Nick Tsiftelidis v Crown Melbourne Limited
[2012] FMCA 922
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NICK TSIFTELIDIS v CROWN MELBOURNE LIMITED | [2012] FMCA 922 |
| INDUSTRIAL LAW – Small claim – claim for allowance – interpretation of workplace agreement – orders and directions for hearing – non compliance – application for an adjournment – adjournment refused – application dismissed for non compliance. |
| Fair Work Act 2009 (Cth) s.548 Federal Magistrates Court Rules 2001 (Cth) r.13.03A & 13.03B |
| Black v Young Republic & Anor (2012) FMCA 729 Oceanic Coal Australia Proprietary Limited v Parker [2010] FCR 1018 Manildra Flour Mills Manufacturing Proprietary Limited v National Union of Workers [2012] FCA 1010 University of New South Wales and Huang [2012] FCA 208 |
| Applicant: | NICK TSIFTELIDIS |
| Respondent: | CROWN MELBOURNE LIMITED |
| File Number: | (P)MLG 526 of 2012 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 21 September 2012 |
| Date of Last Submission: | 21 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms J. Williamson |
ORDERS
The Applicant’s oral application for an adjournment is refused.
The Application filed on 4 May 2012 be dismissed pursuant to Rule 13.03B(1)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 526 of 2012
| NICK TSIFTELIDIS |
Applicant
And
| CROWN MELBOURNE LIMITED |
Respondent
REASONS FOR JUDGMENT
Before the court today, 21 September 2012, are proceedings brought in the court’s small claims list by Nick Tsiftelidis (“the applicant”) against Crown Melbourne Limited (“the respondent”).
The applicant filed an application on 4 March 2012 (accompanied by a Form 5) which sought to bring a small claim under the Fair Work Act 2009.
The applicant is a sports consultant employed by the respondent.
The applicant, according to his Form 5, been employed since 2007 and works at the respondent’s premises in Melbourne.
The application was given a first return date of 5 June 2012. On that occasion the applicant appeared represented by United Voice (his union representative). The respondent appeared represented by its in-house legal counsel.
The form accompanying the application filed on 4 May 2012 identified at part G the relevant terms of the workplace agreement which the applicant contended were relevant to his small claim. In particular there were clauses 31.1 of the respondent’s 2006 Enterprise Agreement and clause 33.1 of the 2010 workplace agreement which were in the same terms and provided:
“Where uniforms are required to be worn, they will be provided to employees by the company. The uniforms remain at all times the property of the company. The company will launder the uniforms (including the apparel of kitchen personnel) at no cost to employees. However, a full time employee will be paid a fortnightly allowance of $28.50 and a part time or casual employee will be paid a fortnightly allowance of $14.35 in circumstances where the company requires the employee to launder their uniforms.”
At Part H of the applicant’s Form 5 he particularised the claim that he sought to make being by way of a claim for an allowance in the amount of $2,949.79. The respondent filed a response on 18 May 2012 opposing the claim.
As the applicant sought to make a claim in relation to an entitlement under a workplace agreement which provided for, amongst other things, a role for Fair Work Australia to assist the parties with a dispute in a matter arising under the agreement the first court date was adjourned. So on 5 June 2012 the court made orders adjourning the matter to 24 August 2012. It was specifically noted that the adjournment was to allow the parties to make an application to Fair Work Australia to convene a conciliation conference in relation to a dispute under the Crown Melbourne Limited Enterprise Agreement 2010.
The matter returned to court on 24 August 2012. The parties had attended at Fair Work Australia but were unable to resolve the matter. Orders and directions were made for the matter to be subject of a hearing today, 21 September 2012. At the time that the orders and directions were made on 24 August 2012 the applicant was represented by United Voice. However shortly thereafter, and on or around 30 August 2012, United Voice ceased to represent the applicant. The applicant has not filed any material since then and certainly no affidavits as required by the orders of 24 August 2012.
The applicant was at court on 24 August 2012 but he has filed no affidavit material and no submissions in compliance with those orders. The respondent has filed (and in compliance with those orders)
2 affidavits being an affidavit of Mark Geerlings (the Rooms Division Manager for Crown Melbourne who has been employed since 1997 and who was the Front Office Manager and the manager of the applicant up until the middle of 2010) and an affidavit of Alicia Gleeson, who is the General Manager for Human Resources for the respondent.
The respondents also filed (in accordance with those orders and directions) detailed submissions on 14 September 2012. As is clear from those submissions the respondent indicated that in the face of the applicant’s non-compliance it would be seeking that the application filed 4 May 2012 be dismissed.
The matter has returned to court today, 21 September 2012. The applicant has appeared in person. The respondent represented by Ms Williamson its in house Counsel.
The applicant has had an opportunity to tell the court why it is that he hadn’t complied with the orders of 24 August 2012.
The applicant told the court he understood what the orders of 24 August 2012 provided. He has indicated that he has had the opportunity to get legal advice since United Voice ceased to act for him. He indicated that he believed that he should turn up today. It was pointed out to him that he needed to consider what the respondent had to say (both in its submissions filed on 14 September 2012 and also today) seeking for the matter to be dismissed. Once the applicant had an opportunity to collect his thoughts he has, when the matter was mentioned again shortly after 10.30 am made an oral application for an adjournment.
Adjournment application
The applicant has no material in support of his application for an adjournment. He has told the court he wants an adjournment so he can get his documents in and possibly some witness statements. When he asked why it was that that hadn’t been done beforehand he acknowledged that that presented a difficulty for him given that he was acknowledges he was aware as long ago as 24 August 2012 that he was required to file material, he hadn’t made an application for adjournment before today and knew there could be consequences for non compliance.
The respondent opposed the adjournment. The respondent has made it clear that its position is the applicant hasn’t complied with the orders of 24 August 2012, has had every opportunity to do so, that the applicant was on notice that the respondent was going to move for the application to be dismissed on the basis of non-compliance and in the circumstances not only is there no proper reason for an adjournment application but it’s clear from the respondent’s submissions that they argue they would be prejudiced if the matter was to be adjourned.
Approach to adjournment application
In terms of the approach to the oral application for an adjournment I take into account firstly that this is an application which was brought in the court’s small claims list and it was the applicant who commenced the proceedings. As an application brought in the court’s small claims list the material which all parties get copies of makes clear that the application should be dealt with at the first court date.
This matter has already had two adjournments. One adjournment was for the purposes of ensuring the parties had the opportunity to, consistent with their workplace agreement, try and resolve matters with the assistance of Fair Work Australia. That hasn’t ultimately proved to be possible but when that was realised the parties were given every opportunity to file material. It was made clear as long ago as the first court date that this matter would involve the interpretation of a workplace agreement and it was made clear that if the matter ultimately proceeded to hearing evidence would be required. It was also made clear on 24 August 2012 that there would be consequences if the parties didn’t comply with the orders and directions for the filing of material for trial.
It has been made clear Courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (‘Aon’)). In Aon their Honours made a number of points, which included that:
a)the conduct of litigation is not merely a matter for the parties. The need to avoid disruptions in the Court’s lists, with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
b)when considering an application such as this the Court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Magistrates Act 1999 (Cth)[1] and the Federal Magistrates Court Rules 2001 (Cth),[2] as prescribed by the objects of the FM Act[3] and the objects of the FMC Rules,[4] provide for the Court 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)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[1] “FM Act”.
[2] “FMC Rules”.
[3] FM Act, ss.3 and 42.
[4] FMC Rules, r.1.03.
Essentially, those principles discussed in that decision make clear that the conduct of litigation is not merely a matter for the parties. The Court has got to avoid disruption to the Court lists. The Court has got to consider, when having regard to an application such as this, not just the interests of the litigants involved but all parties to the litigation. Costs are not always a sufficient compensation. There may be cases where it is properly concluded that a party has had sufficient time to make their case and it is too late for an adjournment application.
The explanation that has been offered for the application is relevant. I have considered all matters relevant to the exercise of the power, including delay, wasted costs and concerns of case management.
Conclusion on adjournment application
When I look at the reasons offered today from the bar table by the applicant for the adjournment I am not satisfied that there is a proper basis for an adjournment today. There has been no proper explanation given for why it is that the adjournment application that has eventually been made at one minute to midnight could not have been made as long ago as 30 or 31 August 2012 which is when the applicant’s union representative ceased to act for him. There is no explanation as to why an adjournment application had not been made before today.
I am not satisfied there is a proper basis for an adjournment. Moreover, I am not satisfied there would be prejudice to the applicant outweighing prejudice to the respondent if I was to refuse the adjournment. I come to that view having regard to the applicant having had every opportunity to get material before the court. He was represented by a union up and until the end of August. There was time to file material before the end of August. I appreciate that there were only specific directions issued on 24 August 2012 but that would not have prevented material being filed before today.
In the circumstances, the application being made today is being made in my view far too late having regard to the fact that I am satisfied the applicant has had every opportunity to get material before the court and has not been in a position to provide any evidence to adequately explain his failure to do so. I appreciate that since 31 August 2012 at least he hasn’t been formally represented but he has told the court today he has spoken to solicitors and barristers since then. I am just not satisfied there is an adequate explanation for an adjournment, that there is a proper basis for an adjournment or that in the circumstances the prejudice to the applicant would outweigh the prejudice to respondent, having regards to the need for the courts to manage their procedures so that the interests of justice are served in light of the provisions of section 548 which is the section in the Fair Work Act2009 (Cth) that governs the conduct of matters in this list.
In those circumstances I refuse the oral application for an adjournment and I so order.
I am now asked by the respondent to make an order pursuant to rule 13.03A and 13.03B of the Federal Magistrates Court Rules 2001 (“the Rules”) dismissing the application filed 4 May 2012.
The background I have already referred to makes clear that the orders of 24 August 2012 put the parties on notice that in the event of non-compliance the court could make orders including, amongst other things, dismissing the application. Ultimately the respondent has in its submissions filed on 14 September 2012 (which I refer to and incorporate into these reasons)[5] formally asked the court to do that. That application has been pressed today in the face of the applicant’s failure to comply with the orders of 24 August 2012. The respondent’s material has already been identified.
[5] see respondents submissions filed 14 September 2012
Approach to small claims proceedings
Section 548 of the Fair Work Act 2009 (“the FW Act”) governs the operation of small claims and what can be dealt with in a small claim under the FW Act.
“Plaintiffs may choose small claims procedure
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2)In small claims proceedings, the court may not award more than:
(a)$20,000; or
(b)if a higher amount is prescribed by the regulations--that higher amount.
Procedure
(3)In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a)in an informal manner; and
(b)without regard to legal forms and technicalities.
(4)At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
Legal representation
(5)A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6)If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7)For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Representation by an industrial association
(8)The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.
(9)However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.”
In terms of the approach of the court to a small claim I refer to the decision of Nicholls FM in Black v Young Republic & Anor (2012) FMCA 729 where His Honour noted the provisions in section 548 set out above and the decision in Jones v Groovy Freighters Pty Ltd[2010] FMCA 673:
“6.Further, Burnett FM noted that (at [10]):
“... Commonly small claims applications are conducted in the States by their Tribunals rather than courts. They are called upon to determine these disputes in a manner which can be described as somewhat “quick and dirty” to provide flexibility to dispose of such proceedings both informally and cost effectively.”
7.In McShane v Image Bollards Pty Ltd [2011] FMCA 215, Lucev FM (at [7]) also commented on the nature of small claims proceedings and the exercise of the Court’s judicial power within the proceedings informal structure:
“Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claim proceedings in the Fair Work Division, this does not relive an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force.”
[Footnote omitted.]
8.The observations made by Burnett FM and Lucev FM are, in my respectful view, important. While the small claims process allows for the Court to act in an informal manner, without regard to legal forms and technicalities and to not be bound by rules of evidence and procedure (s.548(3)), those allowances must be balanced against the Court’s exercise of its judicial power. That is, the Court can only make a decision where a claim is supported by some probative basis in fact. Further, that decision must be supported by a reasoned judgment that addresses the issues in the case.
9.In this light, I also have regard to what was said by:
Federal Magistrate Lucev in Lebot v Energetic IT Pty Ltd [2011] FMCA 755:
“Small claims jurisdiction – practice and procedure
[7] Section 548(3) of the FW Act provides as follows:
· Procedure
· (3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
· (a) in an informal manner; and
· (b) without regard to legal forms and technicalities.
[8] Rule 45.11(2) of the FMCA Rules provides as follows:
(2)The Court is not bound by any rules of evidence and procedure when dealing with a small claims application and may act:
· (a) in an informal manner; and
· (b) without regard to legal forms and technicalities.
[9] Although the Court is not bound by the rules of evidence, and may act informally and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove the claim. The Court can only act on evidence having a rational probative force. For that reason the Court had Mr Lebot give evidence which confirmed the detail of his claim as it appeared in the Form 5 claim form, plus other details which the Court considered it necessary to enquire about.”
His Honour’s exposition makes clear that the small claims list is for less complex matters that the court (consistent with its Act and Rules) deals with matters in a less formal manner without regard to legal form and technicality but the aim of matters being dealt with in the small claims list is they’re dealt with expeditiously.
Approach to interpretation of Agreement
The substantive application that the applicant had made was an application for the court to deal with his application for an allowance under a term of a workplace agreement. That would have required the court to consider and interpret the provisions of the workplace agreement, the details of which I have already referred to in these reasons.
In terms of the approach to be taken by a court to that task, I refer to Oceanic Coal Australia Proprietary Limited v Parker [2010] FCR 1018 where it was said:
“38. The approach to interpretation of awards and industrial agreements is considered in Amcor Limited v Construction, Forestry, Mining and Energy Union and Others [2005] HCA 10; (2005) 222 CLR 241. In Amcor at [30] their Honours Gummow, Hayne and Heydon JJ observed in relation to the relevant clause in question, cl 55.1.1:
Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of clause 55.1.1, but also to a number of other matters: first, the other provisions made by clause 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.
39.Accordingly the content of the relevant clause must be considered together with the relationship of that clause or other clauses, the text and operation of the award and the legislative background. Effect must be given to the meaning of the award (or industrial agreement) as expressed in the terms that it uses (see Amcor per Kirby J at [70]). Further, if ‘reasonably available’ the award should be construed to make it operate ‘fairly towards both parties’ (see Amcor per Callinan J at [131]).
40.As stated by Finkelstein J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 at [21]:
The object as always is to objectively determine the intention of the parties from the words of the document. That intention can manifest itself not only from words used but from words considered in light of the circumstances surrounding the transaction.
41.In assessing the circumstances surrounding the transaction, Mason J’s observations in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 are applicable. At 352 his Honour said:
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.
42.The above statement must be considered together with the observations of the High Court of Australia in Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others [2004] HCA 52; (2004) 219 CLR 165. At [40] the Court observed:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.[Footnotes omitted]
43.See also Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [156].
44.Despite such approaches which recognise the importance of the consideration of the ‘context’ of contractual relations, the text of the clause in question must nevertheless be given primacy in its interpretation. In Kucks, Madgwick J observed at 184 that:
A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might be fairly put into an award. So, for example ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
45.Madgwick J’s approach in Kucks (see also [35] above) has been described by the Full Federal Court as the ‘proper approach to construction of certified agreements’: see Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8].
46.In a similar vein, French J (as his Honour then was) observed in City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 379:
It is of course no part of the court’s task to assign a meaning in order that the award may provide what the court thinks is appropriate – Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that the a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry the intention of the award making authority – Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960] AR(NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J).”
There is also the decision of Manildra Flour Mills Manufacturing Proprietary Limited v National Union of Workers [2012] FCA 1010 which said:
“Principles of Interpretation
50.Interpreting an industrial award requires an approach focusing on the actual words used and their plain, ordinary English meaning: see Bryce v Apperley (1998) 82 IR 448 at 452. If the words of the award have an unambiguous meaning, then that is the meaning that should be ascribed to them and there is no need for the Court to consider the expressed or supposed intention of the drafters of the award: see Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331.
51.If there is a degree of ambiguity, then the Court must consider the relevant clauses of the award in their context. The principles in this respect are set out in Kucks v CSR Ltd (1996) 66 IR 182 at 184:
It is true that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
52.In construing award provisions it is also important to have regard to the nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it serves: see Amcor v CFMEU [2005] HCA 10; (2005) 222 CLR 241 at [95].”
The terms of the clause which in both the 2006 and 2010 workplace or enterprise agreements were in the same terms and provided:
“Where uniforms are required to be worn, they will be provided to employees by the company. The uniforms remain at all times the property of the company. The company will launder the uniforms (including the apparel of kitchen personnel) at no cost to employees. However, a full time employee will be paid a fortnightly allowance of $28.50 and a part time or casual employee will be paid a fortnightly allowance of $14.35 in circumstances where the company requires the employee to launder their uniforms.”
The principles set out above would have required the court to look at the relevant terms of the workplace agreement and determine whether given the clause in the agreement whether the applicant was required to wear a uniform and if he was required to wear a uniform, whether he was directed to launder his own uniform.
Dismissal for non compliance
The application that the respondent has made relying on the provisions of Rules 13.03A and 13.03B of the Rules provides:
“13.03A. When a party is in default
(1)For rule 13.03B, 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.
(2)For rule 13.03B, a respondent is in default if the respondent:
(a) has not satisfied the applicant's claim; and
(b)fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
defend the proceeding with due diligence.
13.03B 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.
(2) If a respondent is in default, the Court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b)if the claim against the respondent is for a debt or liquidated damages -- grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate -- costs; or
(c)if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings -- give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d)give judgment or make any other order against the respondent; or
(e)make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
(3)The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2) (b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:
(a) an affidavit, or affidavits, proving:
(i) service of the application claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default; and
(b)an affidavit for the debt or liquidated damages in accordance with the approved form.
(4)Unless the Court otherwise orders, if a respondent to a cross-claim is in default:
(a) a judgment or decision on any claim, question or issue in the proceeding on the originating process; or
(b) any other cross-claim in the proceeding;
is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.”
The approach that should be taken to, for want of a better description, the default provisions of the Rules has been considered by the Federal Court in University of New South Wales and Huang [2012] FCA 208 when it was said:
“20.Turning, then, to Rule 13.03B of the FMC Rules, it provides:
(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.
21.The use of the word “may” in this Rule shows it is a discretionary provision. To succeed in an appeal against a judgment made under such a discretionary provision, the University must show that the Federal Magistrate erred by acting on a wrong principle, or by taking into account extraneous or irrelevant considerations, or by failing to take into account material considerations: see House v The King[1936] HCA 40; (1936) 55 CLR 499 at 505 and Welsh v Digilin Pty Ltd(2008) 250 ALR 13; [2008] FCAFC 149 at [16].
22.Furthermore, the Federal Magistrate’s judgment was one relating to matters of practice and procedure: it is well-established that an appeal court should exercise caution in considering whether or not to interfere with such judgments: see In re The Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 per Jordan CJ and Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated [1981] HCA 39; (1981) 148 CLR 170 at 177.
23.The content of the discretion involved in a provision like Rule 13.03B was identified by the High Court in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [19] as follows:
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
24.On its face, Rule 13.03B is not in the latter category: it does not require the formation of any particular opinion or value judgment as a prerequisite for a decision under it. Instead, it falls into the former category: it is one of those provisions that is confined only by the subject matter and object of the legislation which confers the discretion.
25.The University relied upon the Full Court decision in Lenijamar and the observation in that decision that the history of a matter will “always be relevant”. In that case, the Court considered the equivalent provision in the Federal Court Rules, viz O 10. That Rule was in similar terms to Rule 13.03B (see at 395). The following observations about O 10 are therefore apposite to Rule 13.03B (at 395–6): “There is no requirement of intentional default or contumelious conduct ... There is no requirement of ‘inordinate and inexcusable delay’ on the part of the applicant or the applicant’s lawyers ... There is no requirement of prejudice to the respondent ....” Following these observations, the Full Court went on to describe O 10 in these terms (at 396): “The discretion conferred by [it] is unconfined, except for the condition of non-compliance with the direction.” Noting that it was impossible in those circumstances to provide an exhaustive statement of the situations where the Rule might appropriately be exercised, the Court identified “two situations [as] obvious candidates”. They were:
1.“cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period”; and
2.“cases ... in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent”.
26.The Court’s observations about the history of the matter always being relevant (see Ms Sharp’s submissions at [12] above) was made in this context. It was not a comment made at large. It is, therefore, quite significant in this case (as Mr Chia pointed out in his submissions: see at [14] above) that, apart from Ms Huang’s default in relation to the order of 31 July 2010, which was the sole ground for the University’s application for dismissal, there is no other history of default on her part in relation to any other order of the Court. There is also no history of any continuing non-compliance or default on Ms Huang’s part. Since neither of these situations identified by the Full Court in Lenijamar arises in this case, when the “always be relevant” observation in Lenijamar is considered in its proper context, it rather supports Ms Huang’s case.
27.Somewhat surprisingly, despite the fact that the University expressly relied upon Lenijamar, it did not actually point to either of the two situations of default specifically identified by the Court in that decision (see at [25] above). Instead, it pointed to the four matters set out at [12] above. In this respect, I consider the University has taken the “always be relevant” observation in Lenijamar out of context. Nonetheless, I will turn to consider the four matters upon which the University has relied. The first, that in para (a), is, I consider, a distortion of the true history of these proceedings. It completely ignores the Federal Magistrate’s findings that Ms Huang had filed affidavits on 16 April 2008 addressing both liability and quantum issues in these proceedings and: “in which she set out the essence of her claim, at least in one of its iterations”: see the reasons at [4] in [9] above. It also ignores the fact that the University was not brought into these separated proceedings until 2008. The second, the matter in para (b), is a matter that the Federal Magistrate could well have taken into account but, as noted above, there is no provision in Rule 13.03B that required him to do so. In those circumstances, no error is demonstrated by his Honour in not doing so. Finally, as to the matters in paras (c) and (d), they may be relevant to the abuse of process ground, but I do consider they have any bearing on this default ground. For these reasons, I do not consider the Federal Magistrate made any error in not relying upon any of the four matters identified by the University as being relevant to the history of these proceedings.
28.As to the University’s claim that the Federal Magistrate failed to have regard to the case management principles in s 42 of the FMC Act, that section provides: “In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.” This provision required the Federal Magistrate to avoid undue formality and delay. It is, as Mr Chia correctly submitted (see at [15] above), quite different to the provisions of the Civil Procedure Act 2005 (NSW) considered in Bi. That decision, therefore, provides no assistance in construing this provision. In any event, while he did not expressly mention s 42 of the Act, I consider the Federal Magistrate plainly did have regard to the need to avoid delay when his Honour described the nature and effect of Ms Huang’s default in relation to the order of 31 July 2010 as not being “one which is necessary for the forward conduct of the matter”.
29.Otherwise, it is quite apparent from the Federal Magistrate’s reasons for decision (at [9] above) that his Honour took into account a range of matters that he considered to be material to the exercise of his discretion not to dismiss Ms Huang’s proceedings because of her default in relation to the order of 31 October 2010. In my view, none of these matters demonstrates an error of principle, or is an irrelevant consideration, nor do they demonstrate any failure to take into account any material consideration. They included (see at [9] above):
(a)The purpose of the order of 31 July 2010 – at [3]:
However, it should not be overlooked that the orders made on 31 July 2010 were ones which ordered that the question of whether or not the alleged acts of sexual harassment occurred should be determined as a separate question. Until that point, all matters were on the table and the matter was proceeding to a hearing on all issues. Consequently, the affidavits which the applicant had filed earlier in the proceedings were addressed not only to liability, but also to quantum.
The actual order provided that the following questions were to be considered separately:
(a) Did the respondents breach the Sex Discrimination Act 1984 as alleged by the applicant?
(b) If the first respondent is found to have breached the Sex Discrimination Act 1984 as alleged by the applicant, does the second respondent have any liability to the applicant for such conduct of the first respondent?
(b)The pertinent aspect of the history of the matter insofar as it affected the University – at [3]:
In this connection, regard should be had to the applicant’s affidavit filed on 16 April 2008 in which she set out the essence of her claim, at least in one of its iterations.
(c) The effect of the orders of 31 July 2010 – at [4]:
[A]t the end of the day, if the applicant wishes to file further affidavits in support of her case or does not wish to file affidavits in support of her case that is a matter for her.
In this regard, the particular part of the orders of 31 July 2010 was in the following terms:
The applicant file and serve any affidavits on which she will rely on or before 29 October 2010. (Emphasis added)
(d) The nature and effect of Ms Huang’s default – at [4]:
Orders dismissing proceedings for default in compliance with earlier orders of the Court should only be made where the step which is required to be taken is one which is necessary for the forward conduct of the matter, whether that be the necessity for a respondent to file a response and a supporting affidavit, for a party to give discovery, answer interrogatories or something of that sort. A default of that nature may, in certain circumstances, justify the Court in dismissing a matter summarily. However, the fact that an applicant has failed to file evidence in addition to what she has already filed is not the sort of default which, in my view, justifies dismissal of the matter.
30.Taking into account all these matters, I do not consider there is any merit in the University’s complaint that the Federal Magistrate erred in exercising his discretion not to summarily dismiss Ms Huang’s proceedings under Rule 13.03B of the FMC Rules.”
Conclusion
In that case the Federal Court made clear that the court was, in the context of an application relying on those provisions, dealing with a discretionary decision and that the rule could be invoked in cases where there was a history of non-compliance; in which non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.
It is in the context of that approach I note the reasons I have already given in the context of the applicant’s adjournment application and that the original application was an application in the court’s small claims list. The practice and the procedure of the court dealing with matters in that list (consistent with the objects and the rules governing this court) is that they, where possible, are dealt with on the first court date.
This matter was filed on 4 May 2012. Every opportunity has been given to the parties to try and resolve the matter by other means. The applicant has had every opportunity to get material before the court.
The applicant was on notice on 24 August 2012 of the need to do so and the consequences of non compliance. The applicant was told that failure to file material in compliance with those orders could have consequences.
I am satisfied this matter does come into the class of cases referred to by the Federal Court in Huang (supra) where there is a history of non-compliance, where it is a case where non-compliance is continuing and it is occasioning unnecessary delay, expense and prejudice. The respondent has complied with all of the orders made by the court. The respondent has been put to some expense and prepared detailed affidavit material and submissions. Officers and employees of the respondent’s organisation have attended to give evidence and the applicant has unfortunately failed to prosecute his application with the requisite degree of diligence such as to warrant the court exercising its discretion to dismiss the application filed 4 May 2012.
This was a small claim and could have been dealt with consistent with the practice and the rules governing this court on the first court date. It is long past time where the applicant has had an opportunity to get his case properly prepared. I am not satisfied the applicant has done that with the requisite degree of diligence.
The applicant has been given every opportunity to agitate his application. It is not consistent with the provisions governing this application in s.548 of the FW Act that the matter to be allowed to drag on longer than absolutely necessary given the parties were told in no uncertain terms on 24 August 2012 that this was a possible order that could be made in default of compliance with orders which has occurred.
For those reasons I make the orders set out at the beginning of these reasons for decision.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM.
Date: 5 October 2012
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