Molina v Galloway (No 2)

Case [2023] FedCFamC2G 310

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Molina v Galloway (No 2) [2023] FedCFamC2G 310

File number(s): SYG 930 of 2022
Judgment of: JUDGE GIVEN
Date of judgment: 28 April 2023  
Catchwords: INDUSTRIAL LAW – Application for reinstatement following default judgment and imposition of penalty – solicitor as respondent employer – where reason for non-attendance at hearing and non-engagement with proceedings claimed to be inability of solicitor to open emails – ostrich-like attitude – asserted potential claim for set-off 
Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05

Cases cited:

AHN17 v Minister for Immigration & Border Protection [2018] FCA 1598

AVC19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1752

CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344

DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 278 FCR 475

FBS18 v Minister for Home Affairs [2019] FCAFC 196

Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G 1

Molina v Galloway [2022] FedCFamC2G 904

Molina v Galloway [2022] FWC 776

MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585

MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530

R v Qutami [2001] NSWCCA 353

Division: Division 2 General Federal Law
Number of paragraphs: 53
Date of hearing: 2 March 2023 
Place: Sydney
Counsel for the Applicants: Mr I Latham
Solicitor for the Applicants: Marrickville Legal Centre
Solicitor for the Respondent: JBL Solicitors

ORDERS

SYG 930 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MILENA MOLINA

First Applicant

RAYMOND ZHAI

Second Applicant
AND:

BRETT GALLOWAY

Respondent

order made by:

JUDGE GIVEN

DATE OF ORDER:

28 April 2023

THE COURT ORDERS THAT:

1.The application in a proceeding filed on 15 December 2022 is 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

JUDGE GIVEN:

  1. On 1 November 2022, this Court entered default judgment in favour of the applicants against their former employer, Mr Brett Galloway.  On that occasion, the Court also made declarations of contraventions under the Fair Work Act 2009 (Cth) (Act) and imposed civil pecuniary penalties in respect thereof: Molina & Anor v Galloway [2022] FedCFamC2G 904 (default judgment). 

    BACKGROUND

  2. The background which led to the giving of default judgment is sufficiently set out at [4] to [22] of the reasons for default judgment which were delivered ex tempore at the conclusion of that hearing with some additional matters which, while not seeming previously…

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AGLC
Molina v Galloway (No 2) [2023] FedCFamC2G 310
Case
[2023] FedCFamC2G 310
Decision Date

CaseChat Overview and Summary

Molina v Galloway (No 2) involved the applicants, Molina and Galloway, seeking reinstatement of proceedings that had been stayed. The Court of Appeal was tasked with deciding whether the applicants had a reasonable prospect of success and whether the interests of justice warranted the reinstatement. The applicants had filed a late reinstatement application, which was served on the day of the hearing, although they had obtained a copy from the Commonwealth Courts Portal beforehand. The applicants sought reinstatement without clearly defined relief, other than reinstatement itself.

The central legal issues before the court included the adequacy of the evidence presented in support of the reinstatement application and the potential prejudice to the parties if the matter were to be reinstated. The applicants argued that the evidence, consisting of two letters from a General Practitioner and a consultant psychologist, should be admitted despite objections on grounds of hearsay and lack of expert evidence. The court was cautious in accepting these annexures, noting the potential unreliability of self-reported statements and the absence of cross-examination of the authors.

The Court concluded that the applicants had not demonstrated reasonable prospects of success. The explanations for Mr Galloway's absence at the original hearing were deemed unpersuasive, and the Court noted that the applicants would suffer greater prejudice if the matter were to be reinstated. Additionally, the lack of an arguable case further weighed against reinstatement. Consequently, the Court dismissed the reinstatement application and indicated that it would consider costs at a later date.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the commencement of the reinstatement application hearing on 2 March 2023, the Court was concerned about (what appeared to be) the extremely late service of the reinstatement application, which despite having been filed on 15 December 2022, had apparently only been served in the early hours of 2 March 2023. However, Counsel for the applicants properly conceded that while his instructing solicitor had not been formally served until the day of the hearing, the applicants had themselves obtained a copy of the reinstatement application from the Commonwealth Courts Portal, such that they did not contend that they were totally caught unawares. Counsel for the applicants indicated that while the relief sought was not precisely understood by them, the hearing could proceed. Evidence Following exchanges between the Court and Counsel for the applicants, Mr Bolton apprehended that the evidence upon which Mr Galloway relied in support of the reinstatement application may be the subject of objections and submissions as to its adequacy. Mr Bolton sought an adjournment so that this evidence could be improved. That adjournment application was opposed, and refused. Mr Bolton moved on the reinstatement application, although again I note that the only relief contended for was reinstatement and not a stay of the orders made on 1 November 2022 (despite the fact that the issue of Mr Galloway’s failure to comply with those orders was ventilated at several junctures during the hearing, including during his cross-examination). In support of the reinstatement application, the Galloway Affidavit was read subject to several objections. Notably, the applicants objected to the Court receiving the Annexures to the Galloway Affidavit, which can be described as follows: (a)Annexure “A” is a letter from Dr Joseph Grech (who appears to be a General Practitioner) to Mr Bolton dated 28 November 2022; and (b)Annexure “B” is a letter from Mr Tim Watson-Munro, a consultant psychologist, to Mr Bolton dated 29 November 2022. The applicants made the same objection in respect of each of the Annexures to the Galloway Affidavit, firstly on the basis of hearsay and secondly, to the extent that they contain opinion evidence, in that it had not been properly advanced as being expert evidence. Neither Dr Grech nor Mr Watson-Munro was made available for cross-examination. Ultimately, I received the Annexures to the Galloway Affidavit on the limited basis that they recorded Mr Galloway as having made a report at a point in time (on or about the respective dates the letters bore on their face) to their respective authors about certain matters. I accept that the Annexures record Mr Galloway as claiming certain circumstances and symptoms as being extant, but do not accept them as establishing the truth of those matters, nor constituting the diagnosis of either medical practitioner. It is well established that while statements to a psychologist can be admissible in evidence, very considerable caution should be exercised in relying upon such self-reports and that, in many cases, such statements can be given little or no weight: see R v Qutami [2001] NSWCCA 353 at [58] to [59] per Spigelman CJ, Simpson J and Smart AJ. The reports of each of Dr Grech and Mr Watson-Munro contain hearsay evidence of what Mr Galloway has told them. While I accept Dr Grech may have treated Mr Galloway for some period time, that treatment does not appear to be in relation to his mental health. Mr Watson-Munro appears (from the content of his letter) to have been retained by Mr Galloway for the purposes of preparing his letter in support of this application in a proceeding. While Mr Watson-Munro says he has known Mr Galloway since 2004, there is no suggestion that Mr Galloway has ever been treated by Mr Watson-Munro prior to consulting him for the purposes of the reinstatement application. Rather, Mr Watson-Munro says that Mr Galloway has referred work to him, and that they are friends.

Decision

Reasons for decision

Accordingly, the lack of reasonable prospects of success, even at an impressionistic level, is such that it weighs against reinstatement.Conclusion Having regard to the unpersuasive and unreasonable explanation for Mr Galloway’s absence at the hearing on 1 November 2022, that the respective prejudice to the parties is slightly greater to the applicants if the matter were to be reinstated, and the lack of an arguable case, the interests of administration of justice are not served by the proceedings being reinstated. The reinstatement application will be dismissed. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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