Zhang v Skycity Adelaide Pty Ltd [2025] FCA 1344

(a) 5 September 2025; and

(b) 17 October 2025.

1. Otherwise, there be no order as to the costs of the parties' interlocutory applications.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. There are two interlocutory applications before the court. The first is an application by the respondents for an order that the proceeding be dismissed because the applicant defaulted in filing a statement of claim. The second application is by the applicant, who seeks an enlargement of time within which to file a statement of claim. The respondents' application is the leading application, and I will address it first.
2. The applicant commenced this proceeding on 13 May 2024 seeking civil remedies under the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth) in relation to the termination of his employment. The details of the applicant's claims were indorsed on the originating application. The applicant alleged, inter alia, that the first respondent's termination of his employment constituted adverse action because he had exercised workplace rights by making complaints and by taking periods of leave. The applicant also alleged that the first respondent had discriminated against him based on his attribute as a parent with a newborn child. The second respondent was alleged to be involved in the first respondent's contraventions of s 340 of the Fair Work Act. In relation to the claimed contraventions of the Corporations Act, the applicant alleged that the first respondent terminated his employment because he had made whistleblower reports.
3. Shortly after the applicant commenced the proceeding a Registrar ordered that it be referred to mediation. The period of mediation was lengthy. A mediation was held in September 2024 and was held open to facilitate further discussions. The mediation was later terminated in February 2025.
4. A Registrar conducted a case management hearing on 11 March 2025. A sequence of comprehensive timetabling orders was made to prepare the proceeding for hearing. The first step in that sequence was that the applicant was ordered to file and serve a statement of claim by 8 April 2025. The orders included that the applicant's reply evidence be filed by 19 August 2025.
5. The applicant did not comply with the order that he file a statement of claim with the consequence that none of the other orders could be complied with. Nor did the applicant approach the court to seek any extension of time to comply with the order, or to relist the proceeding for case management. Instead, the court of its own volition ordered that the proceeding be listed for a case management hearing on 5 September 2025. By that stage, none of the steps provided for in the court's orders of 11 March 2025 had been taken because the applicant had not undertaken the first step, which was to file a statement of claim.
6. At the case management hearing on 5 September 2025 the court raised the question whether the proceeding should be dismissed for want of prosecution because the applicant had not filed a statement of claim and had allowed a period of months to pass without approaching the court. A failure to file a statement of claim has historically been a recognised ground to dismiss a proceeding for want of prosecution: see The Rules of the Supreme Court 1883 (Eng), O27, r 1. In this court, any default by an applicant in complying with an order of the court enlivens the court's power under r 5.23 of the Federal Court Rules 2011 (Cth) to dismiss the proceeding. The exercise of that power is to be considered against the backdrop that the rules of this court provide for a system of case management with the result that the principles developed by other courts in relation to dismissal for want of prosecution are not applicable: Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388 (Lenijamar) at 395 (Wilcox and Gummow JJ). Thus, there is no requirement that an applicant for an order under r 5.23 show "inordinate and inexcusable delay" or prejudice occasioned by the delay, although the existence of these matters may be relevant to the exercise of power.
7. The applicant's explanations for the failure to file a statement of claim varied. At the case management hearing on 5 September 2025 the applicant's solicitor stated that the reason a statement of claim was not filed was because the applicant had requested production of documents from the respondents which had been declined. The evidence now before the court shows that by letter dated 7 April 2025, which was the day before the statement of claim was due, the applicant's solicitors sought production of documents from the respondents, purportedly pursuant to r 30.28 of the Federal Court Rules, which is the rule relating to the service of a notice to produce documents at any trial or hearing in the proceeding. The categories of documents sought were extremely broad. They included "[c]opies of all documents, emails, records and other correspondence" related to the employment of each of the applicant and the second respondent at SkyCity Entertainment Group. The following day, 8 April 2025, the solicitors for the respondents declined the applicant's request for production of documents, stating that the documents were not necessary to enable the applicant to provide instructions for the preparation of a statement of claim. The evidence does not show that the applicant then did anything to advance the preparation of a statement of claim until a draft statement of claim was sent to the court yesterday, 30 October 2025.
8. In an affidavit affirmed 24 October 2025, the applicant's solicitor advanced three reasons why no statement of claim had been filed. The first reason was the claimed difficulty in preparing a statement of claim without the documents that were sought from the respondents. The second reason was that the parties had engaged in in globo settlement discussions that involved the exchange of without prejudice offers. The respondents deny that there were settlement discussions between the parties to justify the applicant's default. The third reason was that the applicant was concerned that filing a formal statement of claim may have diminished his chances of securing new employment and that this was a contributing factor. The applicant's solicitor was not cross-examined on these applications.
9. I do not regard the first or third reasons given for the applicant's failure to file a statement of claim and to prosecute the proceeding as satisfactory. The applicant's purported request for production of documents was very late, was at best misguided, and it was reasonable for the respondents to decline the request. Moreover, it does not explain why no steps were taken after 8 April 2025 to bring the matter back before the court. The third reason proffered by the applicant lacks merit because the details of the applicant's claim are already indorsed on the originating application which is available for public inspection: see r 2.32(2)(a).
10. On 5 September 2025 I made orders that any interlocutory applications by the parties be heard on 17 October 2025 and were to be filed by 3 October 2025. The unsatisfactory way in which the applicant has prosecuted the proceeding was compounded by the fact that the applicant did not lodge his interlocutory application for filing until 13 October 2025 which led to the adjournment of the 17 October 2025 hearing until today.
11. For their part, the respondents claim no specific prejudice because of the applicant's failure to file a statement of claim within the time ordered. However, the respondents make a claim of generalised prejudice resulting from the delay that has occurred. The effect of delay on the quality of justice is a legitimate consideration: Lenijamar at 396; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552 (McHugh J). However, I do not give it weight here. While the reasons for the applicant's delay are not that compelling, the fact is that the proceeding appears to have been regularly commenced within the short 14-day time limit fixed by s 370(a)(ii) of the Fair Work Act upon the Fair Work Commission granting a certificate. The substance of much of the applicant's claims was set out in the particulars indorsed on the originating application. The delay in the progress of the proceeding is in the order of about six months, and in the absence of evidence of some specific prejudice, I do not find that delay of that order would likely affect the respondents' ability to defend the proceeding.
12. I am not persuaded to dismiss the proceeding on the ground that the applicant defaulted in filing a statement of claim. First, the summary dismissal of the proceeding upon the applicant's default in complying with an interlocutory procedural order is an extreme step with grave consequences for the applicant. The time limit in s 370(a)(ii) of the Fair Work Act has the likely result that the applicant would not be able to commence a fresh proceeding on his claims. Secondly, the applicant's delay in filing a statement of claim does not give rise to an inference that he does not intend to prosecute the proceeding, or that the proceeding is in some way an abuse of process. Although a statement of claim has been produced by the applicant at the last minute, it nonetheless evidences an intention by the applicant to pursue the claims. Thirdly, a dismissal of the applicant's proceeding in these circumstances would have an air of punishment about it. The order would punish the applicant for breach of the procedural orders coupled with the somewhat less than compelling explanations for the breach. I do not consider that punishment of the applicant in this case is a proper purpose of the exercise of the court's power to dismiss the proceeding. Fourthly, I do not consider that an order summarily dismissing the proceeding in these circumstances would give effect to the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) insofar as that purpose is to facilitate the just resolution of disputes according to law: see Rozenblit v Vainer [2018] HCA 23; 262 CLR 478 at [24]-[25] (Kiefel CJ and Bell J). The effect of the order would be to deprive the applicant of a fair hearing of his claim. On the other hand, a self-executing order for dismissal would be different because it would have the principal object of compelling compliance with a court order in furtherance of the overarching purpose rather than punishment for breach.
13. For the above reasons, the respondents' application for dismissal of the proceeding will be dismissed. The applicant will be ordered to file a statement of claim by 4.00 pm on 7 November 2025 in default of which the proceeding will be dismissed. I will hear the parties on further procedural orders and costs.

1. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.