Wilkie v National Storage (Operations) Pty Ltd
[2012] FMCA 653
•30 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILKIE v NATIONAL STORAGE (OPERATIONS) PTY LTD | [2012] FMCA 653 |
| PRACTICE AND PROCEDURE – Affidavit – whether compliance with court rules – whether fresh affidavit to be filed – whether mediation to be adjourned. INDUSTRIAL LAW – Alleged contravention of a general protection. |
| Fair Work Act 2009 (Cth), s.548 Federal Magistrates Act 1999 (Cth), ss.3, 23(1), 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 1.06, 15.25, 15.28, 15.29 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Broad Spectrum Training Pty Ltd and Ors v Bidding Buzz Ltd and Ors (2010) 244 FLR 335; [2010] FMCA 932 Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 Wintle v RUC Mining Contractors Pty Ltd (No.2) [2012] FMCA 459 |
| Justice J Bryson, “Affidavits” (1999) 18 Aust Bar Rev 166 |
| Applicant: | MARINA JEAN WILKIE |
| Respondent: | NATIONAL STORAGE (OPERATIONS) PTY LTD |
| File Number: | PEG 72 of 2012 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 July 2012 |
| Date of Last Submission: | 30 July 2012 |
| Delivered at: | Perth |
| Delivered on: | 30 July 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr D Dowd |
| Solicitors for the Respondent: | Dowd and Company Lawyers |
ORDERS
The respondent’s interim application for the filing of a complying affidavit in reply by Ms Wilkie, and the subsequent adjournment of the mediation on 31 July 2012, be dismissed.
Save for mediation, the matter is otherwise adjourned to the further directions hearing presently listed at 9.00am on 10 September 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 72 of 2012
| MARINA JEAN WILKIE |
Applicant
And
| NATIONAL STORAGE (OPERATIONS) PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore judgment)
Application
The interim application, brought by the respondent employer, National Storage (Operations) Pty Ltd,[1] represented by lawyers, seeks to have the applicant, Ms Wilkie, file a further affidavit in reply complying with the requirements of the Federal Magistrates Court Rules 2001 (Cth)[2] by 6 August 2012, with the practical consequence that it would result in an adjournment of a mediation, to be held tomorrow (31 July 2012) before a Registrar in the Perth Registry of this Court. The application is made on the basis that by reason of the form and content of Ms Wilkie’s affidavit in reply, National Storage is not properly positioned to respond to the affidavit in reply of Ms Wilkie, who is self-represented, or in a position to proceed to respond for the purposes of tomorrow’s mediation.
[1] “National Storage”
[2] “FMC Rules’.
The Court notes that National Storage’s submission initially proceeded on the basis that National Storage thought that there was a necessity by order of this Court for it to file an affidavit in response to Ms Wilkie’s affidavit in reply (which was filed on 16 July 2012). There is no such requirement, and insofar as National Storage’s submissions proceeded on that basis, they were misconceived.
National Storage filed written submissions shortly before this morning’s hearing. National Storage submitted that:
a)this was not a small claims matter under s.548 of the Fair Work Act 2009 (Cth),[3] and therefore not a matter in respect of which the Court was not bound by the rules of evidence, or entitled to act in an informal way without regard to legal forms or technicalities, as envisaged by s.548(3) of the FW Act;
b)rr.15.25 and 15.28(1) and (3) of the FMC Rules provide as follows:
[3] “FW Act”.
15.25 The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject.
15.28 (1) A document to be used in conjunction with an affidavit must be annexed to the affidavit.
(3) An annexure must:
(a) be paginated; and
(b) bear a statement signed by the person before whom the affidavit is made identifying it as the particular annexure mentioned in the affidavit.
c)in relation to Ms Wilkie’s affidavit in reply it did not comply with the FMC Rules, as follows:
i)each paragraph did not depose to a distinct part of the subject in dispute;
ii)the material deposed to is primarily annexed to the affidavit in reply as annexures;
iii)the material deposed to contained in the annexures to the affidavit are not divided into consecutively numbered paragraphs;
iv)the annexures to the affidavit in reply are not “a document to be used in conjunction with an affidavit”,[4] rather the annexures comprise Ms Wilkie’s response to the affidavit material served by National Storage; and
[4] FMC Rules, r.15.28(1).
v)the documents marked “A-1” to “A-18”, “B-1” to “B-5” and “C-1” to “C-8” are not paginated and do not bear a statement in accordance with r.15.28(3)(b) of the FMC Rules;
d)Ms Wilkie’s affidavit in reply does not constitute a sworn statement of evidence as required by the FMC Rules or the orders made by the Court on 21 May 2012;
e)this Court’s judgment in Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 2),[5] where the Court made observations about the practice of this Court in relation to pleadings and affidavits, and in particular that the function of affidavits where there are no pleadings has been to give factual context to the applications, and the allegations made, so as to enable the parties to understand what is being put;[6]
f)by reason of Ms Wilkie’s non-compliance with the FMC Rules in relation to her affidavit in reply it is not in a position to understand the allegations which have been made against it, and therefore should National Storage wish to deliver affidavit material in response to Ms Wilkie’s affidavit in reply it is presently unable to do so due to the non-compliant nature of the affidavit. Further, it was orally submitted, that it was not in a position to respond during the course of mediation because of the form and content of Ms Wilkie’s affidavit in reply;
g)an article by a former Justice of the New South Wales Supreme Court in relation to the equivalent rule in the New South Wales Supreme Court Rules supported its submission that the form of the affidavit in reply does not assist the Court in finding relevant passages in the affidavit in reply by Ms Wilkie;[7] and
h)if Ms Wilkie was not required to file a further affidavit in reply which complied with the FMC Rules then:
i)National Storage and the Court would be put to additional time and expense at the hearing of the matter in finding and referring to relevant passages of Ms Wilkie’s affidavit in reply ; and
ii)alternatively, National Storage would be put to the cost of objecting to Ms Wilkie’s affidavit in reply on the grounds that it is inadmissible, unnecessary and/or irrelevant for the purposes of r.15.29 of the FMC Rules in circumstances where the material deposed to by Ms Wilkie is primarily in annexures, and being in annexures, is not divided into consecutively numbered paragraphs.
[5] [2012] FMCA 459 (“Wintle (No. 2))”.
[6] Wintle (No. 2) at paras.30-31 per Lucev FM.
[7] Justice J Bryson, “Affidavits” (1999) 18 Aust Bar Rev 166 at 170.
Accordingly, National Storage sought an order that the applicant deliver a complying affidavit by 6 August 2012, with the practical effect that the mediation tomorrow be adjourned.
Consideration
It is fair to observe that Ms Wilkie’s affidavit in reply does not comply with the requirements of rr.15.25 and 15.28 of the FMC Rules. Rather, it follows a format:
a)comprising three paragraphs which refer to three annexures, two of which refer to affidavits filed by two persons on behalf of National Storage, and the third which raises a seemingly new claim, by way of amendment, for a bonus incentive of $2000; and
b)the two annexures with respect to the two National Storage affidavits follow the general format of:
i)headings referring to the relevant part of the National Storage affidavit being replied to;
ii)numbered paragraphs in which the content of Ms Wilkie’s affidavit in reply to the nominated part of the National Storage affidavit being replied to is set out; and
iii)where relevant, documents supporting the content are referred to as part of the numbered paragraph, and annexed, marked with a letter representing the letter of the annexure, and then consecutively numbered.
As already observed the form and content of Ms Wilkie’s affidavit in reply does not strictly comply with the FMC Rules with respect to affidavits.
Setting aside, for the moment, the third annexure (annexure C) which purports to raise a new claim by way of amendment, Ms Wilkie’s affidavit in reply, on the Court’s initial reading, is as proper and fulsome a reply, in the context of the provision of information in reply to the National Storage affidavits, as one would expect from a self-represented litigant. This position is in marked contra-distinction to that in Wintle (No. 2) where the claims and affidavits were limited in their detail.[8]
[8] Wintle (No. 2) at paras.40, 47, 53 and 64 per Lucev FM.
It is important to observe, in the context of the information that has been provided by Ms Wilkie, that the mediation has been scheduled for some little time, and that it is the Court’s view that it would not be beyond the wit of a competent lawyer to read, understand and apprehend the nature of what is being put by Ms Wilkie in reply in her affidavit in reply. To suggest otherwise is in the Court’s view simply disingenuous. Despite National Storage’s protestations about Ms Wilkie’s affidavit in reply’s lack of form, that lack of form does not mean that there is a lack of practical information which would not allow the mediation to begin, and to proceed, and National Storage’s Counsel did not, ultimately, suggest otherwise.
Any application of a technical kind such as this requires the Court to consider the practical effect, particularly of an adjournment of the mediation, and to do so in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Magistrates Act 1999 (Cth),[9] and the FMC Rules, as prescribed by the objects of the FM Act,[10] and the objects of the FMC Rules,[11] 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.[12]
[9] “FM Act”.
[10] FM Act, ss.3 and 42.
[11] FMC Rules, r.1.03
[12] FM Act, s.3; FMC Rules, r.1.03.
The Court must also take into account the following principles when determining whether or not to grant an application of a technical kind, such as this, which results in an adjournment of a process, here the mediation scheduled for tomorrow:
a)the doing of justice between the parties, which remains a paramount consideration, to achieve a just resolution which must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[13]
[13] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
The Court also observes that under s.3(2)(c) of the FM Act the Court has as one of its objects the encouragement of a range of appropriate dispute resolution processes, and that s.23(1) of the FM Act imposes an obligation on the Court to advise the parties to use a dispute resolution process where the Court considers that may help the parties resolve the dispute.[14] Albiet anecdotally, information otherwise available to the Court, indicates that six or seven out of every ten applications referred for mediation before a Registrar in the Perth Registry are resolved without the necessity for a further hearing by the Court.
[14] Broad Spectrum Training Pty Ltd and Ors v Bidding Buzz Ltd and Ors (2010) 244 FLR 335 at 348 per Lucev FM; [2010] FMCA 932 at para.44 per Lucev FM.
The Court also observes that the FW Act requires the filing of a Form 2, not an affidavit, to commence a proceeding of this type alleging dismissal in contravention of a general protection, and a FW Act proceeding may, in certain circumstances, proceed to hearing without an affidavit ever having been filed, and be heard on the basis of oral evidence only.
The interim application, both as to the affidavit in reply and the consequent adjournment, and its basis, is contrary to modern principles of case management, which are largely reflected in the content of the FM Act and FMC Rules set out above, but which at a minimum, eschew delay, expense and technicality. Any lawyer looking at Ms Wilkie’s affidavit in reply, together with the Form 2 filed to commence the proceedings, and her two earlier affidavits, and “genuinely interested in knowing what issues are to be tried and the case that has to be met, would have no difficult in ascertaining those matters”.[15] The fulsome provision of information in Ms Wilkie’s affidavit in reply means that any lawyer really trying to resolve this matter at mediation could do so, and, in any event, it is not now suggested by National Storage’s Counsel that the mediation tomorrow could not commence and make some progress.
[15] Barlcay Mowlem Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82 at 84 per Martin CJ; [2006] WASC 281 at para.10 per Martin CJ.
In context, the interests of justice require, consistent with the objects of the FM Act and the FMC Rules, that there be no delay in the mediation of this matter, and there not be a wastage of public resources:
a)as has already occurred today in relation to this interim application, which in the Court’s view is devoid of merit; and
b)which would occur tomorrow if the mediation were to be adjourned, at such short notice on the basis of this unmeritorious application.
It follows that the interim application for orders that Ms Wilkie file an affidavit in reply in “proper” form, and that as a consequence, the mediation listed tomorrow, be adjourned, ought to be dismissed. This ruling does not prevent the Court from ordering, at a later stage, any person to file a consolidated, or single, affidavit for use at trial, or, if serious issues as to credibility arise, from hearing the matter solely on the basis of oral evidence, notwithstanding that affidavits have already been filed.
With respect to the third annexure, annexure C, which sets out a new or amended claim, there is no reason why that cannot be discussed, and if necessary, explained by Ms Wilkie, in the mediation tomorrow. It is only if the mediation does not resolve the matter, that the Court need deal with any application for a formal amendment to the claim at the directions hearing listed for 10 September 2012.
The Court notes that the FMC Rules allow for the Court to dispense with compliance in the interests of justice, and to the extent necessary it can be taken that the Court has, in the interests of justice, dispensed with the necessity for Ms Wilkie’s affidavit in reply to comply with the FMC Rules, and in particular rr.15.25 and 15.28, at this stage.[16]
[16] FMC Rules, r.1.06; paras.10(a) and 14 above.
It follows that there will be orders that:
a)the respondent’s interim application for the filing of a complying affidavit in reply by Ms Wilkie, and the subsequent adjournment of the mediation on 31 July 2012, be dismissed; and
b)save for mediation, the matter is otherwise adjourned to the further directions hearing presently listed at 9.00am on 10 September 2012.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 30 July 2012
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