Klievans v Finance Sector Union of Australia
[2022] FedCFamC2G 835
Federal Circuit and Family Court of Australia
(DIVISION 2)
Klievans v Finance Sector Union of Australia [2022] FedCFamC2G 835
File number(s): SYG 1118 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 12 October 2022 Catchwords: INDUSTRIAL LAW – Fair Work – application for summary dismissal for applicant’s default – whether there was default of Court orders. Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.05, 13.06
Federal Circuit Court Rules 2001 (Cth) 13.03
Cases cited: Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/s Rottnest Express and Ors [2017] FCCA 88
Lenijamar Pty Ltd v AGC (Advances) Ltd FCA 520
Ryan v Primesafe (2015) 323 ALR 107
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submission/s: 7 October 2022 Date of hearing: 7 October 2022 Place: Sydney Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Mr Kumar appeared on behalf of the Respondents. ORDERS
SYG 1118 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MITCHELL STEVEN KLIEVENS
Applicant
AND: FINANCE SECTOR UNION OF AUSTRALIA
First Respondent
JULIA ANGRISANO
Second Respondent
REBECCA REILLY (and another named in the Schedule)
Third Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
12 October 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding 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 HUMPHREYS
Introduction
This judgement concerns an Application in a Proceeding filed on 15 August 2022 by the respondents.
The application seeks the following orders:
1.The application be dismissed pursuant to r 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”).
2.A declaration that the applicant has acted unreasonably in failing to comply with orders of the Court made on 4 June 2020, 20 July 2020, 20 November 2020, 22 January 2021, 9 July 2021 17 November 2021 and 4 March 2022.
3.That pursuant to s 570(2)(b) of the Fair Work Act 2009 and r 22.02(1)(a) of the Rules, the applicant pay the respondents legal costs for the whole of the proceedings on an indemnity basis.
In support of the application, the respondents rely upon two Affidavits of Luke Forsyth, a principal of Hall Payne Lawyers Propriety Limited, who act for the respondents. The First Affidavit was sworn on 28 July 2022, and the second, on 15 August 2022 (less paragraph 84).
Those Affidavits recount what is a long and troubled history of this particular matter, which has been occasioned by the admitted mental health issues of the applicant, together with the fact that he has been unrepresented for significant period of time.
The most recent complaint is that the applicant failed to file any evidence in reply by 4:00pm on the 29 July 2022 in compliance with Court orders made on 4 March 2022.
Respondents’ Submissions In Support of the Application
The Court was taken to Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/s Rottnest Express and Ors [2017] FCCA 88. In that judgement, Lucev J considered rules 13.03A(1) and 13.03B(1) contained in the then Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), but are in the same terms as the current Rules, r 13.04 and r 13.05.
At paragraph 26, Judge Lucev determined that, under then r 13.03B(1)(a), the Court was required to objectively assess all the circumstances and to determine if the non-compliance is sufficiently serious, at this stage, to warrant dismissal of the application for default in failing to comply with the orders of the Court.
At paragraph 27, His Honour went on to say that “this Court has more recently observed that the exercise of the discretion to dismiss for non-compliance with the Court orders is not commonplace, and further, that orders under r 13.03B(1) of the FCC Rules ought be exceptional”. His Honour also made reference to Lenijamar Pty Ltd v AGC (Advances) Ltd FCA 520 where the Full Court cautioned that “we would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial”.
In support of the application that the matter should be dismissed, it was put to the Court that first, there had been an extensive history of non-compliance with Court orders rather than single instance. Second, the applicant was presently in default of orders required to file evidence in reply. Thirdly, the applicant, although presently self-represented, was legally qualified as a solicitor. Fourthly, the applicant continued to fail to comply with orders and prosecute the proceedings with dispatch, has caused and is causing delay and prejudice to the respondents which included: hearing dates in February 2022 to be vacated, his nonappearance at a directions hearing and the fact they have not received any responses to the applicant in respect of repeated communications concerning access to documents.
Applicant’s Submissions
The applicant relies on an Affidavit filed with the Court on 7 October. This document contains both evidence and submissions. The applicant submits that he is not in default of the order of 4 March 2022 to file any evidence in reply. This order suggests that he had a choice as to whether to file any evidence in reply that he wished to. If he did not wish to file any evidence in reply, he was under no obligation to do so. In these circumstances, the applicant was not in default of the orders relied upon by the respondents. Further, the applicant points out that he has been suffering from mental health issues which have affected capacity to comply with Court dates. The applicant notes that he has agreed that Mrs Rebecca Reilly should be removed from the proceedings. The applicant states that he agreed to this as early as January 2022 and this was communicated through his former solicitors.
Consideration
The Court notes that this matter is listed for trial commencing on 31 October 2022. As at this point, all evidence has been filed and all that remains is for various procedural matters to be undertaken, such as the filing of a Court Book, any agreed Statement of Facts together with opening submissions from both the applicant and the respondents. The Court has made orders for the removal of Mrs Reilly. The Court also made orders in respect of access to the documents which have been obtained on Subpoena. If required, the Court will make a ruling as to whether or not any challenge on the basis of legal professional privilege or otherwise should be maintained to any documents which the applicant says should not be provided to the respondents.
The Court accepts the submission of the applicant that there was no absolute requirement upon the applicant to file evidence in reply. Thus, the Court is not satisfied that the applicant is in default of the order to file evidence in reply. It would have been better, had the applicant chosen to communicate to the respondent’s that he was not proposing to do so. The Court is not satisfied that the applicant is in default. There will be a consequence however, that is, the Court may not be prepared to allow any further evidence to be filed, which might be described as or fall under the broad heading of “evidence in reply”. The applicant may well be confined to what is already on the Court record.
Given that this matter is listed for a final hearing, within a relatively short period of time, and the only remaining matters to be attended to other than filing submissions, Court Books and objections to evidence, the Court is of the view that it should not exercise its discretion for the matter to be struck out. In so doing, the Court has objectively assessed whether the non-compliance, at this late stage of the proceedings, would warrant such an extreme action. The Court is not so satisfied.
The Court is of the view that the matter should be heard and determined on its merits. In coming to this conclusion however, the Court is conscious that significant additional costs have been occasioned to the respondents through the necessity for additional directions hearings. With whatever decision the Court comes to in relation to the ultimate outcome of the matter, the Court is open to any submission in relation to costs, noting however, the very high bar created by the s 570 of the Fair Work Act 2009 (Cth) (“the Act”), and in particular s 570(2)(b) of the Act which provides that costs are payable only if the Court is satisfied that the party’s unreasonable act or omission causes the other party to incur costs.
The Court notes that in Ryan v Primesafe (2015) 323 ALR 107 at [64], Mortimer J stated “the discretion conferred by the confined terms of s 570(2) of the Act should be exercised cautiously and the case for its exercise should be clear”.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 12 October 2022
SCHEDULE OF PARTIES
SYG 1118 of 2020 Respondents
Fourth Respondent:
JASON HALL
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