Paone v Wilhelmsen Manufacturing Australia Pty Ltd
[2012] FCA 287
•23 March 2012
FEDERAL COURT OF AUSTRALIA
Paone v Wilhelmsen Manufacturing Australia Pty Ltd [2012] FCA 287
Citation: Paone v Wilhelmsen Manufacturing Australia Pty Ltd [2012] FCA 287 Parties: ANTHONY JOHN PAONE v WILHELMSEN MANUFACTURING AUSTRALIA PTY LTD ABN 43 062 659 198 File number: VID 1321 of 2011 Judge: BROMBERG J Date of judgment: 23 March 2012 Catchwords: PRACTICE AND PROCEDURE – whether extension of time to comply with orders of the Court should be granted for reason of ill health Legislation: Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act 1976 (Cth) ss 37M and 37NDate of hearing: Heard on the papers Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The Applicant is self-represented Solicitor for the Respondent: Mr M Waring of McCarthy Ausgroup Lawyers Pty Ltd
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1321 of 2011
BETWEEN: ANTHONY JOHN PAONE
Applicant
AND: WILHELMSEN MANUFACTURING AUSTRALIA PTY LTD ABN 43 062 659 198
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
23 MARCH 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The date for compliance with each of orders 2, 3 and 4 made on 3 February 2012 be extended by 90 days.
2.Orders 5, 6 and 7 made on 3 February 2012 be vacated.
3.If the applicant seeks any further variation to the dates for compliance of orders 2 or 4 made on 3 February 2012 by reason of his illness, the applicant shall 7 days prior to the relevant date for compliance, file and serve an interlocutory application seeking the variation, accompanied by an affidavit from the applicant’s treating doctor which addresses the basis for the applicant’s medical incapacity to meet the orders made by the Court and a prognosis as to when the applicant will be able to comply with those orders.
4.The proceeding be referred for mediation before a Registrar of the Court on a date to be fixed after 21 June 2012.
5. Should the proceeding not be resolved at mediation, the matter be referred to a scheduling conference on a date to be fixed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1321 of 2011
BETWEEN: ANTHONY JOHN PAONE
Applicant
AND: WILHELMSEN MANUFACTURING AUSTRALIA PTY LTD ABN 43 062 659 198
Respondent
JUDGE:
BROMBERG J
DATE:
23 MARCH 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By an originating application filed on 28 November 2011, the applicant (“Mr Paone”) claims that the respondent (“Wilhelmsen”) terminated his employment in breach of various provisions of the Fair Work Act 2009 (Cth) (“the Fair Work Act”). Mr Paone’s application was not accompanied by an affidavit in support nor a statement of claim.
A first directions hearing was scheduled for 3 February 2012. Mr Paone did not attend the directions hearing having advised the Court that he was unrepresented and would not be attending in person for reason of ill health.
On 3 February 2012, I made orders in the absence of Mr Paone, including that he file and serve a statement of claim on or before 17 February 2012. Further orders were made in relation to the filing of a defence and any reply and that the proceeding be referred for mediation before a Registrar of the Court.
Mr Paone has not complied with the order made that he file and serve a statement of claim. However, on 14 February 2012, Mr Paone made an interlocutory application. By his interlocutory application Mr Paone seeks an order that he not be required to provide a Statement of Claim until “a reasonable time after the applicant received written medical advice that the applicant’s mental health or fitness enables the applicant to prepare for, and participate in, formal Court processes”.
I determined to hear the interlocutory application on the papers and directed that short written submissions be filed. Mr Paone did not file any submissions in support of his application in the time provided. Wilhelmsen filed a submission on 9 March 2012. I directed that any responding submission from Mr Paone be filed and served by 14 March 2012. On 13 March 2012, Mr Paone filed a submission which in large part is responsive to that of Wilhelmsen.
THE SUBMISSIONS
Mr Paone’s affidavit in support annexes a letter to the Court dated 18 January 2012 from Dr Rick Woods from The Clinic Williamstown. The letter states that Mr Paone has been a patient of The Clinic Williamstown for 13 years and has had a depressive condition which has been diagnosed and treated effectively in the past. It goes on to say that Mr Paone has suffered from severe anxiety and an exacerbation of his depressive illness due to his work in his former employment with Wilhelmsen. There has been little improvement in Mr Paone’s condition since he ceased work and his doctor is actively seeking consultant psychiatric support as well as the support of a psychologist. Doctor Woods then states:
I believe that he is currently mentally unfit to prepare for and participate in formal court processes beyond informal mediation/conciliation. I believe that his mental health will be severely impacted by any premature participation in formal court proceedings.
Mr Paone also filed an affidavit dated 16 February 2012 which annexed a further letter from Dr Woods of 15 February 2012. That letter largely repeated the contents of the previous letter and advised that since the previous letter, Mr Paone has attempted unsuccessfully to prepare documents for court processes and that this had an adverse impact on his mental health. The letter stated that Mr Paone cannot cope with the associated stress and pressure of court preparation without episodes of severe and debilitating anxiety. Dr Woods stated that he didn’t believe Mr Paone should attempt any further preparation until he was advised by his medical advisors that it is safe for him to do so.
Yet a further letter from Dr Woods dated 14 March 2012 was emailed to my chambers. In that letter, Dr Woods urged the Court to “delay any further activity on this case until medical clearance has been granted from Mr Paone’s consultant psychiatrist”.
By its submission, Wilhelmsen opposed the orders sought by Mr Paone. They submitted that the obligations provided by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) require that a proceeding such as this be conducted as quickly, inexpensively and efficiently as possible.
Further, Wilhelmsen’s submission asserted that the grounds upon which Mr Paone relies are false and inconsistent with Mr Paone’s actions to date. In support of that submission, Wilhelmsen relied upon the fact that Mr Paone had prepared and filed various documents in this proceeding (including the interlocutory application with which these reasons deal) and had been involved in a range of other non-court processes including the lodgement of three complaints with the Victorian Equal Opportunity and Human Rights Commission. The submission stated that in the event that the Court is not persuaded to refuse Mr Paone’s interlocutory application, the Court should order that Mr Paone be given a further fourteen days in which to file and serve his statement of claim and that other consequential orders be made.
In Mr Paone’s submission of 13 March 2012, Mr Paone does not deny his involvement in the various preparations and other processes alleged but states that those preparations involved relatively simple matters which he was forced to undertake and which had a detrimental impact on his health. Mr Paone states that he is not legally represented and cannot afford legal representation.
CONSIDERATION
Whilst there is no doubt that the Court should encourage matters before it to be conducted as quickly, inexpensively and efficiently as possible, the unavailability of a party by reason of ill health or other genuine circumstance will always need to be taken into account, in programming the steps to be taken in a proceeding. Mr Paone has provided evidence of his ill health. He does not deny that he has been able to participate in the preparation of this interlocutory application and other material filed with the Court, but his point is that he has done so to the detriment of his health. The medical evidence supports that contention. On the basis of the material before me, I do not accept Wilhelmsen’s contention that the grounds relied upon by Mr Paone are false.
However, I am not prepared to grant an indefinite adjournment of the proceeding of the kind that Mr Paone’s interlocutory application seeks. Whilst the submissions of Wilhelmsen do not indicate any prejudice by the delay to date, I accept that an indefinite delay in pending litigation will vex a respondent. It will at least be inconvenient and will likely involve some detriment.
The letters from Dr Woods give no indication as to when Mr Paone’s condition will permit his further participation in the proceeding. Without proper medical evidence as to that matter I am not prepared to adjourn the taking of the steps required of Mr Paone by the orders made on 3 February 2012 for more than 90 days from the original date for compliance.
If, prior to the new dates for compliance, any further extension of the dates for compliance is sought by Mr Paone he will be required to make an application for a variation of the orders I have determined to make. I will direct that if such an application is made, it be accompanied by an affidavit from Mr Paone’s treating doctor which addresses the basis for Mr Paone’s medical incapacity to meet the orders made by the Court and a prognosis as to when Mr Paone will be able to do so. If the respondent seeks to challenge that evidence and/or make its own application, I will list the matter for hearing.
The orders that I make will vacate the mediation currently listed for 17 April 2012. I see little point in a mediation being conducted in the absence of a statement of claim from Mr Paone. Nor do I consider that the respondent should be vexed with the need to attend a mediation in the circumstances at hand.
I will otherwise dismiss Mr Paone’s interlocutory application.
Both Mr Paone and Wilhelmsen have sought the costs associated with this interlocutory application. Mr Paone is not represented and has not identified any costs. In any event a cost order in his favour is precluded by s 570 of the Fair Work Act. Wilhelmsen has submitted that a cost order should be made in its favour and rely upon the s 570(2)(b) exemption from the general preclusion upon the Court making costs orders in proceedings under the Fair Work Act. Wilhelmsen contend that the interlocutory application would have been unnecessary if Mr Paone had attended at the first direction hearing or had proposed dates for the taking of steps with which he could comply. Mr Paone’s failure to attend or to propose an appropriate timetable is said to constitute the unreasonable act or omission within the terms of s 570(2). At this juncture, and without hearing further from the parties, I am only prepared to reserve for later determination the question of whether Mr Paone should be ordered to pay Wilhelmsen’s costs of the interlocutory application brought by him.
I will make orders that:
1.The date for compliance with each of orders 2, 3 and 4 made on 3 February 2012 be extended by 90 days.
2.Orders 5, 6 and 7 made on 3 February 2012 be vacated.
3.If the applicant seeks any further variation to the dates for compliance of orders 2 or 4 made on 3 February 2012 by reason of illness, the applicant shall 7 days prior to the relevant date for compliance, file and serve an interlocutory application seeking the variation, accompanied by an affidavit from the applicant’s treating doctor which addresses the basis for the applicant’s medical incapacity to meet the orders made by the Court and a prognosis as to when the applicant will be able to comply with those orders.
4.The proceeding be referred for mediation before a Registrar of the Court on a date to be fixed after 21 June 2012.
5. Should the proceeding not be resolved at mediation, the matter be referred to a scheduling conference on a date to be fixed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 23 March 2012
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