The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.4)
[2013] FMCA 182
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v LINKHILL PTY LTD (No.4) | [2013] FMCA 182 |
| INDUSTRIAL LAW – Proceedings for civil penalties for alleged breaches for WR Act and FW Act – allegations of sham contracting – application for adjournment – hearing part heard – appeal pending – limited hearing time available – Court resources – balance of convenience – adjournment granted. |
| 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 Federal Court of Australia Act 1976 (Cth) s.29 |
| The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA163 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 LTD |
| File Number: | (P)MLG 1514 of 2011 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 13 March 2013 |
| Date of Last Submission: | 13 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 13 March 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 applicant for an adjournment be granted.
The substantive proceedings be adjourned to 13 May 2013 at 10:00am.
The respondent have leave to discontinue the application in a case filed
7 March 2013 pursuant to Rule 13.01(2)(b) of the Federal Magistrate Court Rules 2001.
The applicant’s costs be reserved and the applicant file any application for costs thrown away, as a result of the adjournment, material in support and submissions by 2 April 2013.
The respondent file any response to the application for costs in order 4 along with submissions by 9 April 2013.
Any further interim application by the respondent be filed and served by 9 April 2013.
The applicant’s costs application and any interim application by the respondent be made returnable on 16 April 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 today are proceedings between the Director of the Fair Work Building Industry Inspectorate (“the applicant”) and Linkhill Pty Ltd (“the respondent”).
The background to these proceedings is set out in The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA163, The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.2) [2013] FMCA164 and The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA165 (“Linkhill No.3”).
On 12 March 2013 Mr Moore of Counsel appeared again on behalf of the applicant and Ms Bingham of Counsel appeared on behalf of the respondent.
For the reasons set out in Linkhill (No.3) there were orders made by this Court on 12 March 2013 dismissing an application in a case filed by the respondent.
After the reasons for decision in Linkhill (No.3) were published the respondent sought that the matter be stood down. Counsel for the respondent advised that she was instructed the respondent would be pursuing an application for leave to appeal from the decision in Linkhill (No.3) and would be seeking a stay of the substantive proceedings.
By agreement between the parties the matter was stood down until 12.00 noon. The Court was subsequently advised that the parties were content for the matter to simply be stood over to today, 13 March 2013.
Today the applicant advised it was ready to proceed with the substantive proceedings. Counsel for the applicant had advised his client not been served with or provided with any notice of appeal notwithstanding what the respondent indicated to the Court on
12 March 2013.
Counsel for the applicant indicated that the applicant had two witnesses, who were available to give evidence today and were, as Counsel said, “ready to go” and on that basis his client wished to proceed with the hearing of the evidence in the substantive proceedings.
Counsel for the respondent indicated that she was instructed an application for leave to appeal and for a stay of the substantive proceedings was being settled by Senior Counsel. Counsel for the respondent indicated that her instructions were that it was anticipated that paperwork would be filed today. Counsel for the respondent told the Court that she had spoken with the Federal Court Registrar and been advised that it would be unlikely that any application filed would be listed today. Counsel for the respondent advised the Court that the Federal Court Registrar indicated if an application was filed, and it was deemed urgent, efforts would be made to accommodate any request for an urgent hearing.
The matter was stood down so that the respondent could provide the foreshadowed notice of appeal. However before the matter was stood down the respondent’s Counsel made plain that she wished to seek an adjournment.
The adjournment application was put against the background of the foreshadowed appeal and the applicant’s own submission that the nature and breadth of the proceedings would change were it to succeed. It was submitted whilst there may be witnesses here ready to go those witnesses may have to be recalled and as today had been the only other day set aside for hearing and it was unlikely that the evidence would be concluded today, the Court should accede to Counsel’s oral application for an adjournment.
When the matter resumed after 12.30 pm the adjournment application was pressed. Counsel for the respondent tendered a bundle of documents including a draft notice of appeal[1] which has been provided to Counsel for the applicant. Counsel for the respondent made plain that she was instructed the appeal would be filed as soon as possible.
It appears that the respondent will be subject to whatever priority is accorded any application that may be filed by the Federal Court Registry.
[1] Exhibit R4
The applicant (even in the face of exhibit R4) has maintained its opposition to the respondent’s adjournment application. Counsel for the applicant has noted that his client is entitled to the benefit of a judgment[2] until determined otherwise by any appeal. Counsel for the applicant has submitted the respondent should not be allowed to obtain a stay by from this Court by stealth. Counsel for the applicant has submitted that the Court should not accede to the application on that basis.
[2] The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA165.
Counsel for the applicant did acknowledge that there may be some merit in the Court considering of the reasons an adjournment on the basis that if the matter resumed today it could not be concluded today. It was also acknowledged subject to the disposition of the foreshadowed appeal that it may be necessary to recall any witnesses heard today and the witnesses who have been heard thus far.
Nonetheless, the applicant did maintain that there was utility in proceeding today.
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)[3] and the Federal Magistrates Court Rules 2001 (Cth),[4] as prescribed by the objects of the FM Act[5] and the objects of the FMC Rules,[6] 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.
[3] “FM Act”.
[4] “FMC Rules”.
[5] FM Act, ss.3 and 42.
[6] FMC Rules, r.1.03.
This Court can not make a stay order in relation to the foreshadowed appeal. The relevant jurisdiction in which to seek a stay would be the Federal Court. Section 29 of the Federal Court of Australia Act 1976 provides:
“(1)Where an appeal to the Court from another Court has been instituted:
(a) the Court or a Judge or a Judge of that Other Court, not being the Federal Magistrates Court or a Court of summary jurisdiction, may order on such conditions, if any, as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and
(b) the Court or a Judge may by order, on such conditions, if any, as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal in whole or in part relates.
(2)This section does not affect the operation of any provision made by or under any other Act or by the Rules for the Court for or in relation to the stay of proceedings.”
In relation to the respondent’s application for adjournment there is some basis for the submission that the proceedings should be adjourned as even if they resumed today they wouldn’t be concluded.
There is also some basis for the submission made by Counsel for the applicant that from the applicant’s point of view the respondent appears to be throwing every possible hurdle in the way of the future conduct of this matter.
However the applicant’s case has not concluded and the respondent has not opened its case. There are witnesses for the applicant at Court today but it has not been contested that their evidence would not be completed today. The hearing of the substantive proceedings had been adjourned on 28 February 2013 to deal with the respondent’s application in a case. That application was heard on 1 March 2013 and the proceedings otherwise adjourned to 12 March 2013 but only 2 days this week were put aside.
Given what has transpired it is more appropriate in the circumstances to adjourn the matter off to the next block of days that the Court has available, this would be in the week of 13 May 2013.
Whilst it would be appealing, on one level, to proceed today I am not satisfied much could be achieved this afternoon given it is now 1pm, the Court would not reconvene until after 2pm and then would only go for possibly two hours.
Balancing the prejudice to the applicant if the matter is adjourned versus the prejudice to the respondent if it is not, to the extent I have had submissions in relation to that no one has suggested that costs would not be a sufficient compensation for the matter being adjourned.
The bottom line is, it seems to me, for the sake of trying to squeeze a couple of hours out of the Court today, it would be cleaner and simpler to adjourn the matter to the next block of hearing days, to see whether the balance of the proceedings could be accommodated within that sitting week beginning 13 May 2013.
I will, for those reasons, adjourn the proceedings to the week commencing 13 May 2013 and otherwise make the directions agreed by Counsel for the future conduct of the matter. I so order.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 13 March 2013
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