Gunawardane v Hormel Foods Australia Pty Limited [2013] FCA 864

FEDERAL COURT OF AUSTRALIA

Gunawardane v Hormel Foods Australia Pty Limited [2013] FCA 864 Citation: Gunawardane v Hormel Foods Australia Pty Limited [2013] FCA 864

Parties: LAGATH GUNAWARDANE v HORMEL FOODS AUSTRALIA PTY LIMITED

File number: VID 401 of 2012

Judge: MARSHALL J

Date of judgment: 2 August 2013

Date of hearing: 2 August 2013

Place: Melbourne

Division: FAIR WORK DIVISION

Category: No catchwords

Number of paragraphs: 12

Counsel for the Applicant: The applicant did not appear

Counsel for the Respondent: Mr S Moore

Solicitor for the Respondent: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 401 of 2012

BETWEEN: LAGATH GUNAWARDANE

Applicant

AND: HORMEL FOODS AUSTRALIA PTY LIMITED

Respondent

JUDGE: MARSHALL J DATE OF ORDER: 2 AUGUST 2013 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to rule 5.23(1)(b)(i) of the Federal Court Rules 2011, the proceeding be immediately dismissed for the whole of the relief claimed by the applicant in his originating application dated 5 June 2012 and further amended statement of claim dated 12 March 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 401 of 2012

BETWEEN: LAGATH GUNAWARDANE

Applicant

AND: HORMEL FOODS AUSTRALIA PTY LIMITED

Respondent

JUDGE: MARSHALL J DATE: 2 AUGUST 2013 PLACE: MELBOURNE

REASONS FOR JUDGMENT (Revised from transcript) 1 The applicant filed an application in the Court on 5 June 2012 and a further amended statement of claim on 12 March 2013. 2 The respondent filed this interlocutory application on 18 July 2013 seeking that the proceeding be immediately dismissed for the whole of the relief claimed by the applicant due to the applicant's failure to comply with orders for discovery. 3 The applicant failed to appear to defend the application. The Court was informed by email from the applicant overnight that because of "side effects of [his] medication" he did not intend to appear today. The application was made in his absence. 4 Rule 5.23(1)(b)(i) of the Federal Court Rules 2011 empowers the Court to dismiss the whole or part of a proceeding where an applicant is in default by failing to do an act required to be done, or to do an act in the time required by the Rules, or to comply with an order of the Court. 5 On 14 June 2013, the Court made an order (order 1) which further extended a consent order made by Middleton J on 29 April 2013 requiring discovery by the applicant by 31 May 2013. The effect of the 14 June order was to require the applicant to comply by 15 July 2013. This has not occurred. 6 The Court considered making a "self-executing" order such as, for example, if the applicant has not complied with order 1 of the orders of 14 June 2013 by close of business next Friday, the proceeding would stand dismissed. This would give the applicant, who is self-represented, one final chance to comply with his obligations. However, as the transcript of the directions hearing on 14 June 2013 shows, I made it abundantly clear to the applicant that any further non-compliance with his discovery obligations would lead to an application of this sort, which I would consider favourably, unless he could demonstrate some good reason for his non-compliance. The applicant said he would "definitely comply" by 15 July 2013. 7 The applicant failed to appear today to oppose the application. He has also failed to provide any material opposing the order sought, or medical evidence of his alleged incapacity. He was advised by Registrar Caporale by email on 16 July 2013, that if he wished to place any evidence before the Court at the interlocutory hearing, he could do so by filing and serving an affidavit setting out that evidence. As counsel for the respondent submits, there has been no reliable indication of the applicant's intention to comply with the Court's orders. 8 The applicant has engaged in voluminous correspondence with the respondent's solicitors and the Court. He has generated an extensive document complaining about the respondent's discovery. There is no reason why that time could not have been devoted to complying with a lesser obligation to make discovery. 9 The applicant made an enquiry of the respondent's solicitors about the possibility of extending the current 15 July deadline to 22 July 2013. He has achieved that extension by default, despite the respondent's solicitors insisting on the 15 July deadline, as I was unavailable to hear this application until today. 10 The applicant has had three months in which to comply with his discovery obligations. At this stage, it is clear that the Court's processes are being abused. 11 As indicated above, I gave serious consideration to a self-executing order to give the applicant one last chance to comply before the proceeding stood dismissed. I might have done so, but for being reminded about the warning I gave on 14 June 2013. It would be gratuitous to repeat it. I am also troubled to hear about the effect the applicant's conduct has had on the health and wellbeing of the solicitors acting for the respondent. 12 For all of the above reasons, I made the order set out in the order page accompanying these reasons for judgment. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.