The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.2)
[2013] FMCA 164
•26 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v LINKHILL PTY LTD (No.2) | [2013] FMCA 164 |
| INDUSTRIAL LAW – Proceedings for civil penalties for alleged breaches for WR Act and FW Act – allegations of sham contracting – application for an adjournment – unspecified or particularised reasons for adjournment – relevant considerations – adjournment refused. |
| Workplace Relations Act 1996 (Cth) s.900 Fair Work Act 2009 (Cth) s.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 Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620 |
| Applicant: | THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| Respondent: | LINKHILL PTY LTD |
| File Number: | (P)MLG 1514 of 2011 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 26 February 2013 |
| Date of Last Submission: | 26 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 26 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Moore |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Ms S. Bingham |
| Solicitors for the Respondent: | At Work Law |
ORDERS
The respondent’s oral application for an adjournment be refused.
| 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 Ltd (“the respondent”). These proceedings commenced in October 2011. The trial was to commence this week on Monday 25 February 2013 but was adjourned to today due to the illness of the applicant’s counsel.
The proceedings have had an extensive procedural history. There has been a number of amended applications and amended defences filed. There was an amended statement of claim filed on 11 December 2012 and a further amended defence filed on 21 December 2012. The proceedings had been fixed for trial by orders made in June 2012. At all times throughout these proceedings the applicant and the respondent have been represented.
The applicant alleges that the respondent contravened various provisions of the Workplace Relations Act 1996 (“the WR Act”) and the Fair Work Act 2009 (“the FW Act”). The applicant sought various orders, penalties and other ancillary relief against the respondent. The allegations made by the applicant against the respondent arise from the engagement by the respondent of 10 workers from periods between 2007 and 2010.
Today 26 February 2013 the respondent made an oral application for an adjournment after the applicant had opened its case. The basis or the reasons for the requested adjournment were various. The Court was told that counsel (who it is accepted was only briefed last Friday) was instructed to make the application. The respondent has had the same solicitors on the record since filing its defence back in December 2011.
Counsel submitted (albeit at a level of abstraction or generality that made the raison d'être for the adjournment difficult to actually understand and contextualise) that there needed to be amendments to the defence made and that the pleadings may be defective. Counsel told the Court that advice about the principles that would be applied to the application had been provided and she had been instructed nonetheless to make the application and that her client would be prepared to pay the costs of any adjournment. The Court was told that the adjournment application was only made now because of the instructions that counsel has been given. The Court was told that the respondent apologised for the timing of the application.
Counsel for the respondent told the Court that given these are penalty proceedings in the interests of justice and on her instructions it's necessary for the Court to allow her client's application for the adjournment so that the issues that the respondent, as presently instructed, believes are necessary to deal with can be dealt with.
The applicant has opposed the adjournment. The applicant has noted that proceedings have been on foot since October 2011. It was noted that there has been some “to-ing and fro-ing” since then. However it was submitted that the respondent has been on notice since September 2012 as to the applicant's case in the amended application. It was submitted that the articulated basis for the adjournment application was unsatisfactory. It was submitted the Court was not in a position where it is able to understand the nature of the amendments that may be made to the respondent’s defence given the vagueness with which the raison d'être for the adjournment application was put and this should give the Court cause for concern.
It was submitted that given this and that there may be applications made down the track for leave for admissions contained in the amended defence to be withdrawn this should tell against the adjournment application. No criticism was made of counsel for the respondent. However it was noted this is a matter where the respondent has been represented at all times. It was submitted this isn't a situation where an unrepresented litigant, who is not familiar with litigation, is faced with confronting the reality of a trial. It was submitted that it is difficult to understand the reason why the adjournment was sought. It was submitted that the interests of justice wouldn't be met by granting the adjournment. It was submitted that there are a number of people including those under subpoena, who would be impacted by any adjournment. It was submitted that costs wouldn't be sufficient compensation for the prejudice that would be caused by any adjournment, particularly having regard to the vague nature of the reasons for the adjournment.
Adjournments are not readily granted in this Court. However if an adjournment application is made then the Court will hear and determine it. 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 Court is faced with the situation where unfortunately the level of abstraction or the generality of the reasons for the adjournment provide an unsatisfactory basis for an adjournment. Whilst these are penalty proceedings the allegations against the respondent aren't something that would have come as a surprise having regard to the period of time the respondent has known of the allegations. The respondent knew back in September 2012 of the amended statement of claim filed in early December 2012. The respondent had time to file an amended defence. However it is only today the respondent made the application for an adjournment.
In those circumstances the Court isn’t satisfied that there's a valid reason for an adjournment and is concerned the prejudice to the applicant and other associated parties if the adjournment was granted would outweigh the prejudice to the respondent if the adjournment was refused.
The applicant and the respondent have both filed various iterations of their initiating documentation.
In Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620, Finkelstein J stated:
“3.The primary object of a defence is to inform the plaintiff what parts of the statement of claim are admitted, what parts are denied and on what grounds and facts the defendant intends to rely to defeat the claim. The defence should contain, in summary form, the material facts upon which the defendant will base his defence but not the evidence by which those facts are to be proved. Taken together, the statement of claim and defence define the issues to be tried and enable the parties to know what evidence they must call. A properly pleaded case will ensure an efficient trial that brings into focus the precise issues that are in dispute and will prevent the injustice that comes about when a party is taken by surprise.”
The virtue of the efficient conduct of a trial that his Honour referred to in that decision was one of the very reasons why orders were made by consent for the applicant to file the amended statement of claim in December 2012. It is now the end of February 2013. At the end of February 2013 the Court is now faced with an adjournment application made at a level of abstraction or generality that raises real concerns as to whether there is a proper basis for the adjournment application.
This is a case where the interests of the respondent are not the only consideration. The Court should take account of the five days that have been set down for this matter for over six months. The Court has strived to keep this week free so that this matter can be heard. There would be obvious inconvenience, not only to the applicant and the witnesses as well as other parties who would be affected if the matter was adjourned.
The interests of other litigants does in my view, weigh against the adjournment, given the vague nature of the reasons for the application. I'm not satisfied that costs would be sufficient compensation. I refer to the submissions made on behalf of the applicant in that regard. This is a matter where particularly having regard to the fact that the respondent has been represented from the get go, and has had sufficient opportunity to make their case an adjournment is not appropriate. There's no application seeking withdrawal of admissions. I'm satisfied that the respondent has had every opportunity to understand the case against it. It has had an opportunity to put in a further amended defence in December 2012. This isn't a situation where the Court has been asked to grant leave to file yet another further amended defence. If that application had been made in early February 2013 it could have been considered but the only application that has been made is the adjournment application for very generalised and unsatisfactory reasons given today.
There has been an explanation given for the adjournment but it’s not sufficient. There would be substantial delay and wasted costs and the concerns of case management do in this case tell against the application for an adjournment. In the circumstances where I'm not satisfied that there's a valid reason for an adjournment, at least as at today's date and where I'm satisfied that the prejudice to the applicant would outweigh the prejudice to the respondent the oral application made this day will be refused and I so order.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM.
Date: 26 February 2013
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