Walker v Fedex Express Australia Pty Ltd

PRIMARY JUDGMENT

1. The primary Judge delivered judgment on 3 March 2023 in the dismissal decision. Her Honour ordered as follows:
2. Pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), proceeding MLG303/2021 be dismissed.
3. After setting out background facts and the submissions of the respondent, the primary Judge at [27] noted that the FCFCOA was conferred with a discretion, pursuant to r 13.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) to dismiss an application if the applicant concerned had, amongst other things, failed to comply with one of its orders or to prosecute the proceeding with due diligence. Her Honour noted that the discretion must be exercised judicially and in accordance with principles of justice, however that circumstances may exist where it will be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.
4. Her Honour then found as follows:
5. While this is not a case characterised by a history of non-compliance on the part of Mr Walker and the catalyst for the respondent's application was a sequence of events that took place over a relatively short period of time, including when assessed against the history of the proceeding, I nonetheless consider it appropriate that the proceeding be summarily dismissed.
6. It is obvious that through his words and his actions taken on 30 January 2023, Mr Walker was communicating in the plainest of terms that he had no intention then, or indeed at any time in the ascertainable future, of prosecuting his case against the respondent. Although it is true that Mr Walker had sought an adjournment that ostensibly would have provided him with further time to make preparations for his conduct of the proceeding, it is also the case that the adjournment was refused for reasons that included a concern that further time would not have assisted the applicant. I am also cognisant that the reasons offered for Mr Walker's decision to "concede" the application - which comprehended physical and mental health challenges - were different from those previously (but very recently) offered and unsupported by any evidence. They reinforce rather than detract from my impression that Mr Walker's disinclination and lack of preparedness to confront the reality of his application represents more than a temporary state of affairs. In this respect, it is apt to conceptualise Mr Walker's attitude to the proceeding as continuing in nature. Allied to these concerns is the indication from Mr Walker, in the exchange reproduced at [6] above, that he would be unwilling to accept that parameters might reasonably be placed around his case, including the number of witnesses that he might be entitled to call.
7. I consider that these matters coalesce to make it almost inevitable that any further opportunity that might be provided to Mr Walker to prosecute his application (acknowledging that this is not something that he presently seeks) would be productive of further delay, loss of Court time and involve prejudice to the respondent and those who would be involved in the defence of Mr Walker's case against it.
8. In a Court that is committed to a case management system and which is governed by case management principles that emphasise the efficient use of judicial and administrative resources and the disposal of proceedings in a timely manner, I consider that the tension that exists between the right of Mr Walker to prosecute his case for remedies under the FW Act against the respondent as against the obligation of the Court to maintain the integrity of its processes and to responsibly distribute and apply its resources is appropriately balanced in this case by an order that the application be dismissed under r 13.05(1)(a) of the Rules.
9. As a result of what occurred on 30 January 2023, the Court lost five days of allocated hearing time and the respondent made wasted preparations for a contested final hearing, with the financial and human cost that this entails. This is not a course that the Court is prepared to further sanction or facilitate through the maintenance of the proceeding. In reaching this conclusion however it should be clear that I have not at any time concerned myself with the merits of the application as it has been unnecessary for the disposition of the proceeding to do so.

CURRENT PROCEEDING

1. As I noted earlier, Mr Walker filed both an application for leave for leave to appeal, and an amended notice of appeal.

Leave to Appeal

1. The decision of the primary Judge in dismissing the proceeding in the FCFCOA was plainly an interlocutory decision, because her Honour did not determine the merits of the underlying dispute before the FCFCOA: Cubillo v Commonwealth of Australia [2001] FCA 1213 at [182]; Finch v The Heat Group (No 3) [2017] FCA 64. As the High Court pointed out in Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 at 153: …it is the legal force of the judgment in question, and not its practical effect, that has to be considered in determining whether or not the judgment is a final one: see Hall v. Nominal Defendant; Carr v. Finance Corporation of Australia Ltd… (footnotes omitted)
2. It follows that Mr Walker required leave of the Federal Court of Australia (Federal Court) to appeal the primary Judge's decision pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth) (Federal Court Act).
3. Pursuant to Orders dated 28 September 2023, Wheelahan J ordered as follows: Notwithstanding that the applicant filed a notice of appeal on 27 March 2023, the proceeding will be treated as including an application for leave to appeal if that is necessary, and the application will be subject to full argument at the hearing as if on appeal.
4. The Mr Walker (the appellant) is a litigant in person, who (it appears) understood that leave to appeal had been granted by Wheelahan J (see for example para 10 of appellant's submissions in reply filed on 21 December 2023). I further note that the respondent's written reasons for opposing the application for leave were the same as its reasons for opposing the appeal itself.
5. At the hearing before me I considered that the most efficient manner for the matter progress was to grant leave to appeal, and to proceed to hear the parties on the appeal. Accordingly, I granted leave to the appellant to appeal the primary Judge's decision and heard the parties on the merits of the appeal.

The Appeal

1. In the notice of appeal the appellant stated as follows: I am the applicant, Mr Walker. I am appealing the whole orders made by Judge Symons on the 3rd of March, 2023. I am appealing these orders to get my case back into the court system and with adequate time allowed to prepare for the final hearing and adequate time for all 22 witnesses to be allowed to attend the trial. My case number is MLG303/2021. (as in original)
2. The grounds of appeal on which the appellant relied are as follows:
3. [State briefly but specifically, the grounds relied on in support of the appeal]
4. The applicant was denied procedural fairness. The respondent has now admitted after 3 years of denying they took adverse action in dismissing the applicant. So dismissing the application is letting corporations commit crimes and not be held to account.
5. See the particulars on page 5 regarding one way in which the applicant alleges that he was denied procedural fairness. (as in original)
6. The "particulars on page 5" of the notice of appeal were as follows: Further particulars of the judge's failure to accord the applicant procedural fairness in the summary dismissal application
7. The summary dismissal application was heard on the papers.
8. The appellant was an unrepresented litigant with no formal legal training.
9. On 7 February 2023, the appellant emailed the judge's chambers stating that 'Case Number MLG303/202l is temporarily suspended from any further hearings or orders until the Applicants Official complaint into Judge Symons biased behaviour is investigated by the Chief Justice'.
10. The judge did not provide the appellant with sufficient information about the court's processes and procedures so as to enable him to make an informed choice about how to exercise his legal rights, including: a. whether and, if so, how he could appeal the bias and adjournment application decisions made on 30 January 2023; b. whether and, if so, how he could apply for a stay in MLG303/2021 while an appeal from an interlocutory decision was being heard and determined; and c. that case number MLG303/2021 was not 'temporarily suspended from any further hearings or orders' and her Honour otherwise had the power to hear and determine the summary dismissal application. (as in original)
11. The appellant sought the following orders:
12. [State what judgment or orders the Appellant wants instead of the judgment or orders appealed from]
13. The applicant is wanting file number MLG 303/2021 reinstated.
14. All 22 witnesses be allowed to attend the trial for cross examination which Judge Symons wrongfully denied. (as in original)
15. In support of the notice of appeal the appellant filed an affidavit dated 28 September 2023 to which he annexed:

• an email sent by him to the Victorian Registry of the Federal Court on 2 February 2023; and
• an email sent to the Chambers of the primary Judge on 7 February 2023.

Submissions of Mr Walker

1. The appellant filed two sets of written submissions. In summary those submissions were as follows:

• The reputation of the Courts, and the justice system as a whole, is at risk of being seriously damaged by the actions of the primary Judge.
• Regarding his health issues:
  • The appellant has health issues and takes medications for those health issues.
  • The respondent has failed to pay the appellant his entitlements in the amount of $53,496.00, referable to long service leave, annual leave, and compensation payments. The appellant has not had an income since late May 2023, which has severely financially ruined the appellant and added further stress to the appellant and his overall mental health issues.
  • The primary Judge's associate made an error regarding the date of the recusal hearing. The appellant did not see the email correcting the error. Consequently, the appellant was ambushed by the recusal hearing as he thought the 30 January 2023 hearing was only to address the adjournment application. The appellant did not have sufficient medication to see him through the entirety of the day of hearings on 30 January 2023.
  • The appellant's chronic pain would have disrupted his ability to stand on his feet to make submissions and to concentrate on answering questions under cross-examination. The respondent was aware that the appellant suffered from chronic pain resulting from a work accident that occurred on 19 April 2019.
• Regarding bias in the conduct of hearings before the primary Judge:
  • He queried whether there were actually technical or audio difficulties to which her Honour referred during the hearing.
  • It appears that "something untoward" occurred between the respondent and the primary Judge in the 20-minute delay where the appellant was muted from proceedings on 19 January 2023. The respondent included all of the statutory provisions listed in the appellant's "Further Extension of Statutory Provisions and Pleadings Combined" document, in the copy of the Court book served on the appellant on 25 January 2023. It follows that the respondent expected that document to be included until it opportunistically had the document dismissed.
  • The primary Judge erred at the case management hearing of 19 January 2023 in refusing to allow the appellant to rely on a "Further Extension of Statutory Provisions and Pleadings Combined" document. That document should be reinstated.
  • The primary Judge repeatedly spoke over the top of the appellant at various parts of the case management hearing on 19 January 2023 and the two interlocutory hearings on 30 January 2023. The appellant did not get fair hearings because he was constantly being cut off or shut down by the primary Judge.
• Regarding the calling of witnesses at the trial before the primary Judge:
  • The respondent ambushed the appellant in objecting to his witnesses and failed to follow proper procedure in doing so.
  • It is unfair and a clear breach of transparency laws to deny the appellant opportunity to cross-examine senior executives of the respondent. The respondent had selected only 9 witnesses to give evidence, and accordingly had cherry-picked its witnesses.
  • No dates or particular days had been set for the nine witnesses to attend the trial prior to the hearing on 30 January 2023.
  • The appellant had informed the primary Judge that there would be 22 witnesses required to attend the trial. The appellant had also articulated that he would need to advise the subpoenaed witnesses in advance of their appearance date and out of respect for their livelihoods he had advised them not to attend the court until further notice as he had anticipated that the reasonable request for adjournment would be granted.
  • One of the appellant's witnesses was travelling from Adelaide.
• Regarding the decision of the primary Judge to refuse the adjournment application on the basis that the court book was served late:
  • The primary Judge erred in refusing to adjourn the hearing in circumstances where the trial book was delivered late. It appeared that there was additional material in the trial book.
  • The respondent admitted taking adverse action against the appellant which it had never admitted at any point prior. Dismissing the appellant's matter permitted a large corporation to break the law.
  • The conduct of the respondent in failing to provide the court book on time constituted deliberate, tactical and repeated action, previously committed by the respondent to the appellant's compensation lawyers in the Administrative Appeals Tribunal (AAT).
  • The appellant's request of a one-month adjournment was reasonable.
  • The primary Judge was wrong to find there was evidence of an incapacity on the part of the appellant to prepare for trial because he had been in possession of almost all the hearing material for over six months. He had not in fact been in possession of all of the documents for six months and had articulated to the primary Judge that he had discovered critical new information in the court book which he had only been in possession of for five days.
• Regarding the merits of the originating application against the respondent:
  • The respondent has a toxic workplace culture.
  • The appeal must be successful to allow the appellant the chance to expose the lies and fabrications of the respondent and to bring justice to people who hold positions of power and are supposed to protect the appellant. Ultimately eliminating the respondent's toxic culture.
  • The appellant has a strong case against the respondent that the appellant cannot and more importantly will not let the respondent treat vulnerable workers this way any longer.
  • The appellant had recently been made aware of an additional form of wage theft that the respondent has perpetrated against appellant, in its failure to make any instalments into the appellant's superannuation fund since 22 May 2022.
  • The appellant is an integral person who is a voice not only for himself, but for all other former employees that have been subjected to the vile treatment the toxic culture of the respondent thrives on.
  • The primary Judge never concerned herself with the merits of the case. The primary Judge therefore failed in her duty to familiarise herself with the merits of the case yet ordered the trial to commence.
• Regarding the primary Judge's alleged failure in duty to assist the appellant:
  • The appellant was unaware of having the opportunity to include documents he would like included in the court book to support and ultimately strengthen the appellant's case against the respondent. The primary Judge failed in her duty to explain the purpose of the court book.
  • Any failure on the part of the appellant to comply with Court orders arose because the primary Judge failed in her duty as a judge to explain the process and purpose of the court book to the appellant and the fact that the appellant had not been able to fully prepare his case for trial because of the deliberate late serving of the court book by the respondent. Overall, however, there had been no failure on the part of the appellant to comply with Court orders.
  • The primary Judge knew that the appellant was an unsophisticated litigant who had limited knowledge of legal and court processes and procedures. Although the appellant walked out of the courtroom before the primary Judge could explain how the proceeding might continue that day, this did not remove the need for the primary Judge to ensure the appellant understood the practice and procedure of the court generally.
  • When the primary Judge's attention was brought to the appellant's email of 7 February 2023 her Honour ought to have listed the proceeding for hearing and explained to the appellant how he might apply to stay the proceeding until the appellant had explored his appeal rights. The primary Judge ought to have made it clear to the appellant that, unless the proceeding was stayed, Her Honour retained the power to hear and determine the respondent's application and was able to dismiss the case. In not doing either of these things, the primary Judge failed to provide due assistance to the appellant and denied the appellant procedural fairness.
  • The primary Judge failed to take into account the appellant's predicament.
  • The appellant could not respond to the respondent's summary dismissal application as the appellant had no knowledge of it. Had the appellant been provided with due assistance and been made aware of that application, he may have made submissions and sought leave to adduce evidence as to his physical and mental health at the time of the hearing of 30 January 2023 and afterwards.
  • It was plain that the appellant wanted a Stay of Proceeding, and it was further denial of procedural fairness that the primary Judge failed to inform the appellant of the correct court procedure to achieve this.
• Regarding further issues of bias on the part of the primary Judge:
  • The primary Judge is potentially biased in favour of the respondent, which was represented by Counsel, because her Honour had been at the bar before becoming a judge and may know the respondent's Counsel.
  • A litigant should not be required to proceed to trial when there are multiple written complaints regarding alleged bias by that litigant against the Judge presiding over that matter. The primary Judge's dismissal of the matter in those circumstances was further evidence of actual bias on behalf of the primary Judge.
  • There was a disconnect between the reasoning of her Honour during the hearing and the written reasons published.
• Regarding the appellant's alleged failure to prosecute the matter before the primary Judge:
  • The appellant had been compliant with Court processes and orders.
  • The respondent was incorrect to contend that the appellant was unable to prepare for trial.
  • The appellant has been denied procedural fairness as he has never had a second opportunity to prosecute the appellant's case against the respondent.
  • The appellant had never not intended to fully prosecute the matter against the respondent.
  • The appellant did not file any submissions as he wanted no further communication with the primary Judge or her associate. The appellant had lodged multiple complaints with the Chief Justice about the conduct and alleged bias against the appellant by the primary Judge. The appellant felt it would have been a fruitless exercise to comply with the orders of the primary Judge as he believed that her Honour had not previously treated him fairly and would not treat him fairly or consider any submissions the appellant made fairly.

1. At the hearing of the appeal, the appellant handed up further supplementary written submissions (appellant's further supplementary submissions) which he had prepared as an aide memoir and had intended to read the document aloud in Court. In the circumstances, and with the agreement of the parties, I considered it appropriate to grant the appellant leave to file that document in the form of Exhibit 1(A), a 67-page document being a commitment to writing by Mr Walker of his oral submissions. Mr Walker agreed that that document set out submissions he would otherwise have made orally at the hearing of the appeal. The appellant's further supplementary submissions reiterated and, in some instances, expanded, on the earlier submissions. He further submitted that:

• Regarding the conduct of current and potential future proceedings:
  • Many of the documents included in the appeal book by the Registrar had been opposed by the respondent on the grounds of relevance. Justice Wheelahan ruled that those documents were relevant to the appeal proceedings.
  • The appellant would like the opportunity to add whistleblower protections under the Corporations Act 2001 (Cth) to his statutory provisions and add more evidence in relation to that.
  • The appellant would like to add Ms Tirado, the respondent's in-house solicitor, to the witnesses for cross-examination.
  • The appellant requested that the matter not be returned to the FCFCOA, as the seriousness of the matter required the matter to remain in the Federal Court of Australia. The appellant suggests that should this request be accommodated, that Justice Wheelahan should preside over the final contested hearing.
• Regarding bias in the conduct of hearings before the primary Judge, particularly the 19 January case management hearing:
  • The appellant was only joined to the 19 January 2023 case management hearing by audio and consequently could not view the courtroom.
  • The 20-minute delay on 19 January 2023 should have warranted an explanation for such delay. The lack of explanation does not rule out the possibility that something untoward occurred while the appellant was muted. The appellant is of the firm belief that something untoward occurred. Everything bias related has occurred after that point.
  • The appellant was under the firm impression that the case management hearing on the 19 January 2023 was only to agree on or otherwise for the primary Judge to decide an order for witnesses to appear at the trial and for the court to allocate particular days for those witnesses to appear on and that is all.
  • The primary Judge allowed the respondent to set the agenda for the case management hearing on 19 January 2023 by accepting the respondent's proposed trial plan. If the appellant had been given the opportunity, he would have raised additional things. This is evidence of actual bias by the primary Judge in favour of the respondent.
  • In the first 4 pages of the 19 January 2023 transcript (approximately the first 5 to 10 minutes), counsel for the respondent speaks around 797 words, the primary Judge speaks around 781 and the appellant only speaks 41 words. There is a disparity between the appellant and respondent getting to speak equally. This appears to be bias on the part if the primary Judge and a denial of procedural fairness to the appellant.
  • The issue of word count at the case management hearing can be distinguished from the fact that the respondent spoke more at the hearing before Justice Collier, as at the hearing a written summary of submissions was handed up and at the case management hearing the appellant attended by audio so nothing supplementary was provided.
  • The respondent did not formally file or serve any application seeking an order that a number of the claims put forward by the appellant should be stayed or dismissed on the ground that they have no reasonable prospect of success. This was evidence that the respondent rethought their position in relation to the appellant's outline of submissions after the 20-minute delay. As the respondent did not file and serve an application on the appellant, it was null and void.

Submissions of the respondent

1. In summary the respondent submitted as follows:

• Mr Walker was concerned that, as a litigant in person, he was not properly assisted by the primary Judge. The principal authorities regarding the court's duty to ensure a litigant in person is not disadvantaged by their exercise of the right to be self-represented are summarised in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 (Flightdeck). The required assistance includes: (a) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous … For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness; and (b) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments.
• Neither the recusal decision nor the adjournment decision was appellable as there is no right to appeal a bare decision by a Judge not to recuse themselves, and there is no right to appeal a judgment not to adjourn a hearing.
• The 7 February 2023 email did not in all the circumstances actuate a duty for the primary Judge to provide information or assistance to the appellant.
• An application for leave to appeal and for a stay pending any decision on an appeal against the bias and adjournment application decisions would have no logical connection with the outcome of the summary dismissal application.
• There is not and can be no duty on a court to engage in correspondence or to reconvene on every occasion a party to litigation communicates with a Judge's Chambers or makes assertions that show a misapprehension of legal processes and procedures.
• The decision of the primary Judge not to recuse herself was not attended by error. Her Honour's conduct of the case management hearing did not give rise to any basis on which the Johnson v Johnson (2000) 201 CLR 488 hypothetical reasonable observer would apprehend bias. Her Honour's decision not to recuse herself was properly made.
• The decision of the primary Judge to not adjourn the hearing was a reasonable exercise of her Honour's discretion in circumstances where:
  • the hearing had been listed since October 2022;
  • the parties had convened for a case management hearing and the appellant had not indicated an inability to proceed;
  • the respondent and the court had allocated resources for the hearing; and
  • the primary Judge indicated that the appellant would be accommodated to the extent practicable and reasonable if he required more time to prepare for witnesses.
• The decision to dismiss the proceedings pursuant to r 13.05(1)(a) of the FCFCOA Rules made on 3 March 2023 and orders to that effect were properly made. There was no error in the sense in House v The King (1936) 55 CLR 499 (House v King). The reasons of the primary Judge as addressed before the court:
  • applied correct principles;
  • were not affected by extraneous or irrelevant matters;
  • did not mistake the facts;
  • did not fail to take into account some material consideration; and
  • were not unreasonable or plainly unjust.

1. In respect of the appellant's further written submissions, the respondent orally submitted:

• The bulk of the documents in the appeal book were filed documents. Many were opposed by the respondent for relevance and that opposition was maintained.
• What is relevant to the appeal proceedings is whether there was bias on the part of the primary Judge or a reasonable apprehension of bias. Also relevant is whether there was actual bias, failure to provide procedural fairness in relation to the adjournment, and other issues.
• Under s 342 of the Fair Work Act the dismissal of an employee by an employer is an adverse action. It is not the admission of a crime or any wrongdoing.
• There was no communication between the Counsel for the respondent and the Court in the 20 minutes in which the audio link was frozen on the case management hearing of 19 January 2023. Delays of that nature due to technical difficulties are not out of the ordinary in the conduct of Court. The primary Judge addressed the issue of the delay at the time and stated that the link was frozen for 20 minutes and nothing occurred during that time. This should be adequate factual response to the appellant's concerns. There is nothing in the transcript of the facts that gives rise to any reasonable apprehension of any untoward communication having occurred during the 20-minute delay.
• There is nothing extraordinary in a concern about the ability to get through a large number of witnesses within the set hearing time.
• The respondent provided a trial plan as it was requested by the court. The appellant did not agree to the trial plan and the court was informed of this fact. The appellant has conceded that he did not read the trial plan as proposed by the respondent.
• A word count of comments of a party and the Judge at a hearing is not determinative of fairness or failure to hear a party. A fair reading of the transcript of the case management hearing of 19 January 2023 shows that the appellant spoke, was asked questions, and was given the opportunity to express his concerns and raise issues.
• Mr Walker has not satisfactorily explained how a reasonable apprehension of bias on the part of the primary Judge can be identified from her Honour's reasons for refusing to recuse herself or grant an adjournment. The fact that the appellant was unhappy or dissatisfied with those decisions does not mean that the primary Judge was biased against him.
• The "Further Extensions of Statutory Provisions and Pleadings Combined" document was not relevant as it referred to many issues and pieces of legislation which were not matters in the proceeding nor were they enlivened by the amended statement of claim of the appellant, and thus were not matters before the primary Judge. The decision to exclude that document as irrelevant and likely to be productive of a waste of time was appropriate, and not indicative of any actual or apprehended bias.
• The 7 February email may have informed the primary Judge that there was a complaint against her, but that does not give rise to a reasonable apprehension of bias, nor does the application for recusal.

Consideration

1. The primary question before the Court in this matter is whether, in all of the circumstances, the appellant was denied procedural fairness by the primary Judge in making the dismissal decision pursuant to r 13.05(1)(a) of the FCFCOA Rules.
2. Multiple other issues have been raised by the parties regarding the conduct of proceedings before the primary Judge including both the recusal decision and the adjournment decision. Those decisions are not the subject of the appeal before the Court. Issues of Mr Walker's health, audio-technical issues at the 19 January 2023 case management hearing, the calling of witnesses for trial, and other issues of alleged bias on the part of the primary Judge were also raised. Although these issues provide context to the proceedings they are largely outside the scope of the appeal before me.
3. In her orders of 3 March 2023 the primary Judge summarily dismissed the proceeding pursuant to r 13.05(1)(a) of the FCFCOA Rules. Materially r 13.05 provides: Orders on default (1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or (b) a step in the proceeding be taken within the time limited in the order; or (c) if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant. … (6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
4. Rule 13.04(1) of the FCFCOA Rules defines when an applicant is in default, namely: When a party is in default (1) For the purposes of rule 13.05, an applicant is in default if the applicant fails to: (a) comply with an order of the Court in the proceeding; or (b) file and serve a document required under these Rules; or (c) produce a document as required by Part 14; or (d) do any act required to be done by these Rules; or (e) prosecute the proceeding with due diligence.
5. It is well settled that the power of a Court to dismiss proceedings for want of prosecution involves an exercise of the Court's discretion. This is plain from the terms of rr 13.04(1) and 13.01(5) of the FCFCOA Rules, as well as such authorities as Stollznow v Calvert [1980] 2 NSWLR 749 at 751, Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], Cooper v Hopgood & Ganim [1998] QCA 114; [1999] 2 Qd R 113 at 124, and Kuperman v Permanent Trustee Australia Limited [2023] QCA 54 at [25].
6. It is also clear that, in circumstances where the Court forms the view that the moving party has abandoned the proceedings, it is open to the Court, in the exercise of its discretion, to find that there has been a want of prosecution, and to dismiss the proceedings for that reason. This approach was, for example, taken by the Court of Appeal of Victoria in Re Velissaris [2014] VSCA 153. It was also the approach Leeming JA in Collier v State of New South Wales (No 2) [2014] NSWCA 461 where, as his Honour in that case observed:
7. There are two reasons why I will dismiss the balance of the notice of motion. First, despite what I regarded as her unequivocal abandonment of those paragraphs during the course of the hearing on 8 December 2014, I permitted (perhaps over generously) a further opportunity for Mrs Collier to be heard. She has not availed herself of that opportunity. In the circumstances of this case, it is appropriate that she be taken to have abandoned any continued reliance upon the balance of her motion. I add, for completeness, that there have been communications between Mrs Collier and the Court concerning an application to prevent any further hearing by me of her motion, in part in reliance upon s 78B of the Judiciary Act 1903 (Cth). However, I am not aware of any reasonable basis for such application, nor any orders preventing the resolution of the motion.
8. As was also explained specifically in such cases as Stollznow v Calvert at 751, and more recently and more generally by the Full Court in Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 at [30], the exercise of discretion by a Judge at first instance is examinable on appeal in accordance with such authority as House v The King, such that the decision at first instance will be subject to interference if error appears.

The Appellant's Failure to Prosecute his Matter before the primary Judge

1. The appellant has made substantial submissions that his abandonment of the 30 January hearing, failure to provide submissions in relation to the further hearing or disposal of his application, and email of 7 February 2023, did not constitute a failure to prosecute his matter. In support of those submissions the appellant referred to his claimed physical and mental health issues, and that he did not have the requisite intention to cease prosecuting his matter.
2. These factors were considered by the primary Judge in her reasons at [33]. Further, such claims must be considered in light of the conduct of Mr Walker at the hearing before her Honour, and his statements to her Honour on 30 January 2023 after her Honour refused to adjourn the trial. Mr Walker's clear statements included "I can't do it", "I conceded", "they win", "I will wave the white flag" and "I'm done". On their ordinary meaning, the statements of Mr Walker all indicated that he did not intend to proceed with his matter notwithstanding the encouragement by the primary Judge that he remain at the hearing.
3. Mr Walker has put to me that his situation was that of an inability to continue his case, rather than a wish to discontinue. I note that in amongst comments to the effect that he "conceded" as described above, Mr Walker also said to the primary Judge: MR WALKER: I'm sorry, but I can't. I physically can't prepare it. I've got mental health problems. I see - they haven't - they've lied and blocked any - and I can prove it as it's there in your evidence that they've blocked supporting my mental health, I've had to pay for it all myself. I'm trying to prepare this by myself and it's just impossible, so they win. I concede. Sorry. HER HONOUR: No. You don't need to apologise. MR WALKER: I can't do it. I can't do it. I physically can't do it. I mentally can't do it either. (transcript FCFCOA 30 January 2023 pp 12-14) These further comments simply reiterated Mr Walker's abandonment of the proceeding. There was no suggestion from these comments that he sought a stay of the hearing or any other course than termination of the hearing at that point. In any event, the primary Judge weighed the mental and physical challenges allegedly faced by Mr Walker, against the principles of the Court as set out in s 190 of the FCFCOA Act, particularly issues of efficiency and timeliness: see dismissal decision at [35].
4. Despite the orders of the primary Judge of 1 February 2023 providing Mr Walker with an opportunity to rebut his apparent abandonment of the proceedings, oppose the respondent's interlocutory application for summary dismissal and provide any submissions as to the proper disposition of proceedings, Mr Walker did not do so. Rather, it appears that he sent two emails, one to the Victorian Registry of the Federal Court on 2 February 2023, and one to the Chambers of the primary Judge on 7 February 2023. In respect of these emails however:

• Notwithstanding that there is no evidence before the Court to suggest that the primary Judge had seen the 2 February 2023 email sent to the Victorian Registry of the Federal Court, that email does not constitute a response or opposition to the interlocutory application for summary dismissal of the proceedings.
• I am not persuaded that Mr Walker's purported "suspension" of the proceedings in the email of 7 February 2023 - because of his view that the primary Judge was biased against him - constituted effective opposition to the summary dismissal of the proceedings. Plainly it was not within Mr Walker's power to have the proceedings "suspended" at his whim.

1. Although Mr Walker is a litigant in person, he has shown an understanding through the course of proceedings before the primary Judge that he understood that applications and documents must be put properly before the Court. Indeed, Mr Walker made submissions before this Court that various applications made to the primary Judge by the respondent should have been properly filed and served. There was therefore no reason for the primary Judge to have assumed that Mr Walker was unaware that any submissions pursuant to the 1 February 2023 orders should be properly filed and served.
2. In my view, given the comments of Mr Walker to the primary Judge at the hearing of 30 January 2023, his removal of himself from the Court room, and his failure to provide further submissions in response to the orders of the primary Judge, it was clearly open to her Honour to find that Mr Walker had abandoned the proceeding on 30 January 2023 such that he had ceased to prosecute the proceedings with due diligence within the meaning of r 13.04(1)(e) of the FCFCOA Rules.

Alleged denial of procedural fairness

1. Mr Walker claimed that he was denied procedural fairness by the primary Judge in respect of her Honour's decision to dismiss the primary proceedings.
2. It is uncontroversial that Courts are bound by the rules of natural justice. Unless the proceedings are ex parte, the court is obliged to hear what the parties or their representatives wish to submit about anything relevant to the making of a decision (see for example International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 at [150]; South Australia v Totani [2010] HCA 39 at [262]). Further, as recently observed by Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [26] (applying principles identified in Ebner): …impartiality is an indispensable aspect of the exercise of judicial power [and] "[b]ias, whether actual or apprehended, connotes the absence of impartiality"
3. The breaches of procedural fairness claimed by the appellant in the notice of appeal can be summarised as follows:
4. The respondent admitted that its conduct, in dismissing the appellant, constituted adverse action;
5. Whether it was appropriate for the primary proceeding to be summarily dismissed was determined on the papers;
6. The appellant was a litigant in person and the primary Judge failed in her duty to inform the appellant of his rights and of relevant court processes and procedures.
7. It is helpful to examine each of these claims in turn.

The respondent admitted to taking adverse action

1. In his submissions Mr Walker said, inter alia: The respondent admitted taking adverse action against the applicant which it had never admitted at any point prior. Dismissing the applicant's matter therefore is letting a large corporation break the law and that alone has the potential to severely damage the reputation of the courts and the Justice System. p 4 Particulars (including Further and Better Particulars) filed by Mr Walker on 15 November 2023
2. Mr Walker also made a submission to that effect at the hearing before the primary Judge on 30 January 2023 (transcript pp 2-6).
3. "Adverse action" is defined in s 342(1)(a) of the Fair Work Act to include the following: Adverse action is taken by an employer against an employee if the employer dismisses the employee.
4. Section 340 of the Fair Work Act further provides: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person.
5. Even if the respondent accepted that it had dismissed Mr Walker, and thus engaged in adverse action against him for the purposes of the Fair Work Act, that does not in itself constitute breach of the Fair Work Act. The reason for the adverse action must be in contravention of workplace rights of the relevant person. The respondent did not make any admission to that effect.
6. As such I accept the submission of the respondent that a statement by the respondent that they had taken an adverse action against the appellant does not constitute the admission of a crime or any wrongdoing on the part of the respondent.

The primary proceeding was summarily dismissed "on the papers"

1. In the particulars to his notice of appeal Mr Walker complained that the summary dismissal application of the respondent was "heard on the papers".
2. In the present case Mr Walker had walked out of the proceedings and indicated that he no longer sought to press his application in the FCFCOA. The respondent, at that time, made an oral application for dismissal of Mr Walker's application. The respondent further provided written submissions which clarified that the matter should be dismissed or, in the alternative, struck out on the basis of want of prosecution and failure to comply with a Court order.
3. The primary Judge could, quite properly, have decided the case ex tempore on 30 January 2023. Rule 13.06(1)(c) of the FCFCOA Rules provides: 13.06 Default of appearance of a party (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following: ... (c) if the absent party is an applicant - dismiss the application; ...
4. I also note r 13.06(2) which provides: (2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.
5. In the present case after Mr Walker had departed the Court room on 30 January 2023 and the respondent orally applied for summary dismissal, the primary Judge made case management orders for the filing of submissions referable to the proper disposition of the proceedings. In my view, it was within her Honour's power to do so, both pursuant to r 13.06(2) of the FCFCOA Rules and s 190 of the FCFCOA Act. Section 190 in particular reads: Overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), 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, in relation to the Federal Circuit and Family Court of Australia (Division 2), 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. (4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
6. I not only consider that her Honour was empowered to make case management orders for the parties to file submissions referable to disposition of the proceedings, I consider that her Honour's action accorded procedural fairness to Mr Walker such as to give him an opportunity to both oppose an order for summary dismissal and propose alternative orders for disposition of the case.
7. On 30 January 2023 the primary Judge was faced with a substantive proceeding which Mr Walker had appeared to abandon, and 4 remaining days of Court time lost when other matters could have been heard. It was not incumbent on the primary Judge to relist the matter at some future date for the convenience of Mr Walker once he had abandoned the hearing, however it was reasonable for her Honour to allow Mr Walker the chance to advance a position in respect of the future conduct of the proceedings. Her Honour plainly was required to, and did, balance the interests of Mr Walker, with the interests of the respondent and the interests of justice as a whole. As Gummow, Hayne, Crennan, Kiefel and Bell JJ explained in Aon Risk Services:
8. … what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution.
9. The opportunity provided to Mr Walker by the primary Judge to seek to be heard in respect of his claims, and have the proceedings maintained in the face of his actions of 30 January 2023, was reasonable and, in my view, fair. That he did not take advantage of that opportunity was not due to any absence of procedural fairness on the part of the primary Judge.

Litigant in Person

1. It is a generally accepted proposition that the Court has a duty to ensure that litigants in person do not suffer any disadvantage from exercising their right to represent themselves in Court: MacPherson v R (1981) 147 CLR 512 at 534; 37 ALR 81 at 98; Flightdeck at [51].
2. The Full Court of the Federal Court of Australia in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 summarised the position of the Court in relation to litigants in person as follows: 20 The appellant in this case is a litigant in person, and it is common for Courts to take a lenient view of the rules and the law in aid of such litigants: see for example Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 at [18], Blakeley v National Australia Bank [2018] FCA 796 at [51], BBT16 v Minister for Home Affairs [2018] FCA 1225 at [5]. 21 Nonetheless, as Colvin J went on to explain in Zaghloul at [18], the Court may be lenient in the standard of compliance which it exacts from a litigant in person, provided that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Nobarani v Mariconte [2018] HCA 36; (2001) 265 CLR 236 at [47], Platcher v Joseph [2004] FCAFC 68 at [104]‑[105].
3. The Full Court in Flightdeck further noted that: [54] The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent… … [55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person: (a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod at [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR at [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283; 313 ALR 383; [2014] VSCA 193. (b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson at CLR 534; ALR 98. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15 at [47]. (c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski. [56] The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: Hamod, [312]; Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 at [23]; Clark v New South Wales (No 2) [2006] NSWSC 914 at [13]. Nor does the duty of the Court require it to view a litigant-in-person's case with a favourable eye. As stated by the High Court in Northern Territory v Sangare (2019) 265 CLR 164; 372 ALR 117; 60 Fam LR 71; [2019] HCA 25 at [27], albeit in the context of a determination on costs, "unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person". [57] It seems to be well accepted that the extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": Abram v Bank of New Zealand (1996) ATPR 41-507 at 42,347.
4. In the particulars to his notice of appeal, Mr Walker alleged that the primary Judge failed to provide him, as a litigant in person, with procedural fairness so as to enable him to make an informed choice about his legal rights in the following ways.

Email of 7 February 2023 - Primary Judge's continuing power to hear and determine the summary dismissal application

1. Mr Walker submitted that he was denied procedural fairness because of the email sent by him to the Chambers of the primary Judge on 7 February and because of the primary Judge's failure to advise him that:

• his case was not "temporarily suspended from any further hearings or orders" and
• her Honour otherwise had the power to hear and determine the summary dismissal application.

1. As explained by the Full Court in Flightdeck at [56], the duty of the Court when one party is self-represented does not extend to providing advice, counselling that litigant on how to exercise their rights, or conducting the case on their behalf. In the present case it is clear that no duty was enlivened for the primary Judge or her Chambers or the FCFCOA to contact Mr Walker to advise him of any potential misapprehension by him of the state of affairs following his abandonment of the hearing and the subsequent case management orders made by the primary Judge.
2. Secondly, the email did not invite the primary Judge or her Chambers to answer any question in relation to the status of Mr Walker's proceedings in the FCFCOA after 30 January 2023, but rather could be characterised as a direction by him in regard to the status of that litigation. The email went so far as to state that "no further correspondence between the Applicant and Judge Symons Associate will be required." It is impossible to understand how any further communications from the Court to Mr Walker would have been received by him in circumstances where he plainly indicated, at the very least, discouragement of such communication. I am not persuaded that it was incumbent on the primary Judge in the interests of justice to endeavour to overcome Mr Walker's rejection of the prospect of further communications from the Court.
3. In any event, the orders of the Court on 1 February 2023 were clear in their meaning and intention. Mr Walker's email to the Victorian Registry on 2 February 2023 indicated that he understood that there was an application before the Court that his matter be dismissed. The Court was not duty bound to - effectively - advise Mr Walker of the obvious facts that:

• the matter remained on foot, and
• the power to hear and determine the summary dismissal application remained with her Honour.

1. Thirdly, as I noted earlier, Mr Walker is a relatively experienced litigant who plainly understood that applications and documents must be put properly before the Court. There was no reason for the primary Judge to have assumed that Mr Walker was unaware that any application relating to the conduct of proceedings, including an application for a stay of proceedings or to "temporarily suspend" proceedings, should be filed and served in accordance with the FCFCOA Rules.
2. No denial of procedural fairness arose in respect of the email of 7 February 2023.

Appeal Adjournment Decision

1. On 30 January 2023, the primary Judge refused Mr Walker's application for an adjournment. Mr Walker submitted that he was denied procedural fairness on the basis that the primary Judge failed to advise him that he could seek to appeal that decision.
2. Pursuant to s 24(1)(d) of the Federal Court Act, the Federal Court has jurisdiction to hear appeals from judgments of the FCFCOA. Pursuant to s 24(1AA) an appeal must not be brought from a judgment of the FCFCOA if the judgment is: (a) a determination of an application of the kind mentioned in subsection 20(3); or (b) a decision to do, or not to do, any of the following: (i) join or remove a party; (ii) adjourn or expedite a hearing; (iii) vacate a hearing date. (emphasis added)
3. It is clear from the legislation that the adjournment decision of the primary Judge, namely her Honour's decision not to adjourn the hearing on 30 January 2023, was not an appellable decision. No duty to inform Mr Walker that he could appeal that decision could arise in any circumstances. It follows that no issue of procedural fairness arises in this respect.

Appeal Recusal Decision

1. The primary Judge on 30 January 2023 refused Mr Walker's application that her Honour should recuse herself for both actual and apprehended bias. In claiming denial of procedural fairness, Mr Walker complains that the primary Judge ought to have informed him of his right to appeal the recusal decision, and the manner of progressing such an appeal.
2. The respondent submitted that there was no right of appeal in any event by Mr Walker of the recusal decision, and in support of that proposition relied on such cases as Stone v Moore; Bezer v Bassan; Barakat v Goritsas.
3. In light of such cases as Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (Livesey) and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, I am not persuaded that there would have been no right of appeal by Mr Walker against the recusal decision. However, I am also mindful of the principle that it is the duty of a judge to hear a matter, notwithstanding a party's objection, if no proper basis has been established for the judge to disqualify herself or himself: Frigger v Trenfield (No 14) [2023] FCA 307 at [47]; Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission [2022] FCAFC 161 at [32]; Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51 at [76]. As the High Court observed in Livesey at 294 [8]: …it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court…
4. Her Honour gave detailed reasons for declining to recuse herself in the recusal decision, applying relevant legal principles. Although Mr Walker complained of alleged bias on the part of her Honour, he has not appealed the recusal decision, and that decision is not on appeal before me now.
5. Looking at the appeal actually before me, plainly it was not incumbent on the primary Judge to advise him to appeal the recusal decision, or how to go about doing so.
6. No issue of procedural fairness arises in this respect.

Stay Application

1. Mr Walker submitted that pursuant to r 13.05 FCFCOA Rules, where an applicant is in default, the Court has the power to stay proceedings in addition to having the power to dismiss an application. Mr Walker submitted that the primary Judge should have stayed proceedings or examined other options available to the Court other than dismissing the matter.
2. The orders of 1 February 2023 provided that Mr Walker was to have the opportunity to file submissions in response to the previously filed submissions of the respondent concerning the disposition of the substantive proceedings. As I have already observed, it was open to him at that stage to file submissions suggesting an alternative cause of action to the respondent's application for dismissal.
3. Mr Walker did not file any submissions to that effect.
4. As matters stood, her Honour was invited to exercise her discretion to summarily dismiss the proceedings, for want of prosecution by Mr Walker. In the absence of an application, or even simply submissions, by Mr Walker seeking a stay of the proceedings or alternative means of either progressing or disposing of the matter, there was no basis on which the primary Judge could realistically have formed the view that a stay was an appropriate order. This was particularly the case given that Mr Walker had indicated, unambiguously on 30 January 2023, that he was abandoning the proceedings. I am not persuaded that an informal email by Mr Walker directing "suspension" of the proceedings constituted a meaningful application for a stay for her Honour to consider.
5. As noted in Flightdeck it is not the responsibility of a Judge to run a litigant's case for them. For the same reason, the primary Judge had no duty to inform Mr Walker that he could file an application for a stay, or to assume that Mr Walker was incapable of filing an application from which he could benefit.

Conclusion

1. I am satisfied that Mr Walker was not denied procedural fairness by the primary Judge in the conduct of proceedings relevantly before her Honour and the dismissal of Mr Walker's originating application. The appeal should be dismissed. I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.