Kolozsvari v BIC Services Pty Ltd - [2021] FCCA 742

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOLOZSVARI v BIC SERVICES PTY LTD

[2021] FCCA 742

Catchwords:
INDUSTRIAL LAW – Application for summary dismissal – failure to comply with orders – where the breach has been rectified – consideration of Rule 13.03B Federal Circuit Court Rules 2001 (Cth) - consideration of abuse of process and prolongation of proceedings – application for summary dismissal not granted – costs in the cause

Legislation:

Fair Work Act 2009 (Cth), ss 340, 341, 12

Federal Circuit Court Act 1999 (Cth) s 53

Federal Circuit Court Rules 2001 (Cth) Div 13.1A, r 4.01, 4.02, 13.03B, 45.06, 13.03A
Return to Work Act 2014 (SA)

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239

CLR 175

Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200

Professional Administration Service Centres Pty Ltd v Commissioner for

Taxation (2013) 295 ALR 52

Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159

Welsh v Digilin Pty Ltd [2008] FCAFC 149

Applicant:

KRISZTINA KOLOZSVARI

Respondent:

BIC SERVICES PTY LTD

File Number:

ADG 51 OF 2020

Judgment of:

Judge Brown

Hearing date:

10 March 2021

Date of Last Submission:

10 March 2021

Delivered at:

Adelaide

Delivered on:

16 April 2021

REPRESENTATION

Counsel for the Applicant:

Mr Dean

Solicitors for the Applicant:

K & K Legal

Counsel for the Respondent:

Mr Byrnes

Solicitors for the Respondent:

Swaab

ORDERS

That the application in case filed, 15 January 2021, is dismissed.
The costs of the application in a case be reserved to trial.
The matter be listed for directions on 28 May 2021 at 9.30am Australian Central Daylight Time (ACDT) NOTING the parties are to dial in to the court on 1800 132 423 followed by 707 693 1952#.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 51 OF 2020

KRISZTINA KOLOZSVARI

Applicant

And

BIC SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for summary dismissal of proceedings brought pursuant to the provisions of the Fair Work Act 2009 (Cth). Division 13.1A of the Federal Circuit Court Rules 2001[1] deals with the circumstances in which the court may either make an order dismissing an application or enter judgment, in favour of one party, if the opposing party is in default.
[1] Hereinafter referred to as “the Rules”
Of particular relevance, in the current matter, are the provisions of Rule 13.03B(1), which reads as follows:
“(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; or
(b)    a step in the proceeding be taken within the time limited in the order; or
(c)     if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.”
On 23 March 2020, Krisztina Kolozsvari commenced proceedings, in this court, against BIC Services Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kolozsvari v BIC Services Pty Ltd

Details

AGLC: Kolozsvari v BIC Services Pty Ltd [2021] FCCA 742
Case: [2021] FCCA 742
Decision Date: 16 April 2021

CaseChat Overview and Summary

Kolozsvari (the applicant) brought proceedings against BIC Services Pty Ltd (the respondent) in the Federal Circuit Court of Australia. The applicant sought orders for summary dismissal of the respondent's defence and counter-claim due to alleged non-compliance with court orders.

The central legal issue before the Court was whether the respondent's failure to comply with previous court orders warranted summary dismissal of its defence and counter-claim, pursuant to Rule 13.03B of the Federal Circuit Court Rules 2001 (Cth). This involved considering whether such non-compliance constituted an abuse of process or had unduly prolonged the proceedings to a degree justifying the extreme measure of summary dismissal.

Judge Brown reasoned that while the respondent had indeed failed to comply with the court's orders, the breach had since been rectified. The Court considered the principles of proportionality and the need to ensure that proceedings are not unduly prolonged or abused. However, given the rectification of the breach and the overall context of the proceedings, the Court determined that summary dismissal was not an appropriate or proportionate response. The Court found that the respondent's conduct, while not ideal, did not reach the threshold for summary dismissal as an abuse of process.

Consequently, the application for summary dismissal was not granted. The Court ordered that costs be in the cause, meaning that the question of costs would be determined at a later stage of the proceedings.

Orders