Moussalli v Western Power (No.2)
[2010] FMCA 374
•26 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOUSSALLI v WESTERN POWER (No.2) | [2010] FMCA 374 |
| PRACTICE AND PROCEDURE – No case to answer application – application should have properly been made for summary dismissal – leave granted to amend application. PRACTICE AND PROCEDURE – Application for an adjournment – principles for the Court to take into account when granting an adjournment – application for adjournment dismissed. |
| Federal Magistrates Act 1999 (Cth), ss.3, 42 Federal Magistrates Court Rules 2001 (Cth), r.4.05 Workplace Relations Act 1996 (Cth), s.824 |
| AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 S.E. Marantelli, The Australian Legal Dictionary (Caulfield East: Edward Arnold Australia Pty Ltd, 1984) |
| Applicant: | REEF MOUSSALLI |
| Respondent: | WESTERN POWER |
| File Number: | PEG 64 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 26 May 2010 |
| Date of Last Submission: | 26 May 2010 |
| Delivered at: | Perth |
| Delivered on: | 26 May 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mrs E. Hartley |
| Solicitors for the Respondent: | Freehills |
ORDERS
The application in a case filed by the respondent as a no case to answer application be treated as an application for summary dismissal of the applicant’s application.
The applicant’s application in a case dated 21 May 2010 be dismissed.
At the hearing of the matter on 8-10 June 2010, leave is granted to the applicant to make an application to adduce further oral evidence, and if that application is granted the respondent will have the right to adduce oral evidence.
The summary dismissal application be listed for hearing at 2:15pm on 2 June 2010.
Service of any documents required to be filed and served on the applicant, either by prior or subsequent order of this Court, by the respondent, be deemed to have been served if sent to the applicant at his address for service by ordinary pre-paid post.
If any application is to be made to adjourn any future proceedings in this matter by the applicant on medical grounds, that application is to be supported by affidavit evidence from:
(a)the applicant’s treating General Practitioner; or
(b)a medical specialist,
and that treating General Practitioner or medical specialist must appear in person to be cross-examined on the affidavit if the respondent so requests.
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 the transcript)
In this matter Western Power has made an application in a case[1] under the Federal Magistrates Court Rules 2001 (Cth),[2] submitting that Mr Moussalli’s case ought to be dismissed on the ground that there is no case to answer. As indicated in the course of the Court’s exchange with Counsel for Western Power, the Court is of the view that a no case to answer submission is not and cannot be made other than at the close of the evidence in a hearing. No authority to the contrary was cited to the Court and none appears in Western Power’s submissions in support of the no case to answer. Whilst it is fairly notorious that that is in fact the case the Court cites the Australian Legal Dictionary with respect to no case to answer, where the learned author says:
A submission in a civil proceeding, made by the defendant at the conclusion of the case for the plaintiff, that the plaintiff has failed to disclose a prima facie case.[3]
[1] “Western Power’s Application”.
[2] “FMC Rules”; FMC Rules, r.4.05.
[3] S.E. Marantelli, The Australian Legal Dictionary (Caulfield East: Edward Arnold Australia Pty Ltd, 1984), page 167.
In the circumstances it appears to the Court, and as a consequence of the exchange with counsel for Western Power, that Western Power’s position now is that they seek leave to amend Western Power’s Application to one for summary dismissal of Mr Moussalli’s application. Mr Moussalli says, and the Court pointed out in the course of the exchange with counsel for Western Power, that an opportunity had been earlier provided for a summary dismissal application to be made, and had not been taken by Western Power. Of course, it needs to be borne in mind that that was at an earlier stage in the proceedings and at a stage in the proceedings where it could reasonably have been anticipated, and probably was anticipated, that further affidavit material would be put on.
In this particular instance, at this point in time, no further affidavit material has been put on by Mr Moussalli and the Court in the circumstances does not have any difficulty with a summary dismissal application being made by Western Power on the basis of the evidence as it presently appears before the Court. Accordingly, there will be an order that Western Power’s Application be treated as an application for summary dismissal.
The Court now turns to Mr Moussalli’s application in a case filed on 21 May 2010 for an extension of time with respect to the various Orders previously made by the Court.[4] Mr Moussalli seeks Orders in the following terms:
(1) That orders one to six made by Federal Magistrate Lucev on 1 February 2010, regarding the preparation for and the listing of the hearing of 8, 9 and 10 June 2010, be extended by at least three weeks.
[4] “Extension Application”.
(2) That the costs be reserved.
The Orders made by the Court on 1 February 2010 were as follows:
(1) Any further affidavits to be filed by the applicant be filed on or before 1 March 2010.
(2)Any further affidavits to be filed by the respondent be filed on or before 1 April 2010;
(3)The applicant and respondent file any objections to the admissibility of evidence on or before 30 April 2010;
(4)The applicant file and serve an outline of contentions of fact and law on or before 14 May 2010;
(5)The respondent file and serve an outline of contentions of fact and law on or before 28 May 2010;
(6)The matter be listed for hearing on 8, 9 and 10 June 2010 at 10.15 am;
(7) There be liberty to apply;
(8) The costs of today be reserved.
It is relevant to note that Mr Moussalli has not filed any affidavits in accordance with Order 1, also that Western Power do not intend to file any further affidavits in accordance with Order 2. The objections to the admissibility of evidence have been filed by Western Power in accordance with Order 3, but not by Mr Moussalli. Mr Moussalli has not filed an outline of contentions of fact and law in accordance with Order 4 and the time for Western Power to do so has not yet arrived.
Essentially, the Order sought by Mr Moussalli seeks to have the effect of extending the time frames for compliance with Orders 1 to 5 by a period of three weeks from today’s date, which would take it through to 16 June 2010 with respect to Order 1, and therefore extend by a period of something in the order of three and a half months the time frames for those matters to have been done. That would have the effect of the hearing presently listed for 8, 9, and 10 June 2010 having to be adjourned, and on present indications that would be unlikely then to be listed until at least August 2010 and possibly not until some time later in the year, as late as November or December 2010, dependent upon the Court’s schedule and the precise time at which a three day hearing could be fitted in.
The Extension Application effectively seeks not only to have further time for Mr Moussalli to file an affidavit which was due on 1 March 2010, but also to adjourn a hearing which has been set down now for something in the order of three and a half months.
Mr Moussalli filed an affidavit which was sworn on 21 May 2010 in support of the Extension Application.[5] In that affidavit he indicates that it had been his intention to file an affidavit in accordance with Order 1 of the Orders of 1 February 2010, but asserts (without any medical evidence to support it) in paragraph 6, that he was unable to meet that deadline of 1 March 2010 due to his medical condition which gets aggravated by the stress associated with the writing of Court documents. As the Court has indicated, there is no evidence of that. As at 1 March 2010, no evidence had been filed to support that contention.
[5] “Mr Moussalli’s Affidavit”.
What has been filed by way of supporting medical evidence, such as it is, consists of:
a)a Discharge Summary and Referral dated 17 May 2010 for Mr Moussalli from the Joondalup Health Campus;
b)an unfit for work medical certificate for three days to 18 May 2010, apparently signed by a doctor at the Joondalup Health Campus; and
c)a Progress Medical Certificate which indicates that Mr Moussalli is totally unfit for work from 18 May 2010 to 20 July 2010, again, apparently signed by a registered medical practitioner.
None of that medical evidence explains in any way, shape or form why it is that the affidavit was not filed in compliance with the Orders on 1 March 2010. Mr Moussalli sought to rely upon the fact that the Progress Medical Certificate said that he had been suffering increasing stress since February 2010 due to legal processes, but given that the evidence indicates that the medical practitioner did not see Mr Moussalli until 16 May 2010 it cannot be evidence of the medical practitioner’s diagnosis at that time, but rather what Mr Moussalli has told him.
The Court notes that annexure A to Mr Moussalli’s Affidavit is a letter from Western Power’s solicitors in which they note that the further affidavits required by Order 1 of the Orders of 1 February 2010 had not been filed by the close of business on 2 March 2010 (which is the date that the letter was written) and that they intended to proceed to comply with the other Orders of the Court on the basis that no further affidavits had been filed.
It is important, in that regard, to note that the form of the Order was such that it was a matter of “further affidavits to be filed,” not “the affidavits to be filed,” and that it was not obligatory on the parties to file any affidavit in accordance with Order 1, or Order 2 for that matter. In those circumstances, the Court takes the view that there has simply been nothing put before the Court which would justify the failure by Mr Moussalli to file an affidavit on 1 March 2010 in compliance with Order 1 of the Court’s Orders of 1 February 2010.
The issue then becomes whether or not, in any event, the hearing set down for 8, 9 and 10 June 2010 ought to be adjourned. In that regard, the medical evidence does indicate that Mr Moussalli is suffering from aggravated hypertension, and there is a medical certificate indicating that he is totally unfit for work until 20 July 2010.
As against that, Mr Moussalli has, in the three days after he was discharged from the Joondalup Health Campus – it is relevant to note that he was only in there for a day, it would appear – prepared and filed the Extension Application, with a supporting affidavit and with documents, in a form which, as the Court indicated in an exchange with him in the course of submissions, was acceptable to the Court and certainly consistent with the standard of application and affidavit which is filed by many solicitors in this Court (and better than some). Furthermore, in the course of his submissions, Mr Moussalli indicated that he was prepared to, or would have been prepared to, given the ruling the Court has made, work on and prepare the affidavit that was the subject of Order 1 within the next three weeks.
Having regard to the above facts, the Court is not able to conclude that Mr Moussalli is not in a position to prepare for the hearing of the matter on 8, 9 and 10 June, given that:
a)he has undertaken, perfectly competently, the preparation of the Extension Application, and, for a self-represented litigant, has argued it competently enough today; and
b)he has undertaken to, albeit in relation to an affidavit the Court no longer requires to be filed because of the Order that is made, prepare an affidavit for or in the course of the proceedings.
The Court, in dealing with an application for an adjournment of this type, has a discretion as to whether or not to allow an application to adjourn proceedings. In exercising the discretion, the Court has to take into account the objects and purposes of the Federal Magistrates Act 1999 (Cth)[6] and the FMC Rules. Those, taken together, have previously been described by this Court as follows:
[6] “FM Act”; FM Act, ss.3 and 42.
21.Reading together the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.[7]
[7] Goodall v Nationwide News Pty Limited [2007] FMCA 218 at para.21 per Lucev FM.
Further, the Court has to take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[8]
[8] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at paras.29-30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; see also Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
This Court’s objects and purposes reflect much of the modern approach to case management, particularly of interim or procedural applications, especially recognising the need for proceedings to be resolved justly whilst placing emphasis on the need for efficiency, economy and the avoidance of delay and expense. This case has, as the Court observed during the course of proceedings, been in the list in this Court now for over a year. It has been the subject of a number of directions hearings and interlocutory processes. It was, of course, in the Federal Court briefly before coming to this Court. Bearing in mind the purpose and objects of this Court, it is appropriate, other things being equal, that the application be heard sooner rather than later in terms of case management.
In terms of case management, the Court also observes that, notwithstanding Mr Moussalli’s failure to file an affidavit in accordance with Order 1 and Western Power’s deciding not to file affidavit evidence in accordance with Order 2 of the Orders of 1 February 2010, there is, as the Court observed in its earlier Reasons for Judgment in Moussalli v Western Power,[9] “voluminous” documentation already before the Court with respect to this matter, and given the purpose and objects of this Court and the nature of the matter, that documentation is arguably sufficient to allow the matter to be properly determined by the Court. Notwithstanding that, and having regard for what Mr Moussalli says about his intentions with respect to the preparation of his affidavit, or the affidavit that he intended to file, the Court will grant leave for an application to be made for oral evidence to be led at hearing by Mr Moussalli in addition to his affidavit evidence. Whether or not that leave is granted will be a matter for the Court to determine at hearing. In the event that Mr Moussalli is granted leave to give oral evidence at hearing, Western Power will likewise have then a right to lead any further oral evidence in response to Mr Moussalli’s oral evidence.
[9] (2009) 185 IR 241 at 244 per Lucev FM; [2009] FMCA 720 at para.10 per Lucev FM.
The Court, in determining, as it does, that the hearing on 8, 9 and 10 June 2010 ought to proceed, takes into account a number of other factors including as it is obliged to do, the avoidance of delay and the wastage of public resources in terms of the Court having had this matter allocated for three days of hearing in the list for some time.
The Court also takes into account the fact that on the evidence before the Court, there are a number of witnesses from Western Power, possibly four, who are to be called and in respect of some of those witnesses special arrangements had to be made, particularly with respect to:
a)Ms Lee, for her evidence to be called by video conference from overseas;
b)Mr Weaver, who is due to leave the organisation; and
c)a further witness has made special arrangements to delay long service leave so as to be able to give evidence in these proceedings.
The Court has to have regard for the fact that the matter has been in the list and set down for hearing for some time and that Western Power has had to make arrangements for its witnesses in that regard.
The Court also has regard for the fact that this is primarily a no costs jurisdiction by reason of s.824(1) of the Workplace Relations Act 1996 (Cth)[10] qualified by the terms of s.824(2) of the WR Act and that in the circumstances, were the three-day hearing presently listed for 8, 9 and 10 June to be adjourned to a later date, that there would be significant costs thrown away by that adjournment on the part of Western Power in relation to preparation for the hearing.
[10] “WR Act”.
So in those circumstances, the Court has arrived at the conclusion that the Extension Application ought not be allowed and will be dismissed. There will be an Order accordingly that the applicant’s application in a case dated 21 May 2010 be dismissed.
There will also be, as the Court has indicated, an Order that at the hearing of the matter on 8, 9 and 10 June 2010 leave will be granted to the applicant to make application to adduce further oral evidence and that if that application is granted then the respondent will have the right to adduce further oral evidence. There will be Orders in those terms.
All of that assumes that the summary dismissal application which is on foot is not successful. If it is, however, successful then obviously the hearing on 8, 9 and 10 June will not occur. It simply remains now to find a time in which to hear the summary dismissal application. The Court’s view is that that application ought be heard, in fairness to all of the parties, as soon as possible and that that matter can simply proceed on the papers and by way of oral submissions on the day of the summary dismissal hearing. There will be an Order that the summary dismissal application be listed for hearing at 2.15pm on 2 June 2010 and, as the Court has indicated, that will be a matter which is heard on the papers and by way of oral submissions.
There will also be an Order that service of any document required to be filed and served on the applicant either by prior or subsequent Order of this Court by the respondent be deemed to have been served if sent to the applicant at his address for service by ordinary prepaid post.
In view of the submissions made by Mr Moussalli with respect to his medical condition, the Court also proposes to make a further Order in these terms: that if any application is to be made to adjourn any further proceedings in this matter by the applicant on medical grounds, that application is to be supported by affidavit evidence from:
a)the applicant’s treating practitioner; or
b)a medical specialist,
and that treating general practitioner or medical specialist must appear to be cross-examined on the affidavit if the respondent so requests.
There will also be an Order that the costs of today be reserved.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Dinon
Date: 1 June 2010
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