Moon v JLG Industries (Australia) (No.2)
[2011] FMCA 580
•9 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOON v JLG INDUSTRIES (AUSTRALIA) (No.2) | [2011] FMCA 580 |
| INDUSTRIAL LAW – General protections application – alleged contravention by reason of workplace right – adverse action – dismissal. PRACTICE & PROCEDURE – Extension of time for compliance with previous orders – factors. |
| Crimes Act 1914 (Cth), Part III, Division 3 Fair Work Act 2009 (Cth), s.340 |
| Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Moon v JLG Industries (Australia) (A Division of JLG Industries, Inc) (2011) 249 FLR 348; [2011] FMCA 343 |
| Applicant: | ROBERT MOON |
| Respondent: | JLG INDUSTRIES (AUSTRALIA) (A DIVISION OF JLG INDUSTRIES, INC) |
| File Number: | PEG 32 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 26 July 2011 |
| Date of Last Submission: | 26 July 2011 |
| Delivered at: | Perth |
| Delivered on: | 9 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Griffin |
| Solicitors for the Applicant: | Peter J Griffin & Co |
| Counsel for the Respondent: | Mr D Goodsir-Cullen |
| Solicitors for the Respondent: | Baker & McKenzie |
ORDERS
Leave be granted to file in Court a copy of the affidavit of Dayan Goodsir-Cullen, sworn 25 July 2011, previously forwarded electronically to the Chambers of Federal Magistrate Lucev.
The applicant file and serve:
(a)any amended application;
(b)any affidavits in support of the amended application; and
(c)a statement of claim,
by 4pm on 29 July 2011.
The respondent file and serve:
(a)a response;
(b)any affidavits in support of the response; and
(c)a defence,
by 4pm on 12 August 2011.
The applicant file and serve:
(a)any reply; and
(b)any affidavits in support of the reply,
by 4pm on 22 August 2011.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 32 of 2011
| ROBERT MOON |
Applicant
And
| JLG INDUSTRIES (AUSTRALIA) (A DIVISION OF JLG INDUSTRIES, INC) |
Respondent
REASONS FOR JUDGMENT
(Published from Chambers under s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))
Application in a Case
This matter concerns an Application in a Case by the applicant, Mr Moon, filed on 15 July 2011 which essentially seeks an extension of time for the filing and serving of various documents in the proceedings. The substantive application relates to a claim that Mr Moon’s former employer, JLG Industries (Australia) (A Division of JLG Industries, Inc)[1] contravened s.340 of the Fair Work Act 2009 (Cth)[2] by reason of Mr Moon having a workplace right, in relation to which JLG Industries is alleged to have taken adverse action, by dismissing Mr Moon.
[1] “JLG Industries”
[2] “FW Act”.
The Application in a Case seeks the following orders:
1.The Applicant file and serve:
(i) Any amended application
(ii)Any affidavit in support of the amended application; and
(iii) Statement of claim.
By 4pm on 29 July 2011
2.The Respondent file and serve Defence by 4pm on 12 August 2011.
3.The Applicant file and serve the Reply (if any) by 4pm on 22 August 2011.
4.There be no order as to costs.
In relation to the above orders it is relevant to note that on 17 June 2011 the Court made the following orders:
1.The applicant file and serve:
(a)any amended application;
(b)any affidavits in support of the amended application; and
(c)a statement of claim,
by 8 July 2011.
2.The respondent file and serve:
(a)a response;
(b) any affidavits in support of the response; and
(c)a defence,
by 29 July 2011.
3.The applicant file and serve:
(a)any reply; and
(b)any affidavits in support of the reply,
by 11 August 2011.
(…)
Essentially, Mr Moon seeks a two-three week extension of the time frame for the above orders.
In addition to the above orders, other orders were made on 17 June 2011 with respect to mediation, submissions and listing the matter for hearing on 7, 8 and 9 December 2011.[3] Those orders are unaffected by the Application in a Case.
[3] The hearing will be before Federal Magistrate Driver.
Mr Moon’s affidavit
The Application in a Case is supported by an affidavit sworn by Mr Moon on 14 July 2011.[4] The relevant terms of Mr Moon’s Affidavit are as follows:
[4] “Mr Moon’s July 2011 Affidavit”.
3.I hold a 487 regional sponsored visa, which means I have to live and work in a regional area, this being Karratha, Western Australia, which is some 1,600km from Perth. I am disqualified from receipt of Centrelink payments by reason of my Residence status.
4.This itself has made it difficult to liaise with my former lawyers Talbot & Olivier on a face to face basis.
5.I have not worked since 16 August 2010. My income is substantially reduced. In about March 2011 I received interim payment of $20,608.00 from the Respondent under a Workcover award. I paid out $7,000.00 to Talbot & Olivier for legal costs incurred in these proceedings, $5,000.00 to repay back accrued debt and the remaining $2,000.00 on general living. An amount of $6,492.00 was deducted for income tax.
6.I have been homeless since just before Christmas 2010 living in the back of my car and housesitting when available. The above address at [number and street name deleted], Palmyra is my friends residence where I can be sent mail or c/- Karratha Post Office, Karratha.
7.I have exhausted all my financial resources to the point where I am dependant on financial handouts and assistance from friends. The Respondent’s workers compensation insurer has now agreed to pay me $28,000.00 in recognition of the fact I have sustained a work place injury.
8.At the end June 2011 my former lawyers withdrew their assistance and I have been in discussions with them to try and resecure their assistance, these discussions only ending on 7 July 2011 again with Talbot & Olivier leaving it to the last minute to advise me they will not be carrying on to represent me.
9.I have given Talbot & Olivier a further $9,000.00 and there is a further $10,000.00 owing. Talbot & Olivier had been very difficult in confirming whether they will continue to represent me, using up my time in which I possibly could have been seeking another lawyer.
10.On 7 July 2011 I was washing my car. I was using a soap brush in a twisting motion and felt a sharp pain in my lower back, sending me to the floor. There was stiffness and soreness. On 8 July 2011 I attended Emergency Department Royal Perth Hospital for medical treatment. Annexed hereto and marked “1” is a copy of the medical certificate from Royal Perth Hospital dated 8 July 2011. This has hampered me in seeking legal representation.
11.On 11 July 2011 I attended Peter J. Griffin & Co to arrange legal representation. I instructed new counsel on the understanding that when money is paid from my worker’s compensation claim this will go to covering their costs in representing me. I will have to bring this new firm up to date with all the documents and proceedings.
12.Because of my workers compensation settlement I have now come into possession of medical records and other workplace documents that relate to my Fair Work Claim.
13.The bundle of medical records and other workplace documents should be included in my Affidavit in support of my Fair Work Claim.
14.I suffer depression and anxiety and it would be a great mental relief if I could continue with my Fair Work Claim.[5]
[5] Mr Moon’s July 2011 Affidavit, paras.3-14.
The medical certificate from Royal Perth Hospital, dated 8 July 2011, indicates that Mr Moon presented to the Emergency Department at that hospital at 5.34am on 8 July 2011 with lower back pain seemingly caused by twisting his back while washing his car the previous morning. It is said that Mr Moon “had sudden onset lower back pain.”[6] The medical certificate says nothing as to Mr Moon’s capacity to engage in any activity necessary for the filing of an affidavit by close of this Court’s Registry’s hours later that day.
[6] Mr Moon’s July 2011 Affidavit, Annexure 1.
Application in a Case opposed
The orders sought in the Application in a Case are opposed by JLG Industries. On behalf of JLG Industries an affidavit by its lawyer, Dayan James Goodsir-Cullen, sworn 25 July 2011[7] sets out the following facts relevant to the proceedings:
[7] “Mr Goodsir-Cullen’s Affidavit”.
3.On 4 July 2011, I listened to a voice message from the Applicant to Baker & McKenzie requesting that the Respondent consent to extension of time being granted to the Applicant to file any amended application, statement of claim and affidavits (the extension of time).
4.On 4 July 2011, at approximately 11.13am Eastern Standard Time, I had a telephone conversation with the Applicant in relation to the Applicant’s request for the extension of time. During that conversation I relayed the Respondent’s instructions that it opposed any extension of time being granted to the Applicant.
5.I am informed by Bryony Binns and believe that on 14 July 2011 she called the Applicant and had a conversation with him. During this conversation the Applicant informed Ms Binns that he had filed an application seeking the extension of time. Ms Binns informed the Applicant that he was obliged to serve any copies as [sic] such an application on our offices.
6.Our offices did not subsequently receive any documents from the Applicant, other than as detailed later below.
7.On 15 July 2011 I searched the electronic on-line Federal Court record at the URL: and found no record of any application having been filed by the Applicant. Also on 15 July 2011, Bianca Shearer, a solicitor employed by Baker & McKenzie was informed by a person working in the Perth Registry of the Federal Magistrates Court that there was no record of any application having been filed by the Applicant.
8.By letter dated 15 July 2011 Baker & McKenzie wrote to the Applicant in relation to his conversation with Ms Binns on 14 July 2011, his application for an extension of time and our instructions to re-list the matter. Annexed to this affidavit and marked “A” is a true copy of that letter.
9.Baker 7 [sic] McKenzie did not receive a response from the Applicant to the letter of 15 July 2011.
10.On 20 July 2011, I called and had a telephone conversation with the Applicant. During that conversation I confirmed that the Applicant had received our letter dated 15 July 2011 in relation to his application for an extension of time and our instructions to re-list the matter. The Applicant informed me that, in fact, the matter was listed on 26th July 2011 for hearing of his application. I informed the Applicant that we did not have a copy of his application and the Applicant informed me that all the paperwork was with his new solicitors. I then sought the name of the Applicant’s solicitors.
11.On 21 July 2011, I telephoned the applicant’s solicitors, Peter J Griffin & Co. During the course of a conversation with Mr Peter Griffin, he confirmed that his client’s application for extension of time was listed on 26 July 2011 and that the application had been sent to our offices. I informed Mr Griffin that I had not seen a copy of the application and he undertook to fax a copy to our offices.
12.By letter dated 21 July 2011, Peter J Griffin & Co. faxed to Baker & McKenzie a copy of the applicant’s Application and affidavit in support dated 15 July 2011. Annexed to this affidavit and marked “B” is a true copy of that letter.[8]
[8] Mr Goodsir-Cullen’s Affidavit, paras.3-12.
Additionally, Mr Goodsir-Cullen refers to certain workers compensation proceedings which he believed were settled without admission, and by way of confidential deed entered into between Mr Moon and JLG Industries.[9]
[9] Mr Goodsir-Cullen’s Affidavit, para.13.
Finally, Mr Goodsir-Cullen refers to various allegations of personal and telephone stalking by Mr Moon of persons employed by JLG Industries, which resulted in the granting of Violence Restraining Orders for two of the four employees concerned by the Perth Magistrates Court on 14 July 2011. It appears that the persons concerned are persons who gave statements, which are now in Mr Moon’s possession, in relation to the earlier workers’ compensation proceedings, but who, according to Counsel for JLG Industries, are now likely to be witnesses in these proceedings.[10]
[10] Mr Goodsir-Cullen’s Affidavit, paras.14-19 and Annexures C-H.
Extension of time
In Hunter Valley Developments Pty Ltd v Cohen[11] the Federal Court set out a non-exhaustive list of principles to be taken into account when considering an extension of time application. Albeit that it was in an administrative judicial review proceeding, the principles are equally applicable to proceedings involving procedural matters.
[11] (1984) 3 FCR 344 (“Hunter Valley Developments”).
The matters to which the Court ought to have regard when determining whether or not to exercise its discretion to extend time are:
a)that the prime facie rule is that the orders of the Court ought to be complied with, and that proceedings commenced outside of the prescribed period ought not be entertained;
b)whether or not there is an acceptable reason for the delay;
c)any action taken by the applicant for extension of time, to make the other party or parties aware of the application for extension of time, prior to it being lodged;
d)whether or not there would be any prejudice to a respondent occasioned by the delay (noting that an absence of prejudice is not enough to justify granting an extension on its own);
e)the merits of the substantive application; and
f)considerations of fairness as between an applicant and other persons in a like position.[12]
[12] Hunter Valley Developments at 348-349 per Wilcox J.
Consideration
The prime facie rule that orders of the Court ought to be complied with, has not been complied with in this case. However, the application for an extension of time was filed within a week of the non-compliance, and was foreshadowed by Mr Moon to the lawyers for JLG Industries in discussions prior to the non-compliance. The lawyers did, however, indicate to Mr Moon that the application for an extension of time would be opposed, and the relevant papers were not provided to JLG Industries’ lawyers until five days before the Application in a Case was due to be heard.
JLG Industries argued that an extension of time ought not be granted in this case because there had already been significant delays following the transfer of the matter to this Court by the Federal Court. However, the litigation history of the matter belies that submission. The original application was made to the Federal Court on 26 November 2010. Presumably, because of the Christmas-New Year break, the matter did not come before the Federal Court for a first directions hearing until 8 February 2011, when the matter was transferred to this Court. On 4 March 2011 JLG Industries filed a Notice of Objection to Competency in relation to the application. The matter came before this Court for the first time on 8 March 2011, and the Court ordered that the Notice of Objection to Competency be listed for hearing on 2 May 2011. That hearing was vacated and relisted for 9 May 2011 pursuant to agreement between the parties. The hearing of the Notice of Objection to Competency proceeded on 9 May 2011, and on 16 May 2011 the Court delivered its Reasons for Judgment.[13] The Court dismissed JLG Industries’ Notice of Objection to Competency because the application was filed within time, not out of time as alleged in the Notice of Objection to Competency.[14] The orders made at the handing down of the judgment adjourned the matter to a directions hearing on 17 June 2011, at which directions hearing the orders set out above were made.[15]
[13] Moon v JLG Industries (Australia) (A Division of JLG Industries, Inc) (2011) 249 FLR 348; [2011] FMCA 343 (“Moon”).
[14] Moon FLR at 359 per Lucev FM; FMCA at para.31 per Lucev FM.
[15] See para.3 above.
The litigation history of the matter discloses that the principal reason for there being such a lengthy delay between the filing of the application and the making of orders on 17 June 2011 for the filing of affidavits and the listing of the matter for hearing, was in fact JLG Industries’ failed Notice of Objection to Competency. JLG Industries’ submission that there ought be no extension of time because this was a matter which had “gone nowhere” rings hollow.
Mr Moon does raise a number of matters which, when taken collectively, provide a reasonably acceptable explanation for the delay in filing the Application in a Case, and for the consequent application for an extension of time in relation to the orders set out above.[16] They include:
[16] See para.3 above.
a)the fact that he lives in a regional centre a vast distance from his solicitors;
b)that he is impecunious;
c)that he has no fixed place of abode or no fixed address;
d)that he has, as a consequence of the settlement of the workers’ compensation proceedings, come into possession of further records and documents he wishes to use in these proceedings; and
e)that he was injured on the morning of the day on which he was otherwise due to comply with the requirement to file:
i)any amended application;
ii)any affidavit; and
iii)a statement of claim.
In relation to the final sub-paragraph above, the Court has not overlooked the fact that despite his injury, Mr Moon ought to have largely completed the necessary work required to file and serve the relevant documents later on the day that he was injured. That, however, is to look at Mr Moon’s injury in isolation, and not take account of the other factors set out above which also provide, taken collectively, an acceptable reason for the delay.
As indicated above, Mr Moon did contact JLG Industries’ lawyers and advise that he was seeking an extension of time, prior to that time expiring. However, Mr Moon was met with the response that JLG Industries’ lawyers had been instructed to oppose any application for an extension of time.
The Court also notes that at the time that the amended application, affidavit, and statement of claim were due to be filed by Mr Moon, he was not legally represented, although he obtained further legal representation shortly thereafter.
JLG Industries says that it is prejudiced by the fact that the matter is ongoing, and “going nowhere”, and that meanwhile it continues to incur costs. For reasons set out above,[17] the principal cause of the delay in progressing this matter was JLG Industries’ own actions in bringing an unsuccessful application objecting to the competency of the substantive application. Otherwise, a significant delay was occasioned by the Christmas-New Year break, which caused the first directions hearing in the Federal Court to be delayed until early February 2011. There is no evidence before the Court as to the costs incurred thus far by JLG Industries in respect of the matter. Suffice to say, outside of the hearing of this Application in a Case, the first directions hearing in the Federal Court and the first directions hearing in this Court, the vast majority of the expense in relation to the matter would have been incurred in relation to JLG Industries’ unsuccessful objection to the competency of the application. Once again, the submission rings hollow.
[17] See paras.13-14 above.
There is nothing in the evidence before the Court to indicate that there is anything arising out of the workers’ compensation proceedings, and their apparent settlement, which would cause prejudice to JLG Industries in relation to these proceedings. If Mr Moon were ultimately to be successful in his application, any question as to double-counting of loss and damage arising from the workers’ compensation proceedings’ settlement, and any assessment of loss and damage or compensation in these proceedings, is a matter that can be addressed at that time. There is, therefore, nothing in the foregoing which would evidence any particular prejudice to JLG Industries to warrant dismissing the extension of time application.
A question does arise as to whether the allegations made in support of the Violence Restraining Order applications give rise to any prejudice, particularly with respect to JLG Industries’ witnesses. As indicated above,[18] the allegations which have been made appear to relate to statements made in the workers’ compensation proceedings but in relation to persons who are likely to be witnesses in these proceedings. For present purposes it suffices to say that the alleged conduct, if true, is at best imprudent. There is no evidence that it has had any prejudicial impact in relation to evidence which is likely to be given in these proceedings in December 2011. It should however be noted, as the Court observed during the course of the hearing of the Application in a Case, that were such conduct to re-occur and be sufficiently connected to these proceedings, then issues might arise with respect to offences under Division 3 of Part III of the Crimes Act 1914 (Cth) which carry significant penalties of imprisonment.
[18] See para.9 above.
The only material presently before the Court as to the merits of the application is Mr Moon’s affidavit sworn on 22 March 2011.[19]
[19] “Mr Moon’s March 2011 Affidavit”.
Mr Moon’s March 2011 Affidavit asserts that:
a)he worked as a technician for JLG Industries based in Karratha;
b)he worked alone covering a wide territory from Onslow through to Port Hedland in the north-west of Western Australia;
c)he worked alone, and often at heights;
d)as a consequence of representations made by Mr Moon as to workload, and in particular the pressure of working alone in remote areas, without necessary operational or administrative support, senior officers from JLG Industries came to Karratha;
e)Mr Moon had become ill;
f)the senior officers came on a day on which Mr Moon was sick;
g)the senior officers of JLG Industries did not actually get to see Mr Moon, he having invited them to visit him at home, but they having declined; and
h)ultimately, there is a dispute as to whether, on that day, Mr Moon resigned or was dismissed.
In the absence of any evidence, other than the presently untested evidence which appears in Mr Moon’s March 2011 Affidavit, it does appear to the Court that there could be an arguable, and the Court puts it no higher than that, case that Mr Moon was dismissed, if in fact he was dismissed, by reason of his exercising a workplace right to take sick leave, or, possibly, by his insisting upon a workplace right in relation to the meeting of certain safety standards. Necessarily, the Court must adopt a broad-brush approach to the assessment of the merits at this early stage. Adopting that approach, the Court cannot say that the application is without merit, such as to warrant a refusal of an extension of time to comply with the Court’s earlier orders.
Considerations of fairness as between Mr Moon and other persons in a like position do not appear to arise in this case.
Conclusion
Having regard to all of the foregoing circumstances, the Court is of the view that an extension of time ought to be granted for the periods as asked by Mr Moon.
Having considered the materials filed, and heard the submissions of Counsel for each of the parties, the Court determined on the day of the hearing to grant an extension of time as sought, and to deliver Reasons for Judgment at a later time. These are those Reasons for Judgment.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 9 August 2011
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