Gladwell v Onepoint Wealth Partners Pty Ltd [2025] FedCFamC2G 1106

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).

(Delivered ex tempore and revised from the transcript)

1. On 12 February 2025 the applicant filed an Application - Fair Work Division (application) and a Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection (Form 2). The application came before the Court for a first court date listing on 22 April 2025. The first court date listing was to take place by Microsoft Teams. The applicant did not join the Microsoft Teams listing, as he was required to do, but was able to participate in the first court date after my associate telephoned him. The application and Form 2 had not been served at the time of the first court date and therefore there was no appearance by the respondent.
2. At the first court date on 22 April 2025 I made an order requiring the applicant to serve on the respondent by 6 May 2025 the application, Form 2 and the Order made by the Court on 22 April 2025. The applicant was required to file an affidavit of service by 13 May 2025, and the matter was listed for a further directions hearing on 20 May 2025.
3. At the time the matter came before the Court on 20 May 2025, there was no evidence on the court file to suggest that the applicant complied with the order relating to service, and there was no affidavit of service filed, as required by the Order I made on 22 April 2025. The applicant failed to appear at the directions hearing listed on 20 May 2025. Again, there was no appearance by the respondent, which is not surprising given that there was no evidence that the respondent had been served.
4. On 20 May 2025, despite the applicant not appearing, I made an Order in open court to give him a further opportunity to serve the relevant documents. That Order required the applicant to serve on the respondent by 10 June 2025 a copy of the application, Form 2 and the Orders made by the Court on 22 April 2025 and 20 May 2025. I also made an order requiring the applicant to file an affidavit of service by 17 June 2025 and I listed the matter for a further directions hearing on 11 July 2025. I made an order requiring the applicant to appear, or cause an appearance to be made, at the directions hearing on 11 July 2025. The Order made on 20 May 2025 included a notation to the effect that if the applicant failed to effect service and file an affidavit of service as required by the orders, the Court may make an order that the proceeding be stayed or dismissed, pursuant to r 13.05(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). A copy of the Order that I made on 20 May 2025 was emailed to the applicant at the email address included in his application. A further email was sent to the applicant on 4 July 2025 providing the Microsoft Teams dial-in details for the directions hearing on 11 July 2025.
5. It is now 11 July 2025 and the matter comes before the Court for a directions hearing. There is no appearance by either party at this directions hearing. There is no evidence on the court file to suggest that the application, Form 2 and Court Orders were served in accordance with the Order made on 20 May 2025 and no affidavit of service has been filed. There is no affidavit on the court file to explain the non-compliance with the Court's Orders, and I am unable to locate any correspondence from the applicant in relation to the Court's Orders, his failure to comply with them or the directions hearing today. Given that the applicant has not appeared at the directions hearing today, he has therefore not offered any explanation in open court as to his failure to comply with the Court's Orders.
6. In circumstances where:

(a) the applicant has twice failed to comply with orders made by the Court without offering any explanation for the non-compliance;

(b) the applicant has also failed to appear at the directions hearing today, despite being ordered to appear; and

(c) the applicant has been put on notice that his failure to comply with the Court's orders may lead to the Court dismissing or staying his application,

I exercise my discretion to dismiss the proceeding pursuant to r 13.05(1)(a) of the GFL Rules.

1. I note that in circumstances where this Order is made in the absence of the applicant, the applicant may apply for the Order to be set aside pursuant to r 17.05(2)(a) of the GFL Rules.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.