The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1)
[2013] FMCA 163
•25 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v LINKHILL PTY LTD | [2013] FMCA 163 |
| INDUSTRIAL LAW – Proceedings for civil penalties for alleged breaches of WR and FW Act – allegations of sham contracting – oral application for adjournment – illness of Counsel – adjournment for one day. |
| Workplace Relations Act 1996 (Cth) ss.900 Fair Work Act 2009 (Cth) ss.357 Federal Magistrates Act 1999 (Cth) ss.3, 42 Federal Magistrates Court Rules 2001 (Cth) r.1.03 |
| Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 |
| Applicant: | THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| Respondent: | LINKHILL PTY LIMITED |
| File Number: | (P)MLG 1514 of 2011 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 25 February 2013 |
| Date of Last Submission: | 25 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 25 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Davis |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Ms S. Bingham |
| Solicitors for the Respondent: | At Work Law |
ORDERS
The proceedings be adjourned to Tuesday, 26 February 2013 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.
The subpoenas returnable today be adjourned until 26 February 2013.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
(P)MLG 1514 of 2011
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| LINKHILL PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court are proceedings between the Director of the Office of the Fair Work Building Industry Inspectorate (“the applicant”) and Linkhill Pty Limited (“the respondent”). The proceedings were commenced by the applicant in October 2011. By its amended application, the applicant alleges that the respondent contravened various provisions of the Workplace Relations Act 1999 (“the WR Act”) and the Fair Work Act 2006 (“the FW Act”).
The proceedings had been fixed for a five-day trial commencing today by orders made in June 2012. The matter had last been before the Court on an interlocutory basis in December 2012. Ultimately by consent, the applicant had leave to file an amended statement of claim the respondent filed a further amended defence and there were directions providing for the parties to file further material for the purposes of trial.
This morning when the matter was called, Ms Davis, solicitor, appeared on behalf of the applicant and Ms Bingham of Counsel on behalf of the respondent. Ms Davis made an oral application (which wasn’t opposed) for the matter to be adjourned due to the personal illness of Counsel. The Court was told this only came to the applicant’s attention at 7.30 am this morning. Counsel has been instructed in this matter for some time but is unable to attend Court today due to a personal illness. This hasn’t been cavilled with by the respondent.
The applicant sought that the matter simply be adjourned over till tomorrow. However the respondent indicated that it sought that the matter be adjourned for a week. The Court was told that the reason why the matter should be adjourned for that length of time is that one of its witnesses, (a witness who isn’t yet on affidavit filed with the Court) will be absent in New Zealand.
The question of adjournment requires the Court to balance issues such as case management and prejudice.
It has been made clear Courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (Aon)).
In Aon their Honours made a number of points, which included that:
a)
the conduct of litigation is not merely a matter for the parties.
The need to avoid disruptions in the Court’s lists, with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
b)when considering an application such as this the Court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Magistrates Act 1999 (Cth)[1] and the Federal Magistrates Court Rules 2001 (Cth),[2] as prescribed by the objects of the FM Act[3] and the objects of the FMC Rules,[4] 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.
[1] “FM Act”.
[2] “FMC Rules”.
[3] FM Act, ss.3 and 42.
[4] FMC Rules, r.1.03.
The matter has been programmed for a hearing today for some considerable time. There’s only so many dedicated general federal law hearing weeks in the Court’s docket this year. If the whole of this week was vacated, the next time (save for the two days that have already been put aside on 12 and 13 March 2013) that the matter could be accommodated if it was adjourned off would be 6 May 2013. It would be more likely to be adjourned to much later this year.
The number of Court books and the size of the Court file is a testament to the amount of work that has gone into the preparation of this matter. Five days have been allocated.
In those circumstances, whilst it would be tempting to adjourn the matter off for at least the week that the respondent sought, I’m loathed to do so having regard to Court resources principles. The Court has been told today by the applicant that they will be ready to proceed tomorrow.
Conduct of litigation is not merely a matter for the parties. That is the situation that pertains in this case. I have got to take account of the interests of other parties, not just the litigants involved in this matter. Costs are not always a sufficient compensation for the vacation of a hearing date. An explanation has been offered for the oral application made today. It was, and it has not been contested, simply unavoidable. I am concerned to minimise any wasted costs and substantial delay, where there is a valid reason for the adjournment. I am satisfied that the application has been made as soon as was reasonably possible and the prejudice to the respondent doesn’t outweigh the prejudice to the applicant.
I’m satisfied I should grant the adjournment for the period sought by the applicant. The matter is adjourned until 10.00 am on Tuesday, 26 February 2013 and I so order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 25 February 2013
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