day - I do not know.
If Mr Kimhi did think everything was going to be okay on the day, regrettably, that has not been congruent with other experiences in the case, particularly in the fair work jurisdiction. Anyway, the court has a discretion to dismiss proceedings if they are not prosecuted with due diligence. As with all discretions, the discretion must be exercised judicially and according to the dictates of justice.
At a fundamental level, the court has an obligation to investigate and determine a claim for judicial relief which has been honestly made in the proceedings before it by the suitor concerned. I have got no reason to think that Mr Kimhi has brought his proceedings, complicated though they may be, to a certain extent relying on whatever jurisdiction he thinks will get him some remedy, whether it is to do with the Award, the fair work information, the termination payment, the disability discrimination aspect of the case, and so on.
He wants, to use the jargon, his day in court. On the other hand, the court retains the discretion, in appropriate circumstances, to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party. The authority for that is Welsh v Digilin Pty Ltd.[4]
[4] Welsh v Digilin Pty Ltd [2008] FCAFC 149 [32] (Tamberlin, Greenwood and Collier JJ).
Clearly, it is the position of SA Drains, and its proprietor that they have been reasonable; they have been forbearing; they have done all that has been expected of them, and in the view of Mr Mucha, more than generous and accommodating to Mr Kimhi on account of his dermatological condition, which he asserts is a misfortune but one which is not strictly attributable to any direct act or omission on his part.
Clearly, these two considerations must be carefully balanced against one another in any application for summary dismissal, bearing in mind the significant implications for any party that would be subject to such an order.
As a consequence, the authorities are clear that the discretion to dismiss an application for non-compliance with an order is not to be regarded as being commonplace in its exercise. The authority for that is Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at 20.[5] The court is directed to consider a range of factors, and those factors - for obvious reasons, their importance will turn on the facts of each particular case.
[5] Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 [20] (Lucev J).
As I understand it, the leading authority in this area is Lenijamar Pty Ltd v AGC (Advances) Ltd.[6] That is a decision of the Full Court of the Federal Court. In that case, the Full Court consisted of Wilcox, Pincus and Gummow JJ. The majority judgment, delivered by Wilcox and Gummow JJ, said it was “undesirable” for the court:
… to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised.[7]
[6] Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200.
[7] Ibid 208 (Wilcox and Gummow JJ).
I think that is, to a certain extent, axiomatic. Cases will vary, and for obvious reasons, it would be inappropriate to exercise the jurisdiction if an affidavit is two or three days late or there is some reason as to why it is filed late. In general terms, their Honours characterised two obvious candidates which called out for summary dismissal.
Firstly, cases characterised by a history of non-compliance such to indicate an inability or unwillingness to cooperate with the other party or the court to bring the proceedings to hearing within an acceptable period.[8] These are cases where somebody is using a court proceeding and being uncooperative, in a sense, just to inflict attrition and damage on the other party. To a certain extent, Mr Belperio says, well, there are aspects of that in this case.
[8] Ibid.
Clearly, what is the ultimate quantum of this case potentially is a matter I cannot ascertain. But if it is about failing to provide the proper termination in respect of an employee who has been employed for less than a year or the provision of the statutory financial fair work information, it may not necessarily be a case that is one that applies to a significant sum of money. I do not know. I cannot pre-judge the case. In that context it would have been eminently sensible for the parties to try and mediate it in a sensible way.
The court now has all sorts of rules and obligations, the overarching principles of the administration of justice that there has to be some proportionality between how much is spent on a case, and what is actually at stake.
These proceedings are tremendously stressful for those who are involved in them. A mediation gives the parties the prospect of bringing them to an early conclusion in a sensible and dignified way. The Registrar said he could not get anywhere with the mediation and he brought it to an end. That causes me grave concern.
The second incident was cases in which non-compliance was continuant in occasion with unnecessary delay, expense or other prejudice to the other party concerned.[9] I suppose it is asserted now that the applicant has provided his affidavit. The evidence is there, so there will be no ongoing prejudice to the respondents.
[9] Ibid 208-9.
However, I fear that there may be other aspects of the case. I fear that when some thought is given to where the case is actually going, and it moves, perhaps, from being reactive in terms of its management to being proactive, there may have to be more evidence filed.
Again, I may be completely wrong about these things. As I say, Judge Pincus agreed with the outcome proposed by the majority, but he had some other matters to raise in respect of how the discretion was to be used. He said as follows:
The court may, in my opinion, take into account such matters as whether the claim or defence of the party in default appears to have substance, whether the case is one in which delay in hearing is likely to be particularly damaging to prospects of correctly deciding the dispute, whether the party applying for dismissal has itself transgressed, whether the party in default has gained some advantage by delay - for example, where it has had the benefit of an interlocutory injunction - whether the credible assurances - supported, perhaps, by arrangements to commit the conduct of the matter to another firm or other counsel - have been given as to the prompt carrying out of future steps and whether the delay has been such as to induce the party not in default to think that the matter has probably gone to sleep.[10]
[10] Ibid 215 (Pincus J).
To a certain extent, that latter consideration applies to the respondents. They assumed, “the matter has been fixed for hearing for a long time. We have not received an affidavit, and perhaps the matter has gone to sleep”.
It seems that, to some extent, it is only as a consequence of the court's proactivity that the matter comes to a head. In a more recent case, called Professional Administration Services Centre Pty Ltd v Commissioner for Taxation,[11] again, the Full Court of the Federal Court has attempted to delineate considerations which are likely to be relevant to the exercise of the discretion to dismiss a case in want of prosecution.
[11] Professional Administration Services Centre Pty Ltd v Commissioner for Taxation [2012] FCAFC 180.
They indicate they are as follows:
·the nature of the default involved;
·the duration of the default and whether it was continuing;
·the circumstances surrounding the making of the order subsequently breached and the practices of the court concerned;
·what has happened since the default, particularly whether an attempt was made to rectify the breach; whether the breach creates prejudice or places an unacceptable burden on the other party;
·does the breaching party genuinely want the case to go to trial; the stage the proceedings have reached; disruption to possible trial dates; and
·the consequences for the applicant of dismissing the application.[12]
[12] Ibid [44] (Edmonds, McKerracher and Nicolas JJ).
In terms of the default involved, it is the filing of a trial affidavit, and clearly, it is a significant default. In general terms, the default has been rectified. The respondents now know what the applicant’s case is, although perhaps they may want more particulars of it.
Perhaps they want more details as to where the DDA applies; where the FWA aspects apply; what is the overlap; what is the quantum of damages sought; why should the applicant get an Award of damages for not getting the information notice. At first blush, this does not seem to bear upon issues to do with his dermatitis and so on, so forth. All matters about which I do not know the answer.
There has been an attempt to rectify the breach, albeit that it comes at a late stage. I accept that the ongoing breach has placed and creates prejudice to the respondents. I also accept that Mr Kimhi genuinely wants the proceedings to go to trial.
It would be illogical for me to reach any other conclusion given the nature of the case and given the tenor of his evidence that he continues to be aggrieved. The proceedings are at a late stage. Trial dates will be disrupted. I have to consider, above all, the consequences for the applicant of dismissing his application.
He will feel aggrieved. He will feel that he has been let down not only by his solicitor but by the court process, and the legal system generally. I have to think about the practices of the court. This is lower-level federal court. Its ethos is to deal with simple matters quickly and expeditiously, with a view to them being resolved through alternative dispute resolution and with as little formality as possible.
I fear that a lot of those objectives have not been complied with. Lots of people have cases, and they want the court to deal with them quickly. I have to consider other people who want my services, who want the Registrar’s services to resolve their disputes in a timely way.
Those are the types of considerations which the court considered in Aon Risk Services Australia Limited v Australian National University.[13] Case management concerns are important. Courts are, in this day and age, expected to manage the business that comes before them and to prevent abuses and to ensure that cases are dealt with.
[13] See Aon Risk Services Australia Limited v Australian National University 239 CLR 175.
Fundamentally, as I say, I have to balance two competing prejudices and determine what is the least detrimental. In my view, it would be a significant thing to deprive the applicant of the opportunity to bring these proceedings. I bear in mind that this is not a summary dismissal aspect on the basis of whether he has reasonable prospects of succeeding in this case.
In terms of the fair work aspect of the case, it is essentially the applicant's word against the respondent’s word on the balance of probabilities. The disability discrimination aspect of the case appears to be more nuanced and more complicated, and whether that is the focus of the application ultimately, I do not know.
At the end of the day, the DDA is a piece of beneficial legislation directed to prevent people who suffer from disabilities, and whether, at the end of the proceedings - what findings are made about the level of disability and so on and so forth, I really am not in the position to say. As I have outlined, this is not a summary dismissal application as yet.
But the general rule in terms of an adjournment is if the prejudice can be remedied by an Award of costs, ordinarily, proceedings should be adjourned. The concession has been made that if the affidavit is filed, that the case cannot go ahead. On that basis, I propose to admit the affidavit, defer the trial, but costs become a live issue.
The rules in respect of costs are set out in Division 22.2 of the Division 2 Rules. The court has the authority to make an order for costs at any stage in the proceedings. It can set the amount of costs, set the method by which the costs would be calculated, refer the costs for taxation under the Federal Court rules or set a time for payment of the costs, which may be before the proceedings are concluded. The court has a wide discretion as to issues of costs.
It is Mr Belperio’s position that the costs of preparing this matter on the basis that there would be a comparatively simple proceeding next week in which he would make his submissions, that there was no evidence to refute his client's assertion that the proper level of termination payment had been made, and there was no evidence to refute his client's assertion that the notice had been provided.
Presumably, there was also no evidence to refute his client's assertion that there had been no less favourable treatment in terms of Mr Kimhi’s treatment in the workplace, and that the cost in preparing for that, including preparing his written submissions, which, to which I am alerted, was in the vicinity of $15,000.00. I have authority to make an order for costs against a lawyer pursuant to rule 22.06:
(1)The court … may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs
(a)to be incurred by a party or another person
(b)or to be thrown away [because of undue delay, negligence, improper conduct or other misconduct or default].
(2)A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has reasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to do any act necessary for the hearing to proceed.[14]
[14] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22.06.
Pursuant to rule 22.06(4), I can order:
(a)that the costs, or part of the costs, between the lawyer and party be disallowed; or
(b)that the lawyer pay the costs, or part of those costs, incurred by the person; or
(c)that the lawyer pay the party or the other person the costs, or part of the costs, or
(d)the party has been ordered to pay to the other person.[15]
[15] Ibid r 22.06(4)
It is a significant thing to make an order for costs against a lawyer. Due to this, I must give the lawyer an opportunity to be heard, and I am satisfied Mr Starke has been given that opportunity, and to a certain extent, he has fallen on his sword in respect of that.
CONCLUSIONS
In all the circumstances of the case, I am satisfied that the proceedings have been delayed as a consequence of Mr Starke’s default and that it is appropriate that he personally bear the costs. I assess those costs in general terms. The amount I am going to allow is 50 per cent of the amount sought by those instructing Mr Belperio, being $7,500.00.
I appreciate that is somewhat amorphous, but from my perspective, if, once the costs are paid, consideration could be given to refixing the matter and it has to be - and is a condition precedent to the matter going forward.
Very senior counsel have been retained by the applicant. I can only urge everyone to consider where the case is going and to see if it can be refined with some expertise as to what it is about and to what issues have to be determined at final hearing.
I have had to pick the case up on the run to a certain extent and try and put it in some degree of chronology. My concern is that there is a somewhat scattergun approach to what remedies. It is a bit like the old games of hoopla we played when we were children.
You throw the rubber ring onto the hoopla, and you hope it gets onto a ring. I need to know which ring, or hook we are aiming for, not. It is not the case that, hopefully, if we throw enough hoops, one will land somewhere. At the end of the day, I think these cases have to be managed with some caution.
For all of these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 30 March 2022
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