Muthu v Radeshar Pty Ltd

1. In this case, the applicant, Mr Muthu, alleges that he was employed by the first respondent (Radeshar) and that Radeshar breached his contract of employment, contravened the award applicable to his alleged employment and contravened the Fair Work Act 2009 (Cth) (FW Act). He further alleged that the second respondent (Mr Pillay) was an accessory to Radeshar's contraventions of the FW Act.
2. The proceeding was commenced by Mr Muthu on 27 April 2017 and, following a trial, was dismissed on 15 September 2020: Muthu v Radeshar Pty Ltd [2020] FCCA 2158. Mr Muthu appealed that decision to the Federal Court of Australia and was successful, Katzmann J allowing the appeal on 4 October 2022 and remitting the matter to this Court for a new trial before a different judge: Muthu v Radeshar Pty Ltd [2022] FCA 1157 (Appeal Judgment). Since then, the matter has involved a number of interlocutory steps of which this is one. Also relevant are the following:

(a) on 8 June 2023 the Court ordered the respondents to seek any further and better particulars of the further amended statement of claim (FASOC) by 16 June 2023 and Mr Muthu to provide a response to any such request by 26 June 2023;

(b) on 19 June 2023 the respondents made a 13-paragraph request for further and better particulars;

(c) as at 11 August 2023 no particulars had been provided and the Court ordered that day that Mr Muthu:

... provide further and better particulars of the further amended statement of claim by 8 September 2023;

(d) on 8 September 2023, Mr Muthu filed a "response" document which inter alia said that:

The applicant wishes to inform the Honourable Court that the Respondent's assertions seeking further and better particulars (Paragraphs 1 to 11) for the amended statement of clam is a futile exercise.

The remainder of the letter appeared to address the requests numbered 12 and 13;

(e) on 13 October 2023 the respondents filed an application in a proceeding seeking dismissal of the action by reason of Mr Muthu's failure to comply with the 11 August 2023 order to provide further and better particulars. That application was listed for hearing on 30 October 2023;

(f) on 30 October 2023 none of the parties appeared and the application in a proceeding was relisted to 8 November 2023;

(g) Mr Muthu did not attend on 8 November 2023 and the application in a proceeding was stood over on that occasion to 22 November 2023; and

(h) Mr Muthu did not attend on 22 November 2023 and on the respondents' application the proceeding was dismissed pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) by reason of Mr Muthu's non-attendance on that day: Muthu v Radeshar Pty Ltd [2023] FedCFamC2G 1213 (Summary Dismissal Judgment).

1. On 9 January 2024 Mr Muthu filed an application in a proceeding seeking, inter alia, reinstatement of the proceeding. These reasons concern that application. Following a hearing on 20 February 2024 at which only Mr Muthu addressed the Court, the parties agreed that the respondents' arguments would be made in writing and that the matter would be determined without a further hearing.
2. For the reasons that follow, the application for reinstatement will be dismissed.

1. In the application in a proceeding Mr Muthu sought orders as follows:
   1. THAT MY APPLICATION IN THE PROCEEDINGS SYG1271/2017 BE REINSTATED FOR FURTHER HEARING.
   2. THAT THE APPLICANT BE GIVEN RELIEF AND THE RESPONDENT BE DIRECTED TO RECONCILE AND PAY THE OUTSTANDING DUES TO THE APPLICANT.
   3. THAT THE APPLICANT BE RELIEVED OF ALL COSTS AS IT IS A FAIRWORK RELATED PROCEEDINGS IN WHICH THE RESPONDENT FAILED TO PAY THE DUES TO THE APPLICANT AND CONTINUE TO ENGAGE THE COURT TO WASTE THE VALUABLE TIME OF THE COURT AND DEPRIVING THE APPLICANT OF HIS LONG DUE PAYMENT A CLASSIC EXAMPLE THAT JUSTICE DELAYED IS JUSTICE DENIED.
   4. THAT THE HONOURABLE COURT LEVY SUCH PENALTIES AS APPLICABLE DUE TO THE DELIBERATE DELAYS BY THE RESPONDENT SEEKING FURTHER PARTICULARS AND OTHER IRRELEVANT MATERIALS TO DELAY THE CASE FURTHER UNTIL THE SECOND RESPONDENT'S 70th BIRTHDAY CELEBRATION.
   5. THAT THE HONOURABLE COURT TO SUBPOENA ALL WITNESSES TO GIVE EVIDENCE AS PER THE LIST PROVIDED BY THE APPLICANT.
   6. THAT THE APPLICANT BE PAID INTEREST AND OTHER CHARGES FOR THE OUTSTANDING AMOUNTS DUE TO THE APPLICANT SINCE THE PROCEEDINGS IS OVER 6 YEARS. THAT THE RESPONDENT BE ORDERED TO PAY FOR THE DELIBERAT AND UNDUE AND PURPOSEFUL DENIAL OF THE DUES TO THE APPLICANT, LEGITIMATE JUSTICE SHOWING HIS COMPANY / TRUST AND FAMILY FINANCIAL POWER TO DEPRIVE THE APPLICANT OF A GENUINE LIVELIHOOD.

1. Mr Muthu deposed in his affidavit sworn 8 January 2024 in support of his application for reinstatement that:

...

1. I can present witnesses named below related to these proceedings: 1. Mr Sunil Jayadevan 2 . Mr Soman Plathara Gopalan 3. Mr Hiran Rukmal Kulatilake
2. I can provide evidence and seek to subpoena Mr Vythees Suppiah, Inspector of the Monitoring Section of the Department of Home Affairs, Parramatta Office to whom Mr Pillay introduced me as his employee and senior key staff.
3. I have good prospect of success in this case. Unfortunately my case went through various problems due to my incarceration, ill health, blocked emails, delayed emails due to which I missed out attending the Court hearings.

A copy of the Summary Dismissal Judgment, which recounted an outline of the recent history of this proceeding including Mr Muthu's failure to appear at listings on 30 October 2023 and 8 and 22 November 2023, was annexed to Mr Muthu's affidavit.

1. In a further affidavit affirmed 19 February 2024, Mr Muthu deposed that on 8 November 2023 he had been unwell and unable to attend the hearing. He said that he had suffered a number of bereavements, presumably in the recent past although no dates were supplied, which caused him to suffer depression. This condition was said to have been exacerbated by a number of misfortunes that had befallen his life partner such that, because of her absence from Australia from 4 November 2023 to 1 December 2023, he had been:

... like a dead man walking. I could not attend to many of my personal affairs and court matters.

1. Annexed to Mr Muthu's further affidavit was a medical certificate of his general practitioner, Dr Ng, dated 27 January 2024. That certificate recounted Mr Muthu's alleged misfortunes and depression, including the stress and depression he suffered because his partner went overseas from 4 November 2023 to 1 December 2023. Significantly, however, it did not say that Mr Muthu had been unfit to attend court on 8 November 2022 or at any other time.
2. Mr Muthu went on in his further affidavit to imply that he had been unaware of the 22 November 2023 court date, when the matter was dismissed for non-attendance, because he had lost his mobile phone and:

1. No evidence was adduced by the respondents even though they filed affidavits.

1. Mr Muthu's written submissions purported to provide further and better particulars of his FASOC.
2. In his address to the Court Mr Muthu's counsel noted that Katzmann J had opined in the Appeal Judgment at [97] that:

There was evidence upon which a court might well conclude that Mr Muthu was employed by Radeshar as he claimed.

He relied on that statement to submit that Mr Muthu had an arguable case that justified the matter going to trial rather than being dismissed on an interlocutory basis.

1. It was further submitted that Mr Muthu had not attended court on 22 November 2023 because he did not receive the Court's email advising of that listing because he had lost his phone and because of the personal circumstances set out in his affidavit of 19 February 2024.

1. The respondents submitted that Mr Muthu had forfeited whatever right he had to have the matter reinstated because he had failed to comply with the Court's order to provide further and better particulars of the FASOC by 8 September 2023, which the respondents characterised as a refusal to provide them.

1. The principal paragraph of the application in a proceeding is the first one, which seeks the reinstatement of the matter in order that it might progress to a final hearing.
2. Paragraphs 2, 4, 5 and 6 concern the final relief which Mr Muthu seeks in the proceeding. They are not matters which the Court can usefully address at this stage.
3. Paragraph 3 concerns the order for costs made on the last occasion. This issue will only fall for consideration if Mr Muthu satisfies the Court that the orders of 22 November 2023 should be set aside.

1. Mr Muthu's application did not identify which rule he relied on but r.17.05(2)(a) of the Rules, which provides that the Court may set aside an order made in the absence of a party, is the appropriate one. Whether to set aside the order dismissing the proceeding is a discretionary matter and there are no obligatory considerations that are relevant to that determination. Even so, the ultimate question is whether it is in the interests of the administration of justice that the dismissal of the proceeding be set aside and the matter proceed to a hearing. In this case, I find that the matters which are appropriate for consideration are:

(a) whether Mr Muthu has provided a satisfactory explanation for his failure to attend court on 22 November 2023;

(b) whether he has an arguable case against the respondents; and

(c) whether he has conducted himself in this stage of the proceeding in a way that is consistent with the overarching purpose of the Rules.

1. It has not been suggested that the respondents would suffer any particular and relevant prejudice were the matter to be reinstated.

1. As recorded earlier, Mr Muthu has submitted that he did not know that the matter had been listed on 22 November 2023 because he had lost his mobile phone and had not received the Court's email of 16 November 2023 advising the parties of that listing. I am not persuaded that this bland and elliptical explanation provides a satisfactory explanation for Mr Muthu's non-attendance on 22 November 2023. Given the seriousness of the application to reinstate the proceeding, more was required. For instance, Mr Muthu could have but did not say when and in what circumstances he lost his phone; whether he found it and if so when; if he did not find it, whether he obtained a replacement and if so when; or whether he had access to his emails by other means and if not why not. This lack of corroborative detail tends to diminish the persuasiveness of the limited explanation that has been forthcoming.
2. Further, because he sent an email to the Court on 13 November 2023 explaining his failure to attend, Mr Muthu has demonstrated that he knew before 22 November 2023 that the matter had been listed for some sort of hearing on 8 November 2023. However, despite possessing knowledge of the 8 November 2023 listing by at least 13 November 2023, Mr Muthu has not explained what, if any, contemporaneous steps he took to learn what the outcome of that listing had been or what the application listed on that occasion had concerned. In relation to the latter point, I note that the affidavits of service of the application in a case which have been filed by the respondents were defective, one as to execution and the other as to substance and so are not evidence of such service. Mr Muthu's apparent lack of curiosity concerning the outcome of the 8 November 2023 listing is something requiring explanation. This is because his failure to enquire meant that in the period following 8 November 2023 his ignorance of the progress of the proceeding and its re-listing on 22 November 2023 was ostensibly total with the consequence that the supposed loss of his mobile telephone meant that he remained unaware of the latter listing. The loss of the telephone would have been of no significance if Mr Muthu had made the most basic of enquiries about the outcome of the 8 November 2023 listing and so his apparent failure to make those enquiries should have been explained.
3. It may be that Mr Muthu would explain the apparent lack of such enquiry by reference to the alleged state of his mental health but I do not accept that what he has provided to the Court achieves that goal. Dr Ng reported in a medical certificate, which Mr Muthu supplied to the Court under cover of his email dated 13 November 2023, that Mr Muthu forgot to attend on 8 November 2023 because he had "memory problems" exacerbated by his partner's absence overseas. In his report of 27 January 2024, annexed to Mr Muthu's 19 February 2024 affidavit, Dr Ng said that Mr Muthu had suffered "great stress" and "worsened ... depression" because of his partner's absence. However, I place little weight on those reports. They do not suggest that Dr Ng has specialised skills in psychology or psychiatry, that he tested Mr Muthu's assertions or that he relevantly did more than accept the histories Mr Muthu presumably gave him. I conclude that, in substance, Dr Ng's reports relevantly do no more than repeat what otherwise appear to be uncorroborated assertions by Mr Muthu. I do not accept that they provide an explanation for, relevantly, Mr Muthu's apparent failure to enquire into the outcome of the 8 November 2023 listing, an enquiry which would have revealed to him that the application to dismiss his proceeding had been adjourned for hearing to 22 November 2023.
4. I find that a satisfactory explanation for Mr Muthu's absence from court on 22 November 2023 has not been provided.

1. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) provides:
   1. Overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

...

1. Parties to act consistently with the overarching purpose

(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(1) The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

(2) To assist the Court, the parties must:

(a) avoid undue delay, expense and technicality; and

(b) consider options for primary dispute resolution as early as possible.

1. It is not apparent that Mr Muthu, although the applicant and the bringer of the proceeding, is committed to its efficient and timely prosecution in accordance with the Act and the Rules. In addition to his failure in this stage of the proceeding to attend court on 22 November 2023, Mr Muthu had also failed to attend:

(a) a directions hearing on 28 October 2022 because, he said in an email dated 28 October 2023, he had been in hospital for the previous 3 days with chest pain and had not seen the Court's email sent 10 days earlier advising him of the listing;

(b) a directions hearing on 2 June 2023, although advised of the listing by the Court's email of 26 May 2023;

(c) the 27 June 2023 hearing of his own application in a proceeding filed on 13 April 2023 although advised of the listing by the Court's emails of 19 and 27 June 2023;

(d) a directions hearing on 15 September 2023 although present in court on 11 August 2023 when the matter was listed and although reminded of the listing by the Court's email of 8 September 2023;

(e) the 30 October 2023 hearing of the respondents' application in a proceeding for summary dismissal filed on 13 October 2023 although advised by the Court's email of 27 October 2023 that an application in a proceeding had been listed for hearing on that day; and

(f) the 8 November 2023 adjourned hearing date of the respondents' application in a proceeding, although advised by the Court's emails of 30 October 2023 and 7 November 2023.

1. Although Mr Muthu has articulated reasons for his absences from court on 8 and 22 November 2023, his other failures to attend are unexplained, except to the extent that his unparticularised 1½ months in prison advised at the directions hearing on 11 August 2023 may be relevant.
2. In his first affidavit in support of the present application, Mr Muthu spoke in general terms of his:

... incarceration, ill health, blocked emails, delayed emails ....

without particularising how any one of those alleged circumstances prevented him from attending on 22 November 2023 or on any earlier occasion. That evidence is vague to the point of meaninglessness. The medical certificate of Dr Ng that is annexed to that affidavit is similarly unhelpful and does not go so far as to say that the state of Mr Muthu's mental health meant that, at any particular time, he had been unable to discharge his obligations as the applicant in this proceeding.

1. As noted already, the reason the case was before the Court on 22 November 2023 was for the adjourned hearing of the respondents' application for summary dismissal based on Mr Muthu's alleged failure to provide further and better particulars of his FASOC. The substantive part of Mr Muthu's response, quoted earlier in these reasons said:

The applicant wishes to inform the Honourable Court that the Respondent's assertions seeking further and better particulars (Paragraphs 1 to 11) for the amended statement of clam is a futile exercise.

The Respondent has changed six solicitors and trying to explore avenues and excuses to buy more time.

1. On the face of it his response was not a proper response and seems to have implied that the request for particulars was colourable and objectionable for that reason. More significantly for the present application, however, Mr Muthu has made no attempt either to justify that response or to provide further responsive particularisation. In his written submissions he has provided additional further and better particulars, but these were not responsive to the requests that had been made and were more like additional allegations. That is not to say that some of the requests for particulars may not have been objectionable but if that is the case then an objection should be taken rather than impose on the respondents a reply which says what Mr Muthu wants to say, not necessarily what the respondents want to know. That approach imposes unnecessary costs and is productive of delay.
2. Given the deficiencies in Mr Muthu's approach to the particularisation of the FASOC, were the matter now to be reinstated at the point it had reached on 22 November 2023, it would be necessary to resume the respondents' application in a case. The potential delay and expense that that would involve could have and should have been ameliorated by being addressed properly by Mr Muthu in his application for reinstatement. The fact that he has not addressed it, in circumstances where the matter has already been delayed by reason of his lack of attendance at court listings before the one on 22 November 2023, reflects a continuing failure by him to observe the requirement of the Act and the Rules that the proceeding be conducted in a way that is consistent with the overarching purpose prescribed in s.190 of the Act, quoted earlier.
3. I appreciate that Mr Godwin, who appeared for the first time for Mr Muthu on this occasion, told the Court that Mr Muthu "now has a legal representative" and that that indicated he was "taking the matter seriously" but there is no evidence that Mr Muthu intends that situation to persist. He was previously, but is no longer, assisted by different counsel on what I presume from the Appeal Judgment to have been a pro bono basis. The continuation of Mr Godwin's newer retainer is not in Mr Godwin's hands and Mr Muthu should have said something about its durability if it was to be relied upon as evidence of him taking a serious approach to this litigation.
4. In all the circumstances, Mr Muthu has not persuaded me that he has complied with s.191 of the Act or will do so in the future.

1. Although Mr Muthu's FASOC manifests an arguable case, he has not provided a satisfactory explanation for his absence from court on 22 November 2023 or persuaded me that he would, if the proceeding were to be reinstated, conduct it in a way consistent with the overarching purpose of the civil practice and procedure provisions of the Act and the Rules.
2. Overall, I conclude that it is not in the interests of the administration of justice that the orders made on 22 November 2023 be set aside.
3. Consequently, the application in a proceeding filed on 9 January 2024 will be dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.