Adamczak v Alsco Pty Ltd (No.3)

[2018] FCCA 1343

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMCZAK v ALSCO PTY LTD (No.3) [2018] FCCA 1343

Catchwords:
INDUSTRIAL LAW – Application to re-open case following completion of evidence and submissions – application opposed – interests of justice – exceptional circumstances – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999, s.3(2)

Cases cited:
Autodesk Incorporated v Dyason (No.2) (1993) 176 CLR 300

Applicant: GEORGE ADAMCZAK

Respondent: ALSCO PTY LTD

File Number: ADG 379 of 2014

Judgment of: Judge Brown

Hearing date: 17 May 2018

Date of Last Submission: 17 May 2018

Delivered at: Adelaide

Delivered on: 25 May 2018

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Not Applicable

Counsel for the Respondent: Ms Stewart

Solicitors for the Respondent: Alsco Pty Ltd

ORDERS

1. The application filed 6 April 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 379 of 2014

GEORGE ADAMCZAK

Applicant

And

ALSCO PTY LTD

Respondent

SUPPLEMENTARY REASONS FOR JUDGMENT

1. These supplementary reasons are necessary because Mr Adamczak has filed a further application in a case in which he seeks to adduce further evidence.  The application is opposed by Alsco.  Accordingly, the application must be disposed of before the substantive proceedings can be concluded. 

2. In these circumstances, for obvious reasons, Mr Adamczak’s application has delayed the publication of the substantive judgment in the matter.  For the reasons that follow, I propose to dismiss the application in a case.  Accordingly, the main judgment can also be published concurrently with these supplementary reasons. 

3. I will also provide the reasons, orally delivered on 14 December 2017, in which I declined to grant Mr Adamczak’s application to adjourn the proceedings.  These reasons have been transcribed at the request of the solicitors for Alsco.

4. Mr Adamczak’s application in a case was filed on 6 April 2018.  This was some weeks after Mr Adamczak made his closing submissions, in the case, on 2 February 2018.  On this occasion, the court reserved its judgment. 

5. Mr Adamczak’s further application was listed before the court on 17 May 2018.  In the application, he seeks to reopen his case and submit additional evidence, for the court’s consideration, which goes to two main issues, which can be summarised as follows:

   ·Correspondence between his various solicitors and him and subsequently Alsco’s solicitors regarding the production of documents and the calling of witnesses, which he asserts is necessary for the court to consider in order to gauge the long standing nature of his desire to put his case on a different basis;

   ·His application to obtain computer records, regarding the backing up of emails originating with him on Alsco’s computer system, which he asserts the interests of justice dictate be provided to him.

6. In my view, these issues are inextricably tied up with Mr Adamczak’s major complaint about the conduct of these proceedings to date, which he is consistently voiced throughout.  His complaint is that the proceedings were not adjourned shortly prior to the commencement, as he sought.  Rather, the case proceeded on the basis of the documents, which had been prepared by his former solicitors.

7. For reasons previously provided, I did not consider that it was in the overall interests of justice that the proceedings in question, which had been listed for final hearing on three prior occasions, should be further delayed.

8. I accept that Mr Adamczak remains convinced that this decision wreaked a grievous injustice upon him.  However, the decision having been made, it is beyond my power to revoke it retrospectively.  In addition, in my view, Alsco is entitled, as indeed is Mr Adamczak, to know what the decision of the court is, on the basis of the evidence provided to it, at final hearing, in December of last year.

9. Mr Adamczak has provided emails passing between him and his initial solicitor, Mr Johns, the last of which is dated 13 September 2016.  In that letter Mr Johns writes to Mr Adamczak in the following terms:

   “George, I think its best that discovery requests are made at the one time and in the circumstances best to be made on your behalf by Starke.”

10. From this email, it is apparent that, from Mr Adamczak’s perspective, issues relating to discovery have been contentious for a significant period of time.  The name “Starke” is a reference to Mr Adamczak’s second solicitor, who acted for him until a few weeks prior to the date scheduled for the ultimate hearing of Mr Adamczak’s application. 

11. Mr Adamczak has chosen to provide me with emails between him and Mr Starke in 2016, in which Mr Adamczak indicates his desire to pursue what he categorises as urgent discovery and call twenty witnesses, on his behalf. 

12. Mr Starke did not elect to file affidavits from the proposed witnesses nominated by Mr Adamczak.  I can only assume that these witnesses were not called upon because of forensic decisions made by Mr Starke, in conjunction with Mr Adamczak, regarding their relevance to the issue pleaded by Mr Adamczak in his statement of claim.

13. It is not my function to ascertain whether this is so or not and more particularly determine whether Mr Adamczak agreed with the decision, at the time at which it was made or has subsequently resiled from it.  However, it would appear to be the case that Mr Adamczak currently does not agree with the decision and wishes to revisit it.

14. During the hearing, I pointed out to Mr Adamczak that it was not my function to perform a roving inquiry into what he perceived to be the failings of Alsco as an employer generally.  Rather, the focus of the hearing before me was on the reason or reasons why Alsco took adverse action against him in terminating his employment with the firm. 

15. It is not the function of this court to inquire as to whether Mr Starke has failed to follow Mr Adamczak’s instructions in respect of issues to do with discovery or otherwise in regards to the management of his case.  The fact remains that the court was told the proceeding were ready to proceed, in October of 2017, on the basis that Mr Adamczak, his wife and treating doctor would be the only witnesses for the applicant. 

16. The October hearing did not proceed because of the death of Mr Manuel’s mother.  Mr Manuel had been Mr Adamczak’s counsel throughout the proceedings and had apparently retained his confidence until shortly prior to the dates scheduled for the trial in December 2017.  Indeed, Mr Adamczak told me that, if Mr Manuel had appeared on his behalf, he would have been content to take his advice as to the management of the case, including who were to be the witnesses called on his behalf. 

17. In addition, at an early stage of the proceedings, on 3 November 2016, the following order was made:

    “The matter be listed in relation to objections to evidence and discovery on 16 March 2017 at 10:00am NOTING one day allowed.”

    Concurrently with this order, the matter was also fixed for final hearing on 7 to 11 August 2017.

18. Accordingly, the court provided the parties with an opportunity to ventilate any outstanding issues in respect of discovery, well in advance of the dates scheduled for trial.  The parties elected not to avail themselves of this opportunity.

19. On 15 March 2017, Ms Stewart, junior counsel for Alsco wrote to the court in the following terms:

    “I refer to the argument listed for tomorrow morning in this matter to deal with the issues of objections to evidence as well as the Applicant’s request to lead evidence from a number of additional witnesses and for the Respondent to make additional discovery.

    I confirm that I have met with Mr Manuel today to discuss all of these issues and Mr Manuel has informed me that the Applicant no longer seeks to lead additional evidence and no longer presses the additional discovery sought.  The Applicant has requested discovery of one additional item which can be dealt with by way of correspondence between the parties.”

20. Prior to this email, the parties had disclosed correspondence passing between them regarding the possible addition of witnesses and discovery issues.  In my view, it is the clear import of the above quoted email that these issues had been resolved between the parties and were therefore no longer contentious. 

21. As a consequence, in my view, in March of 2017 those advising Mr Adamczak and with his apparent acquiescence had settled upon the forensic manner in which he would present his case for the scheduled trial in August 2017.   No other interlocutory applications were filed.

22. In these circumstances, in my view, there is no substance to Mr Adamczak’s criticism that Alsco has failed to discharge its obligation to disclose relevant documents to Mr Adamczak.  To the contrary, the evidence indicates that the production of documents had been consensually resolved between the parties. 

23. Certainly, Mr Adamczak is not in a position to point to any particularised order of the court, which has been breached by Alsco, in respect of any formal failure, on its part, to provide documents sought by way of discovery.  At the very least, the only conclusion, which can be drawn from Ms Stewart’s email, is that the matter was ready to proceed to final hearing, in the following August, on the basis of the material then filed.

24. Mr Adamczak also complains that he has not been provided with copies of emails, addressed to members of Alsco’s Adelaide management team, which originated from his home computer.  It being his position that such emails will significantly weaken Alsco’s case that his termination related to the misuse of its electronic mail facilities or that he did anything untoward in respect of them. 

25. This was an issue which Mr Adamczak pursued, during the December hearing, with various members of the Adelaide branch, who had no strong memories of the provenance of emails, including the minutes of regular management meetings, prepared by Mr Adamczak and sent from his home. 

26. In my view, the evidence indicates that there is no great controversy that Mr Adamczak did work from home, from time to time.  Notwithstanding the fact that this was a practice of which Ms Whitelaw, in particular, disapproved.  It being her position that Mr Adamczak’s duties were not so onerous as to be incapable of completion in regular office hours. 

27. In any event, in my estimation, the issue is not one of particular relevance to the central issue in the case which was – why was Mr Adamczak terminated.  In my view, the evidence is clear that he was not terminated because he was working from home. 

28. Rather, in my view, for reasons which I have provided in the substantive judgment, Mr Adamczak was terminated, by Alsco, because Mr Hicken had formed the view that he (Mr Adamczak) had breached Alsco’s confidentiality by sending emails, belonging to Alsco, to his home email address and then sending those emails on to third parties, unrelated to Alsco. 

29. In this context, the evidence is unequivocal that Mr Adamczak has been provided with copies of the relevant emails, which were annexed to Ms Freeman’s affidavit.  Mr Moses elected to cross-examine about some of these emails. 

30. I am satisfied that Mr Adamczak also had an opportunity to cross-examine the relevant witnesses from Alsco’s management team, regarding the nature of these emails, particularly his current position that they should be regarded as being anodyne in nature.

31. During the hearing, Mr Adamczak denied the existence of the emails in question or that he had inappropriately dealt with them in any way whatsoever, even if they did exist.  As indicated in the substantive reasons for judgment, I have reason to doubt Mr Adamczaks’s overall credibility.  As I said in the substantive judgment, I consider Ms Freeman to be the more reliable witness in terms of what she told Alsco’s IT manager and what she herself observed of Mr Adamczak’s email account with her own eyes.

32. In this context, Mr Adamczak places significant weight on the alleged failure of Alsco to supply technical evidence to corroborate Ms Freeman’s oral and written evidence, which I found to be credible.  In the absence of the technical evidence, it is Mr Adamczak’s position that I should disbelieve Ms Freeman.  This, in effect is why he wishes leave to re-open his case.

33. In his most recent affidavit, he deposes as follows:

    “The request for IT records of the applicant’s email account showing the existence of circa 350 emails in the applicant’s Outbox from the respondent’s daily IT system back ups would have proven or disproven the existence of these emails, but these records were never provided so a clear inference can be made from the refusal to provide these records.”[1]

    [1]  See affidavit of Mr Adamczak filed 6 April 2018 at [6]

34. I do not accept that any such inference can be drawn in the circumstances of this case.  In addition, I do not consider that it would be fair to Alsco to allow Mr Adamczak to re-open his case on this basis.  In my view, he has been given an ample opportunity to agitate this issue and no useful purpose would be served to allow his re-visit it.

35. As indicated above, the emails to which Alsco took exception were attached to Ms Freeman’s affidavit.[2]  Accordingly, I am satisfied they were provided to Mr Adamczak, well in advance of the hearing.  Whether he chose to read them is beside the point.  He was provided with them, via his former solicitor, in mid-2016.

    [2]  See exhibit AF to Ms Freeman’s affidavit filed 16 June 2016

36. In her affidavit, Ms Freeman has also indicated how she came to become aware of those emails.  I do not propose to revisit this evidence, which is detailed in the substantive decision.  She also deposed that she arranged for Alsco’s IT network administration team leader, Colin MacDonald to back up these emails.  This evidence is supported by contemporaneous documents.[3]

    [3]  Ibid at AF15

37. As I understand Mr Adamczak’s complaint, it is that he has not been provided with the technical records, which support this evidence and therefore some form of adverse inference should be drawn against Alsco.  The difficulty with his assertion is that, firstly it was not formally raised with the court by his former legal advisors; secondly, he has not sought to subpoena these records.

38. In comments made to the court, prior to the giving of his evidence, Mr Adamczak disputed the existence of the 360-odd emails said to have been found in his outbox, whilst he was away from work.  In this context, Mr Adamczak said as follows:

    “I wanted the IT records from Alsco’s daily backup of their database that shows, to any reasonable person, the existence of these 360-odd emails that they claim they found in my outbox within two days of me being off work.  That’s a very simple request, and that will be the – if they can find that.  I also requested the IT delete log records and the data entry records.  I mean, Ms Freeman and I met on 30 July.  I said, “Well, I don’t believe there are any emails on my outbox.  Let’s go and have a look in my office.”  We did that.  They weren’t there.  Ms Freeman responded, “But they were there before.”[4]

    [4]  Transcript at page 6

39. There is no dispute that during the crucial meeting of 30 July, Ms Freeman could not find the emails on Mr Adamczak’s computer.  For reasons already provided, that does not mean that the emails did not in fact ever exist.  I accept Ms Freeman’s evidence that she did see the emails, when she accessed Mr Adamczak’s office email account, without his knowledge.

40. How can it be otherwise given her direction to Mr MacDonald, regarding the backing up of the emails in question and the resulting evidence of all the senior Alsco management, from Mr Hickin down, that they viewed the emails, in Alsco’s Sydney boardroom, on an overhead projector.    

41. It is Alsco’s position that in some manner or other Mr Adamczak clandestinely deleted the emails, after Ms Freeman had arranged for them to be duplicated.  I accept this evidence.  Mr Adamczak does not and claims his position is supported by the absence of the technical records.

42. In my view, Mr Adamczak was given an opportunity to agitate this issue during the hearing.  I remain satisfied that the emails in question do exist and have been provided to Mr Adamczak.  I reach this conclusion on the basis of my finding in respect of the probity of Ms Freeman’s evidence regarding the existence of the emails, when she accessed them on 28 July 2014 and their apparent subsequent disappearance when she interviewed Mr Adamczak, in Adelaide, on 30 July 2014, which disappearance I accept was not due to any agency on her part. 

43. At the outset of the hearing, I indicated to Mr Adamczak that he was at liberty to cross-examine Alsco’s witnesses about the IT records and, if he considered it appropriate, make any submissions to the court, regarding possible inferences to be drawn, arising from their non-production.  He did not do so. 

44. In all these circumstances, I am satisfied that Mr Adamczak wishes to reopen his case in order to re-agitate an issue, which he has previously raised and which he was liberty to pursue at trial, as he considered appropriate. 

45. In these circumstances, I do not consider it will be in the interests of justice for the case to be re-opened. In my view, such a course would serve no useful purpose. Further it would be contrary to the principles of this court set out in section 3(2) of the Federal Circuit Court of Australia Act 1999 to provide expeditious justice.  In my view, it is in the interests of justice, that these proceedings be concluded. 

46. I am satisfied that Mr Adamczak, although unrepresented at the hearing, was given an opportunity to present his case.  As such, there are no exceptional circumstances, which exist to allow him to further supplement his case and submissions.[5]

    [5]  See Autodesk Incorporated v Dyason (No2) (1993) 176 CLR 300 at 302 per Mason CJ

47. In these circumstances, I have reached the conclusion that Mr Adamczak’s application to reopen his case should be dismissed.  For all these reasons, the order of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         25 May 2018