Zhao v TTS & Associates Pty Ltd

Federal Court of Australia|2020-07-03|Before: Snaden J

The applicant's culpability for missing the 25 February 2019 hearing 32 The applicant submitted that the FCCA erred by concluding that she was at fault for her failure to attend the 25 February 2019 hearing. Although she accepts a degree of culpability in that regard, she submitted that the FCCA had not properly understood the circumstances surrounding her failure to appear on that date. 33 Before me, the applicant maintained that she should not be held at fault, or perhaps substantially at fault, for having missed the 25 February 2019 hearing. That, she said, is so because: (1) she is (and was) a self-represented litigant, unfamiliar with the niceties of court processes; (2) she has not been able to afford her own lawyer; (3) she had received advice (it appears from more than one source) to the effect that her matter would not be heard for at least 12 months (and, hence, she did not expect that it would be listed for a hearing when it was); (4) she did not understand the difference between a "sealed" document and an "unsealed" document (the significance of which being that the 25 February 2019 hearing date was recorded on the sealed copy of her originating application in the FCCA, which was given to her after she filed it); and (5) she had not, contrary to reasonable expectation, received any separate notice from the court that a hearing had been scheduled for that date. 34 It bears noting that the FCCA accepted that the applicant had an explanation for her non-attendance at the 25 February 2019 hearing that was "…at least sufficiently plausible for this not to count heavily against her". It is plain from the Primary Judgment that the FCCA did not consider the reason or reasons for which the applicant failed to attend the 25 February 2019 hearing weighed heavily in favour of or against the reinstatement of her substantive proceeding. 35 Respectfully, none of the submissions that the applicant advanced before me is such as might warrant a finding that the FCCA's discretion miscarried. It was open to the FCCA to form and act upon the view that it formed (namely, that the applicant was negligent, or otherwise at fault, inasmuch as she failed to appear at the 25 February 2019 hearing, but that that didn't much bear upon the determination of the Interlocutory Application). What the applicant seeks to do is convince this court that a different conclusion as to the level of her culpability ought to have been preferred. It is not - and, were leave to appeal granted, would not be - for this court to form such a view. At issue is whether it was open to the FCCA, upon a proper appreciation of the facts, to form the view that it did. It was. 36 It follows that I do not consider that the applicant has much, if any, prospect of establishing that the FCCA's discretion to dismiss her Interlocutory Application miscarried because of the conclusion that it drew about the extent to which her non-attendance at the 25 February 2019 hearing was a function of her own negligence.

Denial of procedural fairness 37 The applicant submitted that the FCCA's discretion to dismiss her Interlocutory Application miscarried because its exercise was premised upon a denial of procedural fairness. That denial, she claimed, was a function of the fact that she was not afforded, or invited to request, an opportunity to test the indication that the respondent, through its counsel, gave about potential witness availability. The significance of that indication has already been addressed. 38 That the applicant was self-represented (accompanied by Mr Morris) at the hearing of the Interlocutory Application is, of course, accepted. But that does not confer upon the FCCA some obligation to afford her what she now maintains that she was denied. There was nothing unusual about the exchange that the FCCA had with counsel for the respondent. The FCCA was not obliged to assume that there was, nor to provide the applicant (in the absence of request, no less) an adjournment or any other procedural indulgence on account of it. 39 It follows that I do not consider that the applicant has any realistic prospect of convincing this court that the FCCA denied her procedural fairness in the manner that she alleges.

Conclusion as to the merits of the appeal 40 The appeal that the applicant hopes to prosecute lacks merit. There is little to no prospect that she will be able to establish that the FCCA's discretion to dismiss her Interlocutory Application miscarried.

Disposition 41 Taking account of the considerations relevant to the issue (namely the merits of the proposed appeal and the prejudice that will befall the applicant in the event that leave is denied), I am not persuaded that leave to appeal should be granted. The application will, for that reason, be dismissed. 42 Section 570(1) of the FW Act likely prohibits the awarding of costs in the present application. Nonetheless, the respondent indicated a wish to be heard on that issue. In addition to dismissing the present application, I will make orders giving the respondent until 10 July 2020 to file, should it wish to, written submissions on the question of costs; and for the applicant to file submissions in reply by 17 July 2020. Subject to either party requesting otherwise, I will make further orders with respect to costs on the papers. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.

SNADEN J: 1 The applicant is a former employee of the respondent's. She was dismissed from her employment as a senior accountant in July 2018. By a proceeding that she commenced in the Fair Work Commission (hereafter, the "FWC") and, later, the Federal Circuit Court of Australia (hereafter, the "FCCA"), she sought to challenge that dismissal. She alleged that it was effected in contravention of various statutory injunctions contained within pt. 3-1 of the Fair Work Act 2009 (Cth) (hereafter, the "FW Act"). She claimed that she had been dismissed because she was pregnant, and because she had possessed or exercised a workplace right or rights (within the meaning given to that term by s 341 of the FW Act). 2 Before an employee (or former employee) can prosecute a suit in the FCCA arising from a dismissal in breach of pt 3-1 of the FW Act, they must first apply to the FWC to have their dispute "deal[t] with": FW Act, s 370. The FWC has jurisdiction to "deal with" such disputes by means of private conciliation and, in limited circumstances, arbitration: FW Act, ss 368, 369. If, despite all reasonable attempts, conciliation fails to resolve the dispute, the FWC must issue a certificate to that effect: FW Act, s 368(3). Once such a certificate is issued, the former employee may commence a proceeding in the FCCA in respect of the dispute to which it pertained. Such a proceeding must be commenced within 14 days of the certificate's being issued: FW Act, s 370(a). 3 That process occurred in the present matter without controversy. On 21 November 2018, the applicant filed an application in the FCCA alleging that the respondent had terminated her employment in contravention of pt 3-1 of the FW Act (or of various of the provisions contained therein). The matter was listed for hearing - most likely for some kind of interlocutory or case-management hearing - on 25 February 2019. Notice of that listing was provided to the applicant but, regrettably, she overlooked it. On that day, neither the applicant nor the respondent attended at the court and the proceeding was dismissed for want of appearance. 4 Nearly a year later, the applicant contacted the FCCA to enquire about the progress of her matter. Upon being told that it had been dismissed on 25 February 2019, she made an application to set that dismissal aside. That application (hereafter, the "Interlocutory Application") was the subject of a hearing conducted on 4 March 2020. On 23 March 2020, the FCCA dismissed that application and published reasons for doing so: Zhao v TSS & Associates Pty Ltd [2020] FCCA 595 (Judge Burchardt). It is from that judgment (hereafter, the "Primary Judgment") that the applicant now seeks leave to appeal. 5 For the reasons that follow, leave to appeal is refused.

The present application 13 The present application for leave to appeal from the Primary Judgment was filed on 6 April 2020. It is supported by three affidavits, all affirmed by the applicant herself. The respondent agitated several objections to various parts of those affidavits but it is unnecessary to explore any of them presently. 14 Contrary to the requirements of r 35.12(2)(d) of the Federal Court Rules 2011 (Cth), the applicant has not supplied a draft of the notice of appeal that she proposes to file in the event that her application succeeds. The applicant was self-represented (with the assistance of a McKenzie friend, Mr Morris), both before this court and before the FCCA. It is appropriate to (and I do) forgive a degree of unfamiliarity on her part with the requirements of the rules. It is apparent - from her application for leave to appeal and from the submissions that she advanced in support of it - that the appellant considers that the FCCA's decision to dismiss her Interlocutory Application was the product of error, specifically in that: (1) the FCCA misunderstood (in a manner apt to artificially or wrongly inflate) the true nature of the prejudice that reinstatement of her substantive proceeding would visit upon the respondent; (2) the FCCA misunderstood (again, in a manner apt to artificially or wrongly inflate) the applicant's culpability for missing the 25 February 2019 hearing; (3) the FCCA took account of an irrelevant consideration en route to making its decision (specifically, that the applicant has since secured alternative employment); and (4) the FCCA denied the applicant procedural fairness insofar as it required that she address at the hearing (as opposed to some later point in time) what the respondent advanced on the question of prejudice. 15 The considerations relevant to the exercise of the Court's discretion to grant or not grant leave to appeal are well established. They include whether or not an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399 (Sheppard, Burchett and Heerey JJ); Iannuzzi v Federal Commissioner of Taxation (2019) 268 FCR 349, 351 [3] (Kenny, Jagot and Banks-Smith JJ); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36, [2] (Flick, Reeves and O'Callaghan JJ). 16 For reasons that might shortly become apparent, I will address those considerations in reverse order.

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