Kolozsvari v BIC Services Pty Ltd
[2021] FCCA 742
•16 April 2021
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 |
| 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 Ltd.[2] There is no controversy that Ms Kolozsvari was employed, as a cleaner, by BIC, from mid-2013 onwards.
[2] Hereinafter referred to as “BIC”
In mid-2017, she claims to have suffered an injury at work to her neck, upper back, right arm and shoulders, which also caused her psychological distress.
Ms Kolozsvari contacted her doctor and was certified as unfit for work from 14 July 2017 onwards. As a consequence, a claim was made on her behalf for workers’ compensation, pursuant to the applicable South Australian legislation, chiefly the Return to Work Act 2014(SA).[3]
[3] Hereinafter referred to as the “RTWA”
It seems to be the case that Ms Kolozsvari received what is termed “weekly maintenance payments” pursuant to that legislative scheme, until 12 August 2019. In general terms, the scheme caps workers’ compensation for injured workers, other than those suffering from “serious injury” for a period of 104 weeks.
I assume, although I have not been specifically informed so, that the RTWA allows an injured worker to apply for compensation, in respect of any future impairment to work caused by injuries sustained at work, or to redeem any entitlement to future weekly maintenance payments.
It is also my assumption that such entitlements and any controversies relating to them are subject to adjudication in a court of appropriate jurisdiction convened within South Australia. Again, I have not been specifically told whether or not this is the case.
Ms Kolozsvari ceased receiving income maintenance payments on 12 August 2019. Thereafter, she applied to BIC to access her accrued sick and annual leave. It is her position that she was under acute financial pressure at the time. Her doctor certified her as unfit for work until 31 August 2019.
On 23 August 2019 Ms Kolozsvari received an email from BIC’s area manager Ms Jakupovic, which advised her that she had 108 hours of sick leave and 218 hours of annual leave. It is Ms Kolozsvari’s position that she should have been able to access this leave.
On 24 September 2019, BIC’s human resources manager, Ms Di Bello wrote to Ms Kolozsvari advising that her employment had been terminated. The reasons for this termination can be summarised as follows:
·Ms Kolozsvari had no capacity for work at BIC and had not done so since 14 July 2017;
·Her workers’ compensation payments had ceased from 12 August 2019;
·BIC had contacted Ms Kolozsvari’s treating doctor, who had “not been forthcoming or provided the requested information to better understand your challenges (sic)”.
In these circumstances, Ms Di Bello asserted that BIC had no obligation to provide Ms Kolozsvari with suitable employment.
The Rules provide that all proceedings must be commenced by an application, in prescribed form, which details “precisely and briefly” the orders sought, which is in prescribed form.[4] In most circumstances, such an application must be accompanied by an affidavit.
[4] See the Rules at 4.01 – 4.02.
However, in respect of some applications arising under the Fair Work Act, the rules prescribed specific forms and dispense with the requirement for such an affidavit.
It is Ms Kolozsvari’s position that her case engages the general protection provisions of the Fair Work Act 2009 (Cth) and thus can be commenced by completion of the application form prescribed by Rule 45.06(b).
Ms Kolozsvari filed such a form on 31 January 2020, which was accompanied by a copy of Ms Di Bello’s letter dated 24 September 2019 and a certificate from a Deputy President of the Fair Work Commission, which indicated that the Commission was satisfied that all reasonable attempts to resolve the dispute between the parties had been and were likely to remain unsuccessful.
It is Ms Kolozsvari’s assertion that BIC has misconstrued its obligation to provide employment to her pursuant to the RTWA, which she contends is not limited to 52 weeks. In this context, she complains that she personally did not receive any request from BIC to provide it with information regarding her work capacity.
In these circumstances, she contends that BIC has contravened the general protection provisions of the Fair Work Act 2009 (Cth) and, as a consequence, she is entitled to compensation and BIC itself should be subject to a pecuniary penalty under the provisions of the Act.
BIC responded to this application in a response filed on 9 July 2020. It asserts that the applicant has not provided it with any estimate of when she is likely to be able to return to work and her treating doctor has not responded to requests made of him to provide information regarding Ms Kolozsvari’s capacity to return to her work.
In these circumstances, BIC asserts that Ms Kolozsvari is unable to fulfil the inherent requirements of her previous employment and, as a consequence, it was entitled to terminate her employment. In these circumstances, BIC contests that it has not contravened any workplace rights of Ms Kolozsvari arising under the Fair Work Act 2009 (Cth).
The legal provisions applicable to the application
Part 3-1 of the Fair Work Act 2009 (Cth) is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The first item of the table provides as follows:
“Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.”
The expression workplace right is defined by section 341(1) of the Fair Work Act 2009 (Cth):
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Section 12 of the Act defines workplace law and workplace instrument. Relevantly, workplace law means the Fair Work Act 2009 (Cth) itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
The applicant’s claim
It is Ms Kolozsvari’s position that BIC has misunderstood its obligations to provide her with suitable employment pursuant to the provisions of the RTWA. In this context, she alleges that BIC has not properly inquired of her personally as to her physical capacity to return to work.
In these circumstances, she claims that BIC has taken unlawful adverse action against her, in contravention of the applicable provisions of the Fair Work Act 2009 (Cth), as it has contravened her workplace rights, in the following areas:
·Failed to provide her with suitable duties;
·Failed to allow her to access sick leave;
·Failed to allow her to access annual leave;
·Failed to allow her to be temporarily absent from the workplace as a consequence of personal injury; and
·Infringed the confidentiality of her medical information.
In these circumstances, she claims to be entitled to compensation from BIC and, in addition, asserts that the company should be subject to a pecuniary penalty for breaching the provisions of the Fair Work Act. It is her position that she personally should receive any penalty so imposed.
Ms Kolozsvari’s application was made returnable, before this court, on 23 March 2020. On this occasion, BIC was directed to file and serve a response and affidavit in support within 28 days. As I recall, there was no appearance on behalf of BIC on this occasion and the case was adjourned to 11 June 2020.
On 11 June 2020, once again, there was no appearance by BIC. In addition, the respondent had not filed any answering material. In these circumstances, the time for BIC to file and serve its material was extended to 9 July 2020 and the following order was made:
“Further consideration of the matter is adjourned to 31 July 2020 at 9:30am and a representative of the respondent is directed to appear on that occasion and further if the respondent fails to comply with the order for the filing of responding material or appear on the adjourned date, the applicant has leave to apply for final orders on an undefended basis.”
In these circumstances, BIC filed a response, to Ms Kolozsvari’s application on 9 July 2020.
The respondent’s case
In its response, BIC alleges that the applicant has no right to be provided with suitable employment by it, on the following bases:
·She does not have any capacity to return to work with it; and
·Has made no specific indication to it that she wishes, in fact, to return to her previous employment.
In these circumstances, BIC asserts that it has not infringed any workplace right pertaining to Ms Kolozsvari. In this context, it asserts that the certificate provided by the applicant, in August/September 2019 was deficient, in that it did not provide details as to when she would be in a position to regain sufficient function to be able to return to work. In these circumstances, it sought further clarification from the applicant’s doctor, which was not forthcoming.
For these reasons, the respondent alleges that it was entitled to reach the conclusion that Ms Kolozsvari no longer was able to fulfil the inherent requirements of her former position, particularly given that she had not been able to return to work for a period exceeding 104 weeks.
Accordingly, BIC denies that it has infringed any workplace right pertaining to Ms Kolozsvari and it was entitled therefore to take the adverse action complained of, on the following basis:
·Ms Kolozsvari had refused to release information to it concerning her capacity to work;
·Had further refused to participate in required discussions regarding a possible rehabilitative strategy for her to return to work;
·Had not provided required information regarding her capacity to work; and
·The certificate provided by her was silent in respect of her capacity for work after 1 October 2019.
In these circumstances, BIC alleges that is was entitled to terminate the applicant’s employment and, in these circumstances, it seeks the dismissal of her claim.
Conduct of the proceedings to date
The Federal Circuit Court is a lower level court conferred with jurisdiction in a wide variety of areas of federal law, including matters arising under the Fair Work Act 2009 (Cth). It was created to deal with less complicated matters which were more suited to its jurisdiction than in the courts superior to it, namely the Federal Court and the Family Court, which each hold over-lapping jurisdiction.
In this context, the objects of the Federal Circuit Court as set out in section 3(2) of the Federal Circuit Court Act 1999 (Cth), are relevant. They include directions directed towards the following:
·The Federal Circuit Court is to operate as informally as possible in the exercise of judicial power; and
·The Federal Circuit Court is to use streamlined procedures; and
·It is encouraged to use of a range of appropriate resolution dispute processes.
With this in mind, when the case came on for directions on 31 July 2020, I directed the parties to attend a mediation, with a registrar of the court, on 12 November 2020 and to exchange informal discovery of all relevant documents on or before 8 October 2020.
Of his own volition, the registrar wrote to the parties on 15 October 2020 directing the applicant to provide her proposal for the resolution of the proceedings no later than 22 October 2020. The respondent was then directed to provide its written response to such a proposal no later than 29 October 2020.
The registrar’s letter to the parties included a request for a one page confidential settlement statement to be provided by each party to reference such matters as:
·The likely legal costs of proceeding with the litigation;
·Potential risks arising from continuing with the litigation;
·A possible range of acceptable settlement outcomes.
Thereafter, the registrar wrote in the following terms to each party:
“This one page summary will assist me in determining how best to prepare for and conduct the mediation. Note that this may include vacating the mediation if I consider there is no utility in continuing having regard to the differences in the settlement ranges or other terms considered necessary to resolve the matter.”
It is common ground between the parties that Ms Koloszvari did not provide the one page summary and as a consequence neither did BIC. In these circumstances the registrar cancelled the mediation. From BIC’s perspective, this was the first default of orders committed by the applicant.
The case returned to court, before me, on 12 November 2020. Ms Kolozsvari’s solicitor apologised to the court for not providing the position statement. In these circumstances, BIC’s counsel, Mr Byrnes requested that the case be listed for hearing with the rider that, before that was done, a direction should be made requiring Ms Koloszvari to file an affidavit of her evidence in support of her application.
In this context, Mr Byrnes complained about the applicant’s lack of response to the mediation process and indicated a concern that the matter warranted the court’s close supervision on the basis that there were questions regarding her commitment to pursuing her application. On this basis, the applicant’s solicitor sought a period of six weeks to prepare the affidavit sought and otherwise demurred to the respondent’s position.
In light of the ensuing Christmas period, I elected to extend the period to eight weeks and the case was adjourned for further directions to 4 February 2021. At this stage, I said as follows:
“Okay. Well, I will direct that the applicant file an affidavit of her evidence in support of her claim within eight weeks of today’s date and I will adjourn the further hearing of the matter to 4 February 2021 at 9.30 in the morning and note that if the applicant fails to comply with order 1 hereof, the respondent has leave to apply to strike out the application pursuant to the provisions of the Federal Circuit Court Rules for failing to take a step in proceedings or pursue the proceedings with diligence.”
Ms Kolozsvari did not comply with the order to file the affidavit in the time directed. As a consequence, on 15 January 2021, BIC filed an application in a case seeking the summary dismissal of her application pursuant to the provisions of rule 13.03B together with an order for costs.
The summary dismissal application was listed to the adjourned date. On this occasion Ms Kolozsvari was granted fourteen days to respond to the summary dismissal application, which was listed for hearing on 10 March 2021.
Very shortly prior to this date, Ms Kolozsvari filed the affidavit earlier directed in which she set out the evidence said to support her general protection application. Concurrently with this filing, a response was filed in respect to the summary dismissal application, which sought its dismissal and that each party bear their own costs in respect of it.
This application was supported by an affidavit of her solicitor, Mr Kourbelis. Mr Kourbelis’ evidence can be summarised as follows:
·Prior to the summary dismissal application being filed, the parties were in settlement negotiations, which he thought would resolve all issues between the parties;
·His office was closed over the Christmas/New Year period and as a result lost track of the requirement to file Ms Koloszvari’s affidavit;
·He learnt only of the default when the summary dismissal application was filed;
·In these circumstances, he has met with his client and the default has been rectified.
It is the submission of counsel for BIC that none of the matters have negated the applicant’s consistent disregard for court directions, stemming from the abortive mediation hearing. On this basis the respondent contends that the summary dismissal application should be granted.
On the other hand, Ms Kolozsvari contends that although she has defaulted in respect of the filing of her affidavit within time, there is no cogent evidence to suggest that she does not have a bona fide desire to pursue her application to its conclusion. As such, it would be unduly prejudicial to her if her application was summarily dismissed at this stage.
Applicable legal principles
The court is conferred with a discretion, pursuant to rule 13.03B to dismiss an application if the applicant concerned fails to comply with one of its orders; file and serve a document; or prosecute the proceedings with due diligence [see rule 13.03A].
As with all discretions, the discretion provided by rule 13.03B 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.
On the other hand, the court retains it may be appropriate 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[5] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[5] Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32]
In these circumstances, authority is clear that the application of the discretion to dismiss an application for non-compliance with an order, is not to be regarded as being commonplace in its exercise.[6] A range of factors dependant on the facts of each case will influence how the discretion is to be exercised.
[6] Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20]
In Lenijamar Pty Ltd v ACC (Advances) Ltd[7] the Full Court of the Federal Court indicated that 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”. In this context, Wilcox & Gummow JJ identified what they considered to be two obvious candidates for the exercise of the power, which can be summarised as follows:
·Cases characterised by a history of non-compliance such to indicate an inability or unwillingness to co-operate with the other party or the court to bring the proceedings to hearing within an acceptable period;
·Cases in which non-compliance was continuing and occasioning unnecessary delay, expense or other prejudice to the other party concerned.
[7] Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200
In a separate but concurring judgment Pincus J said as follows in respect of the exercise of the relevant discretion:
“[T]he 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 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;”[8]
[8] Ibid at [214] – [215]
In Professional Administration Service Centres Pty Ltd v Commissioner for Taxation [9] the Full Court of the Federal Court attempted to tabulate considerations which were likely to be relevant to the exercise of the discretion, which can be summarised as follows:
[9] Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52 at [44]
·The nature of the default involved;
·The duration of the default and whether it is 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 has been 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;
·The consequences for the applicant of dismissing the application.
Discussion
The first aspect of the breaches, on which BIC relies, relate to the aborted mediation. This did not take place because the court’s registrar vacated the fixture as a consequence of Ms Kolozsvari’s failure to provide the position statement requested by the registrar concerned.
As indicated above, one of the rationales for the creation of the Federal Circuit Court was to provide a low level court, which utilised streamline procedures, including appropriate alternative resolution dispute mechanisms, to allow cheaper and more ready access to justice in less complex matters. The expectations being that such an appropriate course would lead to cases being resolved quicker.
Accordingly, it was disappointing that the mediation ordered by the court did not proceed. It is also probable that this was not in the interests of the parties themselves, particularly if, as Mr Kourbelis has deposed, the parties themselves were already engaged in a process of negotiations to resolve a range of issues in dispute between them, across more than one jurisdiction.
Quite conceivably, these discussions may have coalesced at the mediation regardless of the existence or otherwise of the position statement directed by the registrar. For obvious reasons, it must be a matter of conjecture what the cancelled mediation might have achieved, if it had not been cancelled by the registrar prior to the date scheduled for it.
I also appreciate that the registrar is under an obligation to ensure that the mediations conducted by him occur as efficiently as possible and scarce court resources are not otherwise squandered on undeserving litigants, depriving more compliant parties of the registrar’s services.[10] This would appear to be the rationale behind the requirement that issues statements be provided.
[10] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
However, the fact remains that the order of the court was that the parties attend a mediation with a registrar. It was the registrar who determined that the mediation should not take place, albeit for a compelling reason. In my view, this transgression is not of sufficient moment to justify the dismissal of the applicant’s claim.
Thereafter, at the request of BIC and with the acquiescence of those advising Ms Kolozsvari, it was directed that she file an affidavit of the evidence to be relied upon in support of her claim. She was given ample time for this, which took into account the forthcoming Christmas break. The affidavit was not provided in the time stipulated, which precipitated the current application.
Mr Kourbelis has provided an explanation for the default, which relates to failures in his office, which cannot be attributable to his client. I have no reason to disbelieve his explanation. His firm has also apologised for its breach of order, which has now been rectified, albeit tardily.
It is clear from Ms Kolozsvari’s affidavit that she wishes to proceed with her application, including to trial if necessary. Accordingly, in my view, the summary dismissal of her application would have significant implications for her. Essentially, she would be deprived of the opportunity of having her various grievances, with BIC, adjudicated by the court.
Clearly, the continuance of the action will have implications, including financial ones, for BIC. However, I do not consider, in all the circumstances of the case, that this could be considered to be an unacceptable burden for it. Rather, it is part and parcel of the type of litigation which commonly arises between employer and worker in the context of work place injury and the claims of right asserted to arise therefrom.
The proceedings have not reached an advanced stage. No trial date has been fixed and BIC has not prepared any extensive pleadings or affidavit material. As such, the allocation of trial dates has not been prejudiced.
Balancing these factors against one another and bearing in mind that the discretion to dismiss an application before the court summarily is one to be cautiously exercised, I have come to the conclusion that the application for summary dismissal, in the current matter, should not be granted.
In these circumstances, I will allocate a further direction date, on which occasion consideration will be given to making the necessary orders to prepare the matter for trial, and to allocate the dates on which the trial will take place. In addition, I do not consider appropriate, at this stage, to make an order of costs in favour of either of the parties. Rather, the costs of this application will be costs in the cause.
For all 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 seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 16 April 2021
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