Williams v BHP WAIO Pty Ltd
[2022] FedCFamC2G 412
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williams v BHP WAIO Pty Ltd [2022] FedCFamC2G 412
File number(s): PEG 79 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 26 May 2022 Catchwords: INDUSTRIAL LAW – general protections application – applicant’s failure to discontinue proceeding as required under settlement agreement – application discontinued. Legislation: Fair Work Act 2009 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 18 May 2022 Place: Perth Applicant: No appearance Counsel for the Respondent: Mr B Watson Solicitor for the Respondent: Herbert Smith Freehills ORDERS
PEG 79 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAYMOND WILLIAMS
Applicant
AND: BHP WAIO PTY LTD (A.C.N 008 852 784)
Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
26 MAY 2022
THE COURT ORDERS THAT:
1.The proceeding be discontinued.
2.There be no order as to costs.
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 KENDALL:
INTRODUCTION
This matter was listed before the Court for a directions hearing on 18 May 2022.
The applicant did not appear at that directions hearing. Mr Watson from Herbert Smith Freehills appeared on behalf of the respondent.
The Court agreed to discontinue the proceeding (from Chambers) following the filing of further affidavit evidence by the respondent.
These reasons detail the Court’s reasons for discontinuing the substantive proceeding.
BACKGROUND
Before the Court is an application filed in the Perth Registry of this Court on 21 April 2021 (the “application”).
The application alleges dismissal in contravention of a general protection under the Fair Work Act 2009 (Cth). The applicant seeks compensation for financial loss and general damages.
On 7 May 2021, this Court made orders referring the matter to mediation.
The applicant was, at that point in time, represented by Ms Hillier of MKI Legal.
A number of telephone mediations were convened by a Registrar in this Court between 4 August 2021 and 30 August 2021.
The parties ultimately reached an in-principle agreement at the end of August 2021.
A term of the settlement agreement was that the applicant would file a notice of discontinuance within five days of receiving the settlement sum agreed under the settlement agreement (affidavit of Benjamin James Watson (the “Watson affidavit”), p 1).
On 1 October 2021, the applicant received payment of the settlement sum (Watson affidavit, p 1).
Pursuant to the settlement agreement, the applicant was required to discontinue the proceeding by 6 October 2021.
The application was not formally discontinued.
On 30 November 2021, my chambers contacted the parties to follow up on the notice of discontinuance.
On 3 December 2021, Ms Hillier contacted chambers to advise that they had not been able to obtain instructions from the applicant to confirm that the settlement sum had in fact been received, nor to confirm his instructions to file a notice of discontinuance. Ms Hillier stated that she was continuing to contact the applicant but anticipated that she would cease to act for the applicant.
On 17 January 2022, MKI Legal filed a notice of withdrawal of lawyer form with this Court.
On 18 January 2022, Mr Watson, for the respondent, contacted the applicant and requested that he file a notice of discontinuance (noting that the settlement sum had been paid and the settlement agreement required the applicant to formally discontinue the proceeding) (Watson affidavit, pp 5)
On 19 April 2022, the Court’s Registrar Support Team contacted the parties (the applicant being self-represented by this time) and requested that the applicant file a notice of discontinuance within 7 day (or provide any reason why it ought not be filed).
No response was received.
On 3 May 2022, my chambers contacted the parties, noting the previous correspondence and noting that a notice of discontinuance had not been filed in this matter. The matter was listed for a directions hearing (via video link) on 27 May 2022.
On 4 May 2022, the applicant contacted my chambers and asked “what had happened” in the matter. He explained that he was “under the understanding that the matter had been finalised previously”.
On 4 May 2022, my chambers responded and gave the applicant the information he needed to discontinue the proceeding.
On 10 May 2022, Mr Watson sent a further email to the applicant asking that he file a notice of discontinuance (Watson affidavit, pp 6-12).
On 15 May 2022, my chambers contacted the parties advising that the directions hearing had been re-listed to 18 May 2022 at 11.00am.
On 16 May 2022, the applicant telephoned Mr Watson’s office. Mr Watson details the conversation he had with the applicant as follows (Watson affidavit, pp 1-2):
Applicant: What's going on here? I thought this was all sorted ages ago.
Mr Watson:Your lawyers could not get hold of you, so they came off the record. That meant they could no longer do things for you such as preparing the notice of discontinuance. My understanding is they tried to contact you, and couldn't.
Applicant: What do I need to do then?
Mr Watson:You just need to fill out the form the Court sent to you a couple of weeks ago. It is a short form, only three pages, so it should only take you five minutes to fill out. Then you have to send it to the Court. That will mean neither of us have to go to Court this week.
Applicant: Ok, I'll do that today.
No notice of discontinuance was filed.
On 17 May 2022, Mr Watson sent a further email to the applicant following up on the above conversation and providing a copy of the relevant form (Watson affidavit, pp 13-19).
No notice of discontinuance has been filed.
On 18 May 2022, a directions hearing was called in an attempt to resolve the matter. The applicant did not appear at that directions hearing. Mr Watson appeared on behalf of the respondent.
After discussing the background of the matter and the numerous attempts made to contact the applicant (outlined above), the Court agreed that it was appropriate to discontinue the proceeding. The Court asked Mr Watson to file an affidavit detailing his communications with the applicant.
On 24 May 2022, Mr Watson filed the Watson affidavit.
The Court is satisfied that the applicant was paid the settlement sum as agreed under the settlement agreement. The Court is also satisfied that the respondent has no intention of pursuing the applicant for any breach of the settlement agreement arising from his failure to formally discontinue the proceeding.
CONCLUSION
In the circumstances, the Court makes an order that the proceeding be discontinued. There will be no order as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 26 May 2022
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