Melbourne v Gippsland and East Gippsland Aboriginal Co-Operative Limited
[2024] FedCFamC2G 120
•12 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Melbourne v Gippsland and East Gippsland Aboriginal Co-Operative Limited [2024] FedCFamC2G 120
File number(s): MLG 1274 of 2022 Judgment of: JUDGE O'SULLIVAN Date of judgment: 12 February 2024 Catchwords: FAIR WORK – PRACTICE AND PROCEDURE – application for dismissal – non-appearance of the applicant. Legislation: Fair Work Act 2009 (Cth), s. 340, 368
Occupational Health and Safety Act 2004 (Vic)
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021, r. 13.03, 13.04, 13.06
Cases cited: ANZ v James [2021] FCA 768
Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 12 February 2024 Place: Melbourne Appearance for the Applicant: No appearance Counsel for the Respondent: Mr A. Crocker Solicitor for the Respondent: Minter Ellison ORDERS
MLG 1274 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHANIE MELBOURNE
Applicant
AND: GIPPSLAND & EAST GIPPSLAND ABORGINIAL CO-OPERATIVE LIMITED
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to Rule 13.03(1)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021, the application filed 6 June 2022 be dismissed.
2.All extant applications be otherwise dismissed.
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
(Revised from transcript)INTRODUCTION
Before the Court today, 12 February 2024, is an application concerning allegations of breaches of Part 3-1 of the Fair Work Act 2009 (Cth) (‘the FW Act’).
In her statement of claim, Shanie Melbourne, (‘the applicant’) alleges that Gippsland & East Gippsland Aboriginal Co-Operative Limited (‘the respondent’), contravened, amongst other things, s.340 of the FW Act by dismissing her from her employment because, amongst other things, she:
(a)exercised her workplace right to take personal leave;
(b)exercised her workplace right to make complaints or inquiries in relation to her employment;
(c)exercised her workplace right to make a complaint in relation to her statutory entitlement and responsibility under the Occupational Health and Safety Act 2004 (Vic);
(d)initiated a workers compensation process under the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
Further and alternatively, the applicant alleged that the respondent dismissed her from her employment for reasons including her temporary absence. The respondent, in its defence, denies each of these allegations.
These reasons deal with an application made this day by the respondent for the application filed 6 June 2022 to be dismissed in default of the applicant’s appearance this day.
BACKGROUND
The applicant was employed by the respondent between October 2021 and February 2022.
Following the termination of her employment, the applicant commenced proceedings in the Fair Work Commission in February 2022, and there was a unsuccessful conciliation conference in April 2022. Thereafter, the Fair Work Commission issued the required certificate under s.368 of the FW Act in May 2022.
The applicant commenced these proceedings by application filed on 6 June 2022, accompanied by a Form 2 and a copy of the s.368 certificate. The application was given a first return date of 11 July 2022.
As the applicant had not served the respondent by that time on 11 July 2022, Registrar Hird ordered the matter be adjourned to a directions hearing on 9 August 2022.
On 18 July 2022, a notice of address for service was filed on behalf of the respondent. A response denying the allegations made by the applicant in the substantive application and objecting to the application, as it was filed outside the statutory time period, was filed in July 2022.
On 9 August 2022, Registrar Hird made orders listing that issue for an extension of time hearing on 23 February 2023. On that occasion, orders were made extending time for the applicant to file her application, and the matter was otherwise adjourned for a further directions hearing after a court-ordered mediation.
Subsequently, a notice of address for service was filed on behalf of the applicant, and at a directions hearing on 8 November 2023, at which both parties were represented, the following orders were made listing the matter for trial today, 12 February 2024.
1.By 4:00pm on 10 November 2023, the applicant file and serve a statement of claim.
2.By 4:00pm on 8 December 2023, the respondent file and serve its defence.
3.By 4:00pm on 15 December 2023, the applicant file and serve any affidavit material and any documents upon which she intends to rely at trial.
4.By 4:00pm on 19 January 2024, the respondent file and serve any affidavit material and any documents on which it seeks to rely at trial.
5.By 4:00pm on 25 January 2024, the applicant file and serve any affidavit in reply.
6.By 4:00pm on 25 January 2024, the applicant file and serve an outline of submissions.
7.By 4:00pm on 1 February 2024, the respondent shall file and serve an outline of submissions.
8.By 4:00pm on 8 February 2024, the parties shall confer and exchange lists of any remaining objections to affidavits and grounds of objections with copies to be sent to the Associate to Judge O’Sullivan at [email protected]
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.By 4:00pm on 8 February 2024, the applicant, following consultation with the respondent, must file a printed, paginated court book. The court book shall be in a searchable PDF format and contain:
(a) an index;
(b) all pleadings;
(c) statement of agreed facts;
(d) an agreed chronology; and
(e) a schedule containing the following summary for each head of claim:
(i) a description of the nature of the claim;
(ii) references to the pleadings;
(iii) references to the orders sought;
(iv)references to the statutory provision empowering the Court to the make the orders sought;
(v) quantum or total value of compensation sought;
(f) affidavits of the parties’ evidence in chief;
(g) relevant list of case law authorities to be relied upon.
11.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.
12.The matter be adjourned to 12 February 2024 commencing at 10:30 am for trial (with an estimated hearing time of 3 days) at the Federal Circuit and Family Court of Australia (Division 2) in Melbourne.
13.Liberty to apply.
AND THE COURT NOTES THAT:
A.A party is not permitted to advance a case at trial that is different from that is set out in the statement of claim or defence, unless leave of the Court has first been obtained.
Matters then proceeded, at least so far as the court file was concerned, in accordance with those directions. However, on 19 January 2024, the applicant (whilst still represented) personally sent the following email to my associate:
Good evening,
My solicitor has ceased representing me due to my inability to come up with the changed rate of fees to represent me.
After the disbelief of reading the respondents affidavits and the complete disregard for honesty on top of deflecting the systemic issues onto me and painting me as an aggressive person with a complete disregard for the impacts of abuse and shown willingness to pay, do and say anything in order to cover the truth. I am left backed into a corner and unsure how to navigate this and feel I could never have enough money to seek justice and am feeling very deflated and let down by the system.
I am requesting to have my response and the trial adjourned until I can better my situation, seek legal advice and get on top of my health.
I am seeking consideration for my financial situation, my wellbeing and capacity to manage this process while being the sole guardian for two high needs children. I do not have the capacity to prepare the required responses while continually impacted by comments that support injustice, protect perpetrators and inflict harm and flashbacks onto me I am standing alone in this fight and do not have the backing or funds the respondent does and require some more time to prepare and dispute what has been filed.
They say what they say, what I did was have courage to stand up to what was wrong even if that meant standing alone and scared and fearful, yet I stand in court and confront them because I can stand there knowing I am right and what they did and are doing is wrong, I can wish the treatment didn’t impact me, I can wish my mental state wasn’t impacted, I can wish I never worked there, what I can’t do is allow them to do this to me and not at least use my voice and back myself and hopefully better the experience for those after me.
It’s apparent I am oblivious to the process of applying for an adjournment and would appreciate your response.
Kind regards,
Shanie Melbourne.
On 23 January 2024, the following email was sent by my associate in response:
Dear Madam,
We refer to the above matter and to your correspondence below.
We advise it is inappropriate for you to communicate directly with Chambers without first obtaining the consent of the other party particularly while you are represented.
We attach the Court's policy regarding communication with Chambers.
If you wish to apply to have the matter adjourned, you will need to make this application in the proper form supported by an affidavit and serve same on the other party. You will, in any event, need to appear at Court on the day (either in person or represented by a lawyer) and seek that the Court make the order for the adjournment. If you do not do so, you should be aware that the matter can proceed and orders made in your absence.
Kind regards,
Chambers of Judge O’Sullivan
On 24 January 2024, the applicant’s former solicitors filed a notice of ceasing to act.
On 25 January 2024, the applicant sent another email to my associate in response to the email referred to at paragraph [13] which said:
Apologies if you feel as such, I feel in inappropriate to have been treated as such.
I am as my email stated unable to attend and not in a frame of mind to attend or have the capacity to navigate this.
I am informing as a curtesy (sic) rather nothing.
Shanie.
Further and regrettably, on 1 February 2024, the applicant sent an email to the respondent’s solicitors, copied to my associate, as follows:
Good morning,
Thank you for providing this information.
I will be seeking an adjournment due to not having legal representation and clearly a need for support to outlines “Nero diversity” and inclusive workplaces.
I would also like to request copies of the surveillance from the dates the respondents witnesses are claiming as there is surveillance available and clarification around giving my private file to past colleagues.
I also need to organise affidavits from staff from GEGAC.
The details in the affidavits for both do not line up, I understand there has been some time however the flow of events is completely off.
I have no qualms proving all of the submissions are dishonest and or doctored however as again due to my social status and capacity I need more time. Which I am sure you can understand.
Financial gain is not and never was my drive, outlining the systemic abuse, control, dishonesty and pack mentality’s is, doing what is right is. They know they are wrong, I know they are wrong, the wider community know they are wrong. It is unfortunate that I have been left with a condition that has impacted my life still to this day, it is unfortunate that for the most part I gave in and lost most of my files, which clearly can be accessed still by the respondent.
I’m not a legal representative I don’t “know” the system, I do have a very solid understanding of the impacts of trauma and how that looks when someone is being treated in such a way, I also know there is only so much one can take, to fight that my behaviour was poor in the circumstances I was in is clear that the staff at the time that were responsible will do and say anything to protect themselves.
All of this aside, across the board of staff at GEGAC and the behaviours this has become laughable and I feel my energy would have been better publishing the cultural, systemic issues within community groups created to advocate for First Nations people.
I am an asset with anything I do. I know this, GEGAC know this other wise Katrina who Lynda discussed me to in the meeting would not have provided such a flawless reference.
I understand the family law court is now across trauma it is apparent this process is not and hopefully if anything it has ensured those now running the organisation are supporting employees in a safe, inclusive workplace.
Regards.
Notwithstanding the information provided to the applicant referred to in the abovementioned emails, no application for an adjournment or affidavit was filed. The applicant has failed to appear today.
When the matter was called on, and it was apparent that there was no appearance by or on behalf of the applicant, Counsel for the respondent made an oral application that the matter be dismissed pursuant to Rule 13.06 of the Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021 (‘the Rules’). Counsel relied on two documents, marked as exhibit R1 which was an affidavit affirmed on 12 February 2024 by the respondent’s solicitor and exhibit R2 which was an aide memoir prepared by the respondent’s Counsel detailing the chronology of the proceedings.
The respondent’s oral application was supplemented by submissions made by Counsel this day by reference to exhibit R1 and R2. Counsel for the respondent noted that there was no proper application for an adjournment on behalf of the applicant. Counsel noted that the applicant had been squarely put on notice that she needed to file and serve such an application, and there was, in any event before the Court, no evidentiary basis for the Court to consider an adjournment. There was nothing before the Court by way of evidence to explain why the applicant had not complied with the orders made in November 2023.
There was nothing before the Court to explain why the applicant (in the almost three weeks since her previous lawyer had withdrawn) she has been unable to get alternative legal representation. Counsel noted that although the applicant was self-represented there was not sufficient material for the Court to be satisfied that there was a valid reason for an adjournment. There was nothing before the Court by way of proper medical evidence to corroborate any of the claims made by the applicant in the abovementioned email correspondence. There was also no explanation or proper material before the Court to explain why the applicant, notwithstanding that she was squarely on notice, did not attend today.
In those circumstances it was submitted that there should not be an adjournment and the matter should be dismissed as:
(a)the applicant was in default; and
(b)there would be prejudice to the respondent if the matter was adjourned;
(c)this matter concerned events back in 2021 and 2022 and a number of the witnesses (so far as the respondent were concerned) were no longer employed by it; and
(d)the passage of time and the costs that the respondent had incurred (who had complied) could not be ameliorated necessary by an order for costs.
Counsel referred to the relevant principles that the Court needed to consider in the context of an adjournment application and re-iterated the above submissions.
In those circumstances, Counsel for the respondent referred to Rule 13.06 of the Rules and sought that the Court make an order under Rule 13.06(1)(c) for the application to be dismissed.
LEGISLATION AND RULES
The principles to be applied in considering an adjournment application are well established. They were summarised by Cheeseman J in a decision published as ANZ v James [2021] FCA 768 at paragraphs [44] to [47]:
44.The considerations relevant to whether a Court ought to exercise its discretion to grant an adjournment are similar to the matters a Court will have regard to for the purposes of an application to amend pleadings. Any application for an adjournment must be considered in the relevant statutory, factual and case management context: Aon Risk at [30] (French CJ) and [97] – [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42] – [46] (Collier, Griffiths and Mortimer JJ).
45.The Court may make an order adjourning the proceedings if it considers doing so would be appropriate in the interests of justice: Federal Court Rules 2011 (Cth), r 1.32. The discretion to do so must be exercised in a way that best promotes the overarching purpose of civil practice and procedure provisions, namely the just resolution of disputes according to law and as quickly and inexpensively as possible: FCA Act, s 37M(3); Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472 at [6] (Katzmann J); Caratti v Commissioner of the Australian Federal Police [2015] FCA 1108 at [29] – [32] (Wigney J). Relevantly, the overarching purpose includes the following objectives, as set out in s 37M(3):
Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
The achievement of the objectives comprising the overriding purpose together with the factors discussed by the High Court in Aon Risk should be considered in the context of an adjournment application. I note that the discretion to be exercised is broad and these considerations are not exhaustive: Caratti at [32].
46.When determining whether to grant or refuse an adjournment, the doing of justice between the parties is a paramount consideration. If an adjournment is necessary to allow a party that opportunity it ordinarily should not be refused unless it would result in irremediable prejudice or injustice to the other party and an order for costs would not be sufficient compensation to that party: Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at [2] (McKerracher J). Relevantly, in Aon Risk it was held (at [30]):
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
47.Further, in considering the question of an adjournment, the Court is not required to limit itself to the competing interests of the parties. Rather, the Court may consider the effect of an adjournment on its resources and the competing claims of litigants in other cases as well as the interests of the parties. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Garrett v Duncan [2015] FCA 255 at [33] (Beach J) citing Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 629 (Brennan, Deane and McHugh JJ).
Those principles in effect require a decision to be made in the interests of justice but informed by the modern approach to case management, which places more emphasis on the need for the parties to have resources in place in order to take the steps necessary in order to avoid, where possible, adjournments and delays to court hearings.
I am satisfied there is no proper adjournment application. Furthermore, there is no material before the Court to support an argument that there is a valid reason for an adjournment. In addition, I am satisfied that any prejudice to the respondent, should there be an adjournment, outweighs any prejudice to the applicant if it was refused.
In relation to the claims made by the applicant in the emails referred about certain medical issues, in a decision published as Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576, Thawley J considered whether there was evidence sufficient to warrant a grant of an adjournment on medical grounds at paragraph [9] as follows:
9.As to the first medical certificate, it does not provide a diagnosis of the condition suffered by Dr Quach or explain the nature of that condition. The certificate does not contain an opinion about whether or not Dr Quach is or was prevented or hindered in his preparation for, attendance at or participation in, a hearing. Necessarily, it contains no reasons for any such opinion sufficient to enable the Court to form its own view about the reliability of the opinion – see further: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35]; Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]- [14]; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]- [11]; MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2].
As Counsel for the respondent this day noted, there is no application for an adjournment before the Court. There is no evidence before the Court sufficient to be satisfied there is a valid reason for an adjournment or why the applicant was unable to file an application in the almost three weeks she has had to do so. There is no material before the Court to explain why she has been unable to prepare for today’s trial or to attend this day, as she was clearly instructed to do only three weeks ago. In those circumstances, Counsel for the respondent has submitted, given his client has complied with court orders, and for the reasons developed in his submissions, would be prejudiced by any further delay, the matter should be dismissed.
CONSIDERATION
I accept that the proceedings should be dismissed pursuant to Rule 13.06(1)(c) of the Rules. The applicant has not complied with the orders and directions of the Court. Such default raises the spectre of orders made on default under this Court’s rule pursuant to Rules 13.04 or 13.03. I am satisfied that the applicant was aware of those orders and that if she wished to make an application for an adjournment, she had to do so properly. The applicant has failed, without any proper explanation, to either file such an application or attend today. I am particularly concerned by her failure to attend today given the notice she received referred to above provides an awareness of the need to attend today and the consequences should she not do so.
CONCLUSION
In the circumstances, I am satisfied the matter ought be dismissed by reason of non-attendance pursuant to Rule 13.06(1)(c) of the Rules.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 12 February 2024
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