Liu v STEPHEN Grubits and ASSOCIATES

[2017] FCCA 2999

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v STEPHEN GRUBITS & ASSOCIATES [2017] FCCA 2999

Catchwords:
INDUSTRIAL LAW – Fair Work – Dismissal of application on account of the failure of the applicant to appear – dismissal of reinstatement application.

Legislation:

Fair Work Act 2009 (Cth), s.108
Federal Circuit Court Rules 2001 (Cth)

Applicant: YUNLONG LIU

Respondent: STEPHEN GRUBITS & ASSOCIATES

File Number: SYG 1334 of 2017

Judgment of: Judge Driver

Hearing date: 4 December 2017

Delivered at: Sydney

Delivered on: 4 December 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr C Lambert

Solicitors for the Respondent: Michael Green Legal

ORDERS

1. The interlocutory application filed on 22 August 2017 is dismissed.

2. The respondent is granted leave to make any application for costs within 28 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1334 of 2017

YUNLONG LIU

Applicant

And

STEPHEN GRUBITS & ASSOCIATES

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 17 August 2017 I dismissed the principal application made by Mr Liu in this case, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). This was because Mr Liu had failed to appear at a directions hearing listed on that day at 2.15pm.

2. Mr Liu subsequently applied, on 22 August 2017, for the vacation of that order and the reinstatement of his principal application.  He supported that application with what is described as an affidavit, made on 20 August 2017.  That statement was not witnessed but Mr Liu adopted it in the witness box and I have received it.  The reinstatement application is opposed by the respondent (Grubits) in the principal proceedings and it relies upon the affidavit of Michael Green, made earlier today, and a bundle of emails concerning the directions hearing, which I received as an exhibit[1]. 

   [1] Exhibit R2

3. The issue for me to resolve is whether the interests of the administration of justice call for the reinstatement of the principal proceedings.  Within that, the issues are whether Mr Liu has properly explained his failure to attend on 17 August 2017 and whether there would be any point in the reinstatement of proceedings, in view of the legal merit of them. 

4. The circumstances were that Grubits exercised its liberty to apply to seek the directions hearing.  I initially thought that the directions were sought because of a failure to comply with the timetable put in place for the conduct of the proceedings, up to a proposed mediation.  The directions hearing was vacated when it became apparent that Mr Liu had filed a document described as “Points of Claim”.  However, it subsequently became clear that the issue for Grubits was not so much the timetable but the quality of the points of claim that had been filed.  In essence, Grubits asserted an inability to respond to the points of claim because of the state of them. 

5. Mr Liu had earlier provided a medical certificate stating that he was suffering from anxiety and depression and would be unfit for work or study between May and November 2017.  An issue in my mind was whether Mr Liu could usefully prepare any pleading, in view of his asserted medical condition.  This was to be explored at the directions hearing. 

6. While initially the directions were scheduled for the morning of 17 August 2017, that was subsequently varied to the afternoon in order to give me more time to deal with the anticipated issues.  Mr Liu failed to attend on the day and the time scheduled.  He had been given leave to attend by telephone but he proved to be uncontactable on his nominated numbers, despite several attempts. 

7. Strangely, in the course of the attempted conduct of the directions hearing, Mr Liu telephoned the court registry to enquire why he had not been contacted.  In his written statement, Mr Liu suggests that there was confusion over the time of the directions hearing and that he had technical difficulties with his mobile telephone such that it could make calls but not receive them.  In his oral evidence, however, Mr Liu asserted that he was medically unfit to attend any hearing, although he was happy to do so. 

8. The affidavit of Mr Green and the email exchanges[2] establish two things.  First, there was no confusion in anyone’s mind about the time of the directions and, secondly, Mr Liu objected to the directions being conducted at all.  Indeed, he strenuously objected. 

   [2] comprising exhibit R2, as stated at [2] above

9. I am regrettably drawn to the conclusion that Mr Liu has been untruthful in his explanation for his non-attendance.  I do not accept that he was in any uncertainty as to the time of the directions and I do not accept that there was any technical difficulty with his telephone.  He simply decided not to make himself available because he did not accept the need for the directions hearing.  I am, accordingly, not satisfied that Mr Liu has provided an acceptable explanation for his non-attendance. 

10. Even if I had been persuaded that there was an acceptable explanation for Mr Liu’s non-attendance, there would remain the question whether there was any point to the reinstatement of the principal application.  Mr Liu is a litigant in person.  According to his general practitioner, he suffers from anxiety and depression.  My own observation of him is that he is a man struggling to deal with his present circumstances and he blames those circumstances on his former employer.  He is filled with a sense of grievance.  He has put that sense of grievance into these proceedings, but to the point of the dismissal order made on 17 August 2017, the application and its supporting points of claim had not achieved a form to which Grubits could meaningfully respond.

11. In written submissions, Grubits deals with the legal merit of the substantive application.  While I do not accept all of those submissions,[3] I accept the substance of them, namely that the principal application is not a strong one and that the presentation of it, both in this Court and earlier in the Fair Work Commission, has been fraught with many difficulties.  I accept that there are incurable flaws in the application and points of claim.

    [3] In particular, I do not accept Grubit’s interpretation of s.108 of the Fair Work Act 2009 (Cth) in relation to jury service

12. I have no confidence that, if the principal application were reinstated, it would be litigated properly by Mr Liu and that it could lead to a successful outcome for him. 

13. With these considerations in mind, I order that the interlocutory application filed on 22 August 2017 be dismissed.

14. I will give Grubits leave to make any application for costs within 28 days.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  12 December 2017