Kozul in Her Capacity as the Administrator of the Estate of Kozul v T-Pack Australia Pty Limited
[2017] FCCA 2792
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KOZUL IN HER CAPACITY AS THE ADMINISTRATOR OF THE ESTATE OF KOZUL v T-PACK AUSTRALIA PTY LIMITED | [2017] FCCA 2792 |
| Catchwords: INDUSTRIAL LAW – Application for penalty and compensation for breach of applicable award – proceedings listed for trial – application in a case – failure by applicant to comply with orders of the Court – whether applicant in default – whether proceedings should be dismissed – time already extended to comply – consent orders providing failing compliance proceedings be dismissed – whether proceedings should stand dismissed – proceedings dismissed. |
| Legislation: Manufacturing and Associated Industries and Occupations Award 2010 |
| Cases cited: University of New South Wales v Huang [2012] FCA 308 |
| Applicant: | NADA KOZUL IN HER CAPACITY AS THE ADMINISTRATOR OF THE ESTATE OF SASA KOZUL |
| Respondent: | T-PACK AUSTRALIA PTY LIMITED |
| File Number: | MLG 1280 of 2016 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 3 November 2017 |
| Date of Last Submission: | 3 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Patrick Robinson and Co |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
By reason of the applicant’s failure to comply with orders 4 and 7 of the orders of 18 May 2017 in full by 1 November 2017 and order 1 of the orders of 4 October 2017, the application and statement of claim filed 17 June 2016 will be dismissed pursuant to Rule 13.03A(1)(a)(e) and Rule 13.03B(1)(a) and 13.03B(6) of the Federal Circuit Court Rules 2001 (“the Rules”).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1280 of 2016
| NADA KOZUL IN HER CAPACITY AS THE ADMINISTRATOR OF THE ESTATE OF SASA KOZUL |
Applicant
And
| T-PACK AUSTRALIA PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
On 17 June 2016, Nada Kozul in her capacity as the administrator of the estate of Sasa Kozul (“the applicant”), commenced proceedings in the Fair Work Division of the Court. The applicant named T-Pack Australia Pty Limited (“the respondent”), as the respondent to her application. These reasons concern an application in a case filed by the respondent on 29 August 2017.
Background
The substantive application filed 17 June 2016 by the applicant’s then solicitors was accompanied by a statement of claim filed the same date and given a first Court date of 26 October 2016.
In the pleadings it was alleged the late Mr Sasa Kozul worked for the respondent from 2010 till 2012 as a machine operator and his employment was governed inter alia by the Fair Work Act 2009 (“FW Act”) and the Manufacturing and Associated Industries and Occupations Award 2010, the latter which contained an obligation to make superannuation contributions to a superannuation fund he belonged to.
It was alleged the respondent did not make such contributions to the fund, which amounted to a breach of that award and of the FW Act. The statement of claim alleged the respondent was subsequently required to pay to the Australian Taxation Office the Superannuation Guarantee Charge because of the failure to make superannuation payments for the late Mr Kozul. The applicant alleged, because of these breaches of the FW Act by the respondent, the late Mr Kozul’s superannuation fund did not maintain a valid life insurance policy, and as a result he was unable to make a claim under that policy because of the respondent’s breaches. The statement of claim sought various declarations and relief as a result, including orders for compensation under s.545 of the FW Act in the amount of $154,800.
Following a change of solicitors, DLA Piper filed a notice of address for service on behalf of the respondent on 29 August 2016. Prior to the first Court date, the parties through their then respective solicitors, wrote to the Court seeking interim orders by consent.
On 24 October 2016, there were interim orders made by consent allowing time for the respondent to file a response and defence, the proceedings were referred for mediation and adjourned for directions in 2017.
On 22 November 2016, the respondent filed a defence. In its defence the respondent maintained it had only employed the late Mr Kozul between February and June 2010. The respondent admitted the late Mr Kozul requested the respondent make contributions to his superannuation fund, that it did not do so, that it had to pay the Superannuation Guarantee Charge as a result, and the failure to make superannuation contributions amounted to a breach of the FW Act. However, the respondent maintained a breach of s.45 of the FW Act was a personal cause of action which could not be commenced by a deceased estate (i.e. the applicant in this case). The respondent otherwise did not admit the allegations made in the Statement of Claim and denied the applicant was entitled to the relief sought.
As a result of a rather elongated mediation process, the directions hearing in early 2017 was adjourned by consent on a number of occasions.
Finally, on 18 May 2017, the parties through their then solicitors asked the Court to make the necessary orders and directions to list the proceedings for trial. Accordingly, on 18 May 2017 the following orders were made:
“1. The Directions Hearing listed for 19 May 2017 be vacated.
2. The Respondent has leave to file and serve an Amended Defence to the Statement of Claim on or before 4pm on 2 June 2017.
3. The Applicant may file any reply on or before 23 June 2017.
4. By 17 July 2017, the Applicant is to make discovery of the following classes of documents in its possession under section 45 of the Federal Circuit Court Act 1999, in accordance with rule 14 of the Federal Circuit Court Rules 2001:
(a) any medical documents relating to Sasa Kozul; and
(b) to the extent not already provided to the Respondent, any documents relating to Sasa Kozul's superannuation fund account with Australian Super, including any correspondence exchanged between Sasa Kozul (or his estate) and Australian Super; and
(c) to the extent not already provided to the Respondent, any documents relating to any other superannuation fund accounts held by Sasa Kozul.
5. By 17 July 2017, the Respondent is to make discovery of the following classes of documents in its possession under section 45 of the Federal Circuit Court Act 1999, in accordance with rule 14 of the Federal Circuit Court Rules 2001:
(a) any letter of offer, letter of appointment, contract of employment and any other document recording terms and conditions of employment of Sasa Kozul;
(b) any ‘employee record’ within the meaning of s535 of the Fair Work Act 2009 made or kept by the employer in relation to the employment of Sasa Kozul;
(c) any ‘payslip’ within the meaning of s536 of the Fair Work Act 2009 made or kept by the employer in relation to the employment of Sasa Kozul;
(d) any other document recording or relating to the hours of work performed by Sasa Kozul during his employment with the Respondent;
(e) any document recording or relating to the termination, by whatever means, of the Respondent’s employment of Sasa Kozul;
(f) any position description or other document recording or relating to the duties of work of Sasa Kozul during his employment with the Respondent;
(g) any document recording or relating to the duties actually performed by Sasa Kozul during his employment;
(h) any document relating to any illness, injury or incapacity of Sasa Kozul; and
(i) any document recording or relating to superannuation contributions made, or required to be made, by the Respondent in respect of Sasa Kozul.
6. The trial shall proceed on affidavit evidence with the affidavits of each witness if adopted to stand as the evidence in chief of the witness.
7. On or before 4pm on 21 August 2017, the Applicant to file and serve any affidavit material and documents upon which she intends to rely at hearing.
8. On or before 4pm on 25 September 2017, the Respondent to file and any affidavit material and documents upon which it intends to rely at hearing.
9. If either party requires a deponent to an affidavit to be made available for cross-examination, that party shall notify the other in writing within 14 days of receipt of the relevant affidavit.
10. On or before 4pm on 16 October 2017, the Applicant to file and serve any affidavit material and documents in reply.
11. The matter be listed on 19 February 2018 at 10:00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Melbourne.
12. The parties to file a Statement of Agreed Facts by no less than 4pm four weeks prior to the hearing date.
13. The Applicant is to file and serve an outline of submissions and a list of authorities no less than 4pm three weeks prior to the hearing date.
14. The Respondent is to file and serve an outline of submissions and a list of authorities no less than 4pm two weeks prior to the hearing date.
15. The Applicant is to file and serve any outline of submissions in reply and a list of authorities no less than 4pm one week prior to the hearing date.
16. No less than one week prior to any hearing, each of the parties must file a printed paginated hearing book containing all of the electronically filed documents on which the party intends to rely and a table of contents.
17. Liberty is granted to the parties to apply to the Court for further directions.
18. Costs, including costs of any Amended Defence, be reserved.”
As provided for in the abovementioned orders, the respondent filed an amended defence on 2 June 2017. The respondent in that amended defence maintained the late Mr Kozul had not been employed as a machine operator, would not have been eligible for life insurance cover under the policy of the superannuation fund, and would in any event have only been entitled to limited cover for any sickness which occurred after that cover commenced. For the reasons set out therein, the respondent denied the applicant was entitled to the relief sought.
After the respondent filed its amended defence, the applicant’s former solicitors filed a notice of intention to withdraw on 26 June 2017 and then a notice of withdrawal on 11 July 2017.
Application in a Case
On 29 August 2017, the respondent filed the application in a case (that was before the Court on 4 October 2017) which sought the following orders:
“1. Pursuant to rule 13.003A(1) (sic) of the Federal Circuit Rules 2001 (Cth) (sic), that the Applicant is in default.
2. Pursuant to rule 13.03B(1) of the Federal Circuit Court Rules 2001 (Cth), the proceedings be dismissed as to the whole of the relief claimed by the Applicant.
3. In the alternative, pursuant to rule 13.03B(1) of the Federal Circuit Rules 2001 (Cth), that the Applicant is to comply with orders 4 and 7 of the Order made by His Honour Judge O’Sullivan dated 18 May 2017 within 30 days of the date of this order, failing which, the proceeding be dismissed as to the while of the relief claimed by the Applicant.”
The application in a case was supported by an affidavit of Elizabeth Anne Cole, from the respondent’s solicitors, affirmed 28 August 2017. The application in a case was listed for hearing on 4 October 2017.
Hearing 4 October 2017
At the hearing on 4 October 2017, Mr Talevski, Solicitor sought leave to appear on behalf of the applicant. Mr Talevski explained his firm had only in the days leading up to the hearing received instructions from the applicant. He confirmed the applicant had been served with the respondent’s application in a case. He sought leave to file a notice of address for service on behalf of the applicant. Ms Cole, solicitor, appeared on behalf of the respondent.
As set out in the affidavit of Elizabeth Anne Cole filed 29 August 2017, the respondent had been seeking that the applicant comply with the orders which were made on 18 May 2017 when she was represented. There had been no response to that correspondence and no application made to the Court by or on behalf of the applicant seeking an adjournment, relief from compliance with, or amendment to, the timetable contained therein. As referred to in Ms Cole’s affidavit, the applicant had not taken any steps to progress her case since her former solicitors withdrew. The Court was told it was against that background that the respondent had filed the application in a case.
On 4 October 2017 the respondent’s solicitor did not seek that the Court make the orders as set out in the application in a case filed 29 August 2017. Instead after the matter was stood down the Court was told the parties had come to an agreement. It was the position of both parties that the intervention of new solicitors meant that the applicant would be able to comply with the orders of 18 May 2017. The solicitors for both parties agreed that time should be extended to give the applicant one more chance to comply with the orders of 18 May 2017 failing which the application and statement of claim should stand dismissed.
Accordingly on 4 October 2017 the following orders were made:
“1. The applicant comply with orders 4 and 7 of the orders of 18 May 2017 in full by 1 November 2017 failing which, the application filed 17 June 2016 will be dismissed pursuant to Rule 13.03A(1)(a)(e) and Rule 13.03B(1)(a)(c) of the Federal Circuit Court Rules 2001 (“the Rules”).
2. Subject to the applicant complying with order 1 above, the respondent have until 3 December 2017 to comply with order 8 of orders of 18 May 2017.
3. Subject to orders 1, 2 and 3 hereof, the applicant have until 17 December 2017 to comply with order 10 of orders of 18 May 2017.
4. Otherwise those orders remain in full force and effect.
5. The application in a case be otherwise dismissed.”
Recent developments
Unfortunately those orders did not secure compliance by the applicant with the orders for trial. Moreover the agreement of the parties and the involvement of new solicitors for the applicant did not improve the conduct of the applicant’s case.
On 1 November 2017 a ‘List of Documents’ in an affidavit purportedly from the applicant but actually sworn by the applicant’s solicitor Mr Talevski and witnessed by another solicitor Mr Fogo was filed. There was no affidavit material filed by the applicant as was required by order 7 of the orders of 18 May 2017 and order 1 of the orders of 4 October 2017.
On 2 November 2017 the respondents’ solicitors sent correspondence to the Court in relation to this matter which omitting formalities said:
“…We note that Order 4 of the orders of 18 May 2017 provided that the Applicant was to make discovery of the following classes of documents in its possession:
· Any medical documents relating to Sasa Kozul;
· Any documents relating to Sasa Kozul's superannuation fund account with Australian Super, including any correspondence exchanged between Sasa Kozul (or his estate) and Australian Super, to the extent not already provided to the Respondent; and
· Any documents relating to any other superannuation fund accounts held by Sasa Kozul to the extent not already provided to the Respondent.
Order 7 of the of the orders of 18 May 2017 provided that the Applicant was to file and serve any affidavit materials and documents upon which she intends to rely at hearing.
By facsimile received on 31 October 2017, the Applicant's solicitors served the Applicant's list of documents and accompanying affidavit sworn 31 October 2017 on our offices. We understand this list of documents was filed with the Federal Circuit Court the morning of 1 November 2017.
The affidavit sworn 31 October 2017 accompanying the list of documents purports to be made by "Nada Kozul". Notwithstanding this, the deponent then identifies themselves in the Affidavit as the Solicitor for the Applicant. It appears to be signed by Mr Dimche Talevski of Patrick Robinson & Co, the Applicant's solicitor.
The list of documents does not appear to cover the categories of documents required to be discovered by the Applicant in accordance with order 4 of the orders of 18 May 2017. In particular, no medical documents are listed as being documents in the control of the Applicant or documents that have been but are no longer in the control of the Applicant.
It is not clear on the face of the documents provided to us whether it is the Applicant's position that no such documents in the categories required to be discovered exist.
Leaving aside the deficiencies of both the form and content of the Applicant's affidavit and list of documents, we have not been served with any affidavit materials or other documents upon which the Applicant intends to rely at hearing. From our review of the online file for this matter on the Commonwealth Courts Portal, it appears that no such documents have been filed with the Court.
We consider it is manifestly clear the Applicant has failed to comply in full with orders 4 and 7 of the orders of 18 May 2017 by the stipulated deadline of 1 November 2017 as required by the Orders of His Honour dated 4 October 2017.
We note comments made by His Honour at Hearing on 4 October 2017 that if the Applicant failed to comply in full with orders 4 and 7 of the orders of 18 May 2017 by 1 November, the Applicant's application filed 17 June 2016 would be dismissed with no further action required on behalf of the parties.
Accordingly, we respectfully request the Court confirm that the application filed 17 June 2016 will now be dismissed pursuant to Rule 13.03A(1)(a)(e) and Rule 13.03B(1)(a)(c) of the Federal Circuit Court Rules 2001.”
Shortly after receipt of that correspondence the Court received correspondence on the letterhead of the applicant’s solicitor which said:
“We refer to correspondence of the Respondent dated 2 November 2017.
We do not agree with the Respondent’s views that the Applicant has failed to comply with orders 4 and 7 of the Court of 18 May 2017.
The Applicant and her legal representatives have complied with their obligations relating to Discovery.
Parties can only Discover what is in their possession.
Should there be other documents in existence neither the Applicant nor her legal representatives are in possession of them.
The matter should not be struck out on the basis that the Respondent is not satisfied with the list of documents prepared.
Should the Respondent maintain that the matter be dismissed we would request the matter be listed for a directions hearing.”
Today’s mention
Given this the matter was listed for mention today and the parties solicitors were notified of same on 2 November 2017. Today Mr Fogo has appeared on behalf of the applicant and Ms Cole on behalf of the respondent.
Mr Fogo told the Court he is not the solicitor responsible for the file. Mr Fogo told the Court that solicitor was away from the office. Mr Fogo told the Court his firm had recommended the applicant get advice from solicitors with more experience in the area. Mr Fogo told the Court his firm did not have enough documentation or material to enable the applicant to file her trial documents.
Mr Fogo also told the Court he agreed the applicant had not complied with order 7 of the orders of 18 May 2017 and, beyond telling the Court he wanted an ‘indulgence’ to do so, could provide no explanation why given the time that elapsed between 4 October 2017 and today’s date there was no application filed seeking same on behalf of the applicant nor evidence from her in support of any such application or the substantive proceedings.
In the face of this unsatisfactory state of affairs Ms Cole told the Court the respondent’s position was the application and statement of claim should be dismissed.
Orders on default
The provisions of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) which are relevant are:
“Rule 13.03A:
(1)For rule 13.03B, an applicant is in default if the applicant fails to:
(a)comply with an order of the Court in the proceeding; or
(b)file and serve a document required under these Rules; or
(c)produce a document as required by Part 14; or
(d)do any act required to be done by these Rules; or
(e)prosecute the proceeding with due diligence.
(2) ….
Rule 13.03B
(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.
(2)…
(6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.”
The relevant provisions of the Rules and in particular 13.03A(1), 13.03B(1) and 13.03B(6) provide for the Court to take steps in the event of a default by the applicant.
The approach that should be taken to the default provisions of the Rules has been considered by the Federal Court in University of New South Wales v Huang [2012] FCA 308 where it was said:
“20. Turning, then, to Rule 13.03B of the FMC Rules, it provides:
(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.
21. The use of the word “may” in this Rule shows it is a discretionary provision. To succeed in an appeal against a judgment made under such a discretionary provision, the University must show that the Federal Magistrate erred by acting on a wrong principle, or by taking into account extraneous or irrelevant considerations, or by failing to take into account material considerations: see House v The King[1936] HCA 40; (1936) 55 CLR 499 at 505 and Welsh v Digilin Pty Ltd(2008) 250 ALR 13; [2008] FCAFC 149 at [16].
22. Furthermore, the Federal Magistrate’s judgment was one relating to matters of practice and procedure: it is well-established that an appeal court should exercise caution in considering whether or not to interfere with such judgments: see In re The Will of FB Gilbert (deceased)[1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323 per Jordan CJ and Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated[1981] HCA 39; (1981) 148 CLR 170 at 177.
23. The content of the discretion involved in a provision like Rule 13.03B was identified by the High Court in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [19] as follows:
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
24. On its face, Rule 13.03B is not in the latter category: it does not require the formation of any particular opinion or value judgment as a prerequisite for a decision under it. Instead, it falls into the former category: it is one of those provisions that is confined only by the subject matter and object of the legislation which confers the discretion.
25. The University relied upon the Full Court decision in Lenijamar and the observation in that decision that the history of a matter will “always be relevant”. In that case, the Court considered the equivalent provision in the Federal Court Rules, viz O 10. That Rule was in similar terms to Rule 13.03B (see at 395). The following observations about O 10 are therefore apposite to Rule 13.03B (at 395–6): “There is no requirement of intentional default or contumelious conduct ... There is no requirement of ‘inordinate and inexcusable delay’ on the part of the applicant or the applicant’s lawyers ... There is no requirement of prejudice to the respondent ....” Following these observations, the Full Court went on to describe O 10 in these terms (at 396): “The discretion conferred by [it] is unconfined, except for the condition of non-compliance with the direction.” Noting that it was impossible in those circumstances to provide an exhaustive statement of the situations where the Rule might appropriately be exercised, the Court identified “two situations [as] obvious candidates”. They were:
“1. cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period”; and
“2. cases ... in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent”.
26. The Court’s observations about the history of the matter always being relevant (see Ms Sharp’s submissions at [12] above) was made in this context. It was not a comment made at large. It is, therefore, quite significant in this case (as Mr Chia pointed out in his submissions: see at [14] above) that, apart from Ms Huang’s default in relation to the order of 31 July 2010, which was the sole ground for the University’s application for dismissal, there is no other history of default on her part in relation to any other order of the Court. There is also no history of any continuing non-compliance or default on Ms Huang’s part. Since neither of these situations identified by the Full Court in Lenijamar arises in this case, when the “always be relevant” observation in Lenijamar is considered in its proper context, it rather supports Ms Huang’s case.
27. Somewhat surprisingly, despite the fact that the University expressly relied upon Lenijamar, it did not actually point to either of the two situations of default specifically identified by the Court in that decision (see at [25] above). Instead, it pointed to the four matters set out at [12] above. In this respect, I consider the University has taken the “always be relevant” observation in Lenijamar out of context. Nonetheless, I will turn to consider the four matters upon which the University has relied. The first, that in para (a), is, I consider, a distortion of the true history of these proceedings. It completely ignores the Federal Magistrate’s findings that Ms Huang had filed affidavits on 16 April 2008 addressing both liability and quantum issues in these proceedings and: “in which she set out the essence of her claim, at least in one of its iterations”: see the reasons at [4] in [9] above. It also ignores the fact that the University was not brought into these separated proceedings until 2008. The second, the matter in para (b), is a matter that the Federal Magistrate could well have taken into account but, as noted above, there is no provision in Rule 13.03B that required him to do so. In those circumstances, no error is demonstrated by his Honour in not doing so. Finally, as to the matters in paras (c) and (d), they may be relevant to the abuse of process ground, but I do consider they have any bearing on this default ground. For these reasons, I do not consider the Federal Magistrate made any error in not relying upon any of the four matters identified by the University as being relevant to the history of these proceedings.
28. As to the University’s claim that the Federal Magistrate failed to have regard to the case management principles in s 42 of the FMC Act, that section provides: “In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.” This provision required the Federal Magistrate to avoid undue formality and delay. It is, as Mr Chia correctly submitted (see at [15] above), quite different to the provisions of the Civil Procedure Act 2005 (NSW) considered in Bi. That decision, therefore, provides no assistance in construing this provision. In any event, while he did not expressly mention s 42 of the Act, I consider the Federal Magistrate plainly did have regard to the need to avoid delay when his Honour described the nature and effect of Ms Huang’s default in relation to the order of 31 July 2010 as not being “one which is necessary for the forward conduct of the matter”.
29. Otherwise, it is quite apparent from the Federal Magistrate’s reasons for decision (at [9] above) that his Honour took into account a range of matters that he considered to be material to the exercise of his discretion not to dismiss Ms Huang’s proceedings because of her default in relation to the order of 31 October 2010. In my view, none of these matters demonstrates an error of principle, or is an irrelevant consideration, nor do they demonstrate any failure to take into account any material consideration. They included (see at [9] above):
(a) The purpose of the order of 31 July 2010 – at [3]:
However, it should not be overlooked that the orders made on 31 July 2010 were ones which ordered that the question of whether or not the alleged acts of sexual harassment occurred should be determined as a separate question. Until that point, all matters were on the table and the matter was proceeding to a hearing on all issues. Consequently, the affidavits which the applicant had filed earlier in the proceedings were addressed not only to liability, but also to quantum.
The actual order provided that the following questions were to be considered separately:
(a) Did the respondents breach the Sex Discrimination Act 1984 as alleged by the applicant?
(b) If the first respondent is found to have breached the Sex Discrimination Act 1984 as alleged by the applicant, does the second respondent have any liability to the applicant for such conduct of the first respondent?
(b)The pertinent aspect of the history of the matter insofar as it affected the University – at [3]:
In this connection, regard should be had to the applicant’s affidavit filed on 16 April 2008 in which she set out the essence of her claim, at least in one of its iterations.
(c) The effect of the orders of 31 July 2010 – at [4]:
[A]t the end of the day, if the applicant wishes to file further affidavits in support of her case or does not wish to file affidavits in support of her case that is a matter for her.
In this regard, the particular part of the orders of 31 July 2010 was in the following terms:
The applicant file and serve any affidavits on which she will rely on or before 29 October 2010. (Emphasis added)
(d) The nature and effect of Ms Huang’s default – at [4]:
Orders dismissing proceedings for default in compliance with earlier orders of the Court should only be made where the step which is required to be taken is one which is necessary for the forward conduct of the matter, whether that be the necessity for a respondent to file a response and a supporting affidavit, for a party to give discovery, answer interrogatories or something of that sort. A default of that nature may, in certain circumstances, justify the Court in dismissing a matter summarily. However, the fact that an applicant has failed to file evidence in addition to what she has already filed is not the sort of default which, in my view, justifies dismissal of the matter.
30. Taking into account all these matters, I do not consider there is any merit in the University’s complaint that the Federal Magistrate erred in exercising his discretion not to summarily dismiss Ms Huang’s proceedings under Rule 13.03B of the FMC Rules.
Consideration
In that case the Federal Court made clear that this Court was, in the context of an application relying on those provisions dealing with a discretionary decision and that the Rules could be invoked in cases where there is a history of non compliance, which the non compliance if continuing and occasioning unnecessary delay, expense and other prejudice to the respondent.”
In Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 Judge Lucev dealt with an application in a case for default judgment on the basis of non compliance with earlier orders and said:
“The test for dismissal for non-compliance
26. Rule 13.03B(1)(a) of the FCC Rules requires the Court to objectively assess all of 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 orders of the Court: Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140 at [21] per Lucev FM (“Wintle”). In Wintle at [21] per Lucev FM the then Federal Magistrates Court (“FM Court”) took into account in objectively assessing all of the circumstances (and in determining to give Mr Wintle a further opportunity to put his claim in proper order):
(a) that it was the first occasion on which Mr Wintle had not complied with orders of the FM Court;
(b) that Mr Wintle was self-represented;
(c) a submission (to which “some regard” was had) that Mr Wintle did not understand what was required of him by the relevant orders; and
(d) the “exceptional caution” exercised when determining whether to dismiss claims containing allegations of unlawful discrimination (and citing in that regard Oorloff & Anor v Lee & Ors [2004] FMCA 893 at [49] per Walters FM and Portuguese Cultural and Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144; (2011) EOC 93-600 at [116] per Lucev FM).
27. This Court has more recently observed that the exercise of the discretion to dismiss for non-compliance with a Court’s orders is not commonplace, and further, that orders under r.13.03B(1) of the FCC Rules ought to be exceptional: Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] and [28] per Judge Lucev.
…”
Consideration
Rule 13.03B(1) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) gives the Court a discretionary power to make an order of the type therein prescribed. It is default in compliance with an order of the Court that triggers the exercise of the discretionary power in r.13.03B(1) of the Rules, and a range of factors, depending upon the facts of each case, may then influence how the discretion is exercised.
It has been made clear Courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (“Aon”) their Honours made a number of points, which included that:
a)the conduct of litigation is not merely a matter for the parties.
The need to avoid disruptions in the Court’s lists, with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);b)when considering an application such as this the Court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Circuit Court Act 1999 (Cth)[1] and the Federal Circuit Court Rules 2001 (Cth),[2] as prescribed by the objects of the FCC Act[3] and the objects of the FCCA Rules,[4] provide for the Court to operate in a manner:
·as informal as possible in the exercise of judicial power;
·which is not protracted in its proceedings;
·which resolves proceedings justly, efficiently and economically;
·which uses streamlined procedures; and
·that avoids undue delay, expense and technicality.
[1] “FCCA Act”.
[2] “FCCA Rules”.
[3] FCCA Act, ss.3 and 42.
[4] FCCA Rules, r.1.03.
In considering whether the Court should accede to the respondent’s request to give effect to the provisions of the orders of 4 October 2017 or as the solicitor for the applicant requested grant a further indulgence all matters relevant to the exercise of the power, including delay, wasted costs and concerns of case management have been taken into account.
The applicant’s conduct (or lack thereof) and the omissions by her latest solicitors demonstrates an unwillingness to cooperate with the Court and the respondent in preparing the material for trial within an acceptable period. Non-compliance with directions made by the Court continues and threatens to cause unnecessary delay, expense and prejudice to the respondent. The proceedings will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 15 November 2017
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