Walker v Fedex Express Australia Pty Ltd (No 2)
[2023] FedCFamC2G 160
Federal Circuit and Family Court of Australia
(DIVISION 2)
Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160
File number(s): MLG 303 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 3 March 2023 Catchwords: PRACTICE AND PROCEDURE – Application for dismissal of applicant’s application – where applicant abandoned proceedings – whether proceedings should be dismissed for the applicant’s want of prosecution and/or failure to comply with an order of the Court – applicant unprepared for final hearing – failure to prosecute proceeding with due diligence – case management principles – efficient use of judicial and administrative resources – order made that the proceeding be summarily dismissed Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit and Federal Court of Australia Act 2021 (Cth) ss 190, 192,
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05, 13.06
Cases cited: Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175;[2009] HCA 27
Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52; [2012] FCAFC 180
Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56
Welsh v Digilin Pty Ltd (2008) 250 ALR 13; [2008] FCAFC 149
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 1 February 2023 Date of hearing: On the papers Place: Melbourne Applicant: In person Solicitor Respondent: In House Counsel Counsel for the Respondent: Mr J McDougall ORDERS
MLG 303 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER ADRIAN WALKER
Applicant
AND: FEDEX EXPRESS AUSTRALIA PTY LTD
Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
3 March 2023
THE COURT ORDERS THAT:
1.Pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), proceeding MLG303/2021 be dismissed.
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
JUDGE SYMONS:
INTRODUCTION
This judgment concerns an application made by the respondent, Fedex Express Australia Pty Ltd (Fedex) seeking orders that the proceeding commenced by the applicant, Mr Walker, be brought to an end summarily as a result of Mr Walker’s default; characterised as both a failure to comply with an order of the Court and a failure to prosecute the proceeding with due diligence.
CONTEXT OF THE APPLICATION
The unusual circumstances in which Fedex’s application is made involve, primarily, the action taken by Mr Walker to walk out of the final hearing of his application for remedies under the Fair Work Act 2009 (Cth) (the FW Act) when it resumed after lunch on day one of an anticipated five day hearing.
Prior to lunch the Court had heard and then determined an application made by Mr Walker that I recuse myself based on my conduct of and decisions made during a case management conference held on 19 January 2023 and because of a perceived conflict of interest arising from my membership of the Victorian Bar. I decided, for reasons that were given orally to the parties on the day and subsequently revised and published in Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56, that there was no proper basis to recuse myself from furher hearing Mr Walker’s application.
The Court then heard an application from Mr Walker that the final hearing of his application be adjourned for at least a month. Mr Walker’s adjournment application was made for reasons including that he had not had sufficient time to acquaint himself with the court book that had been late served by two days and therefore to prepare his cross-examination and that he was concerned that the Court would be “pushed for time” when there were to be a total of 22 witnesses in his case.
After lunch I dismissed Mr Walker’s application for an adjournment and provided reasons for doing so. These reasons reflected the view taken that as Mr Walker had been in possession of all but a few documents contained in the court book since (at the latest) May 2022, the late sevice of the court book would not have materially compromised his ability to prepare for a trial that had been set down for hearing since 20 June 2022.
The following exchange between the Court and Mr Walker then took place[1]:
[1] See transcript of proceedings dated 30 January 2023 pg 12 line 11 to pg 14 line 11
Her Honour: …In these circumstances, it should be clear, Mr Walker, that the matter will proceed today. We will get as far as we can with the application. It’s my hope that we can conclude within the days that have been allocated….So that being the case, we need to now work out what the next steps are. I am keen to make the best use that we can of the couple of hours that we have remaining before the court adjourns this afternoon. I’m not sure, Mr Walker, whether you had given any thought as to what should be the next steps that we take if the matter was to run.
Mr Walker: Your Honour, they will win. They win. I concede.
Her Honour: Well---
Mr Walker: That’s not fair. I concede. I’m sorry. I concede.
Her Honour: I’m going to---
Mr Walker: I’ve conceded.
Her Honour: ---urge you to---
Mr Walker: I’ve conceded. They win.
Her Honour: Mr Walker, I would like you to take some time to consider your position.
Mr Walker:I’m sorry, but I can’t. I physically can’t prepare it. I’ve got mental health problems. I see – they haven’t – they’ve lied and blocked any – and I can prove it as it’s there in your evidence that they’ve blocked supporting my mental health, I’ve had to pay for it all myself. I’m trying to prepare this by myself and it’s just impossible, so they win. I concede. Sorry.
Her Honour: No. You don’t need to apologise.
Mr Walker:I can’t do it. I can’t do it. I physically can’t do it. I mentally can’t do it either.
Her Honour: Mr Walker, I just don’t want you to walk out of this courtroom.
Mr Walker:I’m sorry. I’ve given you my honest appraisal of the situation and I can’t – I can’t pull any miracles, so I concede. If I’ve got to wave a white flag, I will wave a white flag.
Her Honour: All right. Well, I’m going to – because I think in fairness to you, give you an opportunity just to consider your position fully, and it may be that what you say to me now is your final position, but I don’t want you to be shut out because of ---
Mr Walker: Well, I’ve been shut out all along.
Her Honour: All right.
Mr Walker:I mean – hang on. How can – we haven’t even established – I said to you before that we haven’t even established days for witnesses to appear. So, witnesses don’t even know. I’ve had to block – tell the people subpoenaed not to come, so how can you progress? How can ---
Her Honour: And that’s ---
Mr Walker:--- you proceed? That’s just incomprehensible. Sorry. I can’t gather that. A guy has got to make arrangement – a doctor has got to make arrangements from South Australia on how he gets here, he needs some time to do that.
Her Honour: Can I just – I don’t want to interrupt you. I understand what you’re saying to me and it may be that it wasn’t fully explained what would happen next, but the idea is that we would use this afternoon to the exent possible to canvas these issues and to work out as best we can a trial plan for the four days that we have remaining. So those are matters that you could raise with me if that’s something you wanted to do.
Mr Walker:I concede. I’ve got back pain. I’m in pain and I’m done. I don’t normally stay this long in this and that, so I concede.
Her Honour: Can I just get you to take a seat just for one moment? I just want to hear from---
Mr Walker:Sorry. Sorry your Honour, I just don’t get it. Like, I can’t comprehend how this can go ahead. In any jurisdiction or any court of law, I cannot comprehend how this can go ahead. I’ve clearly told you I received documents, a folder that big in the AAT and ---
Her Honour: All right, I’m sorry ---
Mr Walker: Hang on. In the AAT, that was – that was – sorry – no ---
Her Honour: I just have to make on thing – Mr Walker, I’ve ruled on the application for an adjournment.
Mr Walker: Yes. No worries.
Her Honour: I’m happy to step into case management mode.
Mr Walker:Thank you. Thanks for the time. Thank you, Mr McDougal. Than you, Ms…
Mr Walker then left the court-room and did not return.
I invited counsel for Fedex, Mr McDougall, to address the Court on how the matter should proceed having regard to what had just transpired. Mr McDougall submitted that the appropriate course of action would be to dismiss the proceeding on the basis that the applicant had abandoned the matter and had done so in unequivocal terms. I made orders that Fedex formalise its application by filing submissions on the question of the disposition of Mr Walker’s application filed on 25 February 2021 (being his originating application) by 1 February 2023.
On 1 February 2023 I made further orders that Mr Walker file and serve any submissions in response to the respondent’s submissions filed on 1 February 2023 by 15 February 2023 and that the application made by Fedex that the proceedings be dismissed be determined on the papers. A copy of these orders as well as the respondent’s submissions was sent to Mr Walker by email on 1 February 2023.
As at the date of this judgment Mr Walker had not filed any submissions or indicated that he had any intention of doing so. I am satisfied in these circumstances that it is appropriate to determine the application without hearing further from him.
THE RESPONDENT’S SUBMISSIONS
The respondent maintained its application that the proceeding should be wholly dismissed, or in the alternative struck out, for the applicant’s want of prosecution and/or failure to comply with an order of the Court.
The respondent relied for this submission on s 192(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act) which empowers the Court to dismiss a proceeding in whole or in part, or to strike out, amend or limit any part of a party’s claim or defence if that party has failed to comply with a direction given by the Court or a Judge.
The respondent also appealed to rule 13.05(1) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (the Rules) which provides that where an applicant is in default, the Court may order, amongst other things, that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
This rule is informed by rule 13.04(1) which identifies the circumstances in which an applicant will be in “default”. These include where the applicant fails to comply with an order of the Court in the proceeding (r 13.04(1)(a)) and where the applicant fails to prosecute the proceeding with due diligence (r 13 .04(1)(e)).
The respondent also noted (but did not appear to place the same significance on) r 13.06 of the Rules which allows the Court to make orders (including to dismiss the application) where a party is absent from a hearing.
The respondent submitted that by walking out of the final hearing without leave of the Court the applicant had: (i) failed to comply with orders of the Court as to the time for final hearing and (ii) failed to prosecute his claim with due diligence (both acts of “default”) with the result that the Court could dismiss the proceeding as a whole or strike out the claims that it comprehended.
The respondent characterised the actions of Mr Walker as involving a deliberate choice not to proceed with or contest the final hearing of the matter, but rather to abandon the hearing when his adjournment application was refused. It was said that Mr Walker had not expressed a wish to discontinue or otherwise terminate his proceeding but rather he had communicated that he was unable to continue as he had not prepared for the final hearing.
The respondent submitted that although the power to dismiss or strike out a proceeding is discretionary and should be exercised having regard to the serious consequence of summary dismissal it was appropriate to exercise the power in this case. The respondent emphasised the interrelationship between the discretion to summarily dismiss and the overaching purpose of civil practice and procedure provisions set out in s 190(1) of the FCFCOA Act, being to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. The respondent also noted that the objectives of this purpose included efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
The respondent acknowledged – appropriately in my view – that there was no significant history of non-compliance on the part of the applicant that might otherwise have suggested an unwillingness to cooperate in having the matter ready for trial. It was submitted however that there was evidence of an incapacity to prepare for trial, given that Mr Walker had been in possession of almost all the hearing material for over six months.
The respondent submitted that while the applicant’s conduct in abandoning the final hearing might not involve a “continuing default” it was significant given that it had the effect of preventing the hearing from proceeding in accordance with orders made for the timetabling of and setting down of the application for final hearing.
The respondent noted that contextually, although Mr Walker had come to the final hearing seeking an adjournment, he had not raised any concerns previously about preparation time, including at the pre-hearing conference held on 19 January 2023. It was however apparent that the applicant was entirely unprepared for the final hearing, despite having had access to the vast bulk of the trial material for over six months.
The respondent submitted that the applicant’s default had significant consequences for the Court and created real prejudice for the respondent. This was because the Court had listed the matter on an estimate of five days for hearing and it was unlikely that the proceeding could be re-listed for a date in 2023, with consequences for witness recollection. In this regard, the respondent noted that it had arranged for nine witnesses to give evidence and had gone to the additional time, effort and expense of preparing for the hearing (including cross-examination of the applicant) all of which was “thrown away” and created real inconvenience and uncertainty for those people involved in the preparation of the respondent’s case.
The respondent submitted that the purpose and objectives of s 190 of the FCFCOA Act would be undermined if a party was unwilling or unable to prepare for and participate in a long-planned final hearing, despite having ample time for such preparation. One means of redressing this problem would be to dismiss the applicant’s proceeding, as the respondent proposed should happen here.
The respondent submitted that the Court should take a proportionate response to what had occurred and to acknowledge – consistent with the guidance provided by the High Court in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 at [98] – that while a proper opportunity should be given to parties to plead (and I would add prosecute) their case, limits may be placed around these opportunities to account for delay and costs.
The respondent noted that in this case, where costs orders were not generally available (refer s 570 of the FW Act) – a costs order was unlikely to be a panacea for any prejudice suffered by it in connection with conduct engaged in by the applicant.
Insofar as Mr Walker had identified his psychological condition as an impediment to his ability to prepare for the hearing, the respondent acknowledged that the applicant had such a condition but noted that he had not presented any medical evidence of his incapacity despite having had ample opportunity to obtain such evidence and/or to raise his condition as a matter of concern. The respondent submitted that the applicant had waited until he was faced with the reality of the hearing before raising his condition as a reason for seeking an adjournment.
LEGAL PRINCIPLES
The Court undoubtedly is conferred with a discretion, pursuant to r 13.05(1) of the Rules to dismiss an application if the applicant concerned has, amongst other things, failed to comply with one of its orders or to prosecute the proceeding with due diligence.
As with all discretions, the discretion provided by r 13.05(1) must be exercised judicially and according to the requirements of justice. At a fundamental level, the Court has an obligation to investigate and determine a claim for judicial relief, which has been made bona fide in the proceedings before it, by the applicant concerned.
On the other hand, the availability of the discretion recognises that circumstances may exist where it will be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.[2] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[2] Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32]
In Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200 the Full Court of the Federal Court indicated, in relation to the analogue rule to r 13.05(1) that it was “undesirable [for the Court] to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised”. In this context, Wilcox and Gummow JJ identified what they considered to be two obvious scenarios for the exercise of power, which can be summarised as follows:
·Cases characterised by a history of non-compliance such to indicate an inability or unwillingness to co-operate with the other party or the court to bring the proceedings to hearing within an acceptable period;
·Cases in which non-compliance was continuing and occasioning unnecessary delay, expense or other prejudice to the other party concerned.
In Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52 at [44] the Full Court of the Federal Court identified a number of non-exhaustive matters that were likely to be relevant to the exercise of the discretion which can be summarised as follows:
·The nature of the default involved;
·The duration of the default and whether it is continuing;
·The circumstances surrounding the making of the order subsequently breached and the practices of the court concerned;
·What has happened since the default, particularly whether an attempt has been made to rectify the breach;
·Whether the breach creates prejudice or places an unacceptable burden on the other party;
·Whether the applicant genuinely wishes the matter to go to trial within a reasonable period;
·The stage the proceedings have reached;
·Disruption to possible trial dates;
·The consequences to the applicant of dismissing the proceeding.
CONSIDERATION
While this is not a case characterised by a history of non-compliance on the part of Mr Walker and the catalyst for the respondent’s application was a sequence of events that took place over a relatively short period of time, including when assessed against the history of the proceeding, I nonetheless consider it appropriate that the proceeding be summarily dismissed.
It is obvious that through his words and his actions taken on 30 January 2023, Mr Walker was communicating in the plainest of terms that he had no intention then, or indeed at any time in the ascertainable future, of prosecuting his case against the respondent. Although it is true that Mr Walker had sought an adjournment that ostensibly would have provided him with further time to make preparations for his conduct of the proceeding, it is also the case that the adjournment was refused for reasons that included a concern that further time would not have assisted the applicant. I am also cognisant that the reasons offered for Mr Walker’s decision to “concede” the application – which comprehended physical and mental health challenges – were different from those previously (but very recently) offered and unsupported by any evidence. They reinforce rather than detract from my impression that Mr Walker’s disinclination and lack of preparedness to confront the reality of his application represents more than a temporary state of affairs. In this respect, it is apt to conceptualise Mr Walker’s attitude to the proceeding as continuing in nature. Allied to these concerns is the indication from Mr Walker, in the exchange reproduced at [6] above, that he would be unwilling to accept that parameters might reasonably be placed around his case, including the number of witnesses that he might be entitled to call.
I consider that these matters coalesce to make it almost inevitable that any further opportunity that might be provided to Mr Walker to prosecute his application (acknowledging that this is not something that he presently seeks) would be productive of further delay, loss of Court time and involve prejudice to the respondent and those who would be involved in the defence of Mr Walker’s case against it.
In a Court that is committed to a case management system and which is governed by case management principles that emphasise the efficient use of judicial and administrative resources and the disposal of proceedings in a timely manner, I consider that the tension that exists between the right of Mr Walker to prosecute his case for remedies under the FW Act against the respondent as against the obligation of the Court to maintain the integrity of its processes and to responsibily distribute and apply its resources is appropriately balanced in this case by an order that the application be dismissed under r 13.05(1)(a) of the Rules.
As a result of what occurred on 30 January 2023, the Court lost five days of allocated hearing time and the respondent made wasted preparations for a contested final hearing, with the financial and human cost that this entails. This is not a course that the Court is prepared to further sanction or facilitate through the maintenance of the proceeding. In reaching this conclusion however it should be clear that I have not at any time concerned myself with the merits of the application as it has been unnecessary for the disposition of the proceeding to do so.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 3 March 2023
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