Lee v Superior Wood Pty Ltd

[2021] FCA 515

FEDERAL COURT OF AUSTRALIA

Lee v Superior Wood Pty Ltd [2021] FCA 515  

File number:

QUD 378 of 2020

Judgment of:

LOGAN J

Date of judgment:

19 April 2021

Catchwords:

 PRACTICE AND PROCEDURE – application for judicial review of a decision of the Fair Work Commission – where originating application deficient in failing to provide a telephone number pursuant to r 2.16(1)(d) of the Federal Court Rules 2011 – where applicant refused to provide telephone number to Court although case management direction to do so – application dismissed for want of compliance with a case management direction  

Legislation:

Federal Court Rules 2011 (Cth) r 2.16

Cases cited:

Lee v Superior Wood Pty Ltd T/A Superior Wood [2019] FWC 5095

Lee v Superior Wood Pty Ltd [2020] FWCFB 1301

Lee v Superior Wood Pty Ltd [2020] FWCFB 6011

Division:

Fair Work Division

Registry:

Queensland

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

6

Date of hearing:

19 April 2021

Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the Respondent:

Ms L Pendle of Australian Government Solicitor

ORDERS

QUD 378 of 2020

BETWEEN:

JEREMY LEE

Applicant

AND:

SUPERIOR WOOD PTY LTD TRADING AS SUPERIOR WOOD

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	19 APRIL 2021

THE COURT ORDERS THAT:

1.Superior Wood Pty Ltd trading as Superior Wood be joined as the first respondent.

2.The Fair Work Commission become the second respondent.

3.The presently named second, third and fourth respondents, namely Vice President Adam Hatcher, Deputy President Amber Millhouse, and Commissioner Peter Hampton be removed as respondent parties.

4.The need for the service of the originating application on the new first respondent be dispensed with.

5.The applicant provide forthwith to the Court his telephone number as required by rule 2.16 of the Federal Court Rules 2011 (Cth).

6.The proceeding be dismissed for want of compliance with order number 6.

7.No order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. On 1 December 2020, Mr Jeremy Lee filed in this Court’s original jurisdiction an originating application in respect of a decision given by a Full Bench of the Commonwealth conciliation and arbitration commission, presently known as the Fair Work Commission (Industrial Commission).  On 10 November 2020, a Full Bench of the Industrial Commission dealt with an appeal by Mr Lee against a decision in the original jurisdiction of the Industrial Commission: see, respectively, Lee v Superior Wood Pty Ltd [2020] FWCFB 6011 and Lee v Superior Wood Pty Ltd T/A Superior Wood [2019] FWC 5095. There had been an earlier proceeding in the Full Bench of the Industrial Commission on 5 May 2020 in which then it also dealt with an appeal against that same decision in the Industrial Commission’s original jurisdiction: see Lee v Superior Wood Pty Ltd [2020] FWCFB 1301.

2. The originating application should not have been accepted for filing by the registry in that it was deficient, because it did not provide, as r 2.16(1)(d) of the Federal Court Rules 2011 (Cth) (the Rules) provides, a contact telephone number. It was also deficient in that the originating application both named unnecessary parties, namely the members of the Industrial Commission constituting the Full Bench instead of just the Industrial Commission, and failed to name a necessary party, namely the employer, Superior Wood Pty Ltd. A solicitor on behalf of the employer attended this morning, as did the Australian Government Solicitor for the Industrial Commission. It proved possible, with commendable attention to the interests of justice, by the employer’s solicitor and the Australian Government Solicitor, to regularise the proceeding such that the individual members of the Industrial Commission were removed as parties and the employer joined as a party.

3. Thereafter, discussion occurred in relation to the case management of the proceeding including whether there was any particular need for or value in mediation.  Having heard from Mr Lee, who appeared with the assistance of his brother, Mr Andrew Lee, acting as a McKenzie friend, as well as the solicitor for the employer, I formed the settled view, including based on my own assessment, that mediation was not an appropriate course to order in this case. 

4. The case then proceeded further with case management.  In the course of that, and noting the absence of a telephone number, as well as a residential address, I asked Mr Lee to provide each of them.  He provided a residential address.  That residential address, as handwritten by him, I direct be marked as Exhibit 1 and placed on the Court file with the annotation, not to be opened without the leave of the Court or a judge. 

5. Mr Lee declined to provide a telephone number. I directed him so to do. I also adjourned the Court so that he might have the benefit of reflecting upon what may be the consequence of noncompliance with the direction to provide a telephone number. Upon resumption, I ascertained from the employer that it had no particular interest in knowing the telephone number; that had been a concern on the part of Mr Lee. I informed Mr Lee that it was my settled view that it remained the case that the administration of justice in this case required that the registry be able to contact him as required by telephone in addition to other means of communication. I also expressly directed his attention to r 2.16(1)(d) of the Rules and provided him with a copy of that for him to read in conjunction with his brother. I warned him that a consequence of a failure to comply with a direction to provide the telephone number may be that his proceeding may be dismissed for want of compliance with a case management direction.

6. I offered Mr Lee a further opportunity, on brief adjournment, to reflect on the course that he had earlier indicated.  He voiced an apprehension on his part to me as to some particular adverse impact or disadvantage that might attend the provision of a telephone number to the Court.  I assured him that there would be no such disadvantage, but rather, if anything, every advantage in terms of the administration of his proceeding in the facility offered by the ability to contact him as if and when required by telephone.  He persisted nonetheless in a settled view that he would not provide a contact telephone number.  That being so, in my view, the proceeding should be dismissed for want of compliance with a case management direction.  I so order.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Associate:       

Dated:       14 May 2021