Wang v Odyssey Travel Pty Ltd - [2020] FCCA 925

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v ODYSSEY TRAVEL PTY LTD

[2020] FCCA 925

Catchwords:
INDUSTRIAL LAW – Application pursuant to r 16.05 of the Federal Circuit Court Rules – application dismissed for non-attendance of the applicant – whether or not non-attendance adequately explained – merits of application considered – prejudice to respondent considered – application granted.

Legislation:

Federal Circuit Court Rules 2001, r.16.05.

Cases cited:

Wint v Medimobile Pty Ltd [2016] FCCA 102

Applicant:

JIMEI WANG

Respondent:

ODYSSEY TRAVEL PTY LTD

File Number:

MLG 2554 of 2019

Judgment of:

Judge Burchardt

Hearing date:

14 April 2020

Date of Last Submission:

14 April 2020

Delivered at:

Dandenong

Delivered on:

27 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Kelly

Solicitors for the Applicant:

Esser Legal

Counsel for the Respondent:

Mr Levine

Solicitors for the Respondent:

Maciel Pizzorno & Co

ORDERS

The parties are to confer and forward agreed Minutes of Orders that give effect to these Reasons for Judgment within 7 days.
In default of agreement, the parties file and serve written submissions no more than 5 pages in length within 7 days.
Unless otherwise ordered, the matter is to be determined on the papers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2554 of 2019

JIMEI WANG

Applicant

And

ODYSSEY TRAVEL PTY LTD

Respondent

REASONS FOR JUDGMENT

(as corrected)

Introductory

The matter before the Court is an application pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 by which the applicant seeks to set aside a judgment entered in default of appearance on 2 December 2019. The application is strongly resisted by the respondent, but, for the reasons that follow, I am going to grant the applicant the relief that she seeks.

The Procedural History

The applicant lodged an application together with a statement of claim and Form 2 claim alleging dismissal in contravention of a general protection on 7 August 2019. That matter was allocated a first return date of 2 December 2019.
On 12 November 2019, there was no appearance by the applicant, and Mr Levine of counsel appeared on behalf of the respondent. In the light of the applicant’s non-appearance (attempts by my associate to contact the solicitors on the record for the applicant proved unsuccessful), the matter was dismissed for non-attendance.
From the affidavit of Kurt William Esser sworn 29 November 2019, it is apparent that on 13 November 2019, Mr Esser discovered the Order made the previous day and notified the Court and the respondent that he had instructions to seek to apply to set the Order aside. That application, which is the application presently before the Court, was filed on 2 December 2019.
Mr Esser filed an affidavit on 2 December 2019, to which it will be necessary to return, and Christine Zhang, a director of the respondent, swore an Affidavit on 10 December 2019. That affidavit will also need to be returned to, but it should be noted that the affidavit was not, apparently, formally filed until the hearing before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 925
Decision Date: 27 April 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Burchardt considered an application by Ms. Wang following the dismissal of her original application due to her non-attendance at a scheduled hearing. The respondent, Odyssey Travel Pty Ltd, had opposed the reinstatement of the application.

The central legal issue before the Court was whether Ms. Wang's non-attendance at the hearing was adequately explained, and if so, whether the Court should exercise its discretion to grant the application to set aside the dismissal and reinstate her original claim. In determining this, the Court was required to weigh the merits of Ms. Wang's underlying application against any prejudice suffered by Odyssey Travel Pty Ltd as a result of the dismissal and subsequent delay.

Judge Burchardt reasoned that while Ms. Wang's explanation for her non-attendance, which involved a misunderstanding regarding the hearing date and time, was not entirely satisfactory, it was not so deficient as to preclude the Court from exercising its discretion. The Court considered the merits of Ms. Wang's original application, finding them to be arguable, and balanced this against the prejudice to the respondent. Ultimately, the Court concluded that it was in the interests of justice to grant the application to set aside the dismissal and reinstate the proceedings, provided that Ms. Wang could demonstrate a commitment to prosecuting her claim diligently.

The Court ordered that the parties confer and forward agreed Minutes of Orders within 7 days to give effect to the judgment. If agreement could not be reached, the parties were to file and serve written submissions on the form of orders within the same timeframe, with the matter to be determined on the papers unless otherwise ordered.

Orders

Orders of the court

ORDERS

1. The parties are to confer and forward agreed Minutes of Orders that give effect to these Reasons for Judgment within 7 days.

2. In default of agreement, the parties file and serve written submissions no more than 5 pages in length within 7 days.

3. Unless otherwise ordered, the matter is to be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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