| [2019] FWC 6009 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mackael Stockhausen
v
Damstra Technology Pty Ltd
(U2019/2021)
DEPUTY PRESIDENT BOYCE |
SYDNEY, 2 OCTOBER 2019 |
Application for an unfair dismissal remedy — adjournment request based upon Applicant’s mental illness and incarceration in prison until at least August 2020 (possibly up to November 2021 or beyond) – strike-out application to dismiss proceedings — interests of justice – efficient use of public resources – justice to other litigants before the Commission – impact upon and prejudice to Respondent – Applicant’s inability to prosecute claim in an appropriate and timely manner – want of prosecution – cost limitations in Fair Work Act 2009 weigh in favour of strike-out application being granted given inability to ameliorate consequences of adjournment application via an award of costs - proceedings dismissed
Introduction
[1] On 26 February 2019, Mr Mackael Stockhausen (Applicant) filed a Form F2 with the Fair Work Commission (Commission) by emailing the Newcastle Registry. The Applicant claims he was dismissed from his employment with Damstra Technology Pty Ltd (Respondent) on 5 January 2019 unfairly, in breach of Part 3-2 of the Fair Work Act 2009 (Act).
[2] Although his Application was lodged outside of the 21-day time limit prescribed by the Act, 1 the Applicant was nonetheless granted an extension of time to file his application by Deputy President Saunders on 13 May 2019.2 The matter was allocated to me on 13 May 2019, and programed for arbitration on its merits.
[3] Pending that grant of an extension of time, however, the Applicant was arrested and remanded by police on 6 May 2019. Bail was refused. While it was initially expected that the Applicant might be released following a trial in late August or early September 2019, the Applicant was convicted of numerous offences on 29 July 2019, and imprisoned for a term of 28 months, with a non-parole period of 15 months (making the Applicant eligible for release (on parole) on or about 13 August 2020). I understand (based upon submissions from the Respondent, uncontested by the Applicant) that further charges are also pending against the Applicant and if convicted on those charges, the Applicant will likely be subject to a further period of imprisonment beyond his parole and/or final release date. In view of the foregoing, the Respondent made an application to have the proceedings dismissed on 12 August 2019 (Strike-Out Application).
[4] On 29 August 2019, I held a hearing by telephone to determine the Respondent’s Strike-Out Application. Ms Kylie Tuttle appeared for the Applicant. I note that Ms Tuttle is neither a lawyer nor paid agent. Mr Luke Connolly, solicitor, appeared (with permission) on behalf of the Respondent. Permission for the Respondent to be legally represented was not opposed, and I granted such permission due to the novel, serious and complex nature of the issues to be argued and the finality of the relief sought (if granted).
[5] Having considered all the evidence and submissions before me, I have decided that the matter should be dismissed in exercise of the Commission’s discretion pursuant to s.587 of the Act. My reasons for that decision follow.
Relevant facts
Background
[6] The Applicant was employed by Respondent as its Head of Service Delivery. That employment relationship came to an end on 3 January 2019 by way of dismissal.
[7] Stated generally (and I make no ultimate finding as to the merits of the allegations made against the Applicant for the purposes of this decision), the Applicant claims that his employment was terminated for no valid reason (i.e. on the basis of false and/or fraudulent allegations made against him by the Respondent). The Applicant claims that the dismissal was “unfair”, entitling him to a remedy under Part 3-2 of the Act. There are no jurisdictional issues concerning the Applicant’s right to be protected from unfair dismissal and/or make an application for an unfair dismissal remedy.
[8] The Respondent denies that the Applicant was unfairly dismissed. It claims that the Applicant was dismissed due to his engagement in serious misconduct (which the Respondent claims to have been substantiated by a workplace investigation into the Applicant’s (allegedly) fraudulent conduct).
Mention of 21 May 2019
[9] On 21 May 2019, I listed the matter for mention and directions. Neither the Applicant nor his representative (as listed on the Application at that time) attended. The Applicant and/or his representative were not contactable. At this time, the Applicant was being represented by his father, Mr Ralf Stockhausen (Applicant’s Father).
[10] On 28 May 2019, my Chambers emailed the Applicant, copying in the Applicant’s Father, regarding the Applicant’s failure to attend the mention. That email required the Applicant to advise the Commission of his ability to progress this matter by way of compliance with directions proposed by my Chambers.
[11] On 30 May 2019, the Applicant’s Father wrote to my Chambers and advised that:
a) from 6 May 2019, the Applicant had been remanded into custody by police on charges relating to breaches by the Applicant of an Apprehended Violence Order. The Applicant had been refused bail and was to remain at Cessnock Correctional Centre until at least 27 August 2019, at which time his criminal charges were to be heard at the Local Court in Newcastle; and
b) the Applicant was under “extreme mental distress”, had an undisclosed psychiatric illness, was without his prescribed medication, and was not in receipt of care from his treating psychologist or psychiatrist. Further, the Applicant’s Father was “in the process of arranging with [the Applicant’s] solicitor for a Power of Attorney to be put in place to be able to start actioning pressing matters on [the Applicant’s] behalf”.
[12] In light of these circumstances, the Applicant’s Father requested that the matter be stood-over until early September 2019, in anticipation of the Applicant’s release from prison. I acceded to that request and, on 31 May 2019, issued directions to the parties that the matter be stood-over until after 27 August 2019, at which time the matter would be relisted for further directions. In addition, I granted both parties liberty to apply generally on two days’ notice to my Chambers.
Mention of 13 June 2019
[13] On 13 June 2019, the matter was listed for further mention, by telephone, upon application by the Respondent. The Applicant’s Father appeared for the Applicant. Mr Connolly appeared on behalf of the Respondent.
[14] At that mention, the Mr Connolly submitted the following:
a) the Respondent was “disappointed” with the current directions, without the Respondent being heard on the matter;
b) the Respondent was of the belief that it was “unfair and unjust” to have to wait so long for directions in the matter to be issued;
c) information should be obtained as to the Applicant’s ability to prosecute the matter, and whether the Applicant could appear by video-link from prison. Further, the Respondent was of the belief that insufficient evidence had been put before the Commission regarding the Applicant’s circumstances; and
d) should the Commission not be minded to make the foregoing inquires, then the Respondent would seek to apply to have the matter “struck out”, and that I should recuse myself from deciding on that application, on the basis that I had not been minded to strike the matter out already of my own volition.
[15] In response, the Applicant’s Father informed the Commission that the Applicant was on remand at Cessnock Correctional Centre for a “technical breach of an AVO”. Further, the Applicant’s Father was faced with great difficulty in getting instructions from the Applicant as the prison only allowed for limited telephone and face-to-face communication. However, the Applicant’s Father had been “assured” that the Applicant would be released following his criminal trial, and so would be able to properly prosecute this matter thereafter.
[16] In view of the submissions of the Applicant’s Father, I determined that the matter would remain stood over until at least the 27 August 2019. That said, I also noted that the matter could not be held over indefinitely, and should the Applicant continue to be incarcerated following his criminal trial, dismissal of the matter would be reconsidered.
Mention of 5 August 2019
[17] On 29 July 2019, the Respondent’s representative emailed my Chambers requesting that the matter be relisted for a further mention, asserting that there had been a “significant development in this matter”.
[18] On 1 August 2019, the Respondent clarified that the Applicant had been sentenced to a period of incarceration until at least 13 August 2020 (and evidenced that assertion with a copy of a Court Order Notice bearing the name of the Applicant and the affixed seal of Newcastle Local Court).
[19] On 1 August 2019, the Applicant’s Father wrote to my Chambers and confirmed that the Applicant was to remain in prison until at least August 2020, being his minimum non-parole period.
[20] On 5 August 2019, a further mention was held to consider the change in the Applicant’s circumstances. Mr Connolly continued his appearance for the Respondent, as did the Applicant’s Father for the Applicant.
[21] Mr Connolly agitated that the extended period of incarceration warranted that I dismiss the matter forthwith. The Applicant’s Father resisted the Respondent’s dismissal request, and sought that the matter be stood over until the Applicant is released from prison (“likely” August 2020). Despite Mr Connolly’s request that I dismiss the matter immediately, I determined that the matter ought be properly ventilated by way of a timetable for submissions and evidence, and the listing of the Respondent’s Strike-Out Application for hearing.
[22] I note that, during the mention, the Applicant’s Father stated the Applicant would be seeking a lawyer to represent and assist him in this matter. I also note that the Applicant’s Father stated it might be possible that the Applicant could appear at hearing before the Commission by way of video-link from prison (this possibility never eventuated and was not explained or otherwise raised again by the Applicant’s representative).
[23] On 6 August 2019, I issued directions regarding the Respondent’s Strike-Out Application. Pursuant to those directions, materials were filed as follows:
a) on 12 August 2019, the Respondent filed an outline of submissions, and documentary evidence. In these submissions the Respondent stated that the Strike-Out Application relies upon s.587 of the Act, not s.399A of the Act;
b) on 19 August 2019, the Applicant filed an outline of submissions, and documentary evidence;
c) on 26 August 2019, the Respondent filed an outline of reply submissions;
d) on 29 August 2019, the Applicant filed further submissions and documentary evidence, which included:
i. a screenshot of the legal visit process to Cessnock Correctional Facility; and
ii. a psychiatric-legal report regarding the Applicant’s psychological status (the report states that it has been undertaken “not for treatment” purposes and absent a review of the Applicant’s current and/or historic clinical records). My review of the report is that it appears to have been drafted as part of a possible criminal defence or for the purposes of sentencing before the Local Court. The report contains various express limitations as to its recommendations and conclusions given it is a report undertaken absent a review of the Applicant’s clinical records and history of behaviours.
[24] The Respondent took issue with the material filed on 29 August 2019, arguing that it was not filed in accordance with the directions issued. However, having reviewed this material, I considered the contents to be relevant to my determination of the Respondent’s Strike-Out Application (and thus granted the Applicant leave to rely upon same).
[25] As stated above, the matter was heard, by telephone, on 29 August 2019.
Relevant law
[26] Section 587 provides the Commission with a wide statutory power to dismiss an application:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[27] The words “[w]ithout limiting when the FWC may dismiss an application” in sub-s (1) make clear that the Commission may dismiss an application in circumstances not expressly provided for by paras (a), (b) or (c). Further, the Explanatory Memorandum to the Fair Work Bill 2008 states this “provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements”. That said, the Explanatory Memorandum does little to further illuminate the otherwise clear language of s.587.
[28] It has been said that the jurisdiction to terminate a claim summarily is to be sparingly employed and ought not be used, save where recourse to such relief is clearly demonstrated. 3 This is irrespective of whether it is a court or tribunal that is moving to dismiss a matter.4
[29] Procedural fairness does not mandate a matter be held over indefinitely. There must be some limit. In Allesch v Maunz, 5 Kirby J said:
“It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.
... it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require”. 6
[30] Similarly, the Full Bench of this Commission has said:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative”. 7
[31] The power to dismiss an application for want of prosecution is a circumstance that falls squarely within the breadth contemplated by s.587. In Chand v State Rail Authority of NSW (Chand), 8 considering a predecessor provision to that at hand, Lawler VP, McCarthy DP and Redmond C neatly summarised the circumstances and principles that govern dismissing a matter for want of prosecution:
“[47] It is not usual to deal with the failure of a party to appear at the time a matter is listed for hearing by summary disposal for want of prosecution. Rather, the usual course when an adjournment application is refused in such circumstances is to proceed with the hearing. If no evidence is called, the application may be dismissed substantively because the applicant has not discharged his or her obligation to establish a case …
[48] The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.
[49] In Ghalloub v Aon Risk Services Australia Limited the Full Bench identified the considerations relevant to the exercise of discretion to summarily dismiss a matter for non-compliance with directions or otherwise for want of prosecution:
“[25] Directions are often issued to facilitate the timely and expeditious determination of the application. While the utility of directions may vary depending on the nature of the proceedings, directions can play an important role in case management. If complied with they help to delineate the issues of fact and law and reduce the need for adjournments to take instructions or to gather evidence. The importance of case management is now widely recognised in the law, and directions for hearing a matter are an important aspect of case management in the Commission. In Queensland v. J.L. Holdings Pty Limited [(1996-97) [1997] HCA 1; 189 CLR 146] the High Court accepted the importance of case management principles but said:
“However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.” [ibid, at p.154]
[26] Most if not all Australian courts have an inherent power to control abuse of their process and to dismiss a proceeding for want of prosecution. In many jurisdictions the rules of court govern the circumstances in which an action may be dismissed on that basis. In Lenijamar Pty Ltd and Others v AGC (ADVANCES) Limited [(1990) [1990] FCA 520; 27 FCR 388] Wilcox and Gummow JJ considered the application of Order 10 rule 7 of the Rules of the Federal Court and said:
“The discretion conferred by Order 10, rule 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an appellant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the appellant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an appellant's defaults may be such as to satisfy the judge that the appellant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the court looks at the matter, the direction has already been complied with, the defaulting appellant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.” [ibid., at p.396-7]
[27] As is evident the Court noted the width of the discretion conferred by the rule and went on to specify two situations in which an application might be dismissed for want of prosecution. The first situation is one in which the appellant has a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period. The second situation is one in which continuing non-compliance is causing unnecessary delay, expense or other prejudice to the respondent. Although obviously not binding in relation to the Commission's proceedings, we think that these observations usefully summarize some of the matters to which the Commission should have regard when considering whether to dismiss an application for want of prosecution.
[50] The ultimate the issue is what is required by the interests of justice in the circumstances of the particular case. In Sali v SPC Ltd Brennan, Deane and McHugh JJ noted that:
“It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings.”
(emphasis added; citations omitted)
[32] The principles and approach espoused in Chand have been applied in many decisions of this Commission. 9
[33] In Drummond v Canberra Institute of Technology, 10 Neville J (at [49]-[58]) conveniently summarised the key principles arising from the decisions of the High Court in Aon Risk Services Australia Limited v Australian National University (AON),11 and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd as follows:12
“[49] There are a number of comments by the High Court in AON that are relevant to this Court’s consideration and determination of whether the long-running litigation between parties should be permitted to continue. In the separate judgment of French CJ, his Honour said, at [5] (emphasis added):
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to AON could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system....
[50] At [23], his Honour said:
... the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
[51] Finally (for current purposes), at [26], French CJ said, by reference to earlier High Court authority (internal citations omitted; emphasis added):
... in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider "the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties" ...
[52] The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ made similar comments to those of the Chief Justice. For current purposes it is sufficient to note the following.
[53] First, at [93], their Honours referred to the achievement of a timely and cost-effective resolution of a dispute as also having “an effect upon the court and upon other litigants.”
[54] Secondly, by reference to authority from the English Court of Appeal, at [94], the High Court said (emphasis added; internal citations omitted):
In Gale v Superdrug Stores Plc, Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
[55] At [100], again by reference to UK authority, the joint judgment stated (internal citations omitted; emphasis added):
justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants ...
[56] At [101], the High Court acknowledged that “personal litigants are likely to feel the strain more than business corporations or commercial persons.” In saying this, in the same place the Court acknowledged that corporations (and presumably all other litigants as well) were also susceptible to the pressures associated with litigation. Indeed, the High Court noted, still at [101] that (emphasis added):
... whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end... The stated object in the Court procedure Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.
[57] Finally, at [113], the High Court stated (internal citation omitted; emphasis added):
The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[58] In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd, the High Court commented further on the importance of the Court having a more “directorial” role in the conduct of matters before it. At [56] and [57], by reference to the objects of the Civil Procedure Act 2005 (NSW), the High Court said (emphasis added):
[56] The evident intention and the expectation of the CPA is that the court uses these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.”
[34] I note that given the limited costs jurisdiction under the Act (see: ss 400A, 570 and 611), the issue as to whether costs are to be considered as a cure for, or an amelioration of, an adjournment application will rarely (if ever) arise. Rather, the focus is squarely upon those matters that the foregoing case law principles identify as considerations (unrelated to the payment or recovery of costs flowing from an adjournment application as ameliorating the effect of same).
[35] In other words, the limited costs jurisdiction under the Act, in my view, weighs heavily in favour of the granting of a strike-out application where an adjournment request provides the grounding for such strike-out application, and costs are unable to be awarded (due to the limited costs jurisdiction under the Act).
[36] Whilst the Act’s limited costs jurisdiction is designed so as to “discourage legalism” 13 and provide easier access to the jurisdiction without the risk of costs being awarded against an unsuccessful party, the costs limitation must equally be seen to be a factor that weighs against the discretion to grant an adjournment application, and, inter alia, grant a dismissal application.
Strike-out procedural principles
[37] In Carter v The Hanna Group Pty Ltd (Cater v Hana Group), 14 Deputy President Sams canvased the authorities more broadly and proposed five criteria that ought be considered, when moving to strike-out an application, in light of the objects of the Act:
“[6] … [T]he principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:
(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;
(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring “a fair go all round” as referred to in s 381(2) of the Act. That section is expressed as follows:
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;
(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and
(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.
[38] I concur with the procedural approach taken by Deputy President Sams in Cater v Hana Group.
[39] The Applicant has been as put on notice of the Respondent’s Strike-Out Application. He was made aware that the Commission was actively considering that Strike-Out Application. He was made aware that, without reasonable explanation, the Respondent’s Strike-Out Application may result in his claim for an unfair dismissal remedy being dismissed. Finally, he was given an opportunity to respond to that Respondent’s Strike-Out Application, and source appropriate legal representation to resist same.
[40] What essentially remains is for the Commission to determine whether the Respondent’s Strike-Out Application ought be granted in the interests of justice, having regard to the Applicant’s reasons for resisting same in the context of the circumstances of this case, the case law principles cited in this decision, and ss. 3, 381, 576-578 and 587 of the Act.
[41] This is not a situation in which the usual course applies (i.e. upon an adjournment application being refused, the matter proceeds to hearing with or without an adjournment requester’s involvement or evidence).
The Applicant’s evidence and arguments
[42] The Applicant has put forward two substantive reasons as the basis upon which (singularly or combined) the Respondent’s Strike-Out Application ought be refused:
a) the Applicant’s on-going psychological (mental) status, impeding his ability to properly engage with the proceedings at this point in time; and
b) the Applicant’s incarceration until at least August 2020, removing his ability to properly engage with, or participate in, these proceedings until after that date (albeit with the possibility that the Applicant may be able to give evidence via telephone or video-link from prison).
The medical evidence
[43] The medical evidence (the Applicant’s psychiatric-legal report dated 19 June 2019) highlights that whilst the Applicant is not cognitively impaired, he is suffering from an on-going mental illness, albeit he is not at the status of a “mentally ill person” within the meaning of ss.4 and 14 of the Mental Health Act 2007 (NSW). The Applicant also has a long history of substance abuse. Whether in prison or upon release into the community, the Applicant will need to abstain from drugs and alcohol, engage in regular drug testing (for monitoring purposes), engage with a substance abuse service, take prescribed medications, attend upon a pathology service to ensure compliance with his taking of prescribed medications, and (as directed and/or required) attend upon both a relevant psychologist and a specialist psychiatrist.
[44] Ms Tuttle submitted that the Applicant’s overall mental state further deteriorated since his incarceration on 6 May 2019. In making this submission, Ms Tuttle highlighted that since the time that the Applicant was incarcerated on 6 May 2019, he has been without his usual medication, and without therapy from his treating medical professionals. Ms Tuttle did not indicate when it is anticipated that the Applicant’s mental state is likely to improve, let alone improve to the point that the Applicant will be in a position to properly engage with, and give instructions in respect of, these proceedings. Neither does the Applicant’s psychiatric-legal report shed any light on this issue.
[45] Despite the foregoing, Ms Tuttle submitted that it is to be expected that at some point into the future the Applicant will be in proper mental state to run his case. Ms Tuttle’s assertion here rests on the absence of a statement (in the Applicant’s psychiatric-legal report) to the effect that the Applicant will be incapable of providing instructions indefinitely.
[46] For my part, I observe that the Applicant’s psychiatric-legal report only sets out proposed recommendations to treat or deal with the Applicant’s mental illness and history of substance abuse. Significantly, it identifies no timeframe upon which any improvement in the Applicant’s mental state is likely to occur. I therefore do not accept that the report can be relied upon to identify any likely timeframe within which the Applicant will be in a position to properly engage with, or participate in, these proceedings (e.g. as to the provision of instructions, the drafting of witness statement evidence, or attendance at a hearing). In short, there is no evidence upon which it can be said that the Applicant’s current mental incapacity is likely to improve or otherwise change (in the positive sense) at any time into the future (let alone the foreseeable future).
[47] Moreover (and despite Ms Tuttle’s submissions to the contrary), the Applicant obtaining legal representation can do nothing to alter this position. If the Applicant cannot provide his lay representatives with proper instructions because he is mentally incapable of doing so, the position does not change merely because a lawyer becomes involved.
[48] The evidence and submissions regarding the Applicant’s mental health is compelling and only serves to highlight that the Applicant is not in a position to prosecute his claim, either now, or in the foreseeable future. This situation, in and of itself, in my view, is a basis to dismiss the matter.
The Applicant’s on-going incarnation
[49] Even if the Applicant was of a better mental capacity to provide instructions, he remains incarcerated until at least August 2020 — almost a full year from now.
[50] There was no evidence to suggest that this date will see the Applicant released. There is, however, evidence in the form of a court order to suggest the Applicant may be incarcerated for a period beyond his August 2020 parole date (up to November 2021) pursuant to his July 2019 convictions. Other charges against the Applicant are also pending trial, and may see either his August 2020 parole date, or his November 2021 release date, further extended.
[51] Ms Tuttle put that the Applicant can prosecute his matter from prison. To that end, Ms Tuttle submitted that the Applicant could attend any hearing by video-link, and that such arrangements were commonplace. However, no evidence was led, or submissions made, as to how this arrangement could be facilitated, or when it might be arranged to occur. The Applicant has had every opportunity to put on such evidence.
[52] I do not accept that the Applicant will be in a position to prosecute his matter from prison. Nor do I accept that it would be fair upon the Respondent to allow the Applicant to give evidence via video-link from prison (i.e. even if video-link can or could be facilitated) due to likely issues of credibility that would arise at any merits hearing. I also do not accept that the Applicant will be released from prison within a timeframe that will not be prejudicial to the Respondent, and provide it with a “fair” opportunity to defend any allegations made against it.
[53] The Applicant’s incarceration until August 2020 or beyond is a further stand-alone basis to grant the Respondent’s Strike-Out Application.
Conclusion
[54] The Applicant finds himself in unfortunate circumstances. The Applicant is not in a position, physically or mentally, to prosecute his case now or into the foreseeable future. Further, it is not clear that he will ever be in a position to do so.
[55] I do not repeat or otherwise summarise the case law principles and considerations set out in this decision flowing from AON. Put simply, the Applicant has not discharged his responsibility to the Commission and the Respondent to confirm that he can prosecute his case in an appropriate and timely manner. Allowing the matter to remain on foot flies in the face of the efficient use of public resources, justice to other litigants before the Commission generally, the impact upon the Respondent (being its witnesses and employees), and the efficient and speedy resolution or conclusion of this litigation.
[56] Even if I am minded (which I am not) to grant the Applicant’s adjournment application on the basis that any prejudice to the Respondent can be ameliorated via a costs order against the Applicant (and in favour of the Respondent), the costs limitations in the Act unfortunately prohibit me from taking that approach.
[57] Accordingly, it is not in the interests of justice that this claim continue in abeyance essentially indefinitely. I therefore dismiss the Applicant’s Application for an Unfair Dismissal Remedy in these proceedings. An Order to this effect is published with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Kylie Tuttle for the Applicant
Mr Luke Connolly (Solicitor, Connolly Workplace Law) for the Respondent
Hearing details:
In Chambers, by telephone, on 29 August 2019
Printed by authority of the Commonwealth Government Printer
<PR711803>
1 Fair Work Act 2009 s.394(2).
2 Mackael Stockhausen v Damstra Technology Pty Ltd [2019] FWC 3285.
3 Carter v The Hanna Group Pty Ltd [2011] FWA 31 at [3] (Sams DP), citing General Steel Industries Inc v Commissioner for Railways (NSW & Ots) [1964] HCA 69; (1964) 112 CLR 125 at 128 to 129 (Barwick CJ). See also: Kioa v West (1985) 49 CLR 550 at 582.
4 Australian Railways Union; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17 at 23 to 24.
5 (2000) 203 CLR 172.
6 Ibid at [35]-[39].
7 Viavattene v Health Care Australia [2013] FWCFB 2532 at [39].
8 [2006] AIRC 848; PR975108.
9 See examples: Coupe v International Motor Inn Pty Ltd [2012] FWA 2117 (Bartell DP); Dawkins v East Coast Commercials [2013] FWC 3070 (Spencer C); Ayaz v Transdev NSW South Pty Ltd [2015] FWC 7098 (Sams DP); Application by Simounds [2016] FWC 2040 (Bartell DP); Fay Summers v Regional Enterprise Development Institute Ltd t/a REDI & Ots [2019] FWC 609 (Sams DP).
10 [2019] FCCA 2612.
11 [2009] HCA 27; (2009) 239 CLR 175.
12 [2013] HCA 46; (2013) 88 ALJR 76.
13 Explanatory Memorandum to Fair Work Bill 2008, p.339 at [2228]