Moussalli v Western Power - [2009] FMCA 720

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOUSSALLI v WESTERN POWER

[2009] FMCA 720

PRACTICE AND PROCEDURE – Extension of time to file response and affidavits.

PRACTICE AND PROCEDURE – Discovery – whether discovery appropriate.

INDUSTRIAL LAW – Unlawful termination of employment.

Federal Magistrates Act 1999 (Cth)
Workplace Relations Act 1966, s.659(2)(a), (c), (e), (f)

Abrahams v Qantas Airways (2007) 210 FLR 314; [2007] FMCA 639
Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559

Applicant:

REEF MOUSSALLI

Respondent:

WESTERN POWER

File Number:

PEG 64 of 2009

Judgment of:

Lucev FM

Hearing date:

17 July 2009

Date of Last Submission:

17 July 2009

Delivered at:

Perth

Delivered on:

17 July 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms J. Bradbury

Solicitors for the Respondent:

Freehills

ORDERS

The applicant file and serve any further amended application and any further affidavits in support of the further amended application by 4:00pm on 14 August 2009.
If the respondent seeks to have the application summarily dismissed, it file an interlocutory application and any supporting affidavit by 4:00pm on 11 September 2009.
In the alternative to Order 2, if the respondent does not file any interlocutory application for summary dismissal, the respondent file and serve a response and any supporting affidavits by 4:00pm on 11 September 2009.
No further interlocutory applications be filed by either party until after the further hearing of this matter.
The matter be otherwise adjourned to 2:15pm on 12 October 2009 for hearing of any application for summary dismissal, and if no application for summary dismissal is made, for further directions.
The costs of today be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 64 of 2009

REEF MOUSSALLI

Applicant

And

WESTERN POWER

Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons edited from transcript)

On 28 May 2009 the Court made the following orders:
1. The applicant have leave to file and serve an amended application and any further affidavit material by 4:00pm on 26 June 2009.
2. The respondent file and serve a response and any supporting affidavits by 4:00pm on 10 July 2009.
3. The matter be otherwise adjourned to a directions hearing at 9:30 am on 17 July 2009.
4. Costs of today be reserved.
5. There be liberty to apply.
It is also relevant to indicate that the Court indicated to the parties at that time that they ought to confer informally over discovery but made no orders with respect to discovery. In compliance with those orders of 28 May 2009, Mr Moussalli, the applicant, filed and served an amended application and further affidavit on 26 June 2009. Mr Moussalli’s amended application and further affidavit were apparently not served until early on the following Monday morning, according to Ms Bradbury’s affidavit filed in the respondent’s application in a case, but that is a matter of no practical effect in all the circumstances.
In paragraph 115 of the affidavit filed by Mr Moussalli and sworn by him on 26 June 2009, he indicates that he has not been able to prepare the affidavit properly and that he intends to seek leave to amend the affidavit to better present his case to the benefit of all the parties and in the interests of justice. Paragraph 115 evinces an intention to file a further affidavit or to amend the affidavit in support of the case. It appears from the further voluminous affidavit filed on 16 July 2009 that that intention is, at least in part, contingent upon discovery being granted, as sought by Mr Moussalli in response to the application in a case made by the respondent. The Court should say that it was not the intention of the orders of 28 May 2009 that there be an extended process allowing the applicant to file further affidavits or that there be discovery in these proceedings. Nevertheless, by reason of the application in a case made by the respondent, to which the Court will turn shortly, it is not inconvenient to the Court to allow Mr Moussalli some further time to get his case in place as best he can by way of a further amended application and any further affidavit. In the circumstances it is fair and appropriate to allow him to do so given that the respondent has now positively indicated that they intend to file an application for summary dismissal. The respondent, as the Court has indicated, has filed an application in a case supported by an affidavit of Ms Bradbury sworn on 8 July 2009 seeking an extension of time to file a response and supporting affidavits by a period of three weeks.
The application for an extension is sought by reason of:
a)the application being extended from the original ground being under s.659(2)(f) of the Workplace Relations Act 1996 (Cth)[1] to now include additional grounds under paragraphs (a), (c) and (e) of that subsection of the WR Act;
b)secondly, by virtue of the volume of material in Mr Moussalli’s affidavit of 26 June 2009,[2] and the affidavit sworn by Mr Moussalli on 16 July 2009,[3] and
c)thirdly, the unavailability of two of the three witnesses who the respondent says are required to prepare affidavits in support of their response or application for summary dismissal, one of whom was not available until 13 July 2009 and the other until 19 July 2009.
[1] “WR Act”.
[2] That affidavit running to some 17 pages and 247 pages of attachments.
[3] A three-page affidavit with a further 87 pages of attachments.
Also, it is now apparent that in considering this matter that the respondent may have to consider the further material in the affidavit of 16 July 2009. The respondent has indicated today, as the Court understands it, that they intend to file by way of response an application that the proceedings be summarily dismissed. As the Court indicated in the course of the argument and the exchange with Mr Moussalli, that is a task which is quite difficult in this Court and the Court refers in particular to Rana v University of South Australia.[4]
[4] (2004) 136 FCR 344; [2004] FCA 559 per Lander J.
The Court does not accept that just because the applicant has filed and served an amended application and detailed affidavit which expands the grounds of the application that that forms a basis for extending time for the respondent to file and serve its response, any application for summary dismissal and any affidavits in support. However, having regard to:
a)the fact that the applicant does not yet appear to have finalised his application or at least the affidavit material in support;
b)that it is, in the Court’s view, fair to the applicant to allow him an opportunity to do that in the face of the respondent’s indication that they intend to file an application for summary dismissal;
c)the unavailability of the respondent’s witnesses and notwithstanding the relative paucity of detail as to why they are unavailable or why they were not proofed prior to becoming unavailable;
d)the fact that the applicant has now filed further affidavit material; and
e)the fact that the applicant does, at least to some extent, consent to the application for an extension or considers it appropriate to allow an extension of time for the filing of a response, including an application for summary dismissal and supporting affidavits on the part of the respondents.
In short, the matters to which the Court has alluded do provide a proper basis for an extension of time in all the circumstances.
Turning to the issue of discovery, as the Court indicated earlier, conferral was not formally ordered, but informal conferral was suggested by the Court at the time the orders were made on 28 May 2009. It is evident from Mr Moussalli’s affidavit of 16 July 2009 that there has been conferral and indeed that Western Power has produced some documents which are relevant to the case. Mr Moussalli suggests that before he can finalise the application and his affidavit material he requires discovery. Indeed he seeks discovery of, for example, all work emails from his work with Western Power from 2005 to the time of his termination in November 2008, although that is probably actually a shorter period, because as the Court reads the materials and understands it, he ceased work in a practical sense, perhaps some 12 months earlier than that.
This Court, and indeed very few Courts, would ordinarily order discovery prior to a response being filed. Indeed, this Court does not ordinarily order discovery at all and the Federal Magistrates Act 1999 (Cth) makes it clear that before discovery can be ordered, the Court must be satisfied that it is in the interests of the administration of justice to do so. The Court refers to the Court’s judgment in Abrahams v Qantas Airways.[5].
[5] (2007) 210 FLR 314; [2007] FMCA 639 (“Abrahams”).
Abrahams sets out the various criteria to which the Court has regard in making that determination as to whether discovery is in the interest of the administration of justice. As the Court indicated, in the course of submissions by Mr Moussalli, no matter how important this application is to the parties, and the Court accepts that it is important to them, this is not an exceptional or out of the ordinary s.659 application. There is no reason why at this stage the application cannot properly be made without discovery of all or indeed any of the respondent’s documents. The Court notes, in that respect, that there have already been voluminous documents filed, appended or attached to affidavits filed by Mr Moussalli, and there has been a limited production of discoverable documents by Western Power, in any event.
Discovery, or at least particular or limited discovery of categories of documents, might be appropriate later once the issues are defined, but discovery is not appropriate now. There will therefore be no order for discovery today. Indeed, save for orders allowing the applicant to file a further amended application and further affidavits, extending the time for the filing of a response and affidavits in support of a response, including any application for summary dismissal, the Court is of the view that no other interlocutory applications ought to be made until either the respondent has filed a response or an application for summary dismissal. It is clear, even at this early stage, that this is a matter which has got the capacity to grind to a halt under the weight of interlocutory applications for discovery and the like.
In view of the indication the Court has just made, there will be an order that there be no further interlocutory applications made until the further hearing of the matter. In view of the nature of the directions hearing and the application in a case and the fact that indulgences have been extended to both parties, as a consequence of their submissions, there will also be no order as to the costs of today.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lucev FM

Deputy Associate: Susan Dinon

Date: 24 July 2009