Abrahams v Qantas Airways Ltd
[2007] FMCA 634
•19 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABRAHAMS v QANTAS AIRWAYS LTD | [2007] FMCA 634 |
| INDUSTRIAL LAW – Unlawful termination – physical disability – inherent reasons exception. PRACTICE AND PROCEDURE – Extension of time to file affidavits – whether circumstances exceptional, unusual, unanticipated – prejudice – significant and potentially fatal prejudice to Respondent. |
| Federal Magistrates Act 1999 (Cth), ss.3 and 42 Federal Magistrates Court Rules, 2001 (Cth), rr.1.03 and 3.05 Workplace Relations Act, 1996 (Cth), ss.659(2)(f) & (3), and 664 |
| Caboolture Park Shopping Centre (In Liquidation) v White Industries (Queensland) Pty Ltd (1993) 45 FCR 224 Cosma v Qantas Airways Ltd [2002] FCA 640 Cosma v Qantas Airways Ltd [2002] FCAFC 425 Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Hollingdale v North Coast Area Health Service [2006] FMCA 5 Laz v Downer Group Ltd [2000] FCA 1390 Queensland v JL Holdings (1997) 189 CLR 146 Mahmoud v Owners Corporation Strata Plan 811[No 2] [2006] FMCA 1711 Mahmoud v Owners Corporation Strata Plan No 811 [2007] FMCA 131 Wiggins v Department of Defence [2006] FMCA 800 |
| Applicant: | KEVIN PATRICK ABRAHAMS |
| Respondent: | QANTAS AIRWAYS LTD |
| File number: | PEG 324 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 April 2007 |
| Date of last submission: | 19 April 2007 |
| Delivered at: | Perth |
| Delivered on: | 19 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Grinceri |
| Solicitors for the Applicant: | Taylor Smart |
| Counsel for the Respondent: | Mr J. Blackburn |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The letter from the Respondent’s solicitors to the Court dated 16 April 2007 seeking an extension of time to file the Respondent’s affidavits and to amend the Orders of the Court made on the 17 January 2007, be treated as the Application.
Order 4 of the orders made on 17 January 2007 be varied by deleting the date ‘16 April 2007’ and inserting the time and date ’12.00 pm
23 April 2007’.
That by no later than close of business 21 days prior to the hearing, each party will, by notice in writing to the other party, specify the documents he or it intends to tender at the hearing.
That by no later than close of business 14 days prior to the hearing, each party will advise the other party in writing which of the documents intended to be tendered by the other party may be tendered with consent and in respect of those for which consent is not given, why consent to tender is withheld.
That by no later than close of business 7 days prior to the hearing, the Applicant will deliver to the Respondent a copy of each document intended to be tendered at the hearing for the purposes of compiling the bundle of documents to be tendered at trial.
That by no later than close of business 3 working days prior to the hearing the Respondent will deliver to the Court, and to the Applicant an indexed and paginated bundle of copies of documents intended to be tendered at trial by the parties. The index will indicate the identity of the party who intends to tender each document and which documents are tendered by consent.
Order 9 of the orders made on 17 January 2007 be varied by deleting ‘10.15 am’ and inserting ‘9.00 am’.
Costs reserved, and argument on costs be adjourned to a date to be fixed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 324 of 2006
| KEVIN PATRICK ABRAHAMS |
Applicant
And
| QANTAS AIRWAYS LTD |
Respondent
REASONS FOR JUDGMENT
(revised from Transcript)
The substantive application is under section 659 of the Workplace Relations Act 1996 (Cth) (“WR Act”) alleging unlawful termination in this matter, seemingly on the basis of physical disability: WR Act, s.659(2)(f). In January 2007 orders were made by consent including liberty to apply generally and liberty to apply with respect to discovery and inspection of documents.
Pursuant to the orders made by the Court and entered on 17 January 2007, the Applicant filed an amended Application and affidavit respectively on 1 February 2007 and 30 January 2007. A Response was filed by the Respondent on 19 February 2007 in accordance with the Court's orders together with an affidavit of Ms McConnell. On 19 March 2007, the Applicant filed a further affidavit from Mr Murphy.
On 16 April 2007, at about 4.18pm the Respondent's solicitors faxed a letter to the registry of the Court. That letter is relatively brief in its form and relevantly sought, "The Court's consent to amend the [January 2007] orders" and went on further to indicate that, amongst other things, it sought an extension of time for filing of the Respondent's affidavits.
16 April 2007 was the day on which the Respondent's affidavits were otherwise due to be filed. The Court understands that an affidavit of Ms Storen was endeavoured to be filed by the Respondent on 18 April 2007 and was rejected by the registry of the Court, but an undertaking has been given that the original of that affidavit will be filed, and the Applicant now has no objection to the filing of that particular affidavit.
The application to extend time is one which the Court has the power to grant under the Federal Magistrates Court Rules, 2001 (Cth) (“FMC Rules”), rule 3.05. The letter of 16 April 2007 attaches no formal application, although as indicated to Counsel in the course of argument, the Court will treat that letter as an Application. There is no affidavit evidencing any reason, any explanation or any prejudice to the Respondent arising from any particular circumstances, or any reason why affidavits have not been filed. That position pertains three days later. Counsel for the Respondent, when that matter was raised with him, suggested that he might seek an adjournment to obtain that evidence.
The Court has to say that that position is extraordinarily unsatisfactory given that there is a national company before the Court represented by a national law firm in circumstances where three months has been allowed for the filing of affidavits in what does not appear to be an overly complex factual case. The Applicant says that he was terminated because he was told by the Respondent that he could not do the job of an ASO (Airlines Services Operator), and that the termination was on the basis of medical unfitness. The Respondent, via McConnell's affidavit, says much or exactly the same thing. The Applicant now seems to say that he can do the job or part of it or parts of the job or the particular position that others are allowed to do. It does not appear to be a document rich case, and the real issue, as properly identified by Counsel for the Respondent appears to be whether or not the Applicant can fulfil the inherent requirements of the position, that being a matter adverted in section 659(3) of the WR Act as an exception to the proscribed grounds for unlawful termination.
There is nothing in the affidavits presently filed which would indicate that the circumstances of this case are exceptional, unusual or ought be unanticipated by the Respondent. Indeed, Counsel for the Respondent referred in the course of argument in respect of another application (the Applicant’s discovery application simultaneously argued) to a case involving the Respondent (which went on appeal to the Full Court of the Federal Court from a single judge) which, on Counsel's submissions, appears to be on all fours with the present circumstances: Cosma v Qantas Airways Ltd [2002] FCA 640; Cosma v Qantas Airways Ltd [2002] FCAFC 425. As such, there is no warrant for any delay in the filing of affidavits, and arguably an extension of time ought not be granted. Unsurprisingly in the circumstance, the Applicant objects to the extension of time for the filing of affidavits.
The Court's task is to manage the cases in its list in accordance with modern principles of case management. That means that they have to be tailored to the objects and rules of the Court as set out in s.42 of the Federal Magistrates Act 1999 (Cth) (“FM Act”), and r.1.03 of the FMC Rules, and that the Court must have regard to the prejudice suffered by all the parties. There is, therefore, a question of balance to be achieved. The object at the end of the day is to afford justice to and balance the prejudice involved for all parties. Considerations of case management ought not be allowed to override manifest prejudice to a party: see The State of Queensland v JL Holdings (1997) 189 CLR 146 at 154-155 per Dawson, Gaudron and McHugh JJ and 166 per Kirby J; and also Mahmoud v Owners Corporation Strata Plan 811 [No. 2] [2006] FMCA 1711 at 7 per Lucev FM.
The problem here, of course, is that there is simply no evidence as to why nothing was done, why there has been a delay or what the prejudice is. It would therefore be very easy for the Court to dismiss the application for an extension of time for filing of affidavits and for the Court to say that the Respondent was the author of its own misfortune.
It would however be, as indicated to both Counsel in the course of argument, a very grave misfortune indeed, given the provisions of s.664 of the WR Act, which provides that it is not necessary for the employee, who is the Applicant in this case, to prove that the termination was for a proscribed reason. Section 664 and its consequences make it all the more surprising in the circumstances that the Respondent has not filed any affidavit evidence to date other than that of McConnell. A predecessor of s.664, namely s.170CQ of the WR Act as it then stood, was discussed in this respect by the Federal Court of Australia in Laz v Downer Group Ltd [2000] FCA 1390 at para.26, where Moore J had this to say:
The only authority of which I am aware which deals specifically with the operation of s 170CQ is the judgment of Finn J in Boyce v William and Suzanne Leggett T/A Baker Bill's Fine Pies (Federal Court of Australia, unreported, 12 December 1997). In that matter the applicant alleged that her employment had been terminated because of her pregnancy in contravention of s 170CK(2)(f). His Honour said:
It is rightly accepted that in consequence of her (the applicant) raising a s 170CK ground in this proceeding, she is not obliged to prove that the termination was for a proscribed reason. Rather it is a defence if the respondent proves that the termination was for a reason or reasons that do not include a proscribed reason: the Act s 170CQ
In my opinion an applicant alleging termination in contravention of s 170CK(2) will succeed in the application unless the employer establishes a defence by proving that the alleged reason was not the reason or one of the reasons for the termination. Perhaps it can be put in terms that though the applicant must prove on the balance of probabilities each element of the contravention, s 170CQ enables the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 and 501 where Wilcox and Cooper JJ refer to R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507. The success of the application does not depend on the Court being satisfied, other than by reference to the allegation of the applicant, that the termination was for a proscribed reason (or one reason was a proscribed reason) if the employer fails to made good its defence.
The effect of the refusal of an extension of time for the filing of the affidavits might well be to leave the Respondents defenceless to the application. Neither party should draw from the view just expressed any conclusions as to the Court's view as to the admissibility of the affidavits which have been presently filed. If that is to be an issue, it is an issue for another day. Only because of the prejudice and the very significant and potentially fatal prejudice to the Respondent, will the Court consider the application for an extension of time for filing of affidavits.
Otherwise, the lack of a reasonable explanation and evidence of other prejudice would not warrant the extension of time and the conduct of the Respondent is not deserving of the approbation of this Court. To effectively roll up and expect an extension of time in circumstances where no affidavit has been filed explaining the reasons for the delay is unsatisfactory. Nevertheless it does seem that the ultimate prejudice to the Respondent outweighs those other considerations which ordinarily might not lead to the granting of an extension of time.
The Court is therefore prepared (but very reluctantly so in the circumstances) to extend time for filing of the Respondent's affidavits. The Respondent has already had the period prescribed in the orders of 17 January 2007, that is three months and a further period of three days since the application was made. Counsel for the Respondent assures me that the affidavits are effectively well underway, as one would expect: his words were that they were "well advanced".
In those circumstances the Court is not prepared, absent any evidence of a cogent explanation underpinned by evidence, to give an additional eight days for filing of affidavits.
In the circumstances time will be extended to noon on 23 April 2007 and no further.
The Respondent's application also seeks to add and/or vary to the orders previously made by the Court by consent, and as indicated, those orders did allow for liberty to apply generally and specifically with respect to discovery and inspection.
It is now five weeks out from the hearing and three months after those original orders were made. The Respondent now seeks an array of further directions particularly directed to the Court dealing with objections to admissibility, the attendance of witnesses for cross-examination and the notification by the parties as to witnesses for cross-examination or otherwise and the standing of affidavits as evidence-in-chief. Counsel for the Applicant makes a good point when he says that making orders with respect to those issues in circumstances where the Applicant has already filed affidavits in compliance with the orders of the Court their affidavits would be unfair.
There are further orders sought, specifically orders 9, 10, 11 and 12 (and order 11 to be amended as indicated by the Respondent's Counsel in argument) dealing with documents to be made available and submission of bundles of documents for the hearing. No objection is taken to those orders. Those orders will be made by consent.
With respect to the other orders sought, the Court notes that this is a case where the Applicant has filed two affidavits. The Applicant's own affidavit of six pages plus a two-page annexure, being the letter of termination from the Respondent dated 4 July 2006, and in which affidavit the Applicant describes in fairly straightforward terms his work, an accident, his medical conditions and termination. A further affidavit was filed a little over a month ago from Mr Murphy. That is of six pages, no annexures and purports to describe the duties of ASOs at the Perth Airport.
The Respondent has filed a four-page affidavit from McConnell, together with two two-page annexures, one being the termination letter and a letter which preceded that. Counsel for the Respondent indicated today that there are a further four affidavits sought to be filed together with their annexures. A request of this type has to be considered in the context of:
a)the FM Act and the FMC Rules; and
b)the nature of the litigation.
In relation to the FM Act and the FMC Rules, s.42 of the FM Act provides that the Court:
Must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
Section 3 deals with the objects of the FM Act and provides that the objects of the FM Act include the following:
a)to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
b)to enable the Federal Magistrates Court to use streamlined procedures.
Rule 1.03 of the FMC Rules deals with the objects of the FMC Rules and provides as follows:
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
· to operate as informally as possible
· to use streamlined processes
· to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court the parties must:
• avoid undue delay, expense and technicality
• consider options for primary dispute resolution as early as possible
In Mahmoud v Owners Corporation Strata Plan No 811 [2007] FMCA 131 at para.21 per Lucev FM the Court said:
Ultimately the Court's objective is the attainment of justice. The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. In the proper exercise of the judicial power under Chapter III of the Constitution, Chapter III Courts quell controversy: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at page 158 per Rares J.
The Court repeats what it said in Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at para.21 per Lucev FM:
Reading together the objects of the FM Act in section 3, the mode of operation in section 42 and having regard to the objects of the FMC Rules and rule 1.03 it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlinde procedures; and
(e) avoids undue delay, expense and technicality.
The orders proposed, other than those consented to (and even then, doubtfully) do not accord with the objects of the FM Act and the FMC Rules in the context of this particular litigation. They are overly technical, not necessarily streamlined in the context of this litigation, and simply involve the parties in additional time and expense. They are not particularly appropriate to a two day case on unlawful termination in the lowest level Federal Court where the relevant facts and circumstances are within what seems to be a relatively short compass. They might be appropriate to larger and more complex unlawful termination or discrimination cases in this Court and the Court refers in that regard to Wiggins v Department of Defence [2006] FMCA 800 and Hollingdale v North Coast Area Health Service [2006] FMCA 5 or to some of the trade practices or copyright cases of some complexity that come before the Court.
Although it was said in the context of a Full Court Federal Court appeal, the Court takes the view that adapted to a hearing environment in a lower level Federal Court there is much to be said for the view expressed by the Full Court in Caboolture Park Shopping Centre (In Liquidation) v White Industries (Queensland) Pty Ltd (1993) 45 FCR 224 at 236 where the Court said:
We add one further comment. On the application for leave to appeal brought by White, two volumes of appeal book were prepared comprising in all 1015 pages. It was unnecessary to refer to anything in the appeal book other than perhaps the reasons for judgment of the trial judge, the orders made by him and the notice of appeal. There is a tendency on the part of litigants to include in an appeal book every possible document no matter how irrelevant it might be.
Then this and I quote:
The result is a waste of money and resources.
The orders sought with respect to affidavits and witnesses in this Court are a waste, or would be a waste of time, money and resources, not only for the Respondent and the Applicant but also for the Court. The parties are professionally represented and Counsel and instructing solicitors have professional duties and obligations to the Court and to their clients. In the context of a case where the evidence, assuming admissibility, is not that great even allowing for the further four affidavits and annexures to be filed by the Respondent, the Court, as it indicated during argument, would be dismayed if the parties could not agree between themselves prior to hearing, for example, which witnesses are required for cross-examination and whether it is necessary (and the Court adds, absolutely necessary) that any witness required would be required to give oral evidence-in-chief in addition to their affidavit evidence.
In a short and simple case of this type the proper exercise of judicial power in regard to the FM Act and the FMC Rules and the professional duties and obligations of the parties does not require long and convoluted pre-hearing orders of the type sought.
In those circumstances, the orders sought other than those by consent, that is, orders 9, 10, 11 as amended and 12 of the minute of proposed order filed by the Respondent, will not be granted and the application other than to the extent indicated in these reasons for judgment will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Jacky Semler
Date: 27 April 2007
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