Muthu v Radeshar Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Muthu v Radeshar Pty Ltd (No 2) [2025] FedCFamC2G 826

File number(s): SYG 1271 of 2017
Judgment of: JUDGE CAMERON
Date of judgment: 4 June 2025
Catchwords: PRACTICE & PROCEDURE – Application to reinstate proceeding summarily dismissed for non-appearance – relevant considerations.   
Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021) rr 1.04, 13.06, 17.05
Cases cited:

Muthu v Radeshar Pty Ltd [2020] FCCA 2158

Muthu v Radeshar Pty Ltd [2022] FCA 1157

Muthu v Radeshar Pty Ltd [2023] FedCFamC2G 1213
Division: Fair Work
Number of paragraphs: 37
Date of last submissions: 27 March 2024
Date of hearing: 20 February 2024
Place: Sydney
Counsel for the Applicant: Mr D Godwin
Solicitor for the Respondent: Mr B Gelonesi (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
AND

RAMAN PILLAY
Second Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

4 JUNE 2025

THE COURT ORDERS THAT:

1.The application in a proceeding filed on 9 January 2024 be dismissed.

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. In this case, the applicant, Mr Muthu, alleges that he was employed by the first respondent (Radeshar) and that Radeshar breached his contract of employment, contravened the award applicable to his alleged employment and contravened the Fair Work Act 2009 (Cth) (FW Act).  He further alleged that the second respondent (Mr Pillay) was an accessory to Radeshar’s contraventions of the FW Act.

  2. The proceeding was commenced by Mr Muthu on 27 April 2017 and, following a trial, was dismissed on 15 September 2020:  Muthu v Radeshar Pty Ltd [2020] FCCA 2158. Mr Muthu appealed that decision to the Federal Court of Australia and was successful, Katzmann J allowing the appeal on 4 October 2022 and remitting the matter to this Court for a new trial before a different judge: Muthu v Radeshar Pty Ltd [2022] FCA 1157 (Appeal Judgment).  Since then, the matter has involved a number of interlocutory steps of which this is one.  Also relevant are the following:

    (a)on 8 June 2023 the Court ordered the respondents to seek any further and better particulars of the further amended statement of claim (FASOC) by 16 June 2023 and Mr…

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Details
Case
[2025] FedCFamC2G 826
Decision Date

CaseChat Overview and Summary

Muthu filed an application seeking reinstatement of the proceeding against Radeshar Pty Ltd, following the dismissal of his case for non-appearance. The Court considered whether to set aside the dismissal, focusing on Mr Muthu's explanation for his absence, the merits of his case, and his conduct. The application was dismissed based on the inadequacy of the explanation provided for his non-attendance, his lack of curiosity about the outcome of a previous hearing, and his overall conduct in the proceedings.

The central legal issue was whether the Court should set aside the dismissal of the proceeding due to Mr Muthu's non-appearance. The relevant rule, r.17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, allows the Court to set aside an order made in the absence of a party. The Court's decision to reinstate the proceeding was discretionary and hinged on whether it was in the interests of justice to do so. The Court considered three factors: the adequacy of Mr Muthu's explanation for his absence, the strength of his case against the respondents, and his conduct throughout the proceedings.

The Court found that Mr Muthu's explanation for his absence was unsatisfactory. He claimed he did not know about the 22 November 2023 listing because he had lost his mobile phone and did not receive the Court’s email. However, the Court was not convinced by this explanation as it lacked detail and corroboration. Mr Muthu had sent an email to the Court on 13 November 2023 explaining his failure to attend, indicating he knew about a hearing on 8 November 2023 but did not explain his failure to follow up on the outcome of that hearing. The Court also noted that Mr Muthu’s apparent lack of curiosity about the progress of the case was concerning, especially given his knowledge of the 8 November 2023 listing. Additionally, Mr Muthu's conduct in the proceedings, including his failure to provide particulars as ordered by the Court, was inconsistent with the overarching purpose of the Rules. As such, the Court determined that it was not in the interests of justice to reinstate the proceeding.

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

In the application in a proceeding Mr Muthu sought orders as follows:1.THAT MY APPLICATION IN THE PROCEEDINGS SYG1271/2017 BE REINSTATED FOR FURTHER HEARING.2.THAT THE APPLICANT BE GIVEN RELIEF AND THE RESPONDENT BE DIRECTED TO RECONCILE AND PAY THE OUTSTANDING DUES TO THE APPLICANT.3.THAT THE APPLICANT BE RELIEVED OF ALL COSTS AS IT IS A FAIRWORK RELATED PROCEEDINGS IN WHICH THE RESPONDENT FAILED TO PAY THE DUES TO THE APPLICANT AND CONTINUE TO ENGAGE THE COURT TO WASTE THE VALUABLE TIME OF THE COURT AND DEPRIVING THE APPLICANT OF HIS LONG DUE PAYMENT A CLASSIC EXAMPLE THAT JUSTICE DELAYED IS JUSTICE DENIED.4.THAT THE HONOURABLE COURT LEVY SUCH PENALTIES AS APPLICABLE DUE TO THE DELIBERATE DELAYS BY THE RESPONDENT SEEKING FURTHER PARTICULARS AND OTHER IRRELEVANT MATERIALS TO DELAY THE CASE FURTHER UNTIL THE SECOND RESPONDENT'S 70th BIRTHDAY CELEBRATION.5.THAT THE HONOURABLE COURT TO SUBPOENA ALL WITNESSES TO GIVE EVIDENCE AS PER THE LIST PROVIDED BY THE APPLICANT.6.THAT THE APPLICANT BE PAID INTEREST AND OTHER CHARGES FOR THE OUTSTANDING AMOUNTS DUE TO THE APPLICANT SINCE THE PROCEEDINGS IS OVER 6 YEARS. THAT THE RESPONDENT BE ORDERED TO PAY FOR THE DELIBERAT AND UNDUE AND PURPOSEFUL DENIAL OF THE DUES TO THE APPLICANT, LEGITIMATE JUSTICE SHOWING HIS COMPANY / TRUST AND FAMILY FINANCIAL POWER TO DEPRIVE THE APPLICANT OF A GENUINE LIVELIHOOD. EVIDENCE Mr Muthu deposed in his affidavit sworn 8 January 2024 in support of his application for reinstatement that:…2. I can present witnesses named below related to these proceedings: 1. Mr Sunil Jayadevan 2 . Mr Soman Plathara Gopalan 3. Mr Hiran Rukmal Kulatilake 3. I can provide evidence and seek to subpoena Mr Vythees Suppiah, Inspector of the Monitoring Section of the Department of Home Affairs, Parramatta Office to whom Mr Pillay introduced me as his employee and senior key staff.4. I have good prospect of success in this case. Unfortunately my case went through various problems due to my incarceration, ill health, blocked emails, delayed emails due to which I missed out attending the Court hearings.A copy of the Summary Dismissal Judgment, which recounted an outline of the recent history of this proceeding including Mr Muthu’s failure to appear at listings on 30 October 2023 and 8 and 22 November 2023, was annexed to Mr Muthu’s affidavit. In a further affidavit affirmed 19 February 2024, Mr Muthu deposed that on 8 November 2023 he had been unwell and unable to attend the hearing. He said that he had suffered a number of bereavements, presumably in the recent past although no dates were supplied, which caused him to suffer depression. This condition was said to have been exacerbated by a number of misfortunes that had befallen his life partner such that, because of her absence from Australia from 4 November 2023 to 1 December 2023, he had been:… like a dead man walking. I could not attend to many of my personal affairs and court matters. Annexed to Mr Muthu’s further affidavit was a medical certificate of his general practitioner, Dr Ng, dated 27 January 2024. That certificate recounted Mr Muthu’s alleged misfortunes and depression, including the stress and depression he suffered because his partner went overseas from 4 November 2023 to 1 December 2023. Significantly, however, it did not say that Mr Muthu had been unfit to attend court on 8 November 2022 or at any other time.

Decision

Reasons for decision

The proceeding was commenced by Mr Muthu on 27 April 2017 and, following a trial, was dismissed on 15 September 2020: Muthu v Radeshar Pty Ltd [2020] FCCA 2158. Mr Muthu appealed that decision to the Federal Court of Australia and was successful, Katzmann J allowing the appeal on 4 October 2022 and remitting the matter to this Court for a new trial before a different judge: Muthu v Radeshar Pty Ltd [2022] FCA 1157 (Appeal Judgment). Since then, the matter has involved a number of interlocutory steps of which this is one. Also relevant are the following:(a)on 8 June 2023 the Court ordered the respondents to seek any further and better particulars of the further amended statement of claim (FASOC) by 16 June 2023 and Mr Muthu to provide a response to any such request by 26 June 2023;(b)on 19 June 2023 the respondents made a 13-paragraph request for further and better particulars;(c)as at 11 August 2023 no particulars had been provided and the Court ordered that day that Mr Muthu:… provide further and better particulars of the further amended statement of claim by 8 September 2023;(d)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; (e)on 13 October 2023 the respondents filed an application in a proceeding seeking dismissal of the action by reason of Mr Muthu’s failure to comply with the 11 August 2023 order to provide further and better particulars. That application was listed for hearing on 30 October 2023;(f)on 30 October 2023 none of the parties appeared and the application in a proceeding was relisted to 8 November 2023;(g)Mr Muthu did not attend on 8 November 2023 and the application in a proceeding was stood over on that occasion to 22 November 2023; and(h)Mr Muthu did not attend on 22 November 2023 and on the respondents’ application the proceeding was dismissed pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) by reason of Mr Muthu’s non-attendance on that day: Muthu v Radeshar Pty Ltd [2023] FedCFamC2G 1213 (Summary Dismissal Judgment). On 9 January 2024 Mr Muthu filed an application in a proceeding seeking, inter alia, reinstatement of the proceeding. These reasons concern that application. Following a hearing on 20 February 2024 at which only Mr Muthu addressed the Court, the parties agreed that the respondents’ arguments would be made in writing and that the matter would be determined without a further hearing. For the reasons that follow, the application for reinstatement will be dismissed.APPLICATION IN A PROCEEDING In the application in a proceeding Mr Muthu sought orders as follows:1.THAT MY APPLICATION IN THE PROCEEDINGS SYG1271/2017 BE REINSTATED FOR FURTHER HEARING.2.THAT THE APPLICANT BE GIVEN RELIEF AND THE RESPONDENT BE DIRECTED TO RECONCILE AND PAY THE OUTSTANDING DUES TO THE APPLICANT.3.THAT THE APPLICANT BE RELIEVED OF ALL COSTS AS IT IS A FAIRWORK RELATED PROCEEDINGS IN WHICH THE RESPONDENT FAILED TO PAY THE DUES TO THE APPLICANT AND CONTINUE TO ENGAGE THE COURT TO WASTE THE VALUABLE TIME OF THE COURT AND DEPRIVING THE APPLICANT OF HIS LONG DUE PAYMENT A CLASSIC EXAMPLE THAT JUSTICE DELAYED IS JUSTICE DENIED.4.THAT THE HONOURABLE COURT LEVY SUCH PENALTIES AS APPLICABLE DUE TO THE DELIBERATE DELAYS BY THE RESPONDENT SEEKING FURTHER PARTICULARS AND OTHER IRRELEVANT MATERIALS TO DELAY THE CASE FURTHER UNTIL THE SECOND RESPONDENT'S 70th BIRTHDAY CELEBRATION.5.THAT THE HONOURABLE COURT TO SUBPOENA ALL WITNESSES TO GIVE EVIDENCE AS PER THE LIST PROVIDED BY THE APPLICANT.6.THAT THE APPLICANT BE PAID INTEREST AND OTHER CHARGES FOR THE OUTSTANDING AMOUNTS DUE TO THE APPLICANT SINCE THE PROCEEDINGS IS OVER 6 YEARS. THAT THE RESPONDENT BE ORDERED TO PAY FOR THE DELIBERAT AND UNDUE AND PURPOSEFUL DENIAL OF THE DUES TO THE APPLICANT, LEGITIMATE JUSTICE SHOWING HIS COMPANY / TRUST AND FAMILY FINANCIAL POWER TO DEPRIVE THE APPLICANT OF A GENUINE LIVELIHOOD. EVIDENCE

Ratio Decidendi

Legal Principle Established

Paragraph 3 concerns the order for costs made on the last occasion. This issue will only fall for consideration if Mr Muthu satisfies the Court that the orders of 22 November 2023 should be set aside.Relevant considerations Mr Muthu’s application did not identify which rule he relied on but r.17.05(2)(a) of the Rules, which provides that the Court may set aside an order made in the absence of a party, is the appropriate one. Whether to set aside the order dismissing the proceeding is a discretionary matter and there are no obligatory considerations that are relevant to that determination. Even so, the ultimate question is whether it is in the interests of the administration of justice that the dismissal of the proceeding be set aside and the matter proceed to a hearing. In this case, I find that the matters which are appropriate for consideration are:(a)whether Mr Muthu has provided a satisfactory explanation for his failure to attend court on 22 November 2023;(b) whether he has an arguable case against the respondents; and(c)whether he has conducted himself in this stage of the proceeding in a way that is consistent with the overarching purpose of the Rules. It has not been suggested that the respondents would suffer any particular and relevant prejudice were the matter to be reinstated. DiscussionSatisfactory explanation As recorded earlier, Mr Muthu has submitted that he did not know that the matter had been listed on 22 November 2023 because he had lost his mobile phone and had not received the Court’s email of 16 November 2023 advising the parties of that listing. I am not persuaded that this bland and elliptical explanation provides a satisfactory explanation for Mr Muthu’s non-attendance on 22 November 2023. Given the seriousness of the application to reinstate the proceeding, more was required. For instance, Mr Muthu could have but did not say when and in what circumstances he lost his phone; whether he found it and if so when; if he did not find it, whether he obtained a replacement and if so when; or whether he had access to his emails by other means and if not why not. This lack of corroborative detail tends to diminish the persuasiveness of the limited explanation that has been forthcoming. Further, because he sent an email to the Court on 13 November 2023 explaining his failure to attend, Mr Muthu has demonstrated that he knew before 22 November 2023 that the matter had been listed for some sort of hearing on 8 November 2023. However, despite possessing knowledge of the 8 November 2023 listing by at least 13 November 2023, Mr Muthu has not explained what, if any, contemporaneous steps he took to learn what the outcome of that listing had been or what the application listed on that occasion had concerned. In relation to the latter point, I note that the affidavits of service of the application in a case which have been filed by the respondents were defective, one as to execution and the other as to substance and so are not evidence of such service. Mr Muthu’s apparent lack of curiosity concerning the outcome of the 8 November 2023 listing is something requiring explanation. This is because his failure to enquire meant that in the period following 8 November 2023 his ignorance of the progress of the proceeding and its re-listing on 22 November 2023 was ostensibly total with the consequence that the supposed loss of his mobile telephone meant that he remained unaware of the latter listing. The loss of the telephone would have been of no significance if Mr Muthu had made the most basic of enquiries about the outcome of the 8 November 2023 listing and so his apparent failure to make those enquiries should have been explained.