Federal Court of Australia

Langton v Eco-Growth International Pty Ltd [2023] FCA 743

ORDERS

THE COURT ORDERS THAT:

1.    The respondents pay the applicant’s costs of and incidental to the interlocutory application filed on 29 May 2023 including the costs of today’s case management hearing and the hearing of the interlocutory application.

2.    The respondents file and serve an amended defence by close of business on 19 June 2023.

3.    The second and third respondents file a Notice of Acting forthwith.

4.    The applicant be granted leave to file, in court, the affidavit of Mr Justin Penafiel dated 5 June 2023 on the condition that the applicant file and serve an electronic copy forthwith.

5.    The case management hearing be adjourned for further case management on 22 June 2023 at 9:30am.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 16 March 2023, Mr Scott Langton initiated proceedings in the Court’s industrial jurisdiction by way of an originating application under the Fair Work Act 2009 (Cth) (Fair Work Act) alleging dismissal in contravention of a general protection for which that act provides. Those proceedings were a sequel to earlier proceedings in the federal conciliation and arbitration commission, presently known as the Fair Work Commission (Commission). The Commission issued a certificate under s 368 of the Fair Work Act on 2 March 2023.

2    The originating application does not only claim relief under the Fair Work Act, but separately or further or alternatively invokes the Court’s jurisdiction under the Corporations Act 2001 (Cth) (Corporations Act), it does say, by alleging that the natural person respondents, as well as the corporate respondent, contravened s 181 of the Corporations Act. Resultant orders under ss 1317AE, 1317G, and s 233 of the Corporations Act are sought. A statement of claim accompanied the originating application.

3    The proceeding was initially listed for first case management on 14 April 2023. Prior to that, the parties reached agreement as to interlocutory orders which should, by consent, be promoted to the Court. That resulted in an order of 12 April 2023 being made by Rangiah J in my then-absence on leave.

4    Materially, the order of 12 April provided for the respondents to file and serve a defence, or points of defence, on or before 12 May 2023. That did not happen. It is apparent, from an exchange of correspondence between solicitors, that one reason for that was the unfortunate encounter of the solicitors for the respondent, with the after effects of a nasty motor vehicle accident. Further correspondence between the solicitors deposes to a disposition on the part of those acting for the applicants to require a degree of diligent compliance with the Court’s order of 12 April 2023. On 16 May 2023, it was put to the solicitors for the applicant by those acting for the respondents that a defence would be filed the following day. It was not.

5    The response to that was a letter – strictly, an email – of 18 May 2023, in which the absence of a defence was noted. The respondents were put on notice as to their being in breach of the Court’s orders, and to the applicant now being in a position to apply for summary judgment in accordance with r 5.22 and r 5.23 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). I interpolate that that was not a misapprehension of the position, although, necessarily, given that the proceeding was a penal one, the case would have to be one in which, initially, the Court was satisfied that the claim was proved prima facie with an assessment then being made on notice as to the respondents, with respect to any penalties and related orders. However that may be, the solicitors’ correspondence to those acting for the respondents on 18 May also stated, “if the respondents do not file and serve on or before 4 pm on 24 May 2023, the applicant will apply to have the mediation on 7 July 2023 adjourned, on the basis there is no utility in the proceeding without a defence, and may apply for summary judgment.

6    No defence was filed on or before close of business on 24 May 2023. Indeed, to have filed any defence at all after 12 May 2023 would, in the absence of an extension of time being granted, have been contrary to the Court’s order of 12 April 2023. Somewhat surprisingly, for those who are unfamiliar with the operation by the registry in practice, of the Court’s electronic court file, a defence was, nonetheless, filed on 31 May 2023, at 5.26 pm. In earlier times, that document would never have been permitted by a registrar to have passed the Court’s counter, it being contrary to an express order of the Court as to when a defence had to be filed. This may well exemplify a systemic weakness in relation to the Court’s present registry practice in relation to electronic filing.

7    However that may be, a defence is presently on the Court file. The document is a curious one, in that the word, “admit”, does not appear, but rather, “accepts”, does. Reading the document benignly, it is apparent that particular allegations in the statement of claim are admitted, whilst others are denied. It was put on behalf of the applicant that the defence was inadequate, having regard to r 16.02 and r 16.03 of the Federal Court Rules. Given that the proceeding is a penal one, I am not entirely convinced of this. As it happens, it is unnecessary to reach a concluded view on that subject, because, as was frankly put for the respondents by Mr Martin of counsel (who did not settle the defence as filed), there is a need for an amended defence.

8    The real contest today is not as to whether summary judgment should go; Mr O’Brien was well seized of why the Court would not be disposed to grant summary judgment, even in the face of the existing defence. Instead, the contest is as to costs. As Mr Martin highlighted, the discretion as to costs found in s 43 of the Federal Court of Australia Act 1976 (Cth) is affected, given the invocation of jurisdiction under the Fair Work Act, by s 570 of that Act. In my view, that effect remains, even though the jurisdiction is also invoked under the Corporations Act. Of present moment is s 570(2)(b) of the Fair Work Act, which provides that a party may be ordered to pay the costs, only if the Court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs.

9    I do not regard the present case as one where an overzealous solicitor for the applicant has, in effect, run up costs unnecessarily. Instead, having regard to the train of events which I have recited, it appears to me that, particularly after 12 May 2023, whatever explanation might lie in the unfortunate motor vehicle accident seems to have dropped away. Instead – and I do not assume any misrepresentation on the part of the solicitor for the respondents – it appears as if, for whatever reason, the respondents have not sufficiently focused attention on the need to take a Court proceeding seriously.

10    It is a noteworthy feature of today that there is no explanatory affidavit by, or on behalf of, the respondents. I am only left with a position as revealed by an exchange of correspondence between solicitors. As I have said, I draw no adverse inference whatsoever against the solicitor for the respondents personally in relation to reasonableness of his conduct, it is just a case where, as a matter of impression and to repeat for emphasis, it seems, to me, the respondents have not taken the obligations which arise once a proceeding is a subject of judicial orders, seriously. The result has been that the applicant has done nothing more than insist on compliance with an order of the Court.

11    Further, the applicant has been, it seems to me, understanding within the limits of instructions as to the apparent need, on the part of the respondents, for some more time, it is just that the respondents, notwithstanding that understanding, have not sufficiently focused on their responsibilities. The result has been, in my view, an unnecessary visiting of costs on the applicant to move the proceeding along one way or the other. It is only after the applicant has pressed for particular orders in default that the respondents have been motivated to file the most rudimentary of defences.

12    For these reasons, I order that the respondents pay the applicant’s costs of and incidental to the interlocutory application filed on 29 May 2023, including the costs of today’s case management hearing and the hearing of the interlocutory application. Given the disposition for an amended defence to be filed, I am prepared to allow the respondents further time to file an amended defence. It may be that the filing of that never becomes necessary, given the mediation fixed for 7 June 2023. It is to be hoped and expected that the respondents approach the mediation with rather greater attention than they have to date other steps in relation to proceedings.

13    I was informed in relation to the applicant that he was presently in the Northern Territory. The Court’s registry has, though, made it clear that a personal attendance is expected at the mediation. The applicant would in light of that fail to attend in person at his peril. I grant the respondents until 19 June 2023 to file and serve an amended defence. It’s now necessary to fix a mutual and convenient time after the mediation for the conduct, if necessary, of a further case management hearing.

Associate:    

Dated:    4 July 2023