Leung v Omnia Inclusive Employment Solutions (No 2)
[2024] FedCFamC2G 416
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leung v Omnia Inclusive Employment Solutions (No 2) [2024] FedCFamC2G 416
File number(s): SYG 235 of 2023 Judgment of: JUDGE STREET Date of judgment: 3 May 2024 Catchwords: FAIR WORK – application in a proceeding dismissed under rule 13.06(1)(c) and (e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules 2021 (Cth)- no proper basis for adjournment – no appearance by the applicant – joinder application dismissed Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of hearing: 3 May 2024 Place: Sydney Solicitor for the Applicant Mr K Yeh of AXEGAL Counsel for the Respondent: Mr L Meagher Solicitor for the Respondent: Hall & Wilcox Solicitor for the proposed Third Respondent: Mr S Harvery of Gilbert + Tobin ORDERS
SYG 235 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHING YEE LEUNG
Applicant
AND: OMNIA INCLUSIVE EMPLOYMENT SOLUTIONS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.Leave is granted to the solicitor for the applicant, Mr Yeh, to withdraw from the proceedings.
2.The Application in a Proceeding, filed 15 March 2024, is dismissed under rule 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021.
3.Costs of the application in a proceeding are reserved.
4.The matter is fixed for final hearing commencing at 10:00AM on 3 & 4 October 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the FederalCircuit and Family Court of Australia Act 2021 (Cth).
5.The respondent is directed to file and serve a defence on or before 24 May 2024.
6.The applicant is directed to file and serve any affidavit evidence, that the applicant wishes to rely upon, on or before 21 June 2024.
7.The respondent is directed to file and serve any affidavit evidence, that the respondent wishes to rely upon, on or before 2 August 2024.
8.The applicant is directed to file and serve a case outline, along with a chronology and list of objections, on or before 16 August 2024.
9.The respondent is directed to file and serve a case outline, along with a chronology and list of objections, on or before 23 August 2024.
10.Leave is granted to the parties to provide Tender Bundle material to the Court via email and/or USB, seven (7) days prior to the hearing.
THE COURT NOTES THAT:
A.If the applicant obtains legal representation, an agreed statement of facts and issues should be filed and served on or before 20 September 2024.
B.Any failure to comply with the above procedural orders may result in any belated material not being admitted into evidence or other appropriate order.
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 STREET
These proceedings were commenced on 14 February 2023 by the applicant against the respondent, alleging amongst other contraventions and to this action. When the matter came before the Court, the Court identified the deficiencies in the statement of claim that was filed on 9 February 2024 by the applicant. The applicant on that occasion, identified a desire to join additional parties.
The Court identified that there was a requirement for the filing of an application of proceedings and made directions about the content of the pleading that needed to be put on to clearly identify a case under s 550 of the Fair Work Act 2009 (Cth) (“the Act”), if the Court was going to find it was appropriate to grant leave to join new parties to the proceedings.
The applicant failed to provide a proper statement of claim in compliance with the Court's orders, relevantly order 2, made on 16 February 2024 and the Court, on 5 April 2024, provided the applicant with a further opportunity to file and serve a proper statement of claim by extending time to comply to with order 2 that was made on 16 February 2024. The applicant has failed to comply with that order.
At the commencement of the hearing, the solicitor for the applicant, who filed a notice of ceasing to act, identified he sought leave from the Court to withdraw from these proceedings on behalf of the applicant. The Court granted that leave for the applicant’s solicitor to withdraw from these proceedings. The applicant has not appeared at today’s hearing.
The applicant sent to the Court an email on 2 May 2024, identifying that she had apparently attended a doctor to obtain a medical certificate that was dated 2 May 2024. The content of the email was coherent and conveyed that the applicant was clearly in a position to be able to attend a doctor to get a medical certificate, in which it was merely asserted that she is suffering from severe depression and would not be fit to attend her Court hearing on 3 May 2024.
Nothing in the medical certificate identifies any basis on which the applicant would have been unable to adjoin the digital hearing that the Court was conducting today. The medical certificate is completely inadequate. It is not satisfactory for a party to assert that they are entitled to an adjournment by sending communications by email that they do not propose to appear.
The Court had an outstanding application in a proceedings in respect of which the parties potentially be joined, had taken the steps of instructing solicitors to attend, so that they could be heard on the joinder application, if it was to be advanced. The applicant has failed to comply with the Court's orders now on three occasions to provide a proper pleading in relation to allegations in respect to s 550 of the Act to support the alleged joinder of new parties.
The Court is not satisfied that the applicant has any genuine claim against the proposed additional parties under s 550. Further the inability of the applicant to comply with the Court's orders reinforces the Court's conclusion that there is no utility in giving the applicant any further opportunity to seek to join additional parties. The interests of the administration of justice and taking into account the paramount purpose in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) do not warrant yet another opportunity to file a proper pleading. The failure to comply with the Court’s orders engage the power to dismiss the joinder application under r 13.06(1)(c) and(e) of the Federal Circuit and Family Court (General Federal Law Rules) 2021 (Cth) (“the GFL Rules”). In all the circumstances no further opportunity should be provided to amend the Statement of Claim for the joinder of third parties and the application for joinder should be dismissed under r 13.06 of the GFL Rules.
The failure of the applicant to comply with the Court's orders could have given rise to a wider consequence in respect to the proceedings currently on foot. However, the Court is satisfied that it is in the interest of the administration of justice to permit the applicant, even though she has not attended today, and even though in default of orders concerning the proposed joinder to obtain a final hearing date in respect of her alleged adverse action claim. The Court had foreshadowed such an order on the very first occasion it came before this Court.
This is a Fair Work matter for which there has now had nine Court events, which are well beyond the ordinary number of Court events for an ordinary adverse action case. When the matter came first before this Court, the Court foreshadowed a willingness to fix the matter for a final hearing and the applicant identified a desire to engage in trying to join additional parties.
The applicant's conduct has wasted time and resources of the Court as well as those of the respondent and potential parties to be joined. As the potential parties to be joined have not been joined, it is not appropriate to consider making any costs to order in respect of those parties. The Court is, however, satisfied that as there is no proper basis for an adjournment and declines to entertain the request to adjourn in the email where the certificate is inadequate and the applicant has failed to appear. The Court is satisfied the applicant was aware from the notice served that her lawyer was withdrawing. The Court is satisfied it should proceed to dismiss the application for joinder under r 13.06(1)(c) and (e) of the GFL Rules.
The Court is, however, of the view that on another occasion, the Court will hear the applicant and respondent in relation to the issue of the costs thrown away by reason of the application in a proceedings filed by the applicant on 15 March 2024, in respect of the joinder application that the Court has dismissed and accordingly the Court reserved costs in that regard.
The Court took the view, as it had on the first occasion before this Court, that this was an appropriate matter to make a trial timetable. The Court has added notations that if there is a failure to comply with the trial timetable, it may result in the Court excluding any belated evidence sought to be adduced where there has not been compliance with the Court's procedural timetable for hearing, and the Court will make appropriate orders if there is any failure to comply with the procedural timetable orders.
It is for these reasons the Court makes the above orders.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 7 May 2024
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