Ogbonna v CTI Logistics Ltd
[2013] FCCA 1664
•14 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OGBONNA v CTI LOGISTICS LTD & ORS | [2013] FCCA 1664 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an adjournment – case management principles – availability of officer of first respondent. |
| Legislation: Federal Circuit Court Act 1999 (Cth), s.42 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Jet World Holdings Pty Ltd v Proplas Industries Pty Ltd [2011] WADC 163 Fair Work Ombudsman v D’Adamo Nominees Pty Ltd [2013] FMCA 183 |
| Applicant: | CELESTINE OGBONNA |
| First Respondent: | CTI LOGISTICS LTD |
| Second Respondent: | TIM BARTON |
| Third Respondent: | MARK VANDERLIST |
| File Number: | PEG 72 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 14 October 2013 |
| Date of Last Submission: | 14 October 2013 |
| Delivered at: | Perth |
| Delivered on: | 14 October 2013 |
REPRESENTATION
| For the Applicant Counsel for the Respondents: | No appearance Mr S P Kemp |
| Solicitors for the Respondents: | Jackson McDonald |
ORDERS
The respondents’ application in a case filed 27 September 2013 be dismissed.
There be no order as to costs
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 72 of 2013
| CELESTINE OGBONNA |
Applicant
And
| CTI LOGISTICS LTD |
First Respondent
| TIM BARTON |
Second Respondent
| MARK VANDERLIST |
Third Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The application in a case
This is an application in a case to vacate hearing dates in relation to this matter. The application in a case was filed by the respondents on 27 September 2013. The application in a case seeks orders in the following terms:
(1)The hearing dates of this matter, being 19 and 20 December 2013, be vacated.
(2)The hearing of this matter be listed for a date not before 1 February 2014.
Effectively, an adjournment of the hearing is being sought.
The application in a case is supported by an affidavit made by Stephen Peter Kemp (“Mr Kemp”) sworn on 27 September 2013, the terms of which the Court will return to in due course.
Litigation history
It is necessary to say something about the litigation history of the substantive application. The substantive application is an application in the Court’s human rights jurisdiction filed on 19 April 2013 alleging racial discrimination contrary to ss.9, 15 and 18A of the Racial Discrimination Act 1975 (Cth).
The allegations made in the initial application are reflected in the Australian Human Rights Commission complaint attached to the application, and subsequently in the statement of claim and amended statement of claim, and relate to four discrete workplace relations incidents in June and July 2012, following which Mr Ogbonna’s services with the first respondent, CTI Logistics Limited, were terminated. A response was filed on 3 May 2013, and in relevant part it simply denies that all of the respondents acted in the manner alleged by Mr Ogbonna, and denies that they discriminated in the manner alleged, and runs to just five lines.
The matter was on for directions before Judge Whelan on 15 May 2013, and Her Honour made orders for pleadings, mediation, and if the matter was not resolved, for it to return for a further directions hearing. In accordance with those orders, a statement of claim was filed by Mr Ogbonna. It is short and succinct. It contains four dated allegations over a period of less than one month in June and July 2012, and a generalised allegation concerning the non-payment of allowances and claims, loss of income for a sum slightly in excess of $46,000, unpaid entitlements slightly in excess of $6000, and pain and suffering damages for $30,000 plus a letter of apology. That is less than $100,000 all up in terms of compensation and damages claimed.
The defences of the first, second and third respondents were filed on 12 June 2013, and are succinct and well-drafted documents running to no more than seven paragraphs and no more than two pages in each case, and in essence again denying the allegations of fact set out in the statement of claim and denying the claims of racial discrimination alleged by Mr Ogbonna. The matter went to mediation on 30 July 2013 following the filing of an amended statement of claim which appears to simply add another claim for an unpaid entitlement, namely superannuation, but did not settle, and as a consequence came back on for directions on 17 September 2013.
The Court made orders on 17 September 2013 for the filing of affidavits and an outline of submissions and listed the matter for hearing for two days on 19 and 20 December 2013.
It is against the litigation history as summarised above that the application in a case was made.
Evidence in support of the application in a case
The evidence in support of the application in a case is, as the Court indicated earlier, set out in Mr Kemp’s affidavit, and the substance of that affidavit in terms of the reasons for seeking the vacation of the hearing dates is set out at paragraphs 4 through to 14, and it is probably easiest if they are just read:
(4) On 20 July 2013, Clare Sharpe, a solicitor employed by Jackson McDonald who is assisting me with this matter, emailed Glenn Brown, the commercial manager for the first respondent who is providing our firm with instructions in this matter regarding the mediation in this matter, and copied me into that email.
(5) In that email, amongst other things, Ms Sharpe requested that Mr Brown provide any unavailable dates for a hearing so that Ms Sharpe could prepare mediation documents which had been requested by the registrar.
(6) On 22 July 2013, Mr Brown responded to Ms Sharpe by email and informed her that the respondent’s unavailable dates for a hearing were 21 to 30 November 2013 and all of December 2013 and January 2014.
(7) On 17 September 2013, I attended a directions hearing before His Honour Judge Lucev at 9.15 am, during which His Honour listed the matter for hearing on 19 and 20 December 2013.
(8) During this directions hearing, I mistakenly failed to inform the court that Mr Brown is unavailable to attend a hearing on these dates, as he will be on an overseas holiday from 21 November 2013 to 3 January 2014.
(9) Mr Brown has since provided me with a copy of his flight booking details for his holiday, which are annexed and marked annexure A on pages 4 to 7.
(10) After the directions hearing on 17 September 2013, upon informing Mr Brown of the hearing dates, Mr Brown reminded me of his unavailability and requested that the trial be adjourned to February 2014 due to his unavailability in the period specified and the unavailability of other witnesses in January 2014.
(11) On 18 September 2013, I telephoned the applicant and informed him of my error, and requested that he consent to the hearing dates being vacated and the hearing being relisted for February 2014.
(12) The applicant said he would not consent to the adjournment.
(13) By email dated 18 September 2013, I wrote to the applicant, again requesting the consent to the adjournment. This email is annexed and marked annexure B, page 8.
(14) I have not received a response from the applicant to my email dated 18 September 2013.
Annexure “A” containing the flight details for Mr Brown, and Mrs Brown, indicates that Mr Brown will fly from Perth to the United States via Dubai, and also on to Canada at one point, before returning to the United States, and then to Perth, that taking place over the period 21 November 2013 to 2 January 2014.
The Court also notes that Mr Ogbonna has filed an affidavit on 9 October 2013, but that appears to be his trial affidavit in accordance with the directions made on 17 September 2013, and does not go directly to the allegations made in respect of the application in a case, but rather to his claim as set out in the amended statement of claim.
Consideration
The Court observes that there is no explanation contained in Mr Kemp’s affidavit as to the reasons why no other person can instruct. The Court also observes that when the matter was brought to the attention of the respondent’s solicitors, they acted speedily in advising Mr Ogbonna of the difficulty and in seeking alternate hearing dates, that delay being in effect no delay, being the day after the directions hearing, that is 18 September 2013.
The email to Mr Ogbonna subsequently written on 18 September 2013 formally seeking the vacation of the hearing dates makes an assumption and purports to speak for what the Court might have done if it had been informed that Mr Brown was unavailable at the directions hearing on 17 September 2013. The Court also notes that apart from the fact that Mr Brown has been instructing in the proceedings to date, it is not apparent that he has any other, or any direct involvement, in the matter. The Court notes, as it has already, that from perusal of the Australian Human Rights Commission complaint, the statement of claim, the amended statement of claim and the defences of the first, second and third respondents, that Mr Brown is not mentioned, and in reality it is unlikely that he would be involved because the allegations are four simple allegations in relation to what occurred in the workplace on four separate dates between late June 2012 and late July 2012, and some allegations with respect to the non-payment of entitlements.
Mr Kemp’s affidavit is, in the circumstances, bereft of any reason why another person cannot instruct for a short, simple matter which is listed for two days, if indeed it lasts that long. There is no explanation as to why the person who is vested with Mr Brown’s functions during the period of his absence cannot instruct, or indeed, why that person cannot come to Court and comfort or provide support to the other witnesses for the first respondent, including the second and third respondents, that being a function that Counsel has today said would be performed by Mr Brown if he were here. Indeed, the Court is of the view that instruction might be putting it too highly in terms of what is, as already indicated, a fairly simple matter.
Insofar as any offer of settlement which might need to be considered is concerned, Counsel for the respondents quite properly says today that if a settlement offer were to be made shortly before, or during the course of, the hearing, he has no doubt that he would be able to obtain proper instructions with respect to that offer of settlement.
Fundamentally, there has been a failure to make out why only Mr Brown can instruct and why no other person can instruct insofar as instruction is required, rather than the mere presence of a person from the first respondent in what is a necessarily simple matter.
In Jet World Holdings Pty Ltd v Proplas Industries Pty Ltd [2011] WADC 163, Bowden DCJ said that:
Adjournments are not to be granted merely because they are asked for.
The principles with respect to the adjournment of proceedings in this Court are relatively well established. The application for vacation of hearing dates is effectively a request for an adjournment. The Court has a discretion, and it is a broad discretion, as to whether or not to allow an application to adjourn proceedings, and in exercising that discretion the Court must take into account the provisions, the objects and the purposes of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court Rules 2001 (Cth), modern principles of case management, the avoidance of undue delay and the wastage of public resources. In that regard the Court refers to the judgment in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ; [2009] HCA 27 at paragraph 30 per French CJ (“Aon Risk Services”), and also the judgment in Fair Work Ombudsman v D’Adamo Nominees Pty Ltd [2013] FMCA 183.
Case management considerations are relevant here including stress on the litigants and witnesses of a delayed hearing. The Court also bears in mind what was said today with respect to the stress on the second and third respondents who are personally involved in the proceedings, and the Court in that regard has regard to what was said in Aon Risk Services. The Court also notes that the next available date for the Court to sit in this matter would be the week commencing 17 February 2013. That is not an especially long delay but it assumes that the parties will be available and there is some suggestion in the email from Mr Kemp to Mr Ogbonna, which is annexure “B” to Mr Kemp’s affidavit, that Mr Ogbonna might not be available during that week, but that is a matter of little weight in circumstances where there is no definite indication that he is not available and no definite indication that any bookings have been made in relation to any travel that Mr Ogbonna might have or might not have at that time.
The delay, nevertheless, is a matter in respect of which the Court must have regard particularly given that the matter has been in the Court for almost six months and is, as it is already indicated, a simple and straightforward matter involving a limited number of contested factual issues. In the circumstances and given that Mr Ogbonna has not, and this is common ground even though Mr Ogbonna does not appear today, consented to the application in a case, the Court can reasonably infer that there is some prejudice to Mr Ogbonna by reason of any delay albeit short.
The public interest must also be considered and the Court refers again to Aon Risk Services in that regard. Regard must be had to the fact that this Court is the nation’s largest and busiest federal trial court but that given the period of time between now and December it is unlikely that the days now allocated to this matter could be filled if they were vacated and, therefore, two days in February would likely be listed in those circumstances probably at the expense of another litigant who might otherwise have filled those dates. The protraction of the proceedings and other proceedings is not in accord with the terms of the Federal Circuit Court of Australia Act1999 (Cth), particularly s.42, or the objects of the Federal Circuit Court Rules2001 (Cth), in particular r.1.03 and the reference to the avoidance of undue delay.
In the circumstances where the basis on which the vacation of hearing dates is sought, that is, that Mr Brown is needed to instruct has not in the Court’s view been made out on the evidence and that being the only basis which is actually put, the application in a case must necessarily fail. It must also fail for broader reasons as the Court has indicated that the vacation of hearing dates would impose some prejudice on Mr Ogbonna by reason of any delay, and also because of public interest considerations in relation to the protraction of these proceedings and possibly other proceedings if these proceedings were to be relisted.
So for all of those reasons the Court, in the exercise of its broad discretion, determines that the application in a case filed by the respondents on 27 September 2013 be dismissed. There will be an order accordingly. In circumstances where the applicant has not appeared the Court will also, out of an abundance of caution, make an order that there be no order as to the costs of today.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Deputy Associate:
Date: 22 October 2013
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