FEDERAL COURT OF AUSTRALIA Walsh v The Greater Metropolitan Cemeteries Trust [2014] FCA 383 Citation: Walsh v The Greater Metropolitan Cemeteries Trust [2014] FCA 383 Parties: MELINDA WALSH v THE GREATER METROPOLITAN CEMETERIES TRUST File number: VID 674 of 2013 Judge: BROMBERG J Date of judgment: 8 April 2014 Catchwords: PRACTICE AND PROCEDURE – whether hearing of trial should be vacated by reason of applicant's unpreparedness – lack of explanation, prejudice to respondent and case management considerations discussed – application rejected. Legislation: Fair Work Act 2009 (Cth) ss 340(1), 570(1) Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Date of hearing: 8 April 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: Ms R Sion Solicitor for the Applicant: Spicer Lawyers Counsel for the Respondent: Mr T Donaghey Solicitor for the Respondent: Meerkin & Apel IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 674 of 2013 BETWEEN: MELINDA WALSH Applicant AND: THE GREATER METROPOLITAN CEMETERIES TRUST Respondent JUDGE: BROMBERG J DATE OF ORDER: 8 APRIL 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant's application for an adjournment be dismissed. 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 674 of 2013 BETWEEN: MELINDA WALSH Applicant AND: THE GREATER METROPOLITAN CEMETERIES TRUST Respondent JUDGE: BROMBERG J DATE: 8 APRIL 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In this proceeding, the substantive claim of the applicant is that in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the FW Act), she was dismissed from her employment with the respondent including because she had made complaints about her employment. 2 This matter was listed for a three day hearing commencing this morning. When the matter was first called on it was stood down for the purpose of the parties conducting further negotiations. The matter did not settle. 3 On the resumption of the hearing at 12 pm, the applicant made an application that the trial be vacated and relisted in some four to five weeks time. No affidavit material or other evidence was sought to be tendered in support of that application. The applicant's counsel informed the Court that the reason for the adjournment was that the applicant's case was unprepared, including in relation to the evidence of the applicant's witnesses, and also in terms of documents not discovered. 4 The basis for the alleged unpreparedness was that the applicant had a falling out with her former solicitors and was unrepresented for some two weeks prior to engaging her current solicitors in the last few days. The respondent opposed the adjournment contending that its position would be prejudiced if it were to be granted. 5 This matter was listed for a three-day trial by orders made on 19 December 2013. On that day orders were also made for discovery, and for the parties to file and exchange outlines of evidence of the witnesses they intended to call. 6 By reference to the timetable set down by the orders made on 19 December 2013, the applicant should have substantially completed all her necessary preparations for the conduct of the trial by 21 March 2014. At that time, and until about 28 March 2014, the applicant was legally represented. On 28 March 2014, her former solicitors filed a notice advising that their retainer had been terminated. The applicant failed to file and serve the outlines of evidence of her witnesses by 21 March 2014 as she had been required to do. Time was extended by further orders to 2 pm on 28 March 2014. As I understand it, the applicant did by that time file her outlines of evidence. 7 I can well appreciate the difficulty faced by counsel now representing the applicant, who has only had a short time to prepare and who has obviously come to the view that further preparations would assist. I am not, however, prepared to allow the adjournment application. 8 The applicant has not explained why her case was not prepared in accordance with the orders made by the Court and at a time when she was legally represented. Nor has she explained why she did not obtain new legal representation immediately upon terminating the retainer of her previous solicitor. She has not provided any explanations as to why an adjournment application was not made at an earlier time. In the absence of any, or any proper explanation, I can only presume that the difficulties now said to be faced by the applicant are substantially of her own making. 9 If an adjournment was granted, the respondent would suffer prejudice. The respondent's witnesses have been brought to Court, it has its counsel and it is ready to proceed. The respondent would no doubt incur substantial legal costs by reason of any adjournment. No offer was made by the applicant to pay those costs. Any application by the respondent that the applicant pay its costs thrown away would be faced with the hurdle set by s 570(1) of the FW Act, although, in the circumstances, that hurdle may not be insurmountable. 10 Furthermore, the fact that this hearing has been set down for the next three days has precluded other litigants having their matters heard on those days. It would be impossible now for the Court to accommodate other litigants and usefully use those hearing days to deal with the matters that the Court has awaiting a hearing. The High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 makes it clear that case management considerations and the proper use of court resources, including the interests of litigants generally in the efficient workings of the Court, are germane to the exercise of my discretion in an application such as this. I refer to and rely in particular upon the judgments of French CJ at [5], [6], [30] and [35], and the judgments of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92] to [103] and also at [111] to [113]. Case management considerations weigh against the vacation of the hearing. 11 Finally, I also take into account that in an attempt to ameliorate some of the difficulties said to be faced by the applicant, the respondent has offered to call its witnesses first. The applicant accepts that she would be somewhat assisted by that approach. 12 For those reasons, the applicant's application that the trial be vacated is rejected. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 16 April 2014