Roberts v Willcocks
[2017] FCCA 459
•10 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROBERTS v WILLCOCKS | [2017] FCCA 459 |
| Catchwords: INDUSTRIAL LAW – Unlawful termination from employment in contravention of the Fair Work Act 2009 (Cth) – whether termination due to temporary absence because of illness or injury. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.66 and 67 |
| Cases cited: AWX16 v Minister for Immigration and Border Protection [2016] FCCA 928 |
| Applicant: | SHELLEY ROBERTS |
| Respondent: | SHARON WILLCOCKS |
| File Number: | PEG 363 of 2014 |
| Judgment of: | Judge Lucev |
| Hearing date: | 10 March 2017 |
| Date of Last Submission: | 10 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| For the Applicant: | In person, by telephone |
| Counsel for the Respondent: | Mr T Petherick |
| Solicitors for the Respondent: | Petherick Cottrell |
ORDERS
The hearing listed today be adjourned to a date to be fixed.
The applicant pay the respondent’s costs of today, and costs thrown away, in the sum of $3762 by 10 April 2017.
The applicant have leave to file and serve:
(a)any application in a case in relation to:
(i)any application to change the name of the respondent;
(ii)any request for the adjourned final hearing to heard by video-link between Launceston and Perth; and
(b)any affidavit in support of the application in a case, including any medical evidence and evidence as to the applicant meeting the costs of the video-link,
by 10 April 2017.
The matter otherwise be adjourned to a further directions hearing at 12.30pm (AWST), 2.30pm (AEST) on 5 May 2017, with leave to the applicant to appear at that directions hearing by telephone.
AND THE COURT NOTES THAT these orders have been amended pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) by inserting the words “by 10 April 2017” after paragraph (b) in order 3 and substituting “2.30pm” for “3.30pm” in order 4.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 363 of 2014
| SHELLEY ROBERTS |
Applicant
And
| SHARON WILLCOCKS |
Respondent
REASONS FOR JUDGMENT
(Delivered orally at hearing and revised)
The substantive application was filed on 17 November 2014, originally in the small claims list, and alleges unlawful termination under s.772 of the Fair Work Act 2009 (Cth), by reason of a temporary absence from work and seeks remedies including a pecuniary penalty. By order of the Court dated 6 March 2015, the matter was removed from the small claims list and referred for mediation. By an order made on 13 August 2015, various steps to progress the matter to trial were put in place and the matter was listed for hearing at 10.15 am on 8 April 2016. On 11 September 2015, a response was filed in accordance with the orders made on 13 August 2015, and on 6 November 2015 the respondent's affidavits were filed, and on 13 January 2016 the respondent's outline of submissions were filed.
It does not appear that the applicant filed any further affidavits or an outline of submissions in accordance with the 13 August 2015 orders. On 8 April 2016, there was no appearance by the applicant at the hearing, and as has been indicated in the course of argument, the transcript of that day does evidence the fact that the Court was not satisfied with the nature of the evidence before it in relation to the medical circumstances of the applicant and it made certain comments in relation to that on the day when the applicant did not appear for the hearing. The matter was adjourned to a directions hearing on 7 June 2016. And, prior to that, the applicant filed an affidavit, limited in its terms but annexing a medical certificate in relation to events in 2014 and also a copy of the papers filed with the Fair Work Commission. On 7 June 2016, the matter was again listed for hearing on 10 March 2017 - that is, today.
On 19 September 2016, the Court file indicates that the applicant wrote to indicate that she was terminally ill with cancer and to ask for an earlier date for hearing on the basis of stress. The applicant did not say at that time that she was not able to travel and there was no indication in that request as to where the applicant was living. Four days later, there was a response from client services in the Court Registry, indicating that if an earlier date was sought that the applicant would have to file an application in a case supported by affidavit. Nothing was filed and there was no further contact from the applicant until three days ago, that is on 7 March 2017, with less than three days to go before the re-listed hearing. The applicant sent an email to the Court Registry, citing a street address in Launceston in Tasmania and saying, "Please may I request video link via Skype on the above date?" And the date referred to is today's date.
There was a response from client services in the Court Registry indicating that they were not able to organise a video link hearing via Skype, and that if the applicant required a video link, or to be connected to the hearing via telephone for the final hearing, that an application in a case supported by an affidavit detailing why she could not attend the hearing in person or have counsel attend on her behalf would need to be filed. The response also pointed out that the cost of the video link is usually paid by the person requesting it.
On 9 March 2017, a telephone/video link attendance request form was sent to the Court in relation to today's hearing with a reason for the request being, "Living in Launceston, Tasmania. Stage 4 cancer. Unable to travel." Evidently, there was subsequently an endeavour to file an affidavit which the Court is instructed was rejected because it was not filed in compliance with the relevant rules with respect to the electronic filing of documents with the Court.
The request for a video link hearing comes very, very late and without any effective warning to the Court or the respondent, as the response to the original request from the applicant indicates the Court does not apparently have facilities to enable a video link hearing by Skype. In terms of the timing, the form which has been submitted is no more than a request for a video link hearing which still needs to be justified, and even if the applicant had filed an application in a case and an affidavit seeking video link hearing, the lateness of the request would mean that there was no likelihood that there would be any capacity to have a video link hearing. As the Court has indicated to the applicant in the course of today's hearing, various steps have to be taken, personnel and courtrooms arranged and, frankly, the Court is not even aware whether there are facilities available in Launceston at this point in time which would have allowed the matter to be heard by video link today in any event. So practically, it is not possible to have a video link hearing today.
The Court further notes that there is no medical evidence to support the contention that the applicant is unfit to attend the hearing in person. In the circumstances, that might be perceived as a somewhat callous observation, but both the Court and the respondent are entitled to be satisfied about that fact, and the respondent is entitled to be able to test it if it is necessary to do so. A mere assertion of a medical condition from an applicant is not sufficient evidence when an adjournment or a video link hearing is sought from the Court.
The Court has recently observed in the context of these types of issues that there is a requirement to file evidence on oath properly explaining a medical condition where an indulgence such as an adjournment or an extension of time and the Court would add to that, a video link - is sought from a Court on the basis of the alleged medical condition. In this regard, the Court refers to Ellis v Rottnest Lodge (1989) Pty Ltd (t/as Rottnest Lodge) (No.2) [2017] FCCA 190 and the various cases before the Full Court of the Federal Court of Australia, the Federal Court of Australia and this Court there referred to. The Court notes that in BYF15 v Minister for Immigration and Border Protection [2016] FCA 774, the Federal Court of Australia has also recently observed that an applicant wishing to give evidence of reasons for not attending a hearing on medical grounds would need to give sworn evidence. In AWX16 v Minister for Immigration and Border Protection [2016] FCCA 928, this Court observed that an assertion by an applicant as to mental health issues did not assist the applicant in relation to an adjournment because the grounds are not of themselves evidence and there was no evidence that the applicant was an expert and no evidence from the applicant annexing, for example, a medical record so as to provide a proper basis for an evidentiary finding by the Court as to the applicant's actual medical state.
A request for a video link is a matter which engages a power which is discretionary in nature under ss.66 and 67 of the Federal Circuit Court Act 1999 (Cth). And as this Court observed in a case called Wint v Medimobile [2016] FCCA 102, it is unsatisfactory for a party to proceedings to expect that the Court and another party deal with an application for an appearance by any kind of audio link where they are given little opportunity to consider their position, and where the party assumes that there is an entitlement to appear in the proceedings by a means of their choosing, where an appearance in any way other than by way of personal attendance is an indulgence and not an entitlement.
Part of the reason for the importance of personal attendance involves cases where there might be a requirement to cross-examine significant witnesses as to credit, and that a video link in those circumstances has been held to be a type of process which usually puts a cross-examining party at a significant disadvantage. And the Court refers to Picos v Healthengine Pty Ltd [2014] FCCA 640 and the cases there referred to, and a series of judgments of the Federal Court and the Full Court of the Federal Court, referring to the difficulties inherent in the cross-examination of a witness appearing by video link, including Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No.3) [2009] FCA 1306; (2009) 181 FCR 152, Mulherin v Commissioner of Taxation [2013] FCAFC 115; (2013) 96 ATR 835; (2013) ATC 20-423, and Commissioner of Taxation v Oswal(No.5) [2015] FCA 1504.
Another issue in respect of the video link hearing is the expense entailed and the Court notes that one of the responses from the Court Registry to the applicant, annexes the costs that are incurred by way of a video link hearing, and as the Court indicated to Ms Roberts in the course of the hearing earlier today, those costs are normally borne by the party who requests that there be a link, and the cost for an all-day hearing would be likely to be in the order of about $2000. The Court would require some indication that an applicant was prepared to pay those costs.
This case may however ultimately be a case in which it is necessary, and perhaps plainly necessary, to have a video link hearing, if the medical evidence supports the contention or the assertion by the applicant that her condition is serious and deteriorating. There would be no avoiding it. But today it simply cannot happen because it is impracticable because of the late notice given by the applicant. A telephone link is, indeed, less satisfactory, even than a video link, in circumstances where one has to take the evidence of witnesses and those witnesses need to be cross-examined. Also, there was no prior request for a telephone link although it was adverted to by Ms Roberts today. But in the circumstances, the Court does not consider that that would necessarily be fair to those witnesses of the applicant who attend Court expecting to be cross-examined in person, to be cross-examined via telephone. So no video link or telephone link is either possible or appropriate today by reason of the late notice given to the Court and the respondent.
The circumstances are then such that the question arises as to whether the hearing is to be adjourned or dismissed having regard to the fact that this is the second occasion on which a listed hearing has not proceeded by reason of the applicant's non-attendance, bearing in mind that the Court has a very broad discretion as to whether to grant an adjournment: Myers v Myers [1969] WAR 19.
The Court is of the view that there is obviously prejudice to the respondent if the hearing is adjourned today, but that prejudice is, as is rightly acknowledged by the counsel for the respondent, Mr Petherick, one which could at least be overcome by a costs order in the respondent’s favour. The prejudice to the respondent is - and it is a fine balance in circumstances where the hearing has now been adjourned for a second time - not as great as the prejudice to the applicant if the application were to be dismissed today.
It seems likely that if appropriate medical evidence is filed, that a video link hearing may be unavoidable. But it is going to be necessary for an application in a case supported by affidavit to be filed in order for that to be possible, and for a video link hearing to be arranged between Launceston and Perth, again assuming that that is, in fact, possible.
The prejudice to the respondent of the adjournment today, can, in the Court's view, be cured by an appropriate costs order. That order would see the applicant have to pay the respondent's costs of their appearance today, which for a one day hearing would be $2162, and also some allowance for the getting up - or the re-getting up - of the matter. In that regard the Court notes that ordinarily costs for the preparation for a final hearing of a one day matter are $6493. Assuming that about 25 per cent of that might be thrown away by the necessity to get the matter up again, the Court would order costs in the sum of $1600 as costs for preparation which has been thrown away, gives a sum of $3762. In those circumstances there will be orders for the matter to be adjourned to a date to be fixed, and an order that the applicant pay the respondent's costs in the sum of $3762.
A further issue arises in that the Court notes that the identity of the employee cited on the Fair Work Commission certificate is “Willcocks G & S T/A Kwinana Café”, which is different to the employer named in these proceedings, which is Sharon Willcocks. It may be a matter of some importance: it may not. The Court is not privy to the precise nature of the business entity named in the Fair Work Commission certificate, but if the correct employer has not been named, there may be issues associated with the time limits necessary to bring an application, or the capacity of this Court to amend the name of the employer in the circumstances of the application that is presently being made. That may be a matter that needs to be remedied or not, but it is a matter that the applicant will have to consider. And she is obviously on notice that that might be an issue which might arise at hearing if there is something which needs to be remedied which is not.
In the circumstances the Court proposes to make the following orders:
a)that the hearing listed today be adjourned to a date to be fixed;
b)that the applicant pay the respondent's costs of today, and costs thrown away, in the sum of $3762 by 10 April 2017.
c)that the applicant have leave to file and serve:
i)any application in a case in relation to:
(A) any application to change the name of the respondent;
(B) any request for the adjourned final hearing to heard by video-link between Launceston and Perth; and
ii)any affidavit in support of the application in a case, including any medical evidence and evidence as to the applicant meeting the costs of the video-link,
by 10 April 2017.
The Court also adjourns the matter to a further directions hearing in those circumstances because it would need to consider the material put on in support of any application in a case in relation to the issues that it has adverted to, and to deal with those issues including the allocation of an appropriate date, or dates, for the hearing of either the final hearing proper, or any hearing of the application in a case if the application in a case were to be opposed for any reason.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 15 March 2017
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