Mohammed v City of Whittlesea Council

[2017] FCCA 1282

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v CITY OF WHITTLESEA COUNCIL [2017] FCCA 1282

Catchwords:
INDUSTRIAL LAW – General protections court application – application in a case – adjournment request – application filed day before trial – application refused.

Legislation:

Fair Work Act 2009

Federal Circuit Court Rules 2001, rr.13.03A, 13.03B, 13.03C

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

MZZGY v Minister for Immigration and Border Protection [2014] FCA 488

Singh v Minister for Immigration and Border Protection [2014] FCA 538

MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Applicant: YOUSUFULLAH KHAN MOHAMMED

Respondent: CITY OF WHITTLESEA COUNCIL

File Number: MLG 2167 of 2015

Judgment of: Judge O'Sullivan

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Melbourne

Delivered on: 15 May 2017

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Mr Avallone

Solicitors for the Respondent: Piper Alderman

ORDERS

1. Pursuant to Rule 13.03C(1)(c) and (e) of the Federal Circuit Court Rules2001 (“the Rules”) the application in a case filed 12 May 2017 by the applicant for an adjournment of the trial on 15 May 2017 be dismissed.

2. The respondent have leave to proceed with its application for orders as contained in the amended response filed 25 August 2016 pursuant to Rule 13.03C(1)(e) of the Rules.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2167 of 2015

YOUSUFULLAH KHAN MOHAMMED

Applicant

And

CITY OF WHITTLESEA COUNCIL

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. Before the Court today, are proceedings between Yousufullah Khan Mohammed (“the applicant”) and the City of Whittlesea (“the respondent”). 

2. These proceedings concern a general protections application filed on 21 September 2015.  In that application the applicant alleged the respondent had inter alia contravened sections 340, 341, 342 and 351 of the Fair Work Act 2009 (Cth). By orders made on 12 May 2016 the applicant was to file an amended general protections Court application and the respondent an amended response and the matter was fixed for trial today. The parties by and large complied with those orders.

3. However on 12 May 2017 the last working day before the date fixed for the trial today, the applicant filed an application in a case seeking the following order:

   “1. Adjourn my hearing for 2 months please.” 

4. The application in a case was supported by an affidavit of the applicant sworn on 12 May 2017 in which he deposed as follows:

   “1.    On 11/5/2017, I send a request to my Respondent in relation to adjourn the court hearing which is listed on 15/5/2017 at 9:30am.

   2.  They refused my request.

   3.  Hence, I would like to request directly to magistrate to adjourn my court hearing.

   4.  Because of my current severe neck pain, numbness in my left hand and stress which lead to lack of concentration,

   5.  My appointment is due on 25 May 2017 with the neurosurgeon

   6.  I would like to request you to please consider my current condition.”

5. Attached to that affidavit was:

   a)A letter dated 11 May 2017 from Mr Timms, Surgeon, confirming an appointment on 25 May 2017;

   b)A letter dated 11 May 2017 from Dr Elkfrawi, GP, providing a history of the applicant’s medical condition and what the applicant said to him;

   c)A letter dated 28 April 2017 from Dr Inumala, GP, also providing information about how the applicant presented on the day he was seen at the medical centre;

   d)Dorevitch pathology receipt; and

   e)Email trail dated 11 May 2017 between the applicant and respondent’s solicitor.

6. When the matter was called this morning, there has been no appearance by or on behalf of the applicant.  Mr Avallone has appeared as Counsel on behalf of the respondent.

7. Given the nature of the order sought in the application in a case, the Court proceeded to hear from the respondent in relation to same. Counsel for the respondent told the Court his client had been served with the application in a case and opposes the adjournment sought therein by the applicant. 

8. In opposing the adjournment sought by the applicant, Counsel for the respondent having referred to the history of the proceedings submitted that the evidence attached to the applicant’s affidavit is not sufficient for the Court to be satisfied that there is a valid reason for the adjournment, and that in any event an adjournment would result in prejudice to his client for which costs would not be sufficient compensation. 

9. Counsel for the respondent noted that on any description of the material attached to the applicant’s affidavit there is no evidence before the Court that, in the opinion of a medical practitioner, the applicant is unable to attend Court, why the applicant would be unable to attend Court, nor to how long, if the matter was adjourned, the applicant would be unable to attend Court.  Counsel for the respondent referred to the well-known decision of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (“Aon”). Counsel for the respondent submitted that having regard to the relevant consideration in Aon the trial should not be adjourned. 

10. In opposing the adjournment application Counsel for the respondent also referred to the decisions of the Federal Court of Australia in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559; MZZGY v Minister for Immigration and Border Protection [2014] FCA 488; Singh v Minister for Immigration and Border Protection [2014] FCA 538 and MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209.

11. It is unfortunate that it appears the applicant appeared to believe by filing the application in a case, an adjournment would be automatically granted.  It was submitted the Court should not accede to such conduct even by an unrepresented litigant, where there is no evidence sufficient to persuade the Court there was a valid reason for the adjournment.

Approach to adjournment application

1. 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 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]).

2. 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.

3. In considering the application in a case all matters relevant to the exercise of the power, including delay, wasted costs and concerns of case management have been taken into account.

Consideration

1. It is well established that the critical question for the Court in considering an application such as that made by the applicant for an adjournment on medical grounds is whether the medical condition would prevent the applicant from travelling to Court and participating effectively in a Court hearing (see for e.g. NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (“NAKX”) at [5]-[11] per Lindgren J and Singh v Minister for Immigration and Border Protection [2014] FCA 538 (“Singh”) at [2] to [3] per Pagone J).

2. In NAKX it was said:

   “5 The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:

   ‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’

   The certificate of the same date in respect of the female appellant states:

   ‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’

   6 The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.

   7 I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.

   8 If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

   9 I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.

   10 In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.

   11 I refuse the application for an adjournment.”

3. In the matter of MZZGY v The Minister for Immigration and Border Protection [2014] FCA 488 (“MZZGY”), Davies J said when considering a similar issue at paragraphs [12] and [13]:

   “12.  The appellant did not attend the hearing but had notified the Court the previous day by email at 5.40 pm that he would be unable to attend Court because of bad health and requesting an adjournment.  He later emailed a medical certificate and a copy of a prescription (both dated 12 May 2014) to the Court at 10.25 pm.  The medical certificate simply stated:

   This is to certify that [the appellant] attended this clinic on Monday 12/5/14. 

   In my opinion he is unfit for work from Tuesday 13/5/14 to Tuesday 13/5/14 (inclusive). 

   [signed by the medical practitioner]

   13.    These documents were wholly inadequate to support an adjournment application.  The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing.  Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment.  It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by short notice.  I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.”

4. In Singh (supra) at [2] to [3] Pagone J referred to the decision in NAKX and (omitting references to same) said:

   “2. Mr Singh’s application for extension of time to appeal was commenced on 1 April 2014. It was set down to be heard on 21 May 2014 and on 13 May 2014 the Minister filed outlines of submission. The day before the matter was due to be heard Mr Singh sent an email to the court registry stating that he was not feeling well and would not be able to attend the court hearing. His email attached a medical certificate dated 17 May 2014 in which a Dr Peiman Sayadi wrote:

   To whom it may concern, 
   This is to certify that Mr Jugraj Singh of 3/5 Wood Street Deer Park consulted me today. 
   He was affected by a medical condition and is unable to attend work from 17/5/2014 to 21/05/2014.
   Yours faithfully

   On 20 May 2014 the court registry sent an email to Mr Singh, in response to Mr Singh’s email, informing him that the matter would proceed as listed at 2.15pm on Wednesday 21 May 2014. There was no further communication from Mr Singh but he did not appear at the hearing of his application.

   3. Counsel for the Minister submitted that the email from Mr Singh, and the accompanying medical certificate, should be treated as an informal application for an adjournment but that it should be dismissed. Both submissions were accepted and Mr Singh’s application for an adjournment was rejected for the following reasons which were expressed orally in court. The correspondence from Mr Singh can fairly be understood as an application by him for an adjournment notwithstanding the response to him from the court registry that the applications would be heard at the time which had been fixed. The grounds relied upon by Mr Singh are not sufficient to warrant the adjournment. In Nakx v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1559 Lindgren J rejected an application for an adjournment on a medical certificate in broadly similar terms…

   The medical certificate relied upon by Mr Singh is even less satisfactory than that which was considered by Lindgren J above. The certificate referred to by his Honour identified the specific condition of the applicants and expressed an opinion about an inability to attend court. The medical certificate relied upon by Mr Singh refers generally to a “medical condition” and expresses an opinion about an inability to attend “work”. The medical certificate provided by Mr Singh was not produced by the medical practitioners for the court but addressed broadly “to whom it may concern”. The medical certificate, on its face, does not reveal an evaluation by the medical practitioner of Mr Singh’s ability to attend or participate in the court process and does not address the question the court would need to determine, namely, whether his medical condition was such that he would be prevented from attending court and from participating in the court hearing. Nor does the medical certificate, or the contents of the email from Mr Singh, give any indication from which the court could determine the length of any adjournment that might be required to accommodate whatever the condition might be and however the condition might affect Mr Singh’s ability to attend or to participate in a court hearing of his application.”

5. Finally in MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 (“MZZTC”) it was said:

   “2.    It is unfortunate that certificates of this kind are provided to the court because they are unhelpful to the court and to the appellant. An application for an adjournment in generally similar circumstances was rejected by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. His Honour said at [5]-[11] in that case:

   5.  The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:

   ‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’

   The certificate of the same date in respect of the female appellant states:

   ‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’

   6.  The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.

   7.  I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.

   8.  If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

   9.  I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.

   10. In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.

   11.    I refuse the application for an adjournment.

   The case indicated that what needs to be provided, for a certificate to be meaningful, is material that establishes why it is, or how it is, that an appellant suffering from a medical condition would be unfit for participation at a hearing in court. A description such as “unable to attend court”, as his Honour considered in that case, was unsatisfactory. The more generalised description of Dr Qazi in this case of the appellant having “lower back pain” is even less satisfactory. It does not assist the court to evaluate why it is or how it is that his condition would prevent the appellant to attend court, and it does not help the patient, the appellant, in making the case that he needs to make. Doctors providing certificates of this kind assist nobody although, of course, there is no reason to assume that what is needed has been brought to their attention.

   3.  It is also unclear whether the condition that the doctor identified is the operative reason for the appellant not being able to attend court today. The fact is that the doctor appears to practice in Queensland and, to that extent, appears to have diagnosed the appellant yesterday in Queensland. It is not clear how it is that the appellant would have been able to appear in court today. It is, of course, possible that he might have sought to appear by video link, but it is not clear whether his physical absence from the precinct of the court in Victoria is the operative reason for being unable to attend the hearing today. I note that in that regard, in the email the appellant wrote on 3 November 2015, he gave two reasons for his inability to attend court today, one of which was that he was then in Brisbane.

   4.  In those circumstances, I reject the application for an adjournment and propose to deal with the matter on the basis upon which the Minister has urged that I do so. In doing so, I refer also to the decision of Davies J in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 at [12]- [13] and my own decision in Singh v Minister for Immigration and Border Protection [2014] FCA 538, at [2]-[4].”

1. The criticisms advanced by Lindren J in NAKX, Davies J in MZZGY, Pagone J in Singh and in MZZTC apply equally to the applicant’s material in this case.  Importantly the material provided by the applicant contains no certification from a medical practitioner that explains in their opinion what medical condition the applicant has, nor why it is that in their opinion it prevents the applicant from being able to attend Court and prosecute his case.  Importantly, there is no medical opinion certifying that the applicant is unable to attend Court due to a medical condition or for how long.

2. In Aon the High Court made a number of points which included that the conduct of litigation is not merely a matter for the parties, and the Court should avoid disruptions to the Court’s list with the consequence inconvenience to the Court and prejudice to the interests of other litigants.  I am satisfied having regard to the history of the matter this is a factor that tells against an adjournment where the matter has been fixed for trial today for over 12 months and the parties have filed affidavit material. 

3. I accept the submissions that have been made today on behalf of the respondent. On the material filed by the applicant no explanation has been offered for the delay in making the adjournment application.  The application and the affidavit filed in support are unsatisfactory, to say the least to support an adjournment of the trial.  There is nothing to indicate on the face of the affidavit (or the material attached to it) filed in support of the adjournment application to indicate (beyond the request by the applicant for a two month adjournment) how long, if the matter was adjourned the matter would need to be adjourned and for what reason.  

4. There is no explanation for why the adjournment application was filed the working day before the trial.  The failure of the applicant to attend this morning could suggest an expectation on the applicant’s part that the adjournment would be automatically granted.  The medical material filed with or attached to the applicant’s affidavit certainly does not certify that in any opinion of a medical practitioner the applicant is unable to attend Court today, or why the applicant in the opinion of that medical practitioner would be unable to attend Court.  There is nothing in the material in support by way of the opinion of an independent medical practitioner providing independent evidence of a proper reason for the adjournment.

5. Having regard to all of those matters, having regard to the statements made by the High Court in Aon, the role and mode and operation of this Court and the Act and the Rules which govern it I am not satisfied that there is a valid reason for an adjournment. Moreover I accept if the matter was adjourned having regard to the history, the respondent would incur prejudice for which costs (even if they could be ordered given s.570 of the FW Act) were not sufficient compensation.

6. In the circumstances and for those reasons, I have decided to dismiss the application in a case filed 12 May 2017 which was dealt with pursuant to Rule 13.03C(1)(e) of the Rules.

Respondent’s application to proceed and/or proceed undefended

1. As was foreshadowed in submissions made by Counsel for the respondent, his client now seeks an order pursuant to rule 13.03C(1)(e) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the matter before this Court, proceed despite the failure of the applicant to appear at today’s trial.

2. Rules 13.03A, 13.03B and 13.03C of the Federal Circuit Court Rules 2001 (“the Rules”) provide:

   “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)  For rule 13.03B, a respondent is in default if the respondent:

   (a)  has not satisfied the applicant's claim; and

   (b)  fails to:        

   (i)  give an address for service before the time for the respondent to give an address has expired; or

   (ii)  file a response before the time for the respondent to file a response has expired; or

   (iii)  comply with an order of the Court in the proceeding; or

   (iv) file and serve a document required under these Rules; or

   (v)  produce a document as required by Part 14; or

   (vi) do any act required to be done by these Rules; or

   (vii)  defend the proceeding with due diligence.

   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)  If a respondent is in default, the Court may:

   (a)  order that a step in the proceeding be taken within the time limited in the order; or

   (b)  if the claim against the respondent is for a debt or liquidated damages--grant leave to the applicant to enter judgment against the respondent for:

   (i)  the debt or liquidated damages; and

   (ii)  if appropriate--costs; or

   (c)  if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:

   (i) the applicant appears entitled to on the statement of claim; and

   (ii)  the Court is satisfied it has power to grant; or

   (d)  give judgment or make any other order against the respondent; or

   (e)  make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

   (3)  The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:

   (a)  an affidavit, or affidavits, proving:

   (i)  service of the application claiming judgment for the debt or liquidated damages; and

   (ii)  that the respondent is in default; and

   (b)  an affidavit for the debt or liquidated damages in accordance with the approved form.

   (4)  Unless the Court otherwise orders, if a respondent to a cross-claim is in default:

   (a)  a judgment or decision on any claim, question or issue in the proceeding on the originating process; or

   (b)  any other cross-claim in the proceeding;

   is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.

   (5)  In subrule (4):

   decision includes a decision by consent.

   judgment includes a judgment by default or by consent.

   (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.

   Rule 13.03C

   (1)  If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

   (a)  adjourn the hearing to a specific date or generally;

   (b)  order that there is not to be any hearing, unless:

   (i)  the proceeding is again set down for hearing; or

   (ii)  any other steps that the Court directs are taken;

   (c)  if the absent party is an applicant--dismiss the application;

   (d)  if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;

   (e)  proceed with the hearing generally or in relation to any claim for relief in the proceeding.

   (2)  If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(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.”

3. For the same reasons referred to in Singh (supra) at paragraph [4] it is appropriate to give the respondent leave to proceed either pursuant to Rule 13.03C(1)(c) and/or (e) of the Rules.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan

Associate: 

Date:  16 June 2017