Tarin v Georgiou Group Pty Ltd
[2014] FCCA 1712
•8 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TARIN v GEORGIOU GROUP PTY LTD | [2014] FCCA 1712 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – failure of respondent’s former solicitor to inform of hearing dates – failure of respondent’s senior officers to make inquiries as to hearing dates – factors for consideration. EVIDENCE – Objection – hearsay – source of knowledge not included. EVIDENCE – Objection – lateness of filing of affidavit – content identical to another witness’s earlier affidavit – whether abuse of process. |
| Legislation: Evidence Act 1995 (Cth), s.75 Fair Work Act 2009 (Cth), s.570(2) Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28 |
| Applicant: | SHAHEER TARIN |
| Respondent: | GEORGIOU GROUP PTY LTD |
| File Number: | PEG 242 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 August 2014 |
| Date of Last Submission: | 1 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 8 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Blackburn (direct brief) |
| Counsel for the Respondent: | Mr A Davidson |
| Solicitors for the Respondent: | HWL Ebsworth Lawyers |
ORDERS (made on 1 August 2014)
That the respondent’s interlocutory application for the trial of this matter set down for a 3 day hearing commencing on 6 August 2014 be vacated and adjourned to a date not before 3 September 2014 for a period of three days be dismissed.
The Court’s consent orders of 3 February 2014, as amended by consent on 17 April 2014 and 29 May 2014, be further amended by, in order (9) substituting “4 days on 6, 7, 8 and 15 August” in lieu of “3 days commencing 6 August”.
Reasons for Judgment to be published from Chambers at a later date.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 242 of 2013
| SHAHEER TARIN |
Applicant
And
| GEORGIOU GROUP PTY LTD |
Respondent
REASONS FOR JUDGMENT
Interlocutory application to vacate hearing dates
These Reasons for Judgment concern orders made on 1 August 2014 relating to an interlocutory application by the respondent seeking orders as follows:
1.The trial of this matter set down for a 3 day hearing on 6 August 2014 be vacated.
2.The trial of this matter be adjourned to a date not before 6 September for a period of 3 days.
3.That the costs of this application be costs in the cause of the proceedings.
The interlocutory application was filed on 23 July 2014.
Litigation history
It is necessary to set out hereunder the litigation history of this matter.
The substantive Application, and accompanying Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, were filed on 10 September 2013 and allege that adverse action was taken against the applicant by making the applicant’s position redundant, not offering to re-deploy the applicant, and in terminating the applicant’s employment, in contravention of the general protection provisions of the Fair Work Act 2009 (Cth).[1]
[1] “FW Act”.
The respondent filed a Response on 24 September 2013 through a law firm, APX Law Pty Ltd trading as Steve Heathcote, Barrister and Solicitor.[2]
[2] “Respondent’s Former Lawyer”.
The matter was the subject of unsuccessful mediation by a Registrar of the Court on 21 November 2013.
The hearing of the matter was set down in orders made by this Court, by consent, on 3 February 2014.
The Court’s orders of 3 February 2014 relevantly provided as follows:
…
2. By 4:00pm on 21 February 2014, the Applicant shall file and serve affidavits of the proposed evidence in chief of each witness to be called by him annexing any documents on which he intends to rely.
3.By 4:00pm on 21 March 2014, the Respondent shall file and serve affidavits of the proposed evidence in chief of each witness to be called by him annexing any documents on which he intends to rely.
4.By 4:00pm on 4 April 2014, the Applicant shall file and serve affidavits in reply to the affidavits of the Respondent annexing any documents on which he intends to rely.
…
7. By 4:00pm on 17 April 2014, the Applicant shall file and serve an outline of submissions and a list of authorities.
8. By 4:00pm on 9 May 2014, the Respondent shall file and serve an outline of submissions and a list of authorities.
9. The matter be set down for hearing for 3 days commencing 6 August 2014 at 10:15am.
…
On 20 February 2014, in compliance with order 2 of the orders of 3 February 2014, the applicant filed an affidavit.
By order made, again by consent, on 17 April 2014 the orders made on 3 February 2014 were amended as follows:
(a)to show [in] order (3) “2 May” in lieu of “21 March”;
(b)to show [in] order (4) “16 May” in lieu of “4 April”;
(c)to show [in] order (5) “23 May” in lieu of “10 April”;
(d)to show [in] order (7) “30 May” in lieu of “17 April”;
(e)to show [in] order (8) “20 June” in lieu of “9 May”;
The respondent’s affidavits were not filed by 2 May 2014 in accordance with order 1(a) of the order of 17 April 2014 amending the orders of 3 February 2014.
The following affidavits were filed, late, on 6 May 2014:
a)affidavit of John Georgiou,[3] the respondent’s Chief Executive Officer;
b)affidavit of Anthony Richard Vowles,[4] the respondent’s General Manager – Risk; and
c)affidavit of Damien Michael Waller,[5] the respondent’s Human Resources Manager.[6]
A further affidavit of Mr Waller on behalf of the respondent was filed, again late, on 16 May 2014.
[3] “Mr Georgiou”.
[4] “Mr Vowles”.
[5] “Mr Waller”.
[6] Collectively the above affidavits are the “Respondent’s Hearing Affidavits”.
The applicant filed an affidavit, on 16 May 2014, in accordance with order 1(b) of the order made on 17 April 2014 amending the orders of 3 February 2014.
On 29 May 2014, again by consent, the orders made on 3 February 2014 as amended on 17 April 2014 were further amended as follows:
(a)To show in order (7) “30 June” in lieu of “30 May”;
(b)To show in order (8) “21 July” in lieu of “20 June”
The applicant’s submissions and authorities were filed 4 days late on 4 July 2014.
On 16 July 2014 the respondent filed a Notice of Address for Service, the new address for service being that of HWL Ebsworth Lawyers in Perth.[7]
[7] “Respondent’s Current Lawyers”.
The respondent’s authorities and submissions were filed 10 days late on 31 July 2014, without leave.
The respondent’s affidavits in support of the interlocutory application
The respondent filed the following affidavits[8] in support of the interlocutory application to vacate the hearing dates and adjourn the hearing:
a)the affidavit of Erica Grace Hartley,[9] a partner with the Respondent’s Current Lawyers, and the lawyer with the current conduct of the proceedings for the respondent, affirmed and filed 23 July 2014;[10]
b)the affidavit of Mr Vowles, affirmed and filed on 23 July 2014;[11]
c)a further affidavit of Mr Vowles, sworn 29 July 2014 and filed on 30 July 2014;[12]
d)the affidavit of Steven Heathcote, the Respondent’s Former Lawyer, sworn 29 July 2014 and filed on 30 July 2014;[13]
e)the affidavit of Mr Georgiou, affirmed 25 July 2014 and filed on 31 July 2014;[14] and
f)a further affidavit of Mr Georgiou, sworn 31 July 2014 and filed the same day.[15]
[8] “Collectively “Respondent’s Interlocutory Affidavits”.
[9] “Ms Hartley”.
[10] “Hartley Affidavit”.
[11] “First Vowles Affidavit”.
[12] “Second Vowles Affidavit”.
[13] “Heathcote Affidavit”.
[14] “First Georgiou Affidavit”.
[15] “Second Georgiou Affidavit”.
Hartley Affidavit
In the Hartley affidavit Ms Hartley says that:
a)the Respondent’s Current Lawyers were instructed on or around 11 July 2014, and that all previous work in the matter had been undertaken by the Respondent’s Former Lawyer;[16]
[16] Hartley Affidavit, paras.3-4.
b)it was not until on or around 16 July 2014 that the Respondent’s Current Lawyers were provided with copies of the pleadings, directions from the Court and the applicant’s notice to produce documents;[17]
[17] Hartley Affidavit, para.5.
c)as part of the hand-over of the matter the Respondent’s Current Lawyers have been conducting a review of the documents and meeting with the respondent’s witnesses, and it has become apparent to them that a number of additional documents should have been included in the Respondent’s Hearing Affidavits and as a consequence the respondent proposes to file supplementary affidavits to address those points;[18]
[18] Hartley Affidavit, paras.6 and 9.
d)there are outstanding issues in relation to the production of documents;[19]
e)the respondent was not informed by the Respondent’s Former Lawyer that the matter was listed for hearing on 6, 7 and 8 August 2014 until 2 July 2014,[20] and as a result the respondent has limited availability for the hearing;[21]
f)the respondent’s Chief Executive Officer, Mr Georgiou, has arranged for a total of 12 senior executives and managers of the respondent (including himself) to attend a course entitled “Harvard Club of Australia 17th Annual Leadership Program (Competitive & Political Advantage)”[22] at the Aitken Hill Conference Centre[23] outside of Melbourne from Sunday 3 August to Friday 8 August 2014;[24]
g)the attendance of Mr Georgiou at the Harvard Leadership Program is critical to allow him to lead the respondent’s executive team through the course;[25]
h)the evidence of Mr Georgiou and Mr Vowles is crucial to the respondent’s case as Mr Georgiou was the person that made the decision to make the applicant’s role redundant, on Mr Vowles’ recommendation;[26]
i)the absence of Mr Georgiou, as well as the absence of Mr Vowles, will significantly prejudice the respondent in the event that the hearing proceeds on 6, 7 and 8 August 2014 as listed;[27]
j)the respondent has been prejudiced by the failure of the Respondent’s Former Lawyer to inform them of the hearing date and allow them to adequately prepare;[28]
k)the Respondent’s Current Lawyers are now preparing for hearing in a very short period and will need to provide supplementary evidence and affidavits to the applicant for consideration ahead of the hearing;[29]
l)there is no significant prejudice to the applicant by the matter being delayed for a period of as little as four weeks if the matter can be listed for hearing at the respondent’s first availability on or about 6 September 2014;[30] and
m)there is significant prejudice to the respondent which may affect the outcome of a fair hearing.[31]
[19] Hartley Affidavit, paras.7 and 9 to 12.
[20] “2 July 2014 Email”.
[21] Hartley Affidavit, para.14.
[22] “Harvard Leadership Program”.
[23] “Aitken Hill”.
[24] Hartley Affidavit, paras.15 and 16.
[25] Hartley Affidavit, para.16.
[26] Hartley Affidavit, para.17.
[27] Hartley Affidavit, para.19.
[28] Hartley Affidavit, para.20.
[29] Hartley Affidavit, para.21.
[30] Hartley Affidavit, para.22.
[31] Hartley Affidavit, para.23.
First Vowles Affidavit
In the First Vowles Affidavit Mr Vowles sets out some uncontroversial litigation history background and then says as follows:
a)as part of his role he manages all of the respondent’s litigation, and because he was concerned about how this matter was progressing and whether it could be adequately resourced by the Respondent’s Former Lawyer when it went to hearing he made inquiries (he does not say when precisely) as to possible alternatives, and it was only then brought to his attention by the 2 July 2014 Email from the Respondent’s Former Lawyer that the matter had been listed for a three day hearing commencing on 6 August 2014, and that this was the first time he had been made aware that the matter had been listed for hearing;[32]
b)he checked with Mr Waller and Mr Georgiou and neither of them were aware that the matter had been listed for hearing;[33]
c)a decision was subsequently made to brief the Respondent’s Current Lawyers to ensure that the matter was properly resourced, and in that regard the respondent considers that there are a number of additional documents which should have been included in the Respondent’s Hearing Affidavits, and as a consequence it will be necessary to file supplementary affidavits, and that a request for further documents (under a Notice to Produce) by the applicant has given rise to an issue as to whether it is necessary to consider whether further evidence needs to be led to provide context to those documents;[34]
d)that because the respondent was not informed by the Respondent’s Former Lawyer of the hearing of this matter until 2 July 2014, Mr Georgiou has arranged for the attendance of 12 senior executives and managers (including Mr Georgiou) at the Harvard Leadership Program at Aitken Hill from Sunday 3 August 2014 until Friday 8 August 2014, at a cost of $99,000 plus travel and accommodation costs;[35]
e)he is informed that Mr Georgiou commenced the process of arranging for attendance at the Harvard Leadership Program in March 2014 and the bookings were confirmed on 16 May 2014, and that it has been booked as a training and development in leadership program and involves significant investment by the business, and that as such it is necessary for Mr Georgiou to attend with his senior executive and management team;[36]
f)that Mr Georgiou’s attendance at the course is critical to allow him to lead the executive teams through the course, while Mr Vowles’ “attendance is important”;[37]
g)the evidence of Mr Georgiou and Mr Vowles is crucial to the respondent’s case as Mr Georgiou was the person who made the decision on Mr Vowles recommendation to make the applicant’s role redundant;[38]
h)the absence of Mr Georgiou and Mr Vowles from the hearing would significantly prejudice the respondent in the event that the hearing proceeds on 6, 7 and 8 August 2014 as listed, and that the respondent has been prejudiced by the failure of the Respondent’s Former Lawyer to inform the respondent of the hearing date and allow adequate preparation;[39] and
i)there is no significant prejudice to the applicant in having the matter delayed for a period of about four weeks until after the respondent’s first availability on or about 6 September 2014.[40]
[32] First Vowles Affidavit, paras.7 and 8.
[33] First Vowles Affidavit, para.9.
[34] First Vowles Affidavit, paras.10-15.
[35] First Vowles Affidavit, paras.17 and 18.
[36] First Vowles Affidavit, para.19.
[37] First Vowles Affidavit, para.19.
[38] First Vowles Affidavit, para.20.
[39] First Vowles Affidavit, paras.22-23.
[40] First Vowles Affidavit, para.24.
Annexed to the First Vowles Affidavit is the Harvard Leadership Progam course brochure, including the indicative instruction and study schedule which shows that:
a)from 1.00pm on Sunday 3 August 2014 there are introductory and explanation sessions in relation to how the program will be conducted followed by pre-dinner drinks and dinner; and
b)on each of the following days there are specific allocated modules as follows:
i)Monday 4 August 2014: industry analysis and competitive positioning;
ii)Tuesday 5 August 2014: competitive advantage, corporate governance, and innovation;
iii)Wednesday 6 August 2014: competitor analysis and social networks;
iv)Thursday 7 August 2014: globalisation; and
v)Friday 8 August 2014: mastering strategy.
Each of the above daily topics are identified as the “key program topics” in the program brochure and run from 8.00am to 4.00pm each day, save Friday, when the program runs from 8.00am to 2.30pm.[41]
[41] First Vowles Affidavit, annexure ARV1.
The course program brochure indicates that the fee per participant is $9,900, plus GST.[42]
[42] First Vowles Affidavit, annexure ARV1.
Second Vowles Affidavit
The Second Vowles Affidavit was subject to an objection in respect of the final sentence of paragraph 13 which asserted that the cost of the Harvard Leadership Program was not refundable. This was said to be hearsay evidence the source of which was not disclosed, and which therefore ought to be struck out pursuant to s.75 of the Evidence Act 1995 (Cth).[43] In interlocutory proceedings it is necessary to identify the source of any evidentiary hearsay,[44] and whilst it is not necessary to identify the ultimate source of the information,[45] identification of a particular source reasonably likely to have knowledge of the relevant fact is required,[46] so as to allow proper investigation by another party or the Court, and to allow the Court to assess the weight to be given to the evidence.[47] The final sentence of paragraph 13 of the Second Vowles Affidavit is hearsay. No source was disclosed, and the paragraph was therefore struck out.
[43] “Evidence Act”.
[44] Evidence Act, s.75.
[45] New South Wales Crime Commission v Vu [2009] NSWCA 349 at para.42 per Spigelman CJ (“Vu”).
[46] Vu at para.46 per Spigelman CJ.
[47] Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949 at paras.11-12 per Palmer J, cited in Vu at para.45 by Spigelman CJ.
The content of the Second Vowles Affidavit was otherwise relevantly as follows:
a)the Harvard Leadership Program “is far more than a training course” and the two professors “travel especially from Harvard in Boston, USA to host this event”;[48]
b)that as well as attending the Harvard Leadership Program the senior executive and management team of the respondent attending would use the time to conduct a series of strategic planning sessions (the time or times of which were not disclosed) to consider the structure of the business and to set its strategic direction for the next year;[49]
c)of the respondent’s 12 officers attending, ten are from Perth, one from Victoria and one from Queensland;[50]
d)it is rare for the executive team to all be together in one location for this length of time as two are based in the eastern states of Australia and it is difficult to organise for 12 senior executives to be available for an entire week, and it is critical for Mr Georgiou, as the Chief Executive Officer and also an owner of the business, to attend the strategic planning sessions as well as the leadership program to ensure that strategy and goals are set and properly discussed;[51]
e)there would be significant detriment to the respondent’s business if Mr Georgiou and Mr Vowles were unable to attend the strategic planning sessions as it would be impossible to set the strategic direction of the business without the presence, input and direction of Mr Georgiou as the Chief Executive Officer and owner or Mr Vowles as a member of the executive team;[52] and
f)because the Harvard Leadership Program is only conducted once a year it is not possible to change the date of the program until after the hearing of this matter has concluded, and the cost to the respondent for the 12 attendees is $99,000.[53]
[48] Second Vowles Affidavit, para.3.
[49] Second Vowles Affidavit, para.4.
[50] Second Vowles Affidavit, para.5.
[51] Second Vowles Affidavit, paras.6-11.
[52] Second Vowles Affidavit, para.12.
[53] Second Vowles Affidavit, para.13.
Heathcote Affidavit
In the Heathcote Affidavit the Respondent’s Former Lawyer says that:
a)he acted for the respondent in this matter from 10 September 2013 until the Respondent’s Current Lawyers commenced to act for the respondent on or around 15 July 2014;[54]
b)order 9 was made by the Court on 3 February 2014 setting the matter down for hearing for three days commencing 6 August 2014 at 10.15am;[55]
c)a search of his records has revealed only one email, sent at 2.30pm on 2 July 2014,[56] to various recipients including Mr Vowles, informing the recipients of the content of Order 9;[57]
d)a search of his file notes in the matter does not identify any file note that indicates that he had told any of the respondent’s officers or employees about the content of Order 9;[58] and
e)he cannot recall being a party to any discussion before the 2 July 2014 Email was sent in which he informed any of the respondent’s officers or employees about the content of Order 9.[59]
[54] Heathcote Affidavit, para.1
[55] Heathcote Affidavit, para.2 (“Order 9”).
[56] “2 July 2014 Email”.
[57] Heathcote Affidavit, para.4.
[58] Heathcote Affidavit, paras.3-6.
[59] Heathcote Affidavit, para.7.
First Georgiou Affidavit
In the First Georgiou Affidavit Mr Georgiou sets out some uncontroversial personal background and litigation history background, and then says as follows:
a)Mr Waller had been instructing the Respondent’s Former Lawyer to advise and represent the respondent in respect of this matter;[60]
[60] First Georgiou Affidavit, paras.5-6.
b)he swore his hearing affidavit in this matter in May 2014, and was aware that the matter had not been resolved, but was not aware that it had been listed for hearing;[61]
[61] First Georgiou Affidavit, para.7.
c)in March 2014 he commenced to look into booking a training and development course for the respondent’s senior executive and management team, and on 16 May 2014, not knowing that the hearing of this matter was listed, arranged and confirmed a booking for a total of 12 senior executives and managers of the respondent (including himself) to attend the Harvard Leadership Program at Aitken Hill from Sunday 3 August 2014 to Friday 8 August 2014;[62]
[62] First Georgiou Affidavit, para.8.
d)the Harvard Leadership Program is held annually at best and requires a significant commitment from the respondent to have all of it senior executive and management team present for a whole week at significant financial cost to the respondent’s business, of $99,000 for the course, plus travel and accommodation costs;[63]
[63] First Georgiou Affidavit, para.9.
e)because the Harvard Leadership Program has been booked to provide training and development in leadership and involves significant investment by the respondent it is necessary for him to attend with the senior executive and management team, and he is to lead the executive teams throughout the course;[64]
f)the senior executive and management team are rarely able to come together as a whole group for such an event, and he hopes that it will be invaluable to the respondent’s business to do so;[65]
g)he did not know that this matter had been listed for hearing until informed by Mr Vowles on or around the beginning of July 2014, and that this was the first time he had been made aware that the matter had been listed for hearing;[66]
h)the Respondent’s Current Lawyers were instructed to advise and represent the respondent on or around 11 July 2014, but due to his being on long service leave he was not able to meet with them until 22 July 2014 at which time he explained to them the unavailability for the hearing dates and explained the importance of seeking an adjournment;[67] and
i)as to prejudice:
i)his absence as the Chief Executive Officer and the person who made the decision to make the applicant’s position redundant would significantly prejudice the respondent if the hearing were to proceed on 6, 7 and 8 August 2014;
ii)the respondent has been prejudiced by the failure of the Respondent’s Former Lawyer to inform the respondent of the hearing date and to allow adequate preparation, which has now been done in a very short period and which will require supplementary evidence and affidavits;
iii)there is no significant prejudice to the applicant if the matter is delayed for a period of as little as four weeks until the respondent’s first availability on or about 6 September 2014; and
iv)the respondent is prejudiced significantly which may affect the outcome of a fair hearing.[68]
[64] First Georgiou Affidavit, para.10.
[65] First Georgiou Affidavit, para.10.
[66] First Georgiou Affidavit, para.11.
[67] First Georgiou Affidavit, para.12.
[68] First Georgiou Affidavit, paras.15-19.
Second Georgiou Affidavit
The Second Georgiou Affidavit was subject to objection as a whole on the grounds of the lateness of its filing,[69] but also that it was an abuse of process because all of the substantive paragraphs, bar paragraphs 1, 8, 9 and 14 were either identical or virtually identical to paragraphs in the Second Vowles Affidavit. Instead of indicating that he had read and agreed with the relevant paragraphs in the Second Vowles Affidavit Mr Georgiou set out those paragraphs, or paragraphs virtually identical, again, as if they were his own evidence given independently to the Respondent’s Current Lawyers. The Court took the view that such an affidavit was an abuse of process, it not being made for the primary purpose of giving to the Court the evidence of the person concerned, and, although of significantly less importance overall, was also filed late having regard to the terms of r.29.08 of the FC Rules. In those circumstances paragraphs 2-7, 10-13 and 15 of the Second Georgiou Affidavit were struck out.
[69] Federal Court Rules 2011 (Cth), r.29.08 (“FC Rules”).
Paragraphs 8, 9 and 14 of the Second Georgiou Affidavit attested to:
a)the importance of the respondent considering the business and reviewing the structure of the business to ensure future growth is profitable in the context of the last two years having been particularly challenging for the business with the effect of the economic downturn in Western Australia where the majority of the respondent’s business is based;[70] and
b)the necessity for Mr Georgiou to be at the Harvard Leadership Program and the strategic planning session in order to set the strategic direction of the business, and that it was important for all the senior executives to attend in order for the respondent to have the full benefit of the Harvard Leadership Program and the strategic planning session.[71]
[70] Second Georgiou Affidavit, paras.8 and 9.
[71] Second Georgiou Affidavit, para.14.
The applicant’s affidavit in opposition to the interlocutory application
The applicant affirmed an affidavit on 30 July 2014[72] in response to the Respondent’s Interlocutory Affidavits. In the Applicant’s Affidavit the applicant:
[72] “Applicant’s Affidavit”.
a)notes that the parties were informed that the next available alternative hearing dates (on the basis of a three day hearing) were 11, 12 and 16 September 2014 and 4, 5 and 8 December 2014;[73]
[73] Applicant’s Affidavit, para.3.
b)did not consent to an application for an adjournment of the hearing;[74]
[74] Applicant’s Affidavit, para.4.
c)says that since making the application on 10 September 2013 almost 12 months has passed, and that the proceedings have been highly stressful for him, and that he has experienced a significant reduction in the quality of his life and peace of mind which will be prolonged by an adjournment of the hearing, and that in April 2014 he was prescribed Deralin to reduce his heartbeat;[75]
[75] Applicant’s Affidavit, paras.6-9.
d)says he is a junior legal practitioner who has recently commenced employment with his employer and has sought leave for 6, 7 and 8 August 2014 and an adjournment will require him to seek leave for new dates which he considers would reflect negatively on him as his employer has already been accommodating his study leave;[76]
e)he is involved in a Master of Construction law course in Melbourne and is required to attend in Melbourne from 3 September 2014 to 9 September 2014 (attendance is compulsory) and if the hearing is adjourned to 11 September 2014 he will have the additional stress of an imminent hearing to deal with at a time when he is engaged in an intensive period of study;[77]
f)says that whilst employed at the respondent there would be a “GMs Meeting” each month where all of the general managers and executives would meet during the course of a full day, including the general managers based in the eastern states;[78]
g)says he has made inquiries of the program manager for the Harvard Leadership Program and has been informed that it is an annual event offered during this time of the year, and that this is the seventheenth such event to be offered, and that it is not tailored to construction professionals although construction professionals may attend;[79]
h)says he has received the Respondent’s Interlocutory Affidavits, as well as further affidavits from Mr Vowles and Mr Waller for use at hearing, and understand from an email from the Respondent’s Current Lawyers that there may be more affidavits to come;[80]
i)says that the Notice to Produce documents served on the respondent by the applicant is a Notice to Produce documents at hearing, and therefore the respondent has some three and a half weeks in which to produce the documents, but had done so in any event by 30 July 2014 when a file of documents was delivered to the applicant’s barrister’s chambers;[81]
j)says that the respondent filed a copy of an outline of submissions and list of authorities for the hearing on 30 July 2014;[82] and
k)says that an informal request for discovery was received by the applicant from the Respondent’s Current Lawyers on 23 July 2014, and a file of those documents was delivered to the Respondent’s Current Lawyers on 29 July 2014.[83]
Consideration
[76] Applicant’s Affidavit, para.10.
[77] Applicant’s Affidavit, paras.11-12.
[78] Applicant’s Affidavit, para.14.
[79] Applicant’s Affidavit, para.15.
[80] Applicant’s Affidavit, paras.16-18.
[81] Applicant’s Affidavit, paras.19 and 20.
[82] Applicant’s Affidavit, para.21.
[83] Applicant’s Affidavit, para.22.
Adjournment – principles
Any application for adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth)[84] and the Federal Circuit Court Rules 2001 (Cth),[85] as prescribed by the objects of the FCCA Act[86] and the objects of the FCC Rules,[87] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.[88]
[84] “FCCA Act”.
[85] “FCC Rules”.
[86] FCCA Act, ss.3 and 42.
[87] FCC Rules, r.1.03.
[88] MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at para.9 per Judge Lucev.
The Court must also take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[89]
[89] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ (“Aon Risk”); Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
Recently the Federal Court in Walsh v The Greater Metropolitan Cemeteries Trust[90] dealt with an application to vacate a hearing by reason of the applicant’s unpreparedness in circumstances where the applicant had changed lawyers. In so doing, the Federal Court observed as follows:
Furthermore, the fact that this hearing has been set down for the next three days has precluded other litigants having their matters heard on those days. It would be impossible now for the Court to accommodate other litigants and usefully use those hearing days to deal with the matters that the Court has awaiting a hearing. The High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 makes it clear that case management considerations and the proper use of court resources, including the interests of litigants generally in the efficient workings of the Court, are germane to the exercise of my discretion in an application such as this. I refer to and rely in particular upon the judgments of French CJ at [5], [6], [30] and [35], and the judgments of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92] to [103] and also at [111] to [113]. Case management considerations weigh against the vacation of the hearing.[91]
[90] [2014] FCA 383 (“Walsh”).
[91] Walsh at para.10 per Bromberg J.
Inadequate preparation
The Respondent’s Interlocutory Affidavits foreshadowed that the Court would be asked to consider the issue of allegedly inadequate preparation by the Respondent’s Former Lawyer as a basis for granting the interlocutory orders sought by the respondent.[92]
[92] See, for example, Hartley Affidavit, paras.20-21; First Vowles Affidavit, paras.10-15 and 22-23; First Georgiou Affidavit, para.17.
At the hearing of the interlocutory application Counsel for the respondent indicated that reliance would not be placed on the allegedly inadequate preparation argument to support the interlocutory orders sought.
Fault of solicitor
As long ago as 1900 the Western Australian Supreme Court observed that:
… it is very hard that a party should suffer because of the blunder of a solicitor, his clerk, or of counsel.[93]
[93] Christie v Harvey & Hayward (1900) 2 WALR 146 at 150 per Hensman J.
In 1984 in Hunter Valley Developments Pty Ltd v Cohen[94] the Federal Court observed that “[i]t would be erroneous to treat the fault of the solicitors as if it were the direct default of the client”.[95] More recently, in 2010:
a)in Doyle v Gillespie,[96] the Supreme Court of the Australian Capital Territory suggested that the Federal Court has “embraced the views of the English courts”[97] as summed up in the following comment:
We never like a litigant to suffer by the mistake of his lawyers.[98]
and
b)the Federal Magistrates Court of Australia observed that:
… the failings of legal advisers should not necessarily be attributed to their clients who, as a result, find themselves needing an indulgence from the court …[99]
[94] (1984) 3 FCR 344 (“Hunter Valley Developments”).
[95] Hunter Valley Developments at 351 per Wilcox J.
[96] (2010) 173 ACTR 66; [2010] ACTSC 21 (“Doyle”).
[97] Doyle ACTR at 74-75 per Refshauge J; ACTSC at para.53 per Refshauge J.
[98] Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 per Lord Denning MR, and see the Australian cases cited in Doyle ACTR at 75 per Refshauge J; ACTSC at paras.54-60 per Refshauge J.
[99] Stephens v Australian Postal Corporation (2012) 202 IR 437 at 441 per Smith FM; [2010] FMCA 1012 at para.21 per Smith FM (“Stephens”), citing Comcare v A’Hearn (1993) 45 FCR 441 (“A’Hearn”) and Hunter Valley Developments.
The principle that an affected person should not necessarily be disadvantaged by the error or oversight of their representative is well established in workplace relations matters in this Court.[100] In workers compensation and personal injuries claims, even dilatory inaction by lawyers has not prevented the granting of an extension of time to enable a claim to be pursued.[101] The representative error principle has also been applied in corporations law when lawyers were, inadvertently, out of time in applying to the stock exchange for official quotation.[102]
[100] See Stephens at paras.12, 21 and 23 per Smith FM (citing both A’Hearn at 443 per Black CJ, Gray and Burchett JJ, and Hunter Valley Developments at 351 per Wilcox J); Tandoegoak & Anor v Margeruite Gerard Pty Ltd [2007] FMCA 621 at paras.21-23, 26 and 28-29 and 40(iii) per O’Sullivan FM; Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327 at 340-344 per Lucev FM; [2011] FMCA 28 at paras.42-67 per Lucev FM.
[101] A’Hearn; Crompton v Buchanan & Ors [2010] QCA 250; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7.
[102] Re Insurance Australia Group Ltd (2003) 128 FCR 581; [2003] FCA 581.
Albeit that the authorities deal principally with extension of time cases and the failure of lawyers to act to ensure compliance with time limits, the cases nevertheless establish the principle that representative error is a matter which this Court may consider in determining whether to vacate the present hearing dates and adjourn the matter to later hearing dates.
Findings, conclusions and orders
The evidence indicates that the respondent was not informed of the hearing dates of 6, 7 and 8 August 2014 until 2 July 2014 when Mr Vowles was informed by email of the content of Order 9. There is no doubt that the Respondent’s Former Lawyer is at fault in failing to provide a copy of Order 9 setting out the hearing dates to the respondent, or to otherwise inform the respondent in writing of the hearing dates, until 2 July 2014. That a lawyer acting for a party could fail to inform that party, in writing, of a Court ordered hearing date for one day shy of five months is, at the very least, extremely poor professional practice.
This, however, is not a case where the fault is solely that of the Respondent’s Former Lawyer. This is a case in which:
a)Mr Georgiou, who knew that the matter had not been resolved;
b)Mr Vowles, responsible for all of the respondent’s litigation; and
c)Mr Waller, responsible for the conduct of this litigation,
each swore affidavits in early to mid-May 2014 for the purposes of the hearing. There is no evidence given by these senior officers of the respondent as to why they failed to make any inquiry concerning the hearing date (or even when the hearing was likely to be listed). To fail to make those inquiries, particularly in circumstances where the matter had been ongoing at the time they prepared their hearing affidavits for something in the order of eight months, and where hearing affidavits were being prepared, does not negate the fault of the Respondent’s Former Lawyer, but is a significant factor to weigh in the Court’s consideration of whether an adjournment ought to be granted. In the final analysis, even though the Respondent’s Former Lawyer is at fault in failing to inform the respondent’s senior officers of the hearing dates, the respondent’s senior officers are also at fault for failing to make any inquiry whatsoever as to the hearing dates.
The other issue which arises in conjunction with the fault of the Respondent’s Former Lawyer to advise the respondent of the hearing date is the fact that the respondent has booked 12 of its senior executives and managers into the Harvard Learning Program at Aitken Hill from Sunday 3 August 2014 to Friday 8 August 2014. The respondent has paid $99,000, exclusive of airfares and accommodation costs, for their officers to attend the Harvard Learning Program. Two of those who are attending are Mr Georgiou and Mr Vowles. Mr Georgiou’s attendance is said to be essential to enable him to lead relevant discussions, particularly with respect to issues of strategy. It is conceded that whilst Mr Vowles’ attendance is not absolutely necessary, it would be “important”.[103]
[103] See para.20(f) above.
The structure of the Harvard Learning Program would indicate that over the six days there are six separate modules, one for each day, and that they appear relatively discrete in their content. That is said without the benefit of any proper explanation of the content of the Harvard Learning Program and merely from such evidence as has been produced consisting of a two-page flyer outlining the program and the course structure. In any event, the respondent’s arguments with respect to this issue again belie the fact that no-one amongst their senior officers, including Mr Georgiou or Mr Vowles, or Mr Waller who is also a witness in this case, bothered to check whether the dates for the Harvard Learning Program might clash with the hearing dates. The hearing dates were set before Mr Georgiou began consideration of whether to attend in March 2014, and even further before the respondent booked into the Harvard Learning Program in May 2014. Even then, no inquiry was made as to the hearing dates. Ultimately, the respondent must bear some responsibility for proceeding to make arrangements for, and pay for, its executives and managers to attend the Harvard Learning Program without taking any steps to check hearing dates for this matter. That is particularly so in circumstances where, on the respondent’s case, they could not have known whether this case was to be listed for a one-day, three-day or ten-day hearing, and if, for example, it was a ten-day hearing, whether it would completely overlap with the running of the Harvard Learning Program.
During the course of the hearing of the argument on the adjournment the Court became aware that 15 August 2014 had become available as a possible fourth day for the hearing of this matter, and the parties were apprised of that fact. No conclusion or agreement was reached at hearing as to how that additional day might be utilised, or whether it could be utilised as part of an alternative to adjourning the present three day hearing to a three day hearing in September 2014 or December 2014.
The Court accepts, bearing in mind its importance to the business of the respondent, and the expense that has been incurred, that the attendance of Mr Georgiou, as the Chief Executive and an owner of the respondent’s business, at the Harvard Leadership Program is essential. Likewise, the Court accepts that Mr Georgiou’s attendance for the purpose of strategic planning sessions for the business during this period is essential. That means that Mr Georgiou would not be able to attend at hearing on 6, 7 or 8 August 2014. The Court does not make the same finding with respect to the attendance of Mr Vowles, the other witness who is attending the Harvard Leadership Program. Whilst his attendance might be “important” it is not essential in the same way that Mr Georgiou’s attendance is essential.
Bearing in mind that the Court considers that, at least to some extent, the respondent must bear some responsibility for the failure to ascertain the hearing dates prior to booking the Harvard Leadership Program, the Court considers that if an additional day, a fourth day, were to be added to the existing hearing dates, namely, 15 August 2014, Mr Georgiou could attend on that day without compromising his attendance at the Harvard Leadership Program or any strategic planning sessions. And, whilst the order in which witnesses are called is entirely a matter for the respondent, Mr Vowles could attend the Harvard Leadership Program from Sunday 3 August 2014 to Thursday 7 August 2014, and give his evidence on Friday 8 August 2014, and thereby attend five of the six days at the Harvard Leadership Program. That would also allow for five days in which the respondent could hold the strategic planning sessions for the business. The additional day on 15 August 2014 would minimise the asserted prejudice to the respondent, but would also be a solution commensurate with the Court’s view that the respondent must bear some responsibility for not checking when the hearing was listed, and for making arrangements for such a significant program as the Harvard Leadership Program without first checking the possibility that the hearing dates might conflict. That is particularly so here as two of the three persons likely to give evidence at the hearing are Mr Vowles and Mr Waller, who are responsible for the respondent’s litigation as a whole, and this matter in particular, respectively.
The Court has also considered whether Mr Georgiou might give his evidence by video-link from Melbourne to Perth on either the second or the third day of the hearing (7 or 8 August 2014). In the Court’s view given the fact that Mr Georgiou’s attendance at the Harvard Leadership Program is essential, and given that Aitken Hill is some way out of Melbourne, and given the vagaries of timing and traffic, the Court cannot be satisfied that requiring Mr Georgiou to give his evidence by video-link would not compromise his attendance at the Harvard Leadership Program. In the exercise of its discretion as to whether to order that evidence be given by video-link[104] the Court has concluded that it will not order that Mr Georgiou be required to give evidence by video-link. For reasons set out above, Mr Vowles can attend to give evidence in person at the hearing, and given that his evidence is, on the basis of the affidavit evidence, the crucial evidence, because it was his recommendation that is said to have formed the basis for Mr Georgiou’s decision, and bearing in mind the likely length of his cross-examination (up to one day) and that issues of credit might arise, it is not appropriate that his evidence be taken by video-link.[105]
[104] As to the exercise of the discretion see Goodall v Nationwide News Pty Limited [2007] FMCA 218 at paras.30-49 per Lucev FM.
[105] Goodall at paras.30-39 per Lucev FM.
The Court has also considered whether the hearing ought to simply be adjourned to 11, 12 and 15 September 2014. In so doing, the Court has borne in mind that it now appears to be feasible to have the hearing run on 6, 7, 8 and 15 August 2014, and to be completed on those four days. The completion of the hearing within those four days would obviate the necessity for a hearing in September 2014. It would also mean that the hearing dates of 6, 7 and 8 August 2014 would not be lost, and that the 11, 12 and 15 September 2014 dates would remain available for other matters, and in particular any urgent interlocutory matters.[106] The Court also accepts that any delay of a month or more is likely to:
a)increase the stress of the litigation on the individual applicant, Mr Tarin, a stress which is the subject of evidence from Mr Tarin which the Court accepts,[107] and which was recognised in a general sense as a relevant factor for consideration in an adjournment application in the High Court’s judgment in Aon Risk;[108] and
b)cause stress to Mr Tarin in relation to his attendance at a unit in his Master of Construction law course in Melbourne in the week immediately preceding the possible September 2014 hearing dates.
[106] Walsh at para.10 per Bromberg J.
[107] Applicant’s Affidavit, paras.6-9.
[108] Aon Risk CLR at 214 per Gummow, Hayne Crennan, Kiefel and Bell JJ; HCA at paras.100-101 per Gummow, Hayne Crennan, Kiefel and Bell JJ.
The Court has also weighed in the balance the fact that between the time that the respondent became aware, at the latest on 2 July 2014, and the making of this application for an adjournment, 21 days elapsed. Whilst the Respondent’s Former Lawyer was still on the record and instructed no application for an adjournment was made or foreshadowed. The Respondent’s Current Lawyers were instructed on or about 11 July 2014, and became the lawyers on the record on 15 July 2014, but still no application for an adjournment was made. It was more than a week before that adjournment application was made. No explanation for that delay was given, other than the fact that Mr Georgiou was on long service leave. No explanation was provided as to why Mr Vowles, as Group Manager – Risk, responsible for managing all litigation for the respondent, was not able to give instructions to proceed to make a simple adjournment application. The Court accepts that the Respondent’s Current Lawyers have acted expeditiously insofar as they were able in accordance with their instructions, but it is the delay by the respondent in giving instructions to the Respondent’s Current Lawyers or indeed the Respondent’s Former Lawyer to apply for an adjournment of which the Court is critical. That delay, being a period of three weeks at a crucial stage, must weigh in the balance against the discretionary grant of an adjournment.[109]
[109] See, for example, Walsh at paras.3-10 per Bromberg J.
Finally, the Court notes that if the existing three listed days are not vacated there will be no costs thrown away for any party in relation to those days. That is a not unimportant consideration in a matter where costs may only be ordered in limited circumstances.[110]
[110] FW Act, s.570(2).
The Court having considered all of the above matters determines, in the exercise of its discretion, that:
a)the application to vacate the existing hearing dates and adjourn the matter to a hearing in September 2014 is to be dismissed;
b)a further day of hearing on 15 August 2014 is to be listed;
c)Reasons for Judgment are to be published later from Chambers; and
d)costs are to be reserved,
and orders are to be made accordingly.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 August 2014
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