Twomey v Campbell Personnel Pty Ltd (No 2)
[2024] FedCFamC2G 1151
•31 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Twomey v Campbell Personnel Pty Ltd (No 2) [2024] FedCFamC2G 1151
File number(s): PEG 51 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 31 October 2024 Catchwords: PRACTICE AND PROCEDURE -where a statement of claim was not filed in accordance with orders of the Court – proceedings to be dismissed in their entirety - costs in the matter not sought. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.04, 13.05
Cases cited: Twomey v Campbell Personnel Pty Ltd [2024] FedCFamC2G 742 Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 31 October 2024 Place: Perth Solicitor for the Applicant: Self-represented litigant Solicitor for the Respondent: Ms Mak (Irwell Law) ORDERS
PEG 51 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RHYS JUNIOR HUIRAU TWOMEY
Applicant
AND: CAMPBELL PERSONNEL PTY LTD
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
31 OCTOBER 2024
THE COURT DECLARES THAT:
1.The applicant is in default of orders made by Judge Ladhams on 16 August 2024 pursuant to r 13.04(1)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as he has failed to file an Amended Statement of Claim.
THE COURT ORDERS THAT:
2.Pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 the proceedings are dismissed in their entirety.
3.There be no order as to costs.
THE COURT NOTES THAT:
A.The applicant disconnected from the Microsoft Teams call prior to judgment being delivered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore, revised from the transcript)
This is the matter of Rhys Junior Huirau Twomey v Campbell Personnel Proprietary Limited. An application was originally filed in this matter seeking orders under the general protection provisions of the Fair Work Act2009 (Cth). It was originally filed in the Federal Court, but was transferred to this Court.
By an application in proceedings, the respondent, Campbell Personnel, sought, amongst other things, that the statement of claim be struck out. In a judgment delivered on 16 August 2024, Ladhams J made orders striking out the statement of claim. I note that she said, in that judgment, which is reported at [2024] FedCFamC2G 742, at [25], she was satisfied that it was:
Appropriate to strike out the whole of the statement of claim in this matter on the basis that it is likely to cause prejudice, embarrassment, or delay in the proceeding and that it fails to disclose a reasonable cause of action.
She went on to say, at [29]:
Mr Twomey’s statement of claim is, with respect, difficult to understand in any meaningful way. The statement of claim is embarrassing, and does not set out the material facts in any way that would enable Campbell Personnel to understand the case against it. It does not disclose any arguable cause of action in its current form. To allow the proceeding to continue on the current articulation of Mr Twomey’s case would be inefficient; prejudicial to Campbell Personnel and would, in all likelihood, result in Campbell Personnel incurring costs unnecessarily in an attempt to respond to a case that it cannot understand.
At [39], she went on to say:
There are no parts of the statement of claim that can meaningfully be preserved, and it is appropriate that the whole of the statement of claim be struck out.
At [40] and [41], her Honour went on to state that there was:
No evidence prior to the strike out application that there was any clear communications from Campbell Personnel or its lawyers to explain to Mr Twomey the defects in the statement of claim, and that it was appropriate that he be afforded a further opportunity to file a new statement of claim to remedy the defects in the statement of claim.
She also went on to state, at [41] that there may well be costs implications, as he would not be provided an unlimited number of opportunities to clearly articulate his case.
Following the handing down of that judgment, her Honour made orders on 16 August 2024 that the applicant, Mr Twomey, was to file and serve a new statement of claim by 4.30 pm on 16 September 2024.
THE CURRENT PROCEEDINGS
Mr Twomey has appeared before me today. Although he has made various statements, he has, of his own volition, determined to disconnect from the proceedings by telephone, and this judgment is being given in his absence.
Since the orders were made, no new statement of claim has been filed. There has been correspondence with the Court, including an Affidavit which was filed on 31 October 2024, in which Mr Twomey seeks a number of orders, including an annulment of the Court order of 16 August 2024. He also seeks that I find Ladhams J in contempt of Court twice.
Given a number of allegations made by Mr Twomey subsequent to the orders made by Ladhams J, it was determined it was appropriate that the matter be transferred to me so that his perception that there might be some bias against him from Ladhams J could be otherwise addressed.
As I have indicated above, he has appeared before me this morning. He has confirmed that no statement of claim has been filed.
The respondent’s legal representative, Ms Mak, has provided to the Court draft orders that the proceedings be dismissed on the basis that the applicant is in default of the orders made by Ladhams J on 16 August. These orders were provided to the applicant on the 27th of September 2024, well prior to the hearing.
Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 provides that a party is in default pursuant to r 13.04, where an applicant fails to file and serve a document as required by these rules.
Pursuant to r 13.05, where an applicant is in default, the Court may order, under r 13.05(1), that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
DETERMINATION
In my view, pursuant to r 13.04, Mr Twomey is in default in that he has failed to comply with the order made by Ladhams J on 16 August 2024.
I am satisfied that, in the circumstance of this matter, it is appropriate that the entirety of the proceedings be dismissed, bearing in mind he was put on notice that that might happen on the last occasion when judgment was delivered.
Ms Mak and her client have taken a very pragmatic attitude, which I wish to acknowledge, that they have declined to seek costs. Even had costs been granted, I think there is some significant doubt as to whether or not they may have been able to collect those costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 6 November 2024
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