Seidenspinner v City Organics
[2024] FedCFamC2G 150
•21 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Seidenspinner v City Organics [2024] FedCFamC2G 150
File number(s): LNG 32 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 21 February 2024 Catchwords: PRACTICE AND PROCEDURE – review of Registrar’s decision – Registrar’s decision not to list adjournment request prior to the date of final hearing – application and adjournment of final hearing granted Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 2024 & 205 Cases cited: Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 20 February 2024 Place: Hobart For the Applicant: The Applicant in person For the Respondents: The Second Respondent in person ORDERS
LNG 32 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TIM SEIDENSPINNER
Applicant
AND: CITY ORGANICS ABN 85 819 013 752
First Respondent
JACQUELINE MICHELLE STEPHENS TRADING AS CITY ORGANICS (ABN 85819013752)
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
21 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding for review of the decision not to list the application for adjournment prior to the hearing listed 23 February 2024 is granted.
2.The hearing listed before Registrar Hird on 23 February 2024 at 10:15AM (AEDT) is vacated.
3.The hearing referred to in Order 2 above is relisted to 17 April 2024 10:00AM (AEST) before Registrar Hird in Hobart in person, subject to the applicant participating by Microsoft Teams and any further directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TAGLIERI:
This application in a proceeding filed 13 February 2024 was filed by the applicant in the substantive proceedings. He seeks review of a decision by a Registrar of 25 January 2024 to list the final hearing of his fair work claim on 23 February 2024 at 10:15AM (AEDT). I will refer to this date as "the final hearing". Further, he seeks to review the subsequent decision to list his request to adjourn that final hearing to the date of the final hearing.
As this is a review of decisions taken by a Registrar, the issue I am to decide is if the listing of the adjournment application for the same day as the final hearing should be determined prior to the final hearing. Further, if persuaded that the adjournment request should be decided prior to the final hearing, I should also decide if the adjournment should be granted and, if so, on what terms.
For the hearing of the application in a proceeding on 20 February 2024, I read and considered the application in the proceeding and the statement filed by the applicant on 13 February 2024. During the course of the hearing, I was referred by both parties to various emails that were exchanged with the Court and I have informed myself of the content of those emails from the Court record.
Initially, because the issues were considered to be narrow, through my associate I invited the parties to consent to the application being decided on the papers, with each party being permitted to file a short written submission about whether I should decide the adjournment request before the final hearing and if it should be granted or otherwise. Ultimately, one or both parties said they wished to be heard orally and so I accommodated a hearing by Microsoft Teams on 20 February 2024 and heard the parties' submissions. Both parties appeared self-represented at the hearing.
The relevant and uncontroversial background discerned from the Court record is as follows.
·The proceedings were filed in the Hobart registry on 14 September 2023 when the applicant was in Hobart. He has since returned to Germany and seeks to conduct his claim from there.
·On 8 December 2023 a Registrar made orders for the final hearing to occur on 22 January 2024 at 9.30AM (AEDT), such hearing to be conducted by Microsoft Teams with an estimate of a half-day hearing.
·On 12 January 2024 the second respondent emailed the Court seeking an adjournment of the hearing date due to her own medical issues and recovery from surgery.
·On 18 January 2024 the applicant emailed the Court and stated he did not oppose the adjournment but was concerned about delays and that a witness he was to call was due to have surgery on 23 January 2024. The same email forecast that he was waiting on a listing date for another proceeding in the Magistrates Court in Tasmania. Although he did not expressly state that these matters would impact on his capacity to participate in a hearing, I consider it was sufficiently clear that it conveyed this.
·On the same day, 18 January 2024, the Court stated that the Registrar would grant the adjournment sought by the second respondent and proposed the final hearing be listed on 9 February 2024. The applicant was asked to confirm suitability of that date.
·The applicant advised by email of 23 January 2024 that 9 February 2024 would not suit him and provided a number of health-related reasons for himself and his witnesses. The same email expressly stated that he was unavailable on 22 February 2024 due to another court date.
·By email of 25 January 2024 the second respondent provided her availability for other dates in February 2024 and did not object to a date other than 9 February 2024 for the final hearing being given.
·On the same day, 25 January 2024, the Registrar made an Order listing the final hearing on 23 February 2024.
·On 2 February 2024 the applicant emailed the Court stating that the date of 23 February 2024 was not doable and gave detailed reasons for this, which related to him having to appear in another court on 22 February 2024. I infer that the reference to another court in the email of 2 February 2024 is the same as that referred to in his prior email.
It is with this stated background that the applicant sought review of the decision of the Registrar to list the hearing on 23 February 2024. Notably, in my view, on the same day the dates on which the second respondent would be unavailable in February were received, the hearing was listed for 23 February 2024 before inviting any submission from the applicant about the suitability of that date when he had indicated having to appear in another court on 22 February 2024.
There is no dispute that the approximate time difference between Germany and Australia is about 10 hours, with German time being behind Australian time (AEDT). This logically means that if the hearing in the other court referred to by the applicant takes the better part of a day, it will not conclude until 2:00PM or 3:00PM (AEDT) on 22 February 2024, being approximately somewhere between 4:00AM or 5:00AM on 22 February 2024 in Germany.
Further, with the hearing in these proceedings at 10:15AM on 23 February 2024, the time in Germany would be late on 22 February 2024, around midnight. Notably, the lapse in time between conclusion of the hearing scheduled in the other court and the hearing scheduled in this Court would be relatively short.
THE LAW
The legal principles governing adjournment applications are well-settled and are as follows:
·It is ordinarily in the interests of justice as between the parties, but more broadly the public interest in the proper administration of justice, that matters be heard when they are set down on allocated trial dates. Otherwise, adjournments may lead to the consequent waste of judicial time, delay and costs interfering with other cases and the onerous workload of the Court;
·In determining whether to grant an adjournment, inquiries should be made in relation to, and I did make inquiry about, the following:
·Whether the adjournment sought was for a fixed period and reasonable;
·What reasons are being given for the request to adjourn and whether that reason is reasonable;
·What prejudice either party would suffer as a result of adjourning or not adjourning; and
·Whether prejudice could be addressed by a costs order.
Further, as stated many times in authorities in this country, a party who wishes to obtain an adjournment is ordinarily required to attend court and explain precisely why the adjournment is warranted. I refer to Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [23].
PARTIES’ SUBMISSIONS
The applicant has made various statements about practical difficulty, fatigue, stress and lack of sleep that he says will impact on his capacity to present his case at the final hearing if it is held on 23 February 2024 at 10:15AM (AEDT).
The second respondent did not contest the need for the applicant to appear in another court for a hearing on 22 February 2024 as explained in his statement filed 13 February 2024, but she submitted that this was not of importance, or alternatively of his own making, and should be given little weight because the applicant litigates with everyone and she should not be prejudiced by delay.
When I asked specifically what her prejudice was, by her answer it was clear that it was simply delay, inconvenience to her, and the possibility, rather than certainty, that her witnesses may not be available to give evidence on another date. These matters are legally recognised as matters of general disadvantage or inconvenience, but not specific prejudice.
DETERMINATION
Having considered all of the materials and the submissions of the parties, I am persuaded that there is a real difficulty for the applicant if an adjournment of the hearing on 23 February 2024 is not granted. As a self-represented party, I accept that he will be unreasonably constrained in presenting his case due to fatigue caused by time differences and the demands of litigation in the other court.
I am satisfied he had given notice that a date around 22 February 2024 would not be suitable to him, yet the final hearing was listed the very next day without, in my view, proper notice being given to him or being afforded an opportunity to make a submission about that date. This is particularly significant as the second respondent had informed the Court of dates she would be unavailable.
There appears to be an element of procedural unfairness in the way the Court proceeded. However, I do not criticise the Registrar because the parties have both been improperly communicating with her chambers and the Court in an informal manner and, in my view, this is fraught with difficulty and should never occur, particularly in the light of authorities that stand for the proposition that usually sworn or affirmed evidence is required about the reasons for an adjournment where the adjournment is opposed. In this case, each party made mere assertions by email to the Registrar and the Court about various propositions, which I consider to be unsatisfactory and I strongly direct that the parties desist from adopting that practice from hereon in.
The applicant seeks a short adjournment, and he says he will ensure his availability on a date after 25 February 2024. He referred to needing three days for recouperation. The second respondent’s reason for opposing the adjournment amounts to general rather than specific prejudice and would usually be cured with a costs order if she were legally represented, but she is not. Regarding her witnesses, as stated during the hearing, it is open to her to request that the Court issue a subpoena to those witnesses to attend Court to give evidence in person at the hearing. While she may be reluctant to do so, that avenue is open to her and an entirely legitimate process. Any reluctance on her part for personal reasons is a matter that does not involve considerations of the administration of justice.
Ultimately, I am persuaded that the decision to list the adjournment application to the same date as the date of the final hearing does not afford procedural fairness to either party because, as both are self-represented litigants, they would be left uncertain about whether the hearing was proceeding, whether their witnesses should be available and ready, and if they should be fully prepared. I determine that the application for review of the decision is allowed.
I therefore now turn to the question of whether the applicant's adjournment should be granted and, if so, on what terms. The documents filed by the parties demonstrate that in the substantive claim there is a fundamental dispute about whether the applicant was employed by the respondents. The applicant also submitted that the dispute related to whether he was directed to undertake work by the respondents and, having reviewed the pleadings and affidavits, I agree that that is partly in issue also.
If the Court decides that there was an employment relationship or that the applicant was directed to perform work, the Court will also need to determine if the applicant was paid and, if he was paid, whether he was paid in accordance with the agreement or according to law. The Court will need to quantify what, if any, amount is found to be owing to the applicant if an amount is owing. These are not simple matters. The parties' affidavits are lengthy. I am told that each party will call at least two or three witnesses.
The parties and witnesses will need to be cross-examined, all the while with the proceedings being conducted by self-represented parties who, respectfully, are ill-equipped to conduct legal matters and are not lawyers conversant with law. The parties may also need to show documents to witnesses during cross-examination. All of these matters bode very poorly for the efficient conduct of a hearing in person, let alone by audiovisual means, particularly where findings of fact based on contested testimony will need to be made and credit is likely to be an important issue.
As this is a small claim, the Court has attempted informality consistent with the Court Rules. It has attempted to be accommodating to both parties including by allowing the hearing to be conducted by Microsoft Teams. However, in my view, there is a limit to what informality should be allowed where it obstructs procedural fairness and the efficient conduct of the hearings according to the demands of the Court and all litigants who come before it, not just these parties.
In deciding whether to adjourn the final hearing, I consider that there are competing interests of convenience, practicality and capacity to self-represent for both parties, but there are also legitimate considerations for the Court relating to how it can effectively, practically and fairly administer justice and make findings about issues which will depend largely on credit.
Ordinarily, I would not have been persuaded to conduct the final hearing of this claim by audiovisual means because the parameters of ss 204 and 205 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), in my view, are not satisfied. But the Registrar who has carriage of this matter has agreed that she could accommodate an Microsoft Teams hearing and, as I am not to hear the matter, I will not disturb her discretion as to that.
Balancing the competing interests of the parties with the availability of Court time, the final hearing will be adjourned to 17 April 2024 at 10:00AM in Hobart before Registrar Hird, save that the applicant, subject to further or other directions by the Registrar, may appear by Microsoft Teams.
To be clear, as the second respondent is in Hobart, the conduct of this hearing will be more effective if she and her witnesses are present in person and the Court only has to manage one electronic participation. However, I reserve to the Registrar the capacity to make further directions as to the conduct of the hearing on 17 April 2024 at 10:00AM (AEST).
The length of the adjournment is exceptionally unfortunate, but I give this little weight because both parties have contributed to the delays by seeking adjournments previously and the Court cannot accommodate an earlier final hearing. In any event, the period of about two months in the interim will provide ample time to the parties to ensure that they are ready and must be ready. Excuses such as the kind put forward to date by both parties will be given little weight given the amount of time that both parties now have to prepare their cases, organise their witnesses and get their house in order, speaking colloquially. Importantly, addressing the apparent needs that the applicant asserts he has for surgery at a future time, the hearing date is sufficiently far away for him to coordinate medical appointments and have scheduled appointments around 17 April 2024.
I conclude by observing that it is not in the interests of the administration of justice to force the applicant to appear at a hearing on 23 February 2024. Predictably, forcing this on the applicant would only lead to a dysfunctional and fractured hearing wherein the Court would be seriously prejudiced in making the findings it must make.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Taglieri. Associate:
Dated: 22 February 2024
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