Wint v Medimobile Pty Ltd - [2016] FCCA 102

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINT v MEDIMOBILE PTY LTD

[2016] FCCA 102

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders made in applicant’s absence dismissing proceedings.

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), s.67

Federal Circuit Court Rules 2001 rr.13.03C(1)(c), 16.05(2)(a)

Mathews v MacDonnell and Others [2011] FCA 825
Mathews v State of Queensland [2014] FCA 574

Applicant:

SHERICE WINT

Respondent:

MEDIMOBILE PTY LTD

File Number:

BRG 272 of 2015

Judgment of:

Judge Jarrett

Hearing date:

6 July 2015

Date of Last Submission:

6 July 2015

Delivered at:

Brisbane

Delivered on:

20 January 2016

REPRESENTATION

No appearance for the Applicant

Solicitor for the Respondent:

Mr McMurray

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application in a case filed on 23 April 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 272 of 2015

SHERICE WINT

Applicant

And

MEDIMOBILE PTY LTD

Respondent

REASONS FOR JUDGMENT

On 20 March, 2015 Ms Wint commenced proceedings in this Court alleging she was dismissed in contravention of a general protection under the Fair Work Act 2009 (Cth). The application had its first court date on 20 April, 2015. On that day Ms Wint did not appear. In the absence of an appearance by, or on her behalf, I dismissed her proceedings pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
By an application in a case filed on 23 April, 2015 Ms Wint applies to set aside my order dismissing her application at her first court date. The respondent opposes the application.
On 3 July, 2015 Ms Wint filed a further application in a case seeking an order that her application in a case to set aside my earlier dismissal order be dealt with in her absence and “on the basis of the papers I have sent in including the letter I lodged on 19 April, 2015”.
The matter came before me on 6 July, 2015. After hearing brief argument from the solicitor who appeared for the respondent I determined that I should deal with Ms Wint’s application on the papers. These reasons relate to her application to reinstate initiating proceedings.
The Court has power to set aside an order made in the absence of a party: r.16.05(2)(a) Federal Circuit Court Rules 2001. To set aside an order made in the absence of a party is a discretionary exercise. The discretion is unfettered, but nonetheless is to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under FCCR 16.05(2)(a), namely:
a)a reasonable explanation for the applicant's absence at the trial or hearing;
b)material arguments 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.
Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
a)whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
b)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.
Ms Wint has filed no sworn material in support of her application. There is no affidavit by her that sets out the factual matters upon which she relies to persuade the Court to exercise the relevant discretion in her favour.
She asks the Court to rely upon a letter sent to the Court on 6 July, 2015 in the following terms:
I wrote an email on the 3rd July to Brisbane registry and also to Gilligan asking for the form for submitting written submissions as I was unable to find it on the court website however I've had no reply. I ask that this be sent to email [email protected].
I ask that my case be reinstated in accordance with my application as I understand it was dismissed wrongly on the basis that I had failed to attend to prosecute the application however I sent in a letter on the 19th and I ask that this be referred to and all other letters and documents and applications sent into the court.
I have this email from the respondents solicitor 'In fairness to you, our Lawyer Stephan McMurray, informed the Judge’s associate, before court, and Judge Jarrett during the proceedings that you had made the contact referred to above and were seeking your appearance to be conducted by phone. The Judge was also informed that you had indicated that you had filed this information with the court. The Judge had no material on hand to indicate that you had made contact with the court and he treated this as a non-appearance on your behalf and the matter was subsequently dismissed'. I can confirm via e- lodgement the court did have this document.
I would also ask that the procedure for appeal be sent to my email and I would like to make an application for orders about the procedure to appeal under section 1.21 of the Federal Court Rules.
That letter refers to earlier correspondence which was sent to the Court on 19 April, 2015 in the following terms:
I am unable to attend this first court hearing due to depression and location issues. I have tried to request if we can do the first court hearing by e courtroom one of the services the court has for the creation of orders many times. I would ask that this can be arranged. Alternatively I can participate by phone. Please call me on 0411 159 992.
I have received the following consent order form (sic) the respondent which they propose to give to you and these are my submissions below in response to that as I don’t consent to it.
29th may – both serve all documents relating to the case not just evidence and that we serve it at the same time to make it fair.
I do not agree to adjourn the hearing until after mediation but to set a date for the hearing after mediation so we have a date.
I also request that the case be transferred to the federal court due to the seriousness of it.
According to the electronic court file, the letter of 19 April, 2015 was sent to the Court Registry at 10:01pm. That was the Sunday evening immediately preceding the first court date for Ms Wint’s application. I cannot tell from the court records how it was sent to the Court. It was not before me on 20 April, 2015.
It seems that by her letter of 19 April, 2015 Ms Wint sought to use “e courtroom” for the Court to deal with her application. However, the Federal Circuit Court does not utilise “e courtroom” save for some bankruptcy matters. There is email correspondence on the court file to that effect between the Registry and Ms Wint. Despite the Registry’s advice to Ms Wint about that matter, it seems that she was unwilling to accept the Registry’s advice.
The letter of 19 April, 2015 also contains an alternative proposition that Ms Wint will appear by telephone. It is not couched in the form of a request or application.
The letter of 19 April, 2015 was not before me on 20 April, 2015. In any event if it had been before me, I would have rejected what might be construed as the two applications contained within it because:
a)this Court does not utilise eCourtroom (whatever that might be); and
b)the application to appear by audio link was not made in a proper or timely way on notice to the respondent.
It is entirely unsatisfactory for a party to proceedings to expect that the Court would consider such an application in circumstances where the request is sent to the Court by some electronic means after 10:00pm on the evening before the day of the scheduled hearing.
Whilst s.67 of the Federal Circuit Court of Australia Act1999 (Cth) provides that a party might appear by audio link to the Court, the power to permit audio links is a discretionary power to be exercised by the Court according to the circumstances of the case: for example see Mathews v MacDonnell and Others [2011] FCA 825 and Mathews & State of Queensland [2014] FCA 574. In the former case, Logan J said:
Mr Mathews failed to appear at the first directions hearing in this matter. He had asserted a right to appear by telephone. He was not given any permission, exceptionally, to appear by telephone. In the ordinary course of events in a case such as this, appearances would be made in person. Particularly where there is a litigant in person, it is sometimes the case, and the present I apprehend to be one, that the seriousness of a judicial proceeding and the responsibilities of acting accordingly are only brought home by personal appearance. The remoteness which can attend a telephone appearance can fail to bring home adequately to a litigant in person the formality of a judicial proceeding and the need to behave accordingly.
It is entirely unsatisfactory for a party to proceedings to expect the Court and the other party to those proceedings to deal with an application for appearance by audio link in that way. The respondent was given little opportunity to consider its position, particularly where the directions proposed by the respondent were opposed by Ms Wint.
More importantly, Ms Wint’s letter seems to have assumed an entitlement to appear in the proceedings by a means of her choosing. Appearance in any way other than by way of personal attendance is an indulgence, not an entitlement.
Moreover, there was no evidence to support Ms Wint’s “application” to appear by audio link. There are assertions in her letter, but no evidence.
It is generally considered necessary for an applicant to demonstrate that if the earlier order was set aside and the proceedings permitted to continue, the applicant has material arguments that might reasonably lead to an order being made that is different to that which is sought to be set aside. That generally requires evidence as to the merits of the application. There is no such evidence before me.
I have the applicant’s initiating application and a Form 2/Claim under Fair Work Act2009 alleging dismissal and contravention of a general protection filed on 27 March, 2015. In that document Ms Wint says:
I was chosen for termination and dismissed because of my race/colour in contravention of Part 3-1 of the Act Fair work act 2009 on the 4thFebruary 2009
I applied for the position of Program Coordinator and I had a telephone interview with celeste the CEO. I have a British accent so no one would know over the telephone that I am black British. Over the telephone she asked me if I knew anyone else who would want a similar role. I was travelling at the time with two girls, Lucy and Sian. I referred Sian who is white British for the role and we both were given the job over the phone without meeting face to face.
The first day I meet celeste I remember going into her office to state I had finish the list she gave me , she ignored me and stated, ‘ your very dark aren’t you, you’re not British are you where do you really come from’. I was very upset by this and I reiterated I was born in London. She instead gave further work to Sian.
She would often ignore me for example when I said hello, ignoring me.
The period of the contract was for the flu season until May. I spent just over a week doing the role. I had a lot of work myself to do, the organisation was very busy and was expecting to have to work more hours so was surprised when celeste called me into a room and stated they had no more work for me. I was advised my work would be given to the other colleagues. I expressed my concerns with Celeste about the way I have been treated she said the most she could offer me was part time hours. I went home early that day due to being so upset at the way I had been treated. I knew this was a cover up and I was being discriminated against on the grounds of my race and this was just an excuse to get rid of me.
I was then sent an email on the evening of 4th February stating there would be no more work for me. I was also told because I made a complaint they would not look to have me back even if they did need someone. The grievance procedure was not followed and I was not given a grievance meeting as per the handbook.
Sian is still working there now
Adverse action has also been taken against me for raising this complaint as stated above. This is in contrary to Section 340(1) of the Fair work act 2009.
Although the Form 2 is signed by Ms Wint, it is not sworn.
Another matter which is relevant to the exercise of the discretion to set aside my earlier order is whether, if the order is set aside, the respondent would suffer any prejudice that is not able to be adequately addressed by the Court.
Apart from the obvious prejudice that will flow to the respondent from reinstating the proceedings, the respondent points to no particular prejudice that will flow to it if the earlier order is set aside. The absence of such prejudice, of itself, however, does not mean that the application must succeed.
In my view, Ms Wint provides an explanation for her failure to appear on 20 April, 2015 but her explanation is entirely unsatisfactory. A party to proceedings, represented or otherwise is not entitled to assume that they will be permitted to appear in their proceedings in a way other than to be personally present. That is particularly so when no proper application for that remote appearance (by telephone or otherwise) has been made in a timely way on notice to the other party.
There is no material before me sufficient to permit me to come to the conclusion that Ms Wint’s application to appear by audio link was reasonable and appropriate.
Moreover, there is no evidence before me that if these proceedings were permitted to continue further, by setting aside the order made on 20 April, 2015 Ms Wint has material arguments that might reasonably lead to an order being made that is different to that which is sought to be set aside.
For those reasons, I decline to set aside the orders of 20 April 2015. The application in a case filed on 23 April 2015 is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 January, 2015.

Associate:

Date: 20 January 2016