Obel v Central Desert Regional Council

Federal Court of Australia|2023-02-16|Before: Charlesworth J

The applicant's application for an adjournment of the hearing on 16 February 2023 is dismissed.
The applicant's interlocutory application lodged on 20 December 2022 and accepted for filing on 3 January 2023 is dismissed.
The respondent has leave to file and serve the amended defence in the form marked MFIR1 on 8 November 2022 on or before 5:00pm (ACDT) on 17 February 2023.
The matter be referred to mediation pursuant to r 28.02 of the Federal Court Rules 2011 (Cth) such mediation to be conducted by a Registrar of the Court at the earliest time practicable.
The Registrar of the Court may make orders varying the orders made by this Court.
The date and time in paragraph 9 of the orders made on 8 November 2022 is varied to 9:30am (ACST) on 28 April 2023.
The applicant pay the costs of and incidental to the interlocutory application accepted for filing on 3 January 2023, such costs to be agreed or assessed.
Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J 1 On 16 February 2023 the Court made orders in this matter dismissing the applicant's application for an adjournment and his application for leave to amend his pleadings. The Court also allowed the respondent's application to amend its defence and made an order for costs against the applicant. Oral reasons for those orders were delivered on the day of the hearing. I now provide written reasons to substantially the same effect as those pronounced orally.

Adjournment application 2 By his pleading in its present form the applicant, Mr Denis Obel, alleges that the respondent, the Central Desert Regional Council, breached and repudiated his employment contract. The matter has been set down for trial commencing on 19 June 2023 with 5 days set aside. 3 On 20 December 2022, Mr Obel filed an interlocutory application by which he sought leave to amend his pleading. 4 The proposed amended pleading (annexed to a supporting affidavit) was not marked up in a way that enabled the Court to easily identify the amendments that were sought to be made to the claim founded in breach of contract. It was otherwise plain that Mr Obel sought to add to his claim allegations to the effect that the Council breached multiple provisions of the Fair Work Act 2009 (Cth) (FW Act) including civil remedy provisions. The proposed new claims included an allegation that the Council contravened s 340 of the FW Act, being an adverse action claim founded in dismissal. This Court does not have jurisdiction to hear such a claim unless and until a complaint in respect of the allegation is terminated by the Fair Work Commission and a certificate evidencing that termination is issued: FW Act, s 370. 5 Mr Obel has been self-represented since the commencement of this proceeding on 27 January 2022, although he does have some legal training and has not previously expressed a lack of confidence in his legal abilities. He has previously brought an unsuccessful application for summary judgment or strike-out of the Council's defence in whole or in part: Obel v Central Desert Regional Council [2022] FCA 1355. Mr Obel has been informed by the Council's lawyers that the affidavits he has filed apparently in support of his case at trial were not in the nature of trial affidavits but are directed instead to interlocutory issues. Mr Obel has not sought an extension of time to file his trial affidavits notwithstanding that he has been put on notice about the deficiency of the affidavits filed thus far. 6 The parties' respective applications for leave to amend pleadings were set down for hearing on 16 February 2023. A case management hearing was fixed for the same time. In advance of the hearing the Court indicated to the parties that they would also be invited to make submissions on the question of whether the Court should make an order of its own initiative transferring the matter to be heard and determined in the Federal Circuit and Family Court of Australia Division 2 (FCFCA) given the nature of the issues and the quantum of relief in issue. 7 By email to my Associate on 9 February 2023, Mr Obel sought to have the hearing date vacated on the basis that he was unwell. That part of his email reads as follows: On a different note I have been sick since around 14 January 2023 and I was hospitalised initially in the emergency section of Alice Springs Hospital. My doctor has referred me to specialists for further investigation which is still ongoing. I am yet to return to the GP after the last test on 15 February 2023 to advise of my condition. As I have been unwell and unable to prepare I ask that the Court is adjourned to a later date in March 2023 so I can complete my consultation and treatment. I attach the recent two medical certificates from Alice Springs Hospital and GP. I will return to the GP to obtain further advice and medical certificate however that will be after 16 February 2023. I hope Court is able to understand my situation. 8 The attached medical certificates did not explain the symptoms experienced by Mr Obel. They otherwise asserted that he was unfit for work on 15 - 16 January 2023 and would only be fit for light duties from 17 - 31 January 2023. The certificates contained no opinion about the continuation of any illness or its nature. 9 Mr Obel's email was treated as a request for an adjournment. The request was rejected for reasons conveyed administratively to Mr Obel in the following terms: Justice Charlesworth declines your request for an adjournment. The material provided is not sufficient to justify deferring the hearing for the following reasons: • The certificates do not relate to the date of the hearing; • It is not apparent that the medical practitioner is aware of this proceeding or the nature of the tasks to be attended to by you; • The certificates otherwise provide insufficient information to justify the deferral of the hearing; • The facts asserted in the cover email are not sworn; and • There is insufficient information to assess how an adjournment of the interlocutory hearing might impact on the trial dates. Any further application for an adjournment by any party should be supported by affidavit evidence, unless the orders are agreed. The requirement to file a formal interlocutory application for an adjournment will otherwise be dispensed with in respect of all of the parties. 10 By an affidavit affirmed on 10 February 2023, Mr Obel again sought to adjourn the hearing based on the following: [26] I seek orders to adjourn the proceedings to a date in March 2023. I am currently seeing a doctor and have tests scheduled during February 2023, the last being on 15 February 2003 following which I will return to see the doctor. I also work part time. [27] As I am unwell I seek to instruct a solicitor represent me in the proceedings and prepare for trial. 11 No further details were provided and there were no supporting documents. 12 The adjournment application made by those paragraphs was dismissed at the hearing for the following reasons: (1) The nature of Mr Obel's illness was not specified in the affidavit. As such, the Court was unable to make a meaningful assessment as to the nature and severity of the illness and how it might impact on his ability to present oral argument at the hearing. (2) Mr Obel should not be afforded the opportunity to give oral evidence in support of his adjournment application in circumstances where he had been given clear guidance in the Court's email correspondence about the requirement for an affidavit and the insufficiency of the information he had previously provided. (3) The interlocutory issues before the Court required resolution in a timely way given the number and nature of the amendments sought to be made to Mr Obel's pleaded case, the tasks that would be necessary for the parties to complete should the amendment be allowed and the consequential impact on orders progressing the matters for the trial to commence on the scheduled dates. (4) The affidavit itself did not explain what efforts had previously been made to obtain legal representation, nor did the affidavit state when legal representation might be formally secured. I was nonetheless prepared to accept an assertion from Mr Obel that he presently feels overwhelmed by the tasks to him in these proceedings. (5) Whilst Mr Obel provided more information from the bar table about his efforts to obtain legal representation, that information did not persuade me that any newly engaged legal representative would be in a position to promptly prepare for argument on the range of matters that had been set down for hearing on that day. (6) If Mr Obel were to secure legal representation it would remain open to him to make a further application to amend his pleadings, although it would be necessary for his legal representative to then persuade the Court that a further application to amend should be entertained in close proximity to the trial dates. (7) It was unclear whether the Court would have the capacity to set down the various matters for hearing in March at the behest of Mr Obel and he had not clearly specified a time in which he anticipated he would be ready for a hearing in any event.

Mr Obel's amendment application 13 Following the dismissal of the adjournment application, Mr Obel was afforded the opportunity to make submissions in support of his interlocutory application lodged on 20 December 2022. He did not do so. The absence of submissions in support of that application was a sufficient reason to dismiss it. 14 In addition, I was not satisfied that Mr Obel should be excused from the requirement to mark up the proposed amendments in the way prescribed by r 8.23 of the Federal Court Rules 2011 (Cth) so as to make it plain which parts of his claim founded in contract were persisted with or expanded. The Council had requested that he mark up the amendments in that way but he had not done so, nor had he complied with an order that he do so in advance of the hearing. That, too, was a sufficient basis to dismiss the application. 15 In addition, Mr Obel's proposed amendments included at least one plea that was bad in law as identified earlier in these reasons. Not only did that part of the pleading introduce a claim that the Court did not presently have jurisdiction to determine, it did not contain alleged facts sufficient to address each essential element of the contravention alleged.

The Council's amendment application 16 The Council's application to amend its defence was filed on 24 June 2022 but had been deferred pending the finalisation of Mr Obel's application for summary judgment (including the exercise of any right to seek leave to appeal) and then pending his own amendment application. Mr Obel did not submit that the proposed amendment was bad on its face, nor did he submit that the amendment would prejudice him in the preparation of his case for trial. He declined the opportunity to make any submissions in opposition to it. He asserted that he could not respond to the application because he needed a lawyer to do so. As identified above, on the limited material before me, I was not satisfied that there is a sufficient explanation for Mr Obel not obtaining legal representation at an earlier time, including in respect of the Council's application to amend its defence, filed more than six months ago. 17 There was otherwise nothing on the face of the Council's proposed amendment to warrant dismissal of its application to amend. Leave was granted on that basis.

Proposed transfer to the Federal Circuit and Family Court of Australia Division 2 18 By email dated 3 February 2023, the Court invited the parties to make submissions as to why the Court should not transfer the proceeding of its own initiative to the FCFCA under s 32AB of the Federal Court of Australia Act 1976 (Cth). The Council made submissions in opposition to the proposed transfer. Mr Obel made no submissions. 19 For the Council it was submitted that an order at this stage of the proceedings for the transfer of the proceedings would put the trial dates in peril. That submission had considerable force given the history of the proceedings and given that it is anticipated that the trial dates in this Court are expected to be maintained. In the circumstances, the Court did not make the order for transfer. The question of transfer may be revisited in the event that it becomes necessary or appropriate to vacate the trial dates fixed by this Court. Those trial dates remain achievable, notwithstanding that Mr Obel has now been granted a significant extension to the deadline by which his trial affidavits are to be filed.

Costs 20 The Council sought an order that Mr Obel pay the costs of the hearing. I was not satisfied that an order in such broad terms should be made. I was, however, satisfied that Mr Obel should pay the Council's costs of and incidental to his application to amend his pleading which had been dismissed in the absence of any submissions in support of it. The Council has been put to the costs of opposing an application that ultimately was no seriously pressed. 21 I was satisfied that the costs order should be made on the assumption (without determining) that the Court's jurisdiction is confined by s 570 of the FW Act. I was satisfied that Mr Obel's conduct in failing to mark up the proposed amendments and in declining to advance submissions in support of the application was unreasonable. That conclusion followed from Mr Obel's failure to establish that he was too unwell to present his arguments. Mr Obel had appeared by video link at the hearing and was able to advance submission in support of his adjournment application without apparent difficulty. He then declined to make further submissions in support of his amendment application after his adjournment application was dismissed. To the extent that Mr Obel asserted that he required legal assistance to pursue the application he had prepared and filed, that circumstance ought to have been apparent to Mr Obel before the date on which the Council was required to file material in opposition to it. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.

Fair Work Act 2009(Cth)s 340, s

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