Obel v Central Desert Regional Council

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FEDERAL COURT OF AUSTRALIA

Obel v Central Desert Regional Council [2022] FCA 1355  

File number: NTD 1 of 2022
Judgment of: CHARLESWORTH J
Date of judgment: 24 October 2022
Date of publication of reasons: 11 November 2022
Catchwords: PRACTICE AND PROCEDURE – whether respondent’s defence contains sufficient admissions to warrant summary judgment for the applicant in respect of some or all of his claims – whether the applicant should be granted judgment by virtue of defaults alleged against the respondent – whether there should be an order for the trial of separate issues
Legislation:

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 37P

Federal Court Rules 2011 (Cth) rr 1.61, 4.03, 5.02, 5.22, 5.23, 7.23, 11.06, 16.32, 26.01

Cases cited:

CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Hillier v Martin (No 8) [2021] FCA 1272; 155 ACSR 395

Mulvaney (liquidator), in the matter of Skymax Group Pty Ltd (in liq) v Wen [2021] FCA 1644

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Prodata Solutions Pty Ltd v South Australian Fire and Emergency Services Commission (No 3) [2020] FCA 1210

Spencer v The Commonwealth (2010) 241 CLR 118

Division: Fair Work Division
Registry: Northern Territory
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 71
Date of hearing: 24 October 2022
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms K Stewart
Solicitor for the Respondent: Ruth Morley Legal Services

ORDERS

NTD 1 of 2022
BETWEEN:

DENNIS OBEL

Applicant
AND:

CENTRAL DESERT REGIONAL COUNCIL

Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

24 OCTOBER 2022

THE COURT ORDERS THAT:

1.The applicant’s further amended interlocutory application dated 22 June 2022 is dismissed.

2.Further consideration of the respondent’s interlocutory application dated 24 June 2022 (as amended in oral submissions today) be deferred to 10:15am (ACDT) 8 November 2022.

3.There be a further case management hearing at 10:15am (ACDT) 8 November 2022.

4.Liberty to apply.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J

INTRODUCTION

  1. The applicant, Mr Dennis Obel, was employed by the respondent, the Central Desert Regional Council (CDR) to perform the role of Activity Supervisor for a Community Development Program.  His position was based in Willowra in the Northern Territory and was for a fixed term commencing on 1 July 2019 and terminating on 30 June 2022.  Mr Obel brings this action against CDR and one of its officers in relation to matters affecting the employment relationship that appears to have been occasioned by the COVID-19 pandemic.  He alleges that CDR repudiated the employment contract and that it acted in contravention of the Fair Work Act 2009 (Cth). He seeks declaratory relief and financial remedies, including damages and costs.

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Details
Case
[2022] FCA 1355
Decision Date

CaseChat Overview and Summary

In the matter of Obel v Central Desert Regional Council, the applicant, Mr Obel, sought a summary judgment against the respondent, Central Desert Regional Council, based on the respondent's alleged failure to comply with procedural orders and prosecute the proceedings with due diligence. The application was brought under Rule 5.23 of the Federal Court Rules, which allows for the dismissal of a proceeding in part or in whole if a party is in default. Mr Obel argued that the respondent's defence contained insufficient admissions and that there were defaults which warranted the granting of judgment.

The court had to determine whether the respondent's defence contained sufficient admissions to warrant a summary judgment for Mr Obel in respect of some or all of his claims and whether the applicant should be granted judgment by virtue of the defaults alleged against the respondent. Additionally, the court considered whether there should be an order for the trial of separate issues.

In evaluating these issues, the court emphasised the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. The court noted that while the respondent had not fully complied with procedural orders, the exercise of discretion in granting summary judgment must be exercised in a manner that best promotes this overarching purpose. The court also considered the respondent's ability to address the deficiencies in their defence and the potential for a fair resolution of the issues through a trial. Ultimately, the court concluded that the exercise of discretion did not warrant the granting of summary judgment and deferred further consideration of the respondent's interlocutory application.

Orders

Orders of the court

1. The applicant’s further amended interlocutory application dated 22 June 2022 is dismissed.

2. Further consideration of the respondent’s interlocutory application dated 24 June 2022 (as amended in oral submissions today) be deferred to 10:15am (ACDT) 8 November 2022.

3. There be a further case management hearing at 10:15am (ACDT) 8 November 2022.

4. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The request for an adjournment was declined on the basis that I considered Mr Obel had been afforded sufficient time to advance his case, including by reliance upon the written submissions he had filed in advance of the hearing. The time dedicated to Mr Obel’s oral submissions totalled two hours and 10 minutes. Whilst the Court interrupted the course of Mr Obel’s submissions from time to time, the interruptions were of a kind that focussed his attention on the principles guiding the Court’s discretion, reminding him of the nature of the powers he sought to invoke and prompting him to address the Court on relevant issues. The Court also reminded him not to advance submissions on matters that were not relevant to the issues that arose on his application.APPLICATION FOR DEFAULT JUDGMENT Rule 5.23 of the Rules provides that orders that may be made by a court where, as is asserted here, a respondent is in default:5.23 Orders on default...(2) If a respondent is in default, an applicant may apply to the Court for:(a)an order that a step in the proceeding be taken within a specified time; or(b)if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:(i)the debt or liquidated damages; and(ii)if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or(c)if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or(d)an order giving judgment against the respondent for damages to be assessed, or any other order; or(e)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 specified in the order. Rule 5.22 of the Rules provides:5.22 When a party is in default A party is in default if the party fails to:(a)do an act required to be done, or to do an act in the time required, by these Rules; or(b)comply with an order of the Court; or(c)attend a hearing in the proceeding; or(d)prosecute or defend the proceeding with due diligence. In Prodata Solutions Pty Ltd v South Australian Fire and Emergency Services Commission (No 3) [2020] FCA 1210, I considered the principles guiding the exercise of the discretion under r 5.23, and a like power conferred under s 37P of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It is convenient to repeat what I said there:81In civil proceedings before this Court, directions may be given about the practice and procedure to be followed, including directions setting time limits for the doing of any thing: FCA Act, s 37P(2), s 37P(3)(a) and (b). If a party fails to comply with a direction, the Court may make such order or direction as it thinks appropriate including an order dismissing the proceeding in whole or in part: FCA Act, s 37P(5) and (6)(a). The powers of dismissal in s 37P(5) and (6) of the FCA Act do not affect any power the Court has apart from those subsections to deal with a party’s failure to comply with a direction.82A like power is contained in r 5.23 of the Rules. It provides that if an applicant is in default, a respondent may apply to the Court for an order that a step in the proceeding be taken within a specified time (r 5.23(1)(a)), or that the proceeding be (relevantly) dismissed for the whole or any part of the relief claimed by the applicant, either immediately or on conditions specified in the order (r 5.23(1)(b)). For the purposes of that rule, a party is in default if the party fails to (relevantly) comply with an order of the Court or prosecute the proceedings with due diligence: r 5.22(b) and (d).…84Section 37P, r 1.34, and r 5.23 each form a part of the Court’s practice and procedure provisions. They must be interpreted and exercised in a way that best promotes the overarching purpose, namely to ‘facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible’: s 37M(1). The overarching purpose includes the objectives in s 37M(2). They are:(a)the just determination of all proceedings before the Court;(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;(c)the efficient disposal of the Court’s overall caseload;(d)the disposal of all proceedings in a timely manner;(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.85The parties and their lawyers have a duty to conduct the proceeding in a way that is consistent with that overarching purpose: FCA Act, s 37N.…89The powers to be exercised on the present application are each discretionary in their nature. The respondents’ alternate applications give rise to a discretion in the different sense that there is a choice between alternative sources of power. As Gleeson CJ, Gaudron and Hayne JJ observed in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]:‘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. …(footnotes omitted)90Both textually and logically, the question of whether the exercise of a power in a particular way would ‘best promote’ the overarching purpose is a test that assumes the existence of that latitude as its starting point. In order for the command in s 37M to have any utility, the ‘overarching purpose’ must be understood as conveying a singular objective that is capable of being best promoted by a decided outcome, relative to other outcomes that might otherwise be open to the Court were it not for the enactment of s 37M(1). As such, I do not consider it appropriate to characterise the requirement in s 37M(1) as a consideration capable of being outweighed by other countervailing considerations. Nor is it to be understood as merely listing a variety of countervailing factors to be weighed in the balance in the exercise of the power in question. Rather, s 37M(1) conditions the manner in which all powers conferred by the Court’s practice and procedure provisions are to be interpreted and exercised. It confines the latitude that might otherwise be available to the Court in the exercise of those powers: given a choice between outcomes, the Court must choose the outcome that best promotes the overarching purpose. The task of identifying the manner of exercising a power that ‘best promotes’ the overarching purpose involves evaluative elements, but the task itself is mandatory. And the Court must exercise its powers according to the outcome of it.91The phrases ‘just resolution of disputes according to law’ and ‘the just determination of all proceedings before the Court’ are to be interpreted in that context and in a way that is harmonious with other elements of the overarching purpose. They must also be interpreted in a way that can be reconciled with s 37P of the FCA Act, conferring as it does a power to dismiss a proceeding in the event of a party’s failure to comply with a procedural order of the Court if the judge thinks appropriate. The very existence of that power contemplates a circumstance where it may be appropriate (and therefore just) to dismiss an originating application other than on its substantive merits and without first conducting a trial. As the High Court emphasised in AON Risk Services Australia Limited v Australian National University (2019) 239 CLR 175, the question of what is ‘just’ is not to be answered solely by reference to the interests of the applicant party in a civil proceeding, nor is the question to be answered solely by reference to whether prejudice caused to another party by the Court’s orders or indulgences can be compensated with an award of costs. The word ‘just’ in s 37M and s 37N of the FCA Act should be interpreted accordingly.Consideration

Ratio Decidendi

Legal Principle Established

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