Muthu v Radeshar Pty Ltd

Link copied
Case Copied 7 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Muthu v Radeshar Pty Ltd [2023] FedCFamC2G 1213

File number(s): SYG 1271 of 2017
Judgment of: JUDGE CAMERON
Date of judgment: 22 November 2023
Catchwords: PRACTICE & PROCEDURE – Application for dismissal – non-appearance of the applicant.
Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.04, 13.05, 13.06

Cases cited:

Muthu v Radeshar Pty Ltd [2020] FCCA 2158

Muthu v Radeshar Pty Ltd [2022] FCA 1157
Division: Fair Work
Number of paragraphs: 15
Date of hearing: 22 November 2023
Place: Sydney
Counsel for the Applicant: No appearance by or on behalf of the applicant
Solicitor for the First and Second Respondents: Mr P. Fagan (GP Legal)

ORDERS

SYG 1271 of 2017

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

CHRISTOPHER SILUVAI MUTHU

Applicant
AND:

RADESHAR PTY LTD ACN 109 627 456

First Respondent

RAMAN PILLAY

Second Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

22 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The respondents have leave to file in court the affidavit of Peter Fagan sworn 21 November 2023.

2.Pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 the application be dismissed.

3.The applicant pay the respondents’ costs of the proceeding as agreed or assessed.

4.The parties have liberty to apply within 12 months in relation to the assessment of costs.

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 CAMERON

INTRODUCTION

  1. This proceeding was commenced by the applicant, Mr Muthu, on 27 April 2017 and was dismissed on 15 September 2020: Muthu v Radeshar Pty Ltd [2020] FCCA 2158. However, that decision was overturned on appeal on 4 October 2022 and the matter was remitted for hearing before a different judge: Muthu v Radeshar Pty Ltd [2022] FCA 1157. Mr Muthu filed a further amended statement of claim on 5 December 2022 alleging that he was an employee of the respondent, Radeshar Pty Ltd (“Radeshar”) from 13 November 2011 until about 16 October 2013 and that Radeshar had not paid him his agreed wages. He also alleged breaches of the Fair Work Act 2009 (Cth) (“FW Act”) and the Clerks – Private Sector Award 2010 or, alternatively, the Miscellaneous Award 2010. Radeshar had earlier denied that Mr Muthu was ever its employee and no further defence has been filed.

  2. On 19 June 2023 the respondents made a 13 paragraph request for further and better particulars of the further…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Muthu v Radeshar Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FedCFamC2G 1213
Decision Date

CaseChat Overview and Summary

In Muthu v Radeshar Pty Ltd, the applicant, Muthu, sought a dismissal of a proceeding against Radeshar Pty Ltd. The case involved a dispute over service and non-appearance of the applicant, leading to the respondents filing an application for dismissal under r.13.06 of the Rules. The respondents claimed that Muthu failed to respond to a request for further and better particulars, thereby hindering the respondents' ability to properly defend the case. Additionally, Muthu had not appeared at scheduled court hearings despite receiving multiple notices.

The court was required to determine whether the application for dismissal could proceed due to Muthu's non-attendance and lack of response. This involved assessing the effectiveness of the service of the application and affidavit on Muthu, as well as his engagement or disengagement with the proceedings. The court also had to consider whether Muthu's absence and failure to respond constituted sufficient grounds for dismissal under the Rules.

The court found that the application for dismissal was not effectively served due to an outdated email address being used. However, the court emphasised Muthu's repeated non-attendance at scheduled hearings and his failure to respond to notices from the court. The judge noted that Muthu was aware of the upcoming court dates but chose not to attend, with only one instance of communication regarding his health. This pattern of behaviour, combined with his lack of response to the application, led the court to conclude that Muthu had disengaged from the proceedings. Consequently, the court dismissed the proceeding due to Muthu's non-attendance and lack of engagement.

The final orders were that the proceeding would be dismissed by reason of non-attendance pursuant to r.13.06(1)(c) of the Rules.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The application in a proceeding referred to r.18.05, but that rule only applies to proceedings on a separate question. EVIDENCE In support of the application for dismissal, the respondents filed an affidavit of their solicitor, Mr Gelonesi, affirmed on 12 October 2023. Mr Gelonesi’s evidence was that the respondents served a request for further and better particulars on Mr Muthu by way of a letter attached to an email sent on 19 June 2023. Copies of the letter and email were annexed to his affidavit. Mr Gelonesi deposed that, at the time of affirming his affidavit, Mr Muthu had failed to provide further and better particulars and that without them the respondents were unable to defend the matter properly. At the hearing of the interlocutory application today, leave was granted to the respondents to file an affidavit of service deposed by Peter Fagan, a solicitor for the respondents, sworn 21 November 2023.DISCUSSION The application in a proceeding was originally listed for hearing on 30 October 2023. There was no appearance by either party on that occasion, although Mr Gelonesi wrote by email later that day saying that he had tried to join the hearing electronically, as he had been given leave to do. The matter was relisted on 8 November 2023. The applicant did not appear and the matter was stood over to today because the respondents were not in a position to prove service of the application in a proceeding on Mr Muthu or service of Mr Gelonesi’s affidavit in support of that application. On 13 November 2023 Mr Muthu wrote to the Court to advise that he had been unwell on that day. Mr Muthu has not attended Court today and his absence is unexplained. Service of application in proceeding I am unwilling to find on the evidence contained in Mr Fagan’s affidavit of service that the application in a proceeding has been effectively served. The respondent’s solicitors appeared to have used a superseded email address to attempt service on Mr Muthu. When this was pointed out to Mr Fagan in Court today, he pressed the respondent’s application for dismissal of the proceeding, but, instead of relying on a failure to respond to the application in a proceeding, relied on Mr Muthu’s failure to attend the listings of the Court associated with the application in a proceeding. Applicant’s failure to appear Even if Mr Muthu had not been served with the application in a proceeding, the existence of that application was clear from at least the correspondence sent to him by the Court in recent times. Nothing suggests that Mr Muthu has taken any steps in that connection which, combined with his failure to attend recent listings, suggests disengagement with the case. I record that on three occasions, being 27 October 2023, 30 October 2023 and 16 November 2023, the Court wrote to Mr Muthu at the email address he provided in his purported response to the request for further and better particulars, advising him of approaching Court dates. I am satisfied that he was aware of them and, notwithstanding the one exception to which I have referred, has failed, without explanation, to attend. I am particularly concerned by his failure to attend today, given that his letter concerning his health earlier in November indicates an awareness of the need to attend the listings. In the circumstances, I am persuaded that the matter ought to be dismissed by reason of non-attendance.CONCLUSION

Decision

Reasons for decision

I record that on three occasions, being 27 October 2023, 30 October 2023 and 16 November 2023, the Court wrote to Mr Muthu at the email address he provided in his purported response to the request for further and better particulars, advising him of approaching Court dates. I am satisfied that he was aware of them and, notwithstanding the one exception to which I have referred, has failed, without explanation, to attend. I am particularly concerned by his failure to attend today, given that his letter concerning his health earlier in November indicates an awareness of the need to attend the listings. In the circumstances, I am persuaded that the matter ought to be dismissed by reason of non-attendance.CONCLUSION The proceeding will be dismissed by reason of non-attendance pursuant to r.13.06(1)(c) of the Rules.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.