Tahmasebi v Adelaide Transport Pty Ltd
[2021] FedCFamC2G 288
•25 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tahmasebi v Adelaide Transport Pty Ltd [2021] FedCFamC2G 288
File number: ADG 61 of 2020 Judgment of: JUDGE BROWN Date of judgment: 25 November 2021 Catchwords: INDUSTRIAL LAW – Fair work – application for summary dismissal – where applicant is in default of court orders – adverse action proceedings – general protection provisions – workplace right – occupational, health and safety – termination of employment – where application is a self-represented litigant – exercise of judicial discretion. Legislation: Fair Work Act 2009 (Cth) Pt 3-1, ss 12, 340, 341.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 13.2, rr 13.04, 13.05.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143.
Federal Circuit Court Rules 2001 (Cth) 45.06.
Work Health and Safety Act 2012 (SA).Cases cited: SZWBK v Minister for Immigration [2017] FCA 1020.
Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200.
Welsh v Digilin Pty Ltd [2008] FCAFC 149.
Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159.
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52.
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.Division: Division 2 General Federal Law Number of paragraphs: 111 Date of hearing: 14 October 2021 Place: Adelaide Counsel for the Applicant: The Applicant appearing in person Counsel for the Respondent: Mr Earls Solicitor for the Respondent: Fair Work Lawyers ORDERS
ADG 61 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAMID TAHMASEBI
ApplicantAND: ADELAIDE TRANSPORT PTY LTD TRADING AS T BUS
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
25 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The applicant, Hamid Tahmasebi (hereinafter referred to as “the applicant”) file and serve his affidavit of evidence on or before 20 January 2022.
2.If the applicant fails to comply with order (1) hereof, consideration will be given to the dismissal of the applicant’s application pursuant to section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) unless extraordinary circumstances can be established for the applicant’s non-compliance.
3.The matter be adjourned to 3 February 2022 for further consideration and possible trial directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION:
These reasons for judgment relate to an application for summary dismissal of a general protection claim instituted pursuant to the provisions of the Fair Work Act 2009 (Cth).[1] The general protection proceedings arise as a consequence of an employment relationship between the parties which came to an end on or about 19 September 2019.
[1] Hereinafter referred to as “the FWA” or “the Act”.
The applicant in the Fair Work proceedings is Hamid Tahmasebi.[2] The respondent is Adelaide Transport Pty Ltd trading as T Bus.[3] Mr Tahmasebi was employed by Adelaide Transport. He claims to have been the subject of adverse action by the respondent, which is prohibited by the FWA, and renders the respondent liable to pecuniary penalty, and to pay the applicant compensation.
[2] Hereinafter referred to as “Mr Tahmasebi” or “the applicant”.
[3] Hereinafter referred to as “Adelaide Transport” or “the respondent”.
Pursuant to Division 13.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth),[4] the court is provided with the authority to dismiss proceedings for want of prosecution, or a failure to comply with the court’s processes and directions.[5]
[4] Hereinafter referred to as “the Rules”.
[5] These rules replace the Federal Circuit Court Rules 2001 (Cth) pursuant to which the application for summary dismissal was originally commenced. These rules are now otiose on the amalgamation of the Federal Circuit Court and the Family Court but the relevant provisions are in similar form.
Adelaide Transport is the applicant in the summary dismissal application. It contends that Mr Tahmasebi has failed to comply with various orders of the court in respect of filing an affidavit of evidence and has been put on notice, on several occasions by both the respondent and the court, that his failure to do so renders his application, under the FWA, liable to being dismissed.
Mr Tahmasebi, who is self-represented in the current proceedings, resists this application, which he asserts has been commenced in respect of a legitimate course of action, which he wishes to pursue. As such, from his perspective, it would be an affront to justice, if his application was dismissed, without any detailed examination by the court.
In support of his position, he points to his lack of proficiency in English; his deficiencies in the understanding of legal procedure and drafting; and what he asserts is his currently compromised mental health; as the reasons why he has not filed the required document, as directed by the court.
From the respondent’s perspective, the maintenance of the current proceedings is extremely burdensome and expensive to it, given it would characterise itself as a small business, with limited resources, which are significantly compromised by reason of the legal costs it is currently incurring in respect of what it regards as the unmeritorious proceedings brought by the applicant.
In particular, it is Adelaide Transport’s position that if any prohibited conduct occurred in respect of Mr Tahmasebi’s employment, such conduct originated with a third party, unrelated to it. It further asserts that it made reasonable offers to the applicant, in respect of changing the conditions of his employment, which Mr Tahmasebi rebuffed, making his ongoing employment at Adelaide Transport untenable and his dismissal unavoidable.
The application for default judgment is brought pursuant to the provisions of rule 13.05 of the Rules. In general terms, rule 13.05 authorises the dismissal of an application, if an applicant is in default. Adelaide Transport seek the dismissal of Mr Tahmasebi’s claim on the basis that he is in default.
Rule 13.04(1) delineates the circumstances in which an applicant is in default, which in turn triggers the court’s discretion to either stay or dismiss the whole or any part of an application seeking relief. Pursuant to the Rules, an applicant is in default if the applicant concerned fails to:
(a)comply with an order of the Court in the proceeding; or
(b)file and serve a document required under these Rules; or
(c)produce a document as required by Part 14; or
(d)do any act required to be done by these Rules; or
(e)prosecute the proceeding with due diligence.
Such a default, in turn triggers the provisions of Rule 13.05(1), which reads as follows:
(1)If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
Accordingly, the court is conferred with a discretion, if it finds that an applicant is in default to do the following. Firstly, it can dismiss the application then and there. Secondly, it can extend the time for taking a procedural step, by the applicant concerned, but impose a guillotine order, which will dismiss the application, if the step specified is not taken.
Obviously, as with all discretions, the court retains the authority not to dismiss an application, on the basis of any such default, if such a step would not be in the interests of the overall administration of justice.
BACKGROUND:
Mr Tahmasebi commenced these proceedings on 6 February 2020. There is no dispute that he was casually employed by Adelaide Transport, as a bus driver. Mr Tahmasebi was employed by Adelaide Transport to perform a school bus run for students of Playford College. [6]
[6] Hereinafter referred to as “the College” or “Playford College”.
It is Mr Tahmasebi’s position that he began working for Adelaide Transport in 2016. It is Adelaide Transport’s position that initially he drove a bus owned by it. However, on 9 September 2019, Playford College acquired its own bus and this was utilised for the school run, which Mr Tahmasebi had been performing.
The respondent asserts that it had no part in the College’s acquisition of the second bus; played no part in its maintenance; and had no authority to determine what bus should be used on the run. By necessary implication, its position is that its obligation was only to supply a driver to the College. At this stage, I am uncertain of what other obligations the College and the respondent had in respect of the agreement between the two.
Playford College is not a party to these proceedings. It would seem to be the case that there was some form of contract between Playford College and Adelaide Transport for the latter to provide school bus driving services to the former. As yet, I have not been provided with any documentary or other evidence in respect of such a contract.
Mr Tahmasebi does not assert that he was employed by anyone other than Adelaide Transport. It also seems to be his position that he had no formal relationship with Playford College other than he drove its students, and was required to liaise with its staff in regard to this arrangement.
Certainly, he accepts that he corresponded with the Principal and Deputy Principal of the College about what he alleges was the condition of the bus owned by the College, which he was called upon to drive and has conversed with two of the College’s other employees, Mr Ali, the College’s receptionist and Mr Brian Dearman, who is described as a maintenance worker about his concerns about driving the bus.
It is Mr Tahmasebi’s position that he was dismissed from his employment, with Adelaide Transport, by its owner, John Allen, on 19 September 2019 because he made a complaint about the occupational health and safety of the bus recently acquired by Playford College and which he had been directed to drive.
He made his complaint originally to Mr Ali on 9 September and the next day to the Principal and Deputy Principal. He concedes that his complaint was investigated to some degree by Mr Dearman. He also informed Mr Allen on 9 September about his concerns relating to the second bus.
It is the crux of Mr Tahmasebi’s case that the bus provided to him to drive, which had recently been acquired by Playford College, was occupationally unsafe and unhealthy, both for him and for the students travelling in it, because it smelt of strong fumes similar to paint; was dirty; contaminated by airborne synthetic particles; its automatic doors were defective; and its insulation was defective, so that its passenger side overheated, burning the leg of a school child.
In support of this allegation, he asserted that students had complained to him of suffering coughing; breathing difficulties; headaches; itchy eyes; sneezing; nausea; vomiting; and being burnt, after travelling in the bus.
It is Mr Tahmasebi’s assertion that he complained about these matters to the various employees and officials at the College outlined above. In particular:
·On 9 September he informed Mr Ali;
·On 9 September he informed Mr Allen;
·On 10 September he informed the Principal and Deputy Principal;
·On 10 or 11 September he provided a letter to Mr Ali detailing his concerns.
It is Mr Tahmasebi’s position that he had a work place right to raise issues and make complaints, about the health and safety of the second bus, provided to him pursuant to the provisions of the Work Health & Safety Act 2012 (SA), which he did consistently as outlined above.
The applicant alleges that Mr Allen sent him a text message originating with Mr Dearman that he wanted health and safety issues relating to the bus kept quiet. The applicant alleges that he was later informed that the bus would be taken out of service and replaced with another. He asserts that this occurred for a few days, during which he did utilise another bus, until 18 September.
Mr Tahmasebi alleges the bus which he considered to be defective remained at the premises of the College until 19 September. During this period, the respondent asserts Mr Dearman cleaned the bus and performed minor maintenance work on it.
It is the applicant’s case that he inspected the bus on 18 September and considered that it still smelt toxic. He alleges that he told Mr Dearman his view in this regard, to which Mr Dearman replied “I’ve been cleaning it with vinegar. If you don’t like it, don’t drive it. I’ll get another driver”.
On 19 September, Mr Tahmasebi was directed to drive the second bus to Adelaide Transport’s depot. When he arrived at the depot, he alleges he was informed by Mr Allen that Mr Dearman no longer wanted him to drive the bus anymore. It is at this stage that he alleges Mr Allen terminated his employment.
As such, he alleges that he has been the subject of adverse action taken by Adelaide Transport, which contravenes the general protection provisions of the FWA contained in section 340(1). He asserts that the relevant decision maker for his termination was Mr Allen and the reason for it was him raising issues to do with the occupational health and safety of the second bus.
Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right. In the jargon of industrial lawyers, this is known as a general protection claim. It is also characterised, under the Act, as a civil remedy provision.
Section 341(1)(c) provides the definition of a workplace right. A person has such a right if, amongst other matters, they are:
[A]ble to make a complaint or inquiry:
·to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
·if the person is an employee—in relation to his or her employment.
The expression workplace law is defined in section 12 of the Act. It includes any law of a State or the Commonwealth dealing with occupational health and safety issues. There seems to be no controversy, in the current matter that, at least in theoretical terms, Mr Tahmasebi would have been entitled to complain to the South Australian authorities about the state of the second bus on occupational health and safety grounds as it was his place of work.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The first item of the table provides as follows:
Adverse action is taken by an employer against an employee if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.”
It is Mr Tahmasebi’s case that adverse action was taken against him by Mr Allen because he complained about the condition of the bus, not only to Mr Allen but to others at the College, which he was entitled to do, as it related to legitimate occupational health and safety issues. As a consequence, he seeks compensation for lost wages and reinstatement by the respondent resulting from his termination.
THE PLEADINGS CURRENTLY FILED:
At relevant times, the Federal Circuit Court Rules2001 (Cth) (now the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)) required an Application, under the general protection provisions of the FWA, to be made to the court’s Fair Work Division by way of an approved form, known as a Form 2.
In particular, rule 45.06 of the then Federal Circuit Court Rules2001 (Cth) read as follows:
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
(a)be in accordance with the approved form; and
(b)be accompanied by:
(i)a claim in accordance with the approved form; and
(ii)unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Mr Tahmasebi commenced his Application, on 6 February 2020, by filing such a Form 2. In Part G of the form, an applicant is directed to specify the grounds for any claim that an employee was dismissed in contravention of a general protection and specify the particular workplace right claim. The form also indicates that these grounds are to be:
Set out in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim.
Mr Tahmasebi has signed the relevant application form. The contents of the form are typed and the relevant directions for its completion have been followed. However, it is evident that Mr Tahmasebi himself did not complete the form and he had some professional assistance in so doing. I will return to this issue in due course.
Adelaide Transport filed a response, as required under the relevant rules, on 6 March 2020. Its response was ostensibly prepared by Mr Allen, as the response bears his name and the address of the respondent. Adelaide Transport opposed the making of any orders in Mr Tahmasebi’s favour and sought the dismissal of his application.
In its response, Adelaide Transport conceded that Mr Tahmasebi had been employed by it and had ceased his employment with the company. However, it denied that it had done so because Mr Tahmasebi had exercised any relevant workplace right.
Adelaide Transport accepted that Mr Tahmasebi had been required to drive a bus owned by Playford College from on or about 9 September 2019. It also conceded that Mr Tahmasebi had raised concerns with an employee of the school about this vehicle, which it characterised as relating to minor maintenance issues and a smell which was determined to be caused by the paint used when the bus was refitted.[7]
[7] See Response filed by the respondent dated 6 March 2020 at [5].
Thereafter, it was the position of Adelaide Transport that the school itself had taken the vehicle out of service; performed some minor maintenance on it; made enquiries of the paint manufacturer concerned and satisfied itself that the relevant paint did not pose a risk to health and safety and otherwise satisfied itself that the vehicle was safe.
In these circumstances, in its response, Adelaide Transport asserted as follows:
On or about 19 September 2019, the Applicant was informed by Mr Dearman of the steps taken by the School and that the bus was ready to use on and from the following day (20 September 2019). The Applicant advised that he would under no circumstances drive the bus, and refused to enter the bus to check what steps had been taken. In response to this the School arranged an alternative driver (not being an employee or in any way affiliated with the Respondent) and terminated the Respondent's contract.
The Respondent was advised later that day of the Applicant's refusal to drive the vehicle and the School's decision to terminate the contract. The Respondent was not consulted about this decision and played no part in it.
Insofar as the safety of the bus is concerned, the Respondent was informed by the School that shortly after the events described above, that SafeWork SA, acting on what SafeWork SA stated was an anonymous tip, inspected the bus. SafeWork SA did not issue any prohibition or improvement notices or otherwise raise any concerns about the use of the vehicle.[8]/
[8] Ibid at [8]-[10]
Essentially, the respondent denies that it was the decision-maker in respect of the issue of whether Mr Tahmasebi would or would not be required to drive the second bus. Rather, it was presented with a fait accompli, when Playford College terminated its agreement with it to provide a bus driver for the relevant school run, which Mr Tahmasebi had previously performed.
In these circumstances, it is Adelaide Transport’s position that it was not able to offer any further employment to Mr Tahmasebi, who, in any event, was employed by it on a casual basis. Nonetheless, it attempted to find an alternative position for Mr Tahmasebi, with another operator, which Mr Tahmasebi initially took up but ultimately declined to accept it.
The gravamen of the respondent’s pleaded case is as follows:
To the extent that the applicant made complaints or inquiries about a workplace right:
•the respondent denies taking any adverse action against the applicant; and
•to the extent there it is found there was any adverse action, it arose solely out of the decision of the school to terminate the contract.
Further, and in addition, by accepting and then refusing to perform the alternative run, the applicant has failed to mitigate any losses.[9]
[9] Ibid at [14]
THE PROCESS OF LITIGATION
As previously indicated, the applicant commenced the litigation, on 6 February 2020. The first return date was 24 March 2020. The respondent filed its response promptly on 6 March 2020. The litigation did not get off to an auspicious start. It is has not progressed in any significant way since March of 2020.
The case was initially docketed to Judge Heffernan, who is no longer a member of this court, having been appointed to the District Court of South Australia. As a consequence, several judges have been involved in the management of the case.
The first mention, in March 2020, coincided with the onset of the pandemic emergency. As a consequence, the directions hearing was conducted by telephone. Mr Allen appeared for the respondent but there was no appearance by Mr Tahmasebi.
Nonetheless, the case was referred to mediation and further adjourned to 9.30am on 16 July 2020. Mr Allen was directed to write to Mr Tahmasebi to advise him of the orders made. The court order noted that attempts had been made to telephone Mr Tahmasebi but he had not been able to be reached.
There is no dispute that the mediation scheduled for 2 June 2020 did not occur because Mr Tahmasebi did not attend, by telephone, as directed. Narelle Allen, the office manager of the respondent did attend. She has been involved in many of the hearings which have subsequently occurred.
When the matter returned to court, on 16 July 2020 before Judge Heffernan, Mr Tahmasebi and Ms Allen both appeared. The matter was referred to a further mediation, on 22 October 2020. The parties were directed to provide mutual informal discovery, in anticipation of the mediation.
The mediation so directed did occur as both Mr Tahmasebi and the respondent attended. The matter could not be resolved. Ms Allen complains that Mr Tahmasebi did not provide discovery or a position paper, as he had been directed to do.
When the case returned to court, on 9 November 2020, before Judge Heffernan, both Mr Tahmasebi and Ms Allen attended court, via a telephone conference facility. At this stage, Mr Tahmasebi indicated that he was consulting with a lawyer, on the following Friday. In these circumstances, the case was adjourned until 27 January 2021, when Judge Heffernan indicated that it was likely the case would be listed for trial.
On 27 January 2021, once again, both Mr Tahmasebi and Ms Allen appeared before Judge Heffernan. On this occasion, the case was fixed for final hearing on 12 August 2020. At this stage, neither party was formally represented, which notations prefacing the order indicate was a matter investigated by Judge Heffernan.
In this context, Mr Tahmasebi apparently indicated that he had made contact with a lawyer, but was uncertain whether he would be represented for the trial, which was his preference. Ms Allen indicated that Adelaide Transport was also considering its position and would likely retain some form or representation, if the applicant was legally represented.
In this context, Judge Heffernan adjourned the case until 28 April 2021, when he indicated that directions would likely be made in respect of the filing of affidavit material would be made and further consideration be given to issues of document discovery.
On 9 February 2021, on his own volition, Judge Heffernan re-listed the case. Ms Allen appeared but Mr Tahmasebi did not. On this occasion, the relevant order bears the following notations:
·The intimation by the respondent on the last occasion that it intended not to instruct solicitors but would be represented at proceeding by a Director of the company;
·The terms of r 9.04 of the Federal Circuit Court Rules 2001 (Cth) and s 44 of the Federal Circuit Court Act 1999 (Cth), the respondent has been advised that a company is required to be represented in proceedings in this Court;
·On the next occasion, the Court will enquire of the respondent as to the status of its representation; and
·The matter is already listed for a directions hearing on 28 April 2021.[10]
[10] See orders of Judge Heffernan dated 9 February 2021.
It appears that the mention of 9 February 2021 was appointed by Judge Heffernan’s Chambers by way of email correspondence, prior to the adjourned date fixed in the order of 27 January 2021. In these circumstances no formal orders were made. The matter of concern to Judge Heffernan seems to have related to the fact that the respondent was not legally represented.
The hearing scheduled for 28 April 2021 did not occur. Although I cannot be certain, I suspect that this was because Judge Heffernan left the Federal Circuit Court to take up his new appointment around about this time.
In these circumstances, the case was apparently listed before Judge Cameron on 25 May 2021. This was the first occasion on which Adelaide Transport was represented by anyone other than its director, Mr Allen, or its office manager, Ms Allen. Mr Earls, the respondent’s current solicitor, appeared on this occasion.
I have been provided with a transcript with what occurred on 25 May 2021.[11] On this occasion, Mr Earls indicated that, from his perspective, it was premature for the matter to proceed to hearing, given no Affidavit material had been filed by either party. In this context, it should be noted that no formal direction had been made in this regard.
[11] See Affidavit of Ethan Callan filed 15 September 2021 at EC-1.
In addition, Mr Earls indicated that the respondent would likely experience difficulty in obtaining evidence “from various persons in the school, because people are concerned about child protection legislation and things like that”. As a consequence, Mr Earls indicated that the respondent might have to issue subpoenas to compel attendance, further rendering the existing trial date problematic from the respondent’s perspective.
On 25 May 2021, Judge Cameron ordered Mr Tahmasebi to file the affidavits on which he proposed to rely, in respect of the then unallocated trial, on or before 6 July 2021. Given the difficulties Mr Earls indicated the respondent was facing, it was directed to file its Affidavits on or before 17 August 2021. The case was then listed for directions on 24 August 2021. This date was overtaken by the interlocutory dismissal application instigated by Mr Earls on behalf of the respondent.
As previously indicated the genesis of this application lies in the fact that Mr Tahmasebi did not file the affidavit(s), which were directed by Judge Cameron. As a consequence, on 16 July 2021, the respondent commenced the current interlocutory application seeking the summary dismissal of Mr Tahmasebi’s Application. The basis for the application was set out in an affidavit filed by Ms Allen on 3 August 2021. Ms Allen complained that Mr Tahmasebi had failed to attend hearings on:
·24 March 2020;
·2 June 2020; and
·9 February 2021.
In addition, she complained that Mr Tahmasebi had:
·failed to provide a position paper for the purposes of the mediation on 16 July 2020;
·failed to inform the court about his legal representation on 9 November 2020; and
·failed to file Affidavit material on or before 6 July 2021.
On 10 August 2021, the case came before me for the first time on the listing of the respondent’s Interlocutory Application for summary dismissal. Mr Tahmasebi appeared on his own behalf and I directed him to file a responding affidavit, which he did. The summary dismissal application was fixed for hearing on 14 October 2021.
Very fairly, and quite appropriately, Mr Earls sought to cross-examine Mr Tahmasebi about the content of his affidavit. As a consequence, I was able to make some appraisal of the applicant, particularly in regard to his proficiency in English and understanding of the legal process.
This was important, as it is the central plank of Mr Earls’ case that Mr Tahmasebi was put on notice, in emphatic terms by Judge Cameron that if he did not file his affidavit material, as directed, his case could not proceed further and by necessary implication was liable to summary dismissal.
There is no doubt that Mr Tahmasebi indicated to Judge Cameron it was his preference to be legally represented but he personally had experienced some difficulties in accessing the lawyer originally selected by him because of “Covid-19” and then later because the lawyer in question had fallen ill. In this context, Judge Cameron indicated as follows:
Okay. Well, I'm afraid the matter is going to have to proceed regardless of the difficulties that you seem to be having, because it's your case, it's your responsibility to move it along, and the court is not going to allow permanent delays because of representation issues, particularly given you've - the matter has been on foot now for over a year. So I'm going to order you to put on all the evidence that you're going to rely on, Mr Tahmasebi, and I will do the same with T Bus. So the first order will be (1) the applicant file and serve any evidence or affidavit on which he will rely on or before - I will give you six weeks, because you're unrepresented - so 2 June - no, that's not right- 6 July, on or before 6 July 2021. The respondent to file and serve any affidavits on which it will rely - would four weeks be enough for you, Mr Earls?[12]
[12] Ibid.
In Mr Earl’s submission, what was required of Mr Tahmasebi was clearly explained to him by the court and therefore it should be readily accepted that he has failed to prosecute his application with the level of diligence required of him. On the other hand, Mr Tahmasebi has subsequently indicated that he did not fully comprehend what was required of him. In this context, the following dialogue between the court and Mr Tahmasebi is potentially relevant:
HIS HONOUR: All right, then. Right you are. Mr Tahmasebi, is there anything that you would like to say or ask about before we finish today?
MR TAHMASEBI: Yes, your Honour. You -as you suggested, is that the trial date will be 24 August?
HIS HONOUR: No, I said it's going to be listed for further directions, an administrative hearing like today.
MR TAHMASEBI: Okay. So the -when -sorry, this might be not appropriate. When the trial date might be?
HIS HONOUR: Well, we can't set a trial date until all the evidence has been filed and served.
MR TAHMASEBI: Yes.
HIS HONOUR: And there may be some other steps which Mr Earls thinks should be taken. But until all the preparatory steps are done, then the matter can't be listed, and unfortunately, the fact that the case has not been prepared in any real way means that you can't have the hearing in August like you planned.
MR TAHMASEBI: Okay, your Honour. And I have .... I have to go to see them, and they might try to -they might help me to progress and all information needed.
HIS HONOUR: Yes, that's fine. You should tell them that you're required to put your evidence on by 6 July.
MR TAHMASEBI: Yes. So required-yes, okay, required to put all my evidence in, yes?
HIS HONOUR: Yes, and the affidavits. Evidence has to be produced to the court in affidavits. Do you know what an affidavit is?
MR TAHMASEBI: Yes, yes.[13]
[13] Ibid.
As I understand Mr Earls’ submission he contends that the use of the double affirmative at the end of this passage indicates that Mr Tahmasebi understood what was required of him in terms of filing an affidavit. Mr Tahmasebi contends otherwise.
In both his affidavit and oral evidence, Mr Tahmasebi indicated that he was born in Iran and speaks English as his second language. He migrated to Australia in 1996 from Turkey, where he had fled because of persecution, from the Iranian authorities, relating to his political views. He was apparently imprisoned in Iran. Australia granted him asylum. He has deposed that he studied English, as a second language, upon his arrival in Australia.
In addition, Mr Tahmasebi has deposed that he has been diagnosed as suffering from Major Depressive Disorder and an Adjustment Disorder, which he contends has been exacerbated by his loss of employment. He has produced a medical certificate in support of this contention. Mr Earls characterises this certificate as inadequate and, in this context, relies on the case of SZWBK v Minister for Immigration (“SZWBK”).[14]
[14] See SZWBK v Minister for Immigration [2017] FCA 1020.
Mr Tahmasebi also confirmed that he had received assistance in drafting both his original application and the affidavit opposing summary dismissal from JusticeNet’s Federal Courts Self-Representation Service. It seems axiomatic to me that Mr Tahmasebi himself would have been incapable of preparing the relevant application without such assistance.
In his oral evidence, Mr Tahmasebi vociferously asserted his desire to proceed with his application. From his perspective, notwithstanding the current legal uncertainty as to who specifically took adverse action against him and what was their motivation, his case can be simply stated – he lost his job because he complained that the bus he was required to drive smelt of fumes and he felt it was unsafe for children.
Whether this complaint will ultimately support his claim that his workplace right has been contravened is beyond the remit of these proceedings. However, having witnessed Mr Tahmasebi give evidence, I do not doubt his desire to progress his claim.
In this context, Mr Tahmasebi deposed that he had attended court, in person, on five occasions, because he found it difficult to follow what was being said in electronic hearings. In additions, he asserted that he had attended court on one occasion by telephone. He conceded that he had missed some electronic hearings but attributed this to errors in respect of the provision by him of a correct telephone number. He also deposed that at least one email sent to him by the court was deposited in his spam filter and was therefore overlooked by him.
In addition, Mr Tahmasebi deposed that he had attempted to obtain legal assistance but could not afford the fees quoted to him. He indicated that he had contacted three firms of solicitors in this regard. In addition the relevant union was not in a position to provide him with assistance.
It is Mr Tahmasebi’s evidence that he did not understand what was required of him following the directions hearing before Judge Cameron on 25 May 2021 primarily because he did not know what an affidavit was. Rather, his misconception was that he would be able to tell the court, at the final hearing, what was his understanding of what had occurred to him from the witness box.
Having read the transcript and having observed Mr Tahmasebi give oral evidence, on the balance of probabilities, I am not in a position to reject this evidence. Although I am not in a position to assess Mr Tahmasebi’s proficiency in English; the extent of his working vocabulary in English; and his levels of comprehension; there can be no doubt that he is not a native born English speaker.
As such, I accept that the prospect of a person, such as Mr Tahmasebi being at cross purposes with a native born English speaker, in a formal professional context, must be regarded as significant. This is not intended as a criticism of either His Honour Judge Cameron, or Mr Tahmasebi himself.
In my assessment the principles enumerated in SZWBK are not relevant to the current matter. That matter concerned a judicial review of an administrative decision relating to a person’s immigration status. In such cases, it is not uncommon for the applicant concerned to want to delay proceedings for as long as possible and in so doing provide medical certificates of dubious provenance.
I do not accept that Mr Tahmasebi wishes to delay the proceedings. Rather his preference would be for them to proceed. In this context, in my view, his health issues are not a relevant consideration. It is also his position that any prejudice suffered by the respondent is likely to be minimal given that it is only recently that it has retained Mr Earls to act on its behalf.
I agree that Mr Earls has only fairly recently been retained. However, I accept that there is the potential for prejudice if relevant witnesses, particularly those connected with Playford College, cannot be located. However, at this stage, I do not know if this difficult will actually arise.
Finally, Mr Tahmasebi has deposed that he now has been informed by JusticeNet of what is required of him in order to progress his case, he will be able, with their assistance, to prepare, file and serve an affidavit of his evidence-in-chief as is required.
APPLICABLE LEGAL PRINCIPLES
The court is conferred with a discretion, pursuant to rule 13.05 to dismiss an application if the applicant concerned fails to comply with one of its orders; file and serve a document; or prosecute the proceedings with due diligence.[15]
[15] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.04.
As with all discretions, the discretion provided by rule 13.05 must be exercised judicially and according to the dictates of justice. At a fundamental level, the court has an obligation to investigate and determine a claim for judicial relief, which has been honestly made in the proceedings before it, by the suitor concerned.
On the other hand, the court retains it may be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.[16] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[16] Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32] (Tamberlin, Greenwood and Collier JJ).
In these circumstances, the authorities are clear that the application of the discretion to dismiss an application for non-compliance with an order, is not to be regarded as being commonplace in its exercise.[17] A range of factors dependant on the facts of each case will influence how the discretion is to be exercised.
[17] Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] (Lucev J).
In Lenijamar Pty Ltd v ACC (Advances) Ltd,[18] the Full Court of the Federal Court indicated that it was “undesirable [for the court] to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised”. In this context, Wilcox and Gummow JJ identified what they considered to be two obvious candidates for the exercise of the power, which can be summarised as follows:
·Cases characterised by a history of non-compliance such to indicate an inability or unwillingness to co-operate with the other party or the court to bring the proceedings to hearing within an acceptable period;
·Cases in which non-compliance was continuing and occasioning unnecessary delay, expense or other prejudice to the other party concerned.
[18] Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200.
In a separate but concurring judgment Pincus J said as follows in respect of the exercise of the relevant discretion:
[T]he Court may, in my opinion, take into account such matters as whether the claim or defence of the party in default appears to have substance, whether the case is one in which delay in hearing is likely to be particularly damaging to prospects of correctly deciding the dispute, whether the party applying for dismissal has itself transgressed, whether the party in default has gained some advantage by delay (for example, where it has had the benefit of an interlocutory injunction), whether credible assurances (supported, perhaps, by arrangements to commit the conduct of the matter to another firm or other counsel) have been given as to the prompt carrying out of future steps and whether the delay has been such as to induce the party not in default to think that the matter has probably gone to sleep;[19]
[19] Ibid 214-5 (Pincus J).
In Professional Administration Service Centres Pty Ltd v Commissioner for Taxation,[20] the Full Court of the Federal Court attempted to tabulate considerations which were likely to be relevant to the exercise of the discretion, which can be summarised as follows:
[20] Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52, 62 [44] (Edmonds, McKerracher and Nicholas JJ).
·The nature of the default involved;
·The duration of the default and whether it is continuing;
·The circumstances surrounding the making of the order subsequently breached and the practices of the court concerned;
·What has happened since the default, particularly whether an attempt has been made to rectify the breach;
·Whether the breach creates prejudice or places an unacceptable burden on the other party;
·Does the breaching party genuinely want the case to go to trial;
·The stage the proceedings have reached;
·Disruption to possible trial dates;
·The consequences for the applicant of dismissing the application.
DISCUSSION
For the reasons already provided, I accept that Mr Tahmasebi genuinely wishes to proceed with his action and has not brought it for any malign or ulterior purposes. I also accept that he was labouring under some level of misapprehension, attributable to his lack of knowledge of legal processes, and his limited knowledge and understanding of the English language. Particularly, what was required of him following the mention before Judge Cameron on 25 May 2021.
It is a significant matter that the case was listed for trial, which had to be vacated due to the lack of material from Mr Tahmasebi. However, this vacation occurred well out from the trial date concerned and only comparatively recently after the respondent had retained its legal counsel. It has not been put to the expense of preparing affidavit material as yet.
It is also apparent from the fact that Mr Tahmasebi has contacted JusticeNet, who assisted him to prepare a comprehensive response to the strike out application, that he is capable of remedying the relevant breach in question. In addition, the position of the respondent can be protected by the making of a guillotine order, if Mr Tahmasebi does not file the necessary affidavit of evidence required of him.
A more nuanced issue arises from the fact that the proceedings have been on foot for a period approaching two years, and progress has been glacially slow. I accept that such a delay is, of itself, prejudicial given the obvious fact that witnesses move on and memories fade. However, these circumstances must be balanced against Mr Tahmasebi’s obvious desire to pursue his case and have the court determine the issues raised him.
In my view, this really is the nub of Adelaide Transport’s case. Mr Earls characterises Mr Tahmasebi’s case as a weak one. The respondent denies that it was the relevant decision maker regarding the applicant’s employment status. As a consequence it denies that it took any adverse action against Mr Tahmasebi.
From Mr Tahmasebi’s position, it is axiomatic that he was the subject of adverse action. He was retained as a casual driver by Adelaide Transport. He complained of occupational safety issues about the bus he was required to drive, and shortly afterwards he lost his job. I have not as yet received evidence from him regarding the alleged offer of another school run and whether he accepts that he rejected it or otherwise.
In this context, section 361 of the FWA is central. This section provides as follows:
(1)If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2) explained the operation of section 361 of the FWA in the following terms:[21]
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.
[21] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
What is required is a casual connection between the adverse action complained of, and a protected attribute of the employee concerned. If this is established, the onus shifts to the relevant decision maker, with the employer, who must provide evidence as to why the relevant adverse action and establish that it was not for any prescribed reason. In the present matter, it was not because Mr Tahmasebi raised issues relating to his and his passengers’ health and safety.
In State of Victoria (Office of Public Prosecutions) v Grant,[22] White J summarised the relevant principles, applicable to section 361, as follows:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceedings.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[23]
[22] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
Clearly, given the structure of the applicable provisions of the FWA, this is the central evidentiary issue in the case and, in my assessment, is not one without a level of potential difficulty or complexity given how each party has currently pleaded their respective cases. Essentially, the respondent denies it took any adverse action and certainly not for any prescribed reason.
However, I must bear in mind that the respondent has not brought its application for summary dismissal pursuant to the provisions of section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) on the basis that Mr Tahmasebi’s application has no reasonable prospects of prosecuting his application successfully.
Although the strength of Mr Tahmasebi’s case is a consideration relevant to an application for summary dismissal, on the basis of a failure to fulfil a necessary step in the litigation process, it is not the main focus of such an application. In any event, it cannot be said that Mr Tahmasebi’s case manifestly has no substance.
I accept that Adelaide Transport is to be regarded as a small business – although I have not been provided with extensive details of its turnover. In these circumstances, I accept that potentially complex litigation, such as that involving Mr Tahmasebi is potentially financially burdensome to it and for obvious reasons it wishes to free of it as expeditiously as possible.
Balancing all these considerations, at this stage, I do not consider that it would be would be just to dismiss Mr Tahmasebi’s application on the basis of his non-compliance with the order of Judge Cameron requiring him to file an affidavit of evidence.
When the matter was last before the court, I requested that the court-based representative of JusticeNet come into court, which they did, and for which I am grateful. They indicated they would be able to be present on the adjourned date, when it was anticipated that this judgment would be delivered. I also directed that a Farsi interpreter be arranged for this occasion, in anticipation that any order of the court could be translated, for Mr Tahmasebi, into his first language.
In these circumstances I propose to grant Mr Tahmesbi until 20 January 2022 to file his affidavit of evidence and adjourn the matter shortly thereafter to 3 February 2022. If Mr Tahmesbi fails to comply with this direction, for obvious reasons, it is almost inevitable that the court will dismiss his application unless extraordinary circumstances are demonstrated.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 25 November 2021
[23] Ibid at [32] (Tracey & Buchanan JJ).
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