Venstra v Australian Bay Lobster Producers Ltd
[2016] FCCA 2308
•6 September, 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VENSTRA v AUSTRALIAN BAY LOBSTER PRODUCERS LTD | [2016] FCCA 2308 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside orders for dismissal of proceedings at first court date for want of appearance – test to be applied – whether explanation for failure to appear – whether different orders to those sought to be set aside might be made – whether prejudice to the respondent – orders set aside. PRACTICE AND PROCEDURE – Filing of initiating process – filing by facsimile. |
| Legislation: Fair Work Act 2009, ss.361, 368, 370(1), 370(a)(ii) Federal Circuit Court Rules 2001, rr.2.05(3), 2.06, 2.07, 13.03C(1)(c), 16.05(2)(a) |
| Cases cited: Clifford & Mountford [2016] FMCAfam 450 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 |
| Applicant: | ELKE VENSTRA |
| Respondent: | AUSTRALIAN BAY LOBSTER PRODUCERS LTD |
| File Number: | BRG 161 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 14 December 2015 and 11 January 2016 |
| Date of Last Submission: | 11 January 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 6 September, 2016 |
REPRESENTATION
| Solicitors for the Applicant: | S+P Lawyers |
| Counsel for the Respondent: | Mr Bremhorst |
| Solicitors for the Respondent: | Human A.S.S.E.T. Solutions Pty Ltd |
ORDERS
Within 28 days of the date of these orders the respondent file and serve points of defence in answer to the applicant’s statement of claim filed on 25 January 2016.
The parties attend a mediation to be conducted by a Registrar of this Court with such mediation to occur at 9:30 a.m. on 10 October 2016.
Each party file and serve any affidavits of evidence in each by any witnesses upon which they intend to rely at trial no later than 4.00 p.m. on 4 November 2016.
The application be adjourned to 15 November 2016 at 10.00 a.m. for final hearing (with an estimated hearing time of 3 days) in the Federal Circuit Court of Australia sitting at Brisbane.
Costs of the reinstatement application be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 161 of 2015
| ELKE VENSTRA |
Applicant
And
| AUSTRALIAN BAY LOBSTER PRODUCERS LTD |
Respondent
REASONS FOR JUDGMENT
On 19 February, 2015 the applicant commenced proceedings seeking relief against dismissal from her employment with the respondent. She alleges that the dismissal was in contravention of a general protection provided to her by the Fair Work Act 2009 (Cth).
On the first court date, 30 March, 2015 the applicant failed to appear. There was no appearance by any party. Consequently, the application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
On 5 November, 2015 the applicant applied for an order setting aside the order made on 30 March, 2015 and asking for her application to, in practical terms, be reinstated.
That application came on for hearing on 14 December, 2015. The application was opposed by the respondent. The hearing was not completed on that day because the applicant had not filed any evidence upon which the Court might have come to the conclusion that should the orders of 30 March, 2015 be set aside and the matter proceed to a trial, different orders to those made on 30 March, 2015 might be made. The only material filed by the applicant in support of her application was an affidavit by her solicitor, Mr Thompson, explaining why there was no appearance on the first court date. That evidence, on its own, was insufficient for her to succeed on the application. Accordingly, I provided the applicant with another opportunity to file evidence to support her reinstatement application. The further hearing of that application was adjourned to 11 January, 2016.
Between 14 December, 2015 and 11 January, 2016 the applicant filed an affidavit and an outline of submissions and the respondent filed three affidavits and a further outline of submissions (it having also provided an outline of submissions at the hearing on 14 December, 2015).
Consideration
Rule 16.05(2)(a) provides that the Court may vary or set aside a judgment or order after it has been entered if the order is made in the absence of a party. It is pursuant to that rule that the applicant applies in this case.
I summarised the relevant authorities dealing with applications of this nature under cognate rules in Clifford & Mountford [2016] FMCAfam 450. It is apparent from the authorities that I considered in that decision, and from subsequent authorities (see for example MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530) that the discretion to be exercised is unfettered, but nonetheless must be exercised judicially bearing in mind the public interest in there being an end to litigation. There are generally three criteria each of which should usually be demonstrated, before a judgment or order is set aside under r.16.05(2)(a). Those criteria are:
a)a reasonable explanation for the applicant’s absence at the trial or hearing;
b)material arguments that are available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
c)no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
Relevant to each of the criteria to which I have just referred will be issues such as:
a)whether a party with notice of proceedings disregarded the opportunity of appearing at or participating in the trial or hearing;
b)the delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it; and
c)the conduct of the applicant since the judgment or order sought to be set aside was made.
The applicant’s solicitor swears that on 13 January, 2015 the applicant made a general protections application involving dismissal to the Fair Work Commission. S+P Lawyers were engaged in respect of that application on 23 January, 2015. A conciliation conference took place on 4 February, 2015. The matter was not resolved at the conciliation conference and a certificate under s.368 of the Fair Work Act was issued.
On 19 February, 2015 the applicant commenced proceedings in this court. Her solicitor originally attempted to file the application by facsimile, but was advised in a telephone conversation on 19 February, 2015 that the application must be made through the “e-lodgement facility on the Federal Circuit Court website”. Although unfamiliar with it, the applicant’s solicitor did that. He obtained a confirmation that the lodgement of the application was successful. He deposes that he then waited for notification from the Court for a date for the matter to be listed for its first court date.
In his affidavit filed on 13 October, 2015 the applicant’s solicitor swears that he did not receive any notification from the Court advising of a date that the matter was listed. He checked the e-lodgement website on 8 April, 2015. At that point he observed that the matter had been before the Court and had been dismissed for non-appearance. On that day he contacted the Court “seeking advices as to whether the matter could be relisted as the parties were not aware of the matter being listed.” He says that, “I was advised to refer to the Federal Circuit Court Rules 2001 for information in dealing with these circumstances.” On 2 July, 2015 the applicant’s solicitor “again contacted the Court to query the correct procedure for having the judgment set aside and restored.” He was informed that he would have to lodge an interlocutory application. That application was not filed until 13 October, 2015.
Subsequently, in his affidavit filed on 10 December, 2015 the applicant’s solicitor gave evidence that he received an email from the Federal Circuit Court Registry on 19 February, 2015 advising that his lodgement of the applicant’s application had been accepted and processed. He deposes to a belief that he would “be sent a further email advising of a listing date for the matter”. However, he did not visit the hyperlink contained in the email sent to him by the Registry which would have led him to documents to be downloaded from the Court’s e-lodgement facility and which contained details of the first court date for his client’s application. The applicant’s solicitor concedes that because of an error on his behalf he, and his client, were unaware of the first court date for the applicant’s application.
It is clear that the applicant’s failure to appear at the first court date was due to an error on the part of her solicitor. The error came about because of her solicitor’s lack of familiarity with the Court’s e-lodgement process which, from 1 January, 2015 was the preferred method of filing in the Federal Court of Australia, the Court which at that stage was supplying registry services to the Federal Circuit Court of Australia. I am satisfied that there is an adequate explanation for the applicant’s failure to appear at the first court date.
There is no explanation for the delay in commencing this application to set aside the Court’s earlier orders.
On 23 December, 2015 the applicant filed an affidavit that set out the facts upon which her claim is based. The applicant’s case is that the respondent took adverse action against her by terminating her employment because she made a complaint or enquiry with her employer about her employment. In short compass, her evidence is that she was concerned about the behaviour of another of the respondent’s employees towards her over a period of time and about which she made complaint to the respondent’s Human Resources Manager. Her claim is that by reason of making those complaints, her employment was ultimately terminated.
At the hearing of the present application I asked counsel for the respondent whether the respondent accepted that if the applicant was able to persuade the Court of the facts set out in her affidavit, s.361 of the Fair Work Act was engaged. Counsel conceded that it would be and that it would fall to the respondent to prove that it did not take the adverse action asserted by the applicant (the termination of her employment – something that did not seem to be in dispute) for a proscribed reason.
However, the respondent argued that there was a more fundamental problem with the applicant’s application. Her application needed to be commenced in this court no later than 18 February, 2015. It was not commenced until her application was electronically filed through the e-lodgement facility at 4:09pm on 19 February, 2015. Accordingly, the respondent argues that she was outside of the time limited by s.370(1) of the Fair Work Act for the commencement of these proceedings. She could however, have that time extended, but she has made no application for an extension despite being put on notice that her application was out of time.
I do not agree that the applicant’s application is out of time. Her solicitor deposes to sending her initiating application to the Registry by facsimile. At the time he did so, the Federal Circuit Court Rules provided (and they continue to provide) in r.2.07:
Filing by fax
(1) An authorised Registrar may approve at least 1 fax number for each Registry for receiving documents.
(2) A document sent to a Registry by fax must be:
(a) sent to an approved fax number for the Registry; and
(b) accompanied by a cover sheet stating:
(i) the sender’s name, postal address, telephone number, fax number and any document exchange number; and
(ii) the number of pages sent; and
(iii) the action sought in relation to the document.
(3) If the document is in an existing proceeding, it must be sent to an approved fax number for the Registry that is the appropriate place for the proceeding.
(4) If the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:
(a) make 1 copy of the document; and
(b) if the sender asks that the document be held for collection—hold it for collection for 7 days; and
(c) if the sender does not ask for the document to be held for collection, or having asked does not collect the document within 7 days—return the document by sending it:
(i) by fax to the fax number stated on the cover sheet; or
(ii) if no fax number is stated, to the postal address stated on the cover sheet.
(5) The sender of a document to a Registry by fax must:
(a) keep the original document and the transmission report evidencing successful transmission; and
(b) produce the original document or the transmission report as directed by the Court.
(6) If the Court directs that the original document be produced, the first page of the document must be endorsed with:
(a) a statement that the document is the original of a document sent by fax; and
(b) the day that the document was sent by fax.
The rules of the Federal Circuit Court authorise the filing of documents by facsimile. A facsimile number has been authorised for that purpose for the Brisbane Registry. The authorisation has not been discontinued and remains current.
The applicant’s solicitor deposes to receiving a call “from the Federal Circuit Court Registry” advising him that applications must be made through the “e-lodgement facility”. That advice was, in my view, erroneous. The rules of this Court provide for the applicant to file her application by facsimile. Save for the circumstances set out in r.2.06 of the Federal Circuit Court Rules, the Registrar had no authority to refuse to accept the applicant’s application for filing by facsimile on 18 February, 2015. By operation of r.2.05(3) her application ought to be taken to have been filed on 18 February, 2015 given that the Registrar’s refusal to accept the document, prima facie, was not authorised by the rules of this Court.
In any event, even if my analysis is not correct, it seems to me that the applicant would have a very strong case for an extension of time within which to commence her proceedings pursuant to s.370(a)(ii) of the Fair Work Act.
To the extent that the respondent argues that the evidence that it has filed for the purposes of this application demonstrate the reasons why the applicant’s employment was terminated, it may well be the case that following a trial the Court is persuaded to accept that evidence. However, it might also be the case that following the trial the Court is not persuaded that the reasons put forward by the respondent for terminating the applicant’s employment were not the real reasons for that action. In that event the applicant’s claim would succeed.
The respondent argues that there is prejudice to it and that prejudice tells against permitting the applicant’s application. The prejudice identified in the affidavit of Michael Harrold Dalton is:
a)the difficulty in performing a retrospective investigation into the applicant’s allegations;
b)the difficulty identifying witnesses who may have knowledge of matters relevant to the allegation;
c)the difficulty in obtaining statements from and dealing with one material witness;
d)the nature of the allegations make it probable upon the trial of the matter issues of credit concerning the content of past conversations were required thus potentially raising issues with the reliability of witnesses recollections; and
e)additionally, potentially the respondent will be subjected to other irrecoverable costs associated with the undertaking of the investigations and preparation of trial.
Whilst these matters are matters which may confront the respondent, they are matters which confront any respondent (or applicant for that matter) in almost any proceedings of this nature. It is not suggested that evidence is unavailable because of the death, for example, of witnesses.
Moreover, the applicant’s complaints have been the subject of proceedings in the Fair Work Commission soon after her dismissal. They are not claims that are now made after the lapse of a significant period of time.
Conclusion
The applicant’s failure to attend on the first court date is explained by the material. There is no proper explanation for the delay between the dismissal of the proceedings, when her solicitor found out about that and when this application for reinstatement was made. That there is no explanation, however, is but one factor to be taken into account. There is evidence which, if accepted, might lead the Court to make a different order than that which is sought to be set aside. The difficulty with the commencement of the initiating application and the making of the application for reinstatement appears to fall at the feet of the applicant’s solicitor rather than the applicant herself. The respondent has identified some potential difficulties for its preparation of its case if the proceedings are to go further.
Weighing all those matters, I am satisfied that I ought to set aside the orders made on 30 March, 2015 and make further directions for the conduct of the proceedings. In that respect, I will hear the parties further, but propose directions in the following terms:
a)Within 28 days of the date of these orders the respondent file and serve points of defence in answer to the applicant’s statement of claim filed on 25 January, 2016.
b)The parties attend a mediation to be conducted by a Registrar of this court with such mediation to be completed, if possible, no later than 4:00pm on 14 October, 2016.
c)The application be listed for further directions on 10 October, 2016 at 9:30am in the Federal Circuit Court of Australia in Brisbane.
d)The application be allocated a trial date (with an estimated time for hearing of three days) commencing at 10:00am on 15 November, 2016.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 September, 2016.
Date: 6 September, 2016
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