Paone v Wilhelmsen Manufacturing Australia Pty Ltd

[2012] FCA 609

FEDERAL COURT OF AUSTRALIA

Paone v Wilhelmsen Manufacturing Australia Pty Ltd (No 2) [2012] FCA 609

Citation:		Paone v Wilhelmsen Manufacturing Australia Pty Ltd (No 2) [2012] FCA 609
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:		13 June 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) Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Cases cited:		Paone v Wilhelmsen Manufacturing Australia Pty Ltd [2012] FCA 287
Date of hearing:	Heard on the papers
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	14
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:	13 JUNE 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Order 1, 4 and 5 of the orders made on 23 March 2012 be vacated.

2.The date for compliance with orders 2, 3 and 4 made on 3 February 2012 be extended to 17 December 2012, 21 January 2013, and 4 February 2013 respectively.

3.The proceeding be referred to a mediation before a Registrar of the Court on a date to be fixed after 4 February 2013.

4.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:	13 JUNE 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. These reasons deal with the applicant’s application to extend the date for compliance with an order earlier made that he file and serve a statement of claim.  For the reasons that follow I have grated that application.

   BACKGROUND

2. 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.

3. On 3 February 2012, I ordered, among other things, that Mr Paone file a statement of claim on or before 17 February 2012.  Mr Paone failed to comply with those orders and instead, on 14 February 2012, he made an interlocutory application 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”.

4. On 23 March 2012, I determined that interlocutory application.  My reasons are published as Paone v Wilhelmsen Manufacturing Australia Pty Ltd [2012] FCA 287. I ordered that the date for compliance with the orders requiring the filing of pleadings, made on 3 February 2012, be extended by 90 days. I also ordered that if Mr Paone should seek any further variation to the extended date for compliance by reason of his illness, he should file and serve an interlocutory application, accompanied by an affidavit from his treating doctor, addressing the basis for his medical incapacity to meet the orders made by the Court, including a prognosis as to when he would be able to comply. In my reasons for judgment, I noted that should the respondent seek to challenge that evidence, I would list the matter for hearing.

5. On 7 May 2012, Mr Paone filed an interlocutory application seeking an order “to vary and extend the date for compliance for the submission of the Applicant’s Statement of Claim by a further period of between at least six to twelve months from the current date for compliance”.

6. I determined to hear the interlocutory application on the papers and directed that short written submissions be filed.

   THE SUBMISSIONS

7. Mr Paone provided an affidavit in support of his application.  By that affidavit, Dr Frederick James Woods deposed that:

   Mr Anthony Paone currently suffers from severe debilitating depression and anxiety.  His condition is such that he is under psychiatric care at present and may well require inpatient care at the Melbourne Clinic.
   The prognosis for his condition is such that he will be unlikely to be able to participate in any court proceedings for at least the next six to twelve months.

8. By its submission, Wilhelmsen opposed the order sought by Mr Paone.  It relied on

   
   

   ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), and submitted that those provisions required that a proceeding such as this be conducted as quickly, inexpensively and efficiently as possible.

9. Further, Wilhelmsen asserted that its case may suffer irreparable prejudice if the application is granted and the filing of a statement of claim is further delayed.  Wilhelmsen points to the fact that the order the applicant seeks would postpone service of his statement of claim to a date between December 2012 and May 2013 – more than two years after the termination of Mr Paone’s employment, which occurred in November 2010. Wilhelmsen speculates that, in early 2013, witnesses may be unable to recall events prior to November 2010, which they would be able to recall if asked now, and further, that some witnesses may die, or become otherwise incompetent by the time the statement of claim is eventually provided.  Wilhelmsen contends that the interlocutory application should be refused, and that Mr Paone be ordered to file his statement of claim within seven days.

   CONSIDERATION

10. A party’s inability to participate in court proceedings by reason of ill health, or other genuine circumstances, needs to be weighed against the desirability that matters before the Court are dealt with as quickly, inexpensively and efficiently as possible.  I do not accept that Wilhelmsen will suffer “irreparable prejudice” if I grant a further extension.  The possibility of detriment or prejudice of the kind referred to by Wilhelmsen, poses no greater difficulty to Wilhelmsen than Wilhelmsen would have faced had Mr Paone chosen to initiate the proceeding at a later date, as he was entitled to do.

11. Mr Paone has provided affidavit evidence of his treating doctor, deposing to his inability to prepare a statement of claim.  That evidence was not challenged. 

12. I accept the evidence as to Mr Paone’s ill-health.  However, I am not prepared to make an order in the broad terms sought by Mr Paone’s interlocutory application.

13. The affidavit of Dr Woods does not give a positive indication as to the when it is likely that Mr Paone will be able to participate in court proceedings, instead, as set out at [7] above, it provides a broad timeframe within which Mr Paone is “unlikely to be able to participate” in any court proceedings whatsoever. As such, I am only prepared to further extend the time for filing and service of the statement of claim by six months.

14. The orders that I will make will also vacate the mediation currently listed for 27 June 2012.  There is little point in a mediation being conducted in the absence of a statement of claim from Mr Paone.  Nor should the respondent be required to attend a mediation in the present circumstances.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:       13 June 2012