Muthu v Radeshar Pty Ltd
[2023] FedCFamC2G 1213
•22 November 2023
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
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.
On 19 June 2023 the respondents made a 13 paragraph request for further and better particulars of the further amended statement of claim. The second respondent, Raman Pillay, was joined to this proceeding by order made on 11 August 2023. That day, the Court also ordered that:
The applicant provide further and better particulars of the further amended statement of claim by 8 September 2023.
On 8 September 2023, Mr Muthu filed a “response” document which inter alia said that:
The applicant wishes to inform the Honourable Court that the Respondent’s assertions seeking further and better particulars (Paragraphs 1 to 11) for the amended statement of clam is a futile exercise.
The remainder of the letter appeared to address the requests numbered 12 and 13.
On 13 October 2023 the respondents filed an application in a proceeding seeking dismissal of the action by reason of the applicant’s failure to comply with the 11 August 2023 order to provide further and better particulars. These reasons concern that application.
LEGISLATION AND RULES
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“Rules”) provides:
13.04 When a party is in default
(1) For the purposes of rule 13.05, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
…
13.05 Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
…
(6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant—dismiss the application;
…
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
The proceeding will be dismissed by reason of non-attendance pursuant to r.13.06(1)(c) of the Rules.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 18 December2023
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