Tan v Lamonica
[2009] FMCA 685
•10 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAN v LAMONICA | [2009] FMCA 685 |
| PRACTICE AND PROCEDURE – Where applicant seeks to set aside an agreement she had entered into following mediation by a Registrar. |
| Applicant: | ROSITA TAN |
| Respondent: | ROBERT LAMONICA |
| File Number: | SYG 828 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 10 July 2009 |
| Date of Last Submission: | 10 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2009 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr Nicoll |
| Solicitors for the Respondent: | Townsends Business & Corporate Lawyers |
ORDERS
Applicant to pay the Respondent's costs assessed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 828 of 2009
| ROSITA TAN |
Applicant
And
| ROBERT LAMONICA |
Respondent
REASONS FOR JUDGMENT
On 8 April 2009 Ms Rosita Tan commenced proceedings in this Court claiming unlawful termination of her employment by the respondent. The applicant was a shop assistant. She claimed that she had been asked to move from part-time employment to casual employment, which she was not happy about, but this was required of her and she accepted it with what would appear to be a not unreasonable lack of grace. She claims that her employer sought out an opportunity to dismiss her and eventually did so.
In accordance with the usual practice, this matter went first to the Industrial Relations Commission where an attempt was made to conciliate it. It was not conciliated. At this stage Ms Tan did not have a lawyer. Ms Tan brought the application in this Court herself but I am told by the solicitor to the respondent that at various times since the case commenced, Ms Tan has had the assistance of three lawyers, none of whom have been placed on the record or remained advising her for very long. She last received advice from the Inner City Legal Centre and attended a pro bono lawyer believed to be from the firm of
Clayton Utz at some stage shortly before 23 June 2009.
Prior to her seeing this lawyer the applicant had attended a mediation which was arranged by this Court with a registrar at the first directions hearing on 30 April. The mediation appeared to be successful. I have a note on my file from Morgan R that a mediation commenced at 11.15 a.m. and concluded at 3.30 p.m. and that the matter was resolved. The applicant accepts that she signed an agreement concluding this matter upon the payment to her of a sum of money. The applicant also accepts that she was assisted at the mediation by two friends.
In early June Ms Tan approached the Court seeking to set aside the mediation agreement. She came to the Court with another friend who was not one of the two people who had been at the mediation with her. I explained to her that she had entered into an agreement and that it was not open to the Court just to set it aside at her whim. I made orders that she would have to file and serve an application in proper form together with affidavits in support. She did file an affidavit but not an application. She states in the affidavit that when she signed the agreement she was confused and under stress. She had no lunch and it was nearly 3 o'clock, nor had she had any proper breakfast. She says:
“That reading at home the outlined terms of agreement that I had signed, I felt aggrieved and remembered again all the humiliation, discrimination and harassment I have suffered from my employer.”
She then proceeds, over several pages, to outline her complaints against the employer which would have formed the basis for the original application.
Although the applicant is not represented, she has made no attempt to assist me in explaining how this Court can set aside a mediation agreement apparently freely entered into. Nor would I necessarily accept that even if there was a power in this Court to set aside such an agreement, the evidence that she has provided would constitute sufficient grounds. Whilst I quite accept that attending mediations is a stressful thing to do and that a party doing so could very well feel weak, tired and vulnerable, there is no suggestion of pressure upon her from the mediator or the respondents. The applicant's English is not perfect but it is not at all bad and she was, in any event, assisted by two persons, neither of whom has she brought to the Court since. On the current evidence before me I would not be disposed to set aside such an agreement.
I also note that Ms Tan did have the benefit of pro bono legal advice following this application; of course I have no knowledge of what that advice was but I note that consistent with her previous communications with solicitors, these solicitors were also dismissed.
In all the circumstances I am not prepared to accede to Ms Tan's request to set aside the mediation agreement. It is open to Ms Tan either to accept the agreement or to take advice as to what steps she can take following my decision.
The respondent seeks its costs for dealing with this application and as the applicant has been unsuccessful it is a request they are entitled to make. I order that the applicant pay the respondent's costs which I assess in the sum of $500.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 20 July 2009
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