Zhao v TSS and Associates Pty Ltd

[2020] FCCA 595

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHAO v TSS & ASSOCIATES PTY LTD [2020] FCCA 595

Catchwords:
INDUSTRIAL LAW – Applicant seeks to reinstate an Application dismissed on 25 February 2019 due to non-appearance by the Applicant – the regrettable delay of over a year is prejudicial to the Respondent – inappropriate to reinstate the proceeding – Application in a Case dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.16.05

Cases cited:

Wint v Medimobile Pty Ltd [2016] FCCA 102

Applicant: LINGFEI ZHAO

Respondent: TSS & ASSOCIATES PTY LTD

File Number: MLG 3506 of 2018

Judgment of: Judge Burchardt

Hearing date: 4 March 2020

Date of Last Submission: 4 March 2020

Delivered at: Dandenong

Delivered on: 23 March 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Ms Pelka-Caven

Solicitors for the Respondent: Holding Redlich

ORDERS

1. The Application in a Case filed 25 February 2020 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3506 of 2018

LINGFEI ZHAO

Applicant

And

TSS & ASSOCIATES PTY LTD

Respondent

REASONS FOR JUDGMENT

1. By an Application in a Case filed on 25 February 2020, the applicant, Ms Zhao, seeks to reinstate an application dismissed on 25 February 2019.  On that latter date, I dismissed the application because of the non-appearance of the applicant.

2. Ms Zhao’s application does not state in terms that it is pursuant to rule 16.05 of the Federal Circuit Court Rules2001, and indeed, the orders sought in the Application in the Case are simply those that the applicant would seek at final hearing at the substantive application.  Nonetheless, in her affidavit in support, she deposed:

   I missed my hearing date because I did not understand the process after lodging my application online.

   I now request the case to be reopened.

3. The Court, and indeed the respondent also, have treated this as an application under rule 16.05.

The Procedural History

1. The applicant formerly worked as a senior accountant (I have been informed without contradiction that she is a qualified chartered accountant) for the respondent.  Employment, according to Part G of her Form 2 application, came to an end on 18 July 2018, at which time she was paid one weeks’ notice and remaining annual leave.

2. Counsel for the respondent has informed me without contradiction that this was subsequently followed by two conciliation attempts in the Fair Work Commission and the issuing of a certificate.  Ms Zhao’s application was made on the fourteenth and last day thereafter, filed in this Court on 21 November 2018.

3. The respondent was not served with the application or the Form 2 that accompanied it, but the matter was listed by the Court on 25 February 2019.

4. It is standard practice for the Court not to seal documents that are filed until a return date is made available by chambers.  From the applicant’s oral submissions made before the Court in support of her application to reinstate, it is clear that the applicant was indeed given sealed copies of the originating application and Form 2 documents which had the return date on them.  This is clear because Ms Zhao said that she did not understand the difference between sealed and unsealed documents.

5. Thereafter, nothing happened in terms of Court proceedings until 25 February 2020 when the applicant lodged the Application in the Case and supporting affidavit to which I have referred.

The Applicable Law

1. In Wint v Medimobile Pty Ltd [2016] FCCA 102 (“Wint”), His Honour Judge Jarrett set out at paragraphs [5] – [7] a helpful indication of how the Court should approach such matters as follows:

   5. The Court has power to set aside an order made in the absence of a party: rule 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.

   6. 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.

   7. 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 the 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.

The Submissions Made at Court

1. Ms Zhao, who was self-represented with the assistance of a McKenzie friend, said she had thought carefully about the matter. She conceded candidly it was her fault. She missed the hearing date. She did not understand the process. She had sought advice from a community legal centre who had told her that no date would occur for around one year. She looked at the email from the Court and did not realise the stamped document had a Court date. She was just waiting. She contacted Court last Monday and found her case had been dismissed and lodged her application the next day.

2. Counsel for the respondent informed the Court of the history of the matter. The applicant had filed her application for general protection in July 2018, which led to two conciliations and ultimately, a certificate issued by Commissioner Cirkovic on 7 November 2018. The application was filed on 21 November 2018 and listed on 25 February 2019. The respondent was not served and had no contact from the applicant until Monday 2 March 2020 when an email was sent to the lawyers acting for the respondent. The applicant had filed her application on 25 February 2020. Counsel pointed to the failure of the applicant to serve her affidavit within the time prescribed by the rules but the point was not pressed. Counsel referred to the authorities in this matter and referred to an authority involving Judge Jarrett which I take, in all probability, to be the case of Wint which I have set out above.

3. Counsel dealt first with the question of delay.  The applicant only just met the 14 day deadline to file her original application.  She had no difficulty in navigating the proceedings in the Industrial Commission and counsel pointed to the fact that Ms Zhao is a highly qualified Chartered Accountant.  The inference to be drawn, I took it, was that the applicant’s explanation was unsatisfactory.

4. Counsel next addressed the question as to whether the applicant had an arguable case. It was submitted that this case was not strong. The applicant had been dismissed for poor performance.

5. Finally, counsel referred to the prejudice to the respondent if the application was reinstated. The applicant was dismissed in July 2018. Counsel’s instructions were that at least one witness relevant to the matter was no longer employed by the respondent, and in any event, there would be the prejudice caused by the lapse of time since the relevant events occurred.

6. The applicant in reply said she had only served the respondent on Monday night. She went to the community legal centre for advice, but they did not tell her that it was her responsibility to serve the respondent.  When she returned after work at 6.30 on Monday night, she was told to serve the respondent and did so straightaway. The applicant said that the case was very important to her. She was dismissed when she was pregnant. She had told them about this only four days before she was dismissed. Furthermore, at the time, she was involved in a complaint about workplace bullying.  She strongly wished for the matter to proceed.

Consideration

1. There can be no doubt in the face of the applicant’s candid admission that her failure to attend the proceedings in February 2019 was because she negligently failed to pay proper attention to the sealed documents that the Court sent to her. She is a highly intelligent, professional person, and she ought to have paid better regard to the materials with which she was provided. Furthermore, and this is only because she has not put the matter herself on affidavit, it is not clear whether the advice that she says she received from the community legal centre to the effect that there would be nothing happening for a year was before or after the receipt of those sealed documents.

2. Notwithstanding these reservations, however, I note that the applicant moved extremely promptly when she finally did discover that her application had been dismissed.  Although it took her approximately a week to serve the respondent, the fact is that she did so forthwith when it became apparent to her that she was required to do this.  Given the applicant’s strongly expressed desire to continue with the matter, I think that her explanation is at least sufficiently plausible for this not to count heavily against her.  However, it does need to be borne in mind that the failure on her part to attend arose solely through her own inadvertence.

3. Turning to the question of the substantive merits of the case, these are, of course, only denoted in a somewhat limited way as things presently stand. The Part G of the Form 2 completed originally by the applicant asserts that the applicant was sacked because she was pregnant and that “the complaint I made about a senior manager was factored into their decision to sack me” and “my short pregnancy-related absence was also a main concern in the decision-makers’ minds and resulted in my dismissal.”

4. Part G is continued at the end of the application.  Although it is clear that the respondent informed the applicant that her employment was terminated for poor performance (“the firm said I was sacked due to performance”), it would seem to me that on a fair and necessarily impressionistic reading of the applicant’s case, if the facts she asserts were made out, it might well give rise to a cause of action properly pursuable in the Court.

5. It is self-evidently impossible to make any more detailed assessment of the application’s merits at this time.

6. The area of difficulty that this application most profoundly raises, however, is the last of the three primary criteria, which it should be noted are not an all-inclusive or exhaustive list of considerations. The events in question appear to go back to June 2018. The narrative in the Form 2 goes back as far as late 2017. That narrative would be relevant to the trial because it would be the applicant’s case that her performance was excellent and that the dismissal was therefore not performance-related. The events of late 2017 are now over two years ago.

7. By the time the matter gets on to trial, it would be reasonable to suppose that there will have been a three-year delay, given the Court’s current listing pressures. I note that even looking at the applicant’s Form 2 narrative, it would seem highly likely that the respondent would be required to call a number of witnesses. This would mean that the case might well involve a not insignificant number of days, which would mean that the time it takes to get on for trial would perhaps be delayed yet further.

8. More to the point, I have been informed by counsel on her instructions that at least one witness that the respondent would wish to call is no longer employed. While, of course, it is possible that such a person might be subpoenaed or might even, indeed, volunteer to give evidence, as a matter of practical politics, once a person leaves their employment, it is my experience that they become markedly disinclined to further involve themselves in the affairs of their former employer. While I obviously cannot evaluate with certainty whether or not the departed employee would or would not give evidence, it is immediately apparent that the position of the respondent is prejudiced.

9. Furthermore, the regrettable delay of over a year before this application effectively gets filed at all is of itself prejudicial to the respondent. There are time limits for applications of this character. There is a 14-day limit from the filing of the certificate. Of their nature, applications of this sort must be taken to be intended to be addressed at least as urgently as is practicable. A superimposed delay of one year through the negligence of the applicant is, in my view, a decisive consideration.

10. I accept that the applicant is bitterly disappointed, to say the least, about what she perceives to have occurred to her.  I note that she is in employment and suspect that the motivation that impels her is more to do with her sense of injustice than any singularly pecuniary limited one. 

11. Nonetheless, litigants are responsible for their own actions. 

12. In all the circumstances, in my view, balancing the relevant considerations and most particularly the prejudice to the respondent, it is inappropriate to reinstate the proceeding.  The Application in a Case will be dismissed accordingly.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  23 March 2020