FEDERAL COURT OF AUSTRALIA

Ford v Ingham Enterprises Pty Ltd [2018] FCA 794

ORDERS

THE COURT ORDERS THAT:

1.    Orders 6, 7, 8, 9, 10, 11, 12 and 13 of 28 August 2017 be vacated.

2.    The Applicant file and serve any amended statement of claim by 4.00 pm on 4 June 2018.

3.    The Applicant file and serve the affidavits of evidence of his lay witnesses by 4.00 pm on 4 June 2018.

4.    The Respondents file and serve any amended defences by 4.00 pm on 9 July 2018.

5.    The Respondents file and serve the affidavits of evidence of their lay witnesses by 4.00 pm on 9 July 2018.

6.    The Applicant file and serve any affidavits of evidence in reply by 4.00 pm on 6 August 2018.

7.    The Applicant file and serve the affidavit evidence of his expert witnesses by 4.00 pm on 13 August 2018.

8.    The Respondents file and serve the affidavit evidence of their expert witnesses by 4.00 pm on 10 September 2018.

9.    The Applicant and the Respondents must attend, participate and act reasonably and genuinely in a mediation in respect of all issues in dispute between them, to be conducted at a time and place to be agreed between the parties, but no later than 2 November 2018, the costs of the mediation to be apportioned as follows:

(a)    Applicant: 50%; and

(b)    Respondents: 50%.

10.    The parties have liberty to apply on three days written notice to the opposing party or parties.

11.    The matter be listed for further case management at 9.30 am on 7 November 2018.

12.    The Applicant pay the Respondents their costs of and incidental to the adjournment application filed 16 May 2018.

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

REASONS FOR JUDGMENT

COLLIER J:

Background

1    The applicant has been employed by the first respondent from on or about 6 February 2015 in a permanent full-time capacity. The applicant remains employed by the first respondent but has not worked since 31 August 2016.

2    On 6 October 2016, the applicant lodged a complaint with the Australian Human Rights Commission (the AHRC) under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The matter was terminated by a delegate of the President of the AHRC because the matter was unable to be resolved under the AHRC Act.

3    The primary proceeding is a claim under the AHRC Act in relation to:

    alleged sexual harassment by the second, third, fourth and fifth respondents, and vicariously by the first respondent under s 106 of the Sex Discrimination Act 1984 (Cth) (SD Act);

    victimisation by the first, fifth, sixth and seventh respondents, contrary to the SD Act;

    discrimination by the first and sixth respondents on the ground of disability, contrary to the Disability Discrimination Act 1992 (Cth);

    harassment by the first and sixth respondents in relation to the applicant’s disability; and

    victimisation by the first and sixth respondents in relation to the applicant’s disability.

4    The second to seventh respondents were the applicant’s fellow employees with the first respondent.

5    The following case management orders were made by consent on 28 August 2017:

1.    The applicant file and serve a statement of claim by 4pm on 29 September 2017.

2.    The respondents file and serve a defence by 4pm on 27 October 2017.

3.    The applicant file and serve any reply by 4pm on 10 November 2017.

4.    The parties file and serve an agreed statement of facts by 4pm on 1 December 2017.

5.    The parties attend mediation before a Registrar of this Court on or before 2 February 2018.

6.    The applicant file the affidavits of evidence of his lay witnesses by 16 March 2018.

7.    The respondents file the affidavits of evidence of their lay witnesses by 20 April 2018.

8.    The applicant file any affidavit or affidavits in reply by 11 May 2018.

9.    The applicant file the affidavit evidence of his expert witnesses by 18 May 2018.

10.    The respondents file the affidavit evidence of their expert witnesses by 15 June 2018.

11.    The matter be listed for trial for five days commencing at 10:15am on 30 July 2018.

12.    The parties have liberty to apply on three days written notice to the opposing party or parties.

13.    The matter be listed for a further case management hearing at 9:30am on 19 June 2018.

14.    Costs be reserved.

The interlocutory application

6    On 16 May 2018, the applicant filed an interlocutory application to adjourn the trial that has been set down for the hearing of this matter and to vacate the case management orders made on 28 August 2017.

7    In support of the interlocutory application to adjourn the trial, the applicant relies on three affidavits of Mr John Sneddon, who is the solicitor with carriage of the applicant’s matter.

8    According to Mr Sneddon’s first affidavit, the applicant is seeking the adjournment of the trial to allow him to bring concurrent proceedings against the first respondent for breach of “common law” duties arising out of the same facts alleged in these proceedings. Those proceedings cannot be brought until the pre-proceeding procedures under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) have been completed. Mr Sneddon deposes that the matter of concurrent proceedings did not become a live issue until the applicant recently received advice from his lawyers in the WCRA proceedings as to the possibility of concurrent proceedings after the first respondent discontinued its appeal to the Queensland Industrial Relations Commission (QIRC) against the acceptance of the applicant’s claim by the Queensland Workers Compensation Regulator.

9    In summary, Mr Reidy for the applicant submitted that the applicant’s WCRA claim was within the scope of the single justiciable controversy that consists of those proceedings and the human rights proceedings currently in the Federal Court, and that it would be efficient for all proceedings to be heard, together, in the Federal Court.

10    Mr Reidy also submitted that the trial will require eight to 10 days of hearing (rather than the currently listed five days) in circumstances where the applicant’s affidavit evidence is lengthy, and he intends to call five lay witnesses and two expert witnesses.

11    Further, Mr Reidy submitted that, in the event that the trial is not adjourned, litigation between the parties will be duplicated in circumstances where two separate trials will be run on the same facts, between the same parties, and using the same witnesses. This would constitute a waste of the Court’s resources, would impose unnecessary inconvenience on witnesses and increase the financial and psychological burden on the applicant.

12    The applicant has filed medical evidence supporting his claims concerning the potential effect of duplicated proceedings on him, namely a report from a psychologist indicating that the applicant has major depression and anxiety with suicide ideation and also post-traumatic stress disorder. The psychologist further deposes that the health benefits of combining the court proceedings to be dealt with together would outweigh the potential adverse effects of combining the court proceedings.

13    All respondents were represented at the hearing, and while it was not in dispute that the WCRA proceedings arose from the same factual substratum as the Federal Court proceedings, all respondents opposed the adjournment application.

14    Mr Mackie for the second respondent relied on the affidavit of Ms Kristin Ramsey, the second respondent’s solicitor, and submitted that the second respondent sought to have the proceeding resolved as soon as possible because:

    The proceeding was having a detrimental impact on the second respondent’s mental health.

    The second respondent feels unable to progress with his own self-improvement plans involving starting his own pest control business until these proceedings have concluded.

    The second respondent and his wife wish to start a family but feel unable to do so under these proceedings have concluded because of the mental burden on the second respondents.

    The proceedings are having an adverse impact on the second respondent’s wife, which has required her to take time away from her own employment.

    The proceedings are having an adverse impact on the second respondent’s other family members, including his father and mother.

15    Mr Mackie submitted that the applicant had not identified the additional relief the applicant sought in the WCRA proceedings which warranted adjournment of the present Federal Court proceedings, but in particular that the second respondent was not involved in the WCRA proceedings and had no interest in the adjournment of the present matter. Further, Mr Mackie submitted that the progress of the WCRA proceedings could be delayed pending the stabilisation of the condition suffered by the applicant, and uncertainty attended this stabilisation. Mr Mackie relied specifically on ss 179, 183 and 185 of the WCRA.

16    Mr O’Brien for the first, third, fourth, fifth, sixth and seventh respondents submitted, in summary, that:

    The applicant’s case for adjournment was attended by sufficient uncertainty to warrant dismissal of the adjournment application. This uncertainty included that it was unclear that the anticipated WCRA proceedings would be commenced at all, the applicant was unable to specify dates for the adjourned trial, the applicant was unable to articulate the new relief which he would seek in the event that the WCRA proceedings were combined with the current human rights proceedings, and the apportionment of loss was unclear.

    The WCRA action was against the first respondent only. The applicant was represented in those proceedings by separate lawyers. It was in any event appropriate for the two sets of proceedings to be heard and determined, separately.

    The applicant had not prosecuted the proceedings with due diligence.

Consideration

17    An application for an adjournment of a hearing invokes the discretionary powers of the Court. In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 the Full Court observed:

In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.

18    In this case the merits of adjournment were argued comprehensively. I have concerns in respect of the prospective length of the adjournment. During the hearing, Mr Reidy conceded that compliance with the WCRA procedure could mean that the applicant would not be in a position to commence WCRA proceedings in the Federal Court until April 2019. However, Mr Reidy also submitted it was possible that the applicant would be in a position to commence those proceedings earlier than that date.

19    The respondents submit that they would suffer prejudice in the event that the trial of the current proceedings are adjourned, and that an order for costs in their favour would not compensate them for that prejudice. However on balance, and notwithstanding that the orders sought by the applicant could result in the commencement of the trial being delayed for some ten months, I consider that the trial should be adjourned.

20    First, as I have already noted, the fact that the WCRA proceedings are within the same justiciable controversy as the current human rights matter in this Court is not in dispute. None of the respondents disputes the submissions of the applicant that the WCRA proceedings can be brought in the Federal Court, once the procedure established by the WCRA has been satisfied. I accept that there will be some duplication of litigation in respect of each matter, and to that extent, it is logical that that the present trial be adjourned until the applicant is in a position to commence the WCRA proceedings in this Court.

21    Second, although the evidence of Ms Ramsey in relation to the mental health of the second respondent was not supported by medical evidence, I accept that an adjournment of the present proceedings would be stressful for the second respondent. However, I am satisfied that:

    Unfortunately – litigation is potentially stressful for all parties.

    Duplication of the proceedings would, in all probability, be similarly stressful for the second respondent.

22    I also accept the unchallenged medical evidence of the applicant concerning the reduced strain on him in the event that the two proceedings were heard together.

23    Third, the interests of case management support an adjournment of the trial. In particular I note that:

    The applicant’s estimate of eight to ten days, rather than the current five days, was not disputed by the respondents. This estimate raises the very real prospect of a split trial, which is undesirable.

    The combination of two separate – but related – proceedings into one hearing is an efficient use of Court time, parties’ costs, and witness availability, and in this respect reflects the overarching purpose of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).

    Timetabling orders of 28 August 2017 in respect of the filing of evidence (namely Orders 6, 7, 8 and 9) have not been complied with. Indeed, notwithstanding the submissions of the respondents concerning the dilatoriness of the applicant, the respondents have similarly failed to file evidence on which they seek to rely in these proceedings. To that extent, there is no apparent prejudice to the respondents in respect of the adjournment of the trial, at least insofar as concerns time and costs associated with preparation of evidence in the proceedings.

24    Fourth, although it appears that the applicant became aware on or about 16 February 2018 that the opportunity had arisen for him to commence WCRA proceedings, I am satisfied that the applicant has not unduly delayed in seeking an adjournment of the trial. I note the submission of Mr Reidy that, until the withdrawal of the first respondent’s appeal to the QIRC, the progress of the WCRA proceedings were outside the control of the applicant. I note further the concession of the legal representatives of the respondents that the applicant had placed them on notice that the adjournment application would be brought in this Court, and that it was in light of that communication that the respondents had not filed their lay evidence. Finally, I note that the applicant has briefed two sets of lawyers in respect of the separate proceedings, and that he was awaiting legal advice in respect of the WCRA proceedings and its progression in light of the Federal Court matter.

25    Fifth, while I note the submissions of the respondents concerning the question of remedies and, in particular, whether different remedies would be available to the applicant in the WCRA proceedings, I also consider that this is a compelling reason why it is desirable for both sets of proceedings to be heard together. Further, and notwithstanding that the WCRA proceedings appear primarily against the first respondent, it is likely that the second to seventh respondents would be witnesses in the WCRA proceedings, and in any event as Mr Reidy submitted the applicant has potential remedies for assault against the second to seventh respondents.

26    Finally, while some uncertainty attends the date by which the applicant will be in a position to commence the ECRA proceedings, as demonstrated by Mr Reidy in his submissions, the procedure the parties are required to follow under the WCRA is clear, with specified time frames. In this respect, any uncertainty attending the length of the delay is mitigated.

Conclusion

27    In addition to adjournment of the trial, the applicant sought timetabling orders including the filing of amended pleadings. No issue was taken in respect of this aspect of the applicant’s case by the respondents. In the circumstances, and in the interests of progressing this litigation so far as possible in the current circumstances, I consider it appropriate to adjourn the trial, with case management orders generally in the terms sought by the applicant, subject to two modifications.

28    First, in light of the complications introduced to the litigation between the parties by the prospect of commencement of WCRA proceedings, I consider that it would be appropriate for the parties to return to mediation. I express this view with some hesitation, particularly in light of the submissions of Mr Mackie and the burden of costs on the individual respondents. However, the change in circumstances since the last mediation indicates that there would be utility in the parties returning to mediated discussions. I note that the applicant strongly supported an order to this effect, and that all respondents other than the second respondent did not oppose it. In this light I also consider it fair if the applicant pays 50% of the costs of the mediation, and between them the respondents pay 50%.

29    Second, the exercise of the Court’s jurisdiction in respect of costs is discretionary: s 43(2) of the Federal Court Act. The applicant has been successful in seeking an adjournment, however the adjournment is primarily for the benefit of the applicant. No conduct of the respondents has contributed to the necessity for an adjournment, and I accept that some prejudice accrues to the respondents from the adjournment and the associated delay in the resolution of this litigation. While an award of costs may not compensate the respondents for prejudice resulting from the adjournment, I nonetheless consider it appropriate to order costs in the terms sought by the respondents, namely that the applicant pay the respondents their costs of and incidental to the adjournment application.

Associate:

Dated:    31 May 2018

SCHEDULE OF PARTIES