Application by Peter Farac

[2021] FWC 5971

[2021] FWC 5971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Application by Peter Farac
(AB2020/469)

DEPUTY PRESIDENT BULL SYDNEY, 7 OCTOBER 2021

Application to use documents filed in the Fair Work Commission bullying matter in Federal Circuit and Family Court general protection claim proceedings – Consideration of whether special circumstances exist for release of implied undertaking re confidential material.

[1] In this matter, the applicant, Mr Peter Farac, a Portfolio Manager employed at Pendal Group Ltd (Pendal) claimed that he had been bullied at work pursuant to s.789FD of the Fair Work Act2009 (the Act) and sought orders to prevent the bullying from continuing.

[2] On 13 August 2021, prior to the Commission’s decision being handed down, the applicant’s legal representative Kennedys (Australasia) Pty Ltd (Kennedys) filed a Form F1 Application (the application) seeking orders from the Fair Work Commission (the Commission) that the parties (and their legal representatives) to the bullying application in the Commission are authorised to use documents filed with the Commission in the course of the bullying application in separate Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia 1) (FCFCA) general protection proceedings.

[3] The application was accompanied by an affidavit of Mr Justin Le Blond, a partner of Kennedys, setting out additional background information related to the application.

[4] The application requests that the following order be made by the Commission:

“The parties to the Fair Work Commission proceedings AB2020/469 (FWC Proceedings) are authorised to use the following documents:

a. All documents filed and served in the FWC Proceedings (including but not limited to the pleadings, witness statements and written submissions);

b. the documents produced in response to the order for production made by Deputy President Bull on 23 November 2020; and

c. the transcripts of the hearings held before Deputy President Bull on 14 December 2020, 15 December 2020, 9 February 2021, 28 April 2021 and 25 May 2021,

(collectively the FWC Documents),

by way of the parties and their legal representatives using the FWC Documents in the conduct of the proceedings in the Federal Circuit Court of Australia Peter Adam Farac v Pendal Group Limited (ACN 126 385 822) & Richard Brandweiner (Proceedings Number: SYG2443/2020) (FCCA Proceedings), including by adducing evidence in the FCCA Proceedings.”

(the Documents)

[5] On 17 August 2021, MinterEllison, on behalf of the respondents, wrote to the Commission opposing the application. 2

[6] Later that day (17 August 2021), the Commission handed down its findings on the bullying application of Mr Farac which resulted in his application being dismissed. 3

[7] On 26 August 2021, a Commission directed telephone conference was held to confirm whether the applicant still wished to pursue the application for the Commission to order that certain documents produced in the bullying matter be allowed to be used in separate proceedings in the FCFCA, in light of the bullying decision having been handed down. During the conference, Kennedys advised that they wished to consider their position and would notify the Commission in a weeks’ time.

[8] On 16 September 2021, Kennedys on behalf of Mr Farac, wrote to the Commission requesting that the application be determined solely on the contents of the application it had filed and that it did not intend to make any further submissions or rely on any other materials. 4

[9] On 21 September 2021, MinterEllison advised the Commission that it was content for the Commission to determine the application on the papers and rely on its earlier correspondence of 17 August 2021, as well matters it raised at the telephone conference before the Commission on 26 August 2021.

The Application

[10] In setting out the grounds upon which the order was sought, Kennedys submitted that:

•  Section 598 of the Act provides that, in performing its functions of exercising its powers, the Commission must take into account the objects specified under section 3 of the Act.

•  The order sought is in accordance with the object specified in section 3(e) of the Act, which is to provide accessible and effective procedures to resolve grievances and disputes.

•  The order would permit the Applicant, First Respondent and Mr Brandweiner (who are the parties to the FCFCA Proceedings) to make use of documents and transcripts from this proceeding in closely related proceedings in the FCFCA.

•  The Proposed Order would maintain the substance of the protection provided by the present confidentiality order by not permitting any use other than in conduct of the FCFCA Proceedings and not permitting any disclosure except by adducing evidence. If any of the documents are adduced in evidence, the FCFCA would have a power at that point to make a suppression order if the provisions of Part 6A of the Federal Circuit of Australia Act 1999 are satisfied.

•  In circumstances where the FCFCA Proceedings did not settle at mediation and the Court has directed that the parties prepare and file their evidence, the Proposed Order would merely extend the order made by the FWC (by consent) permitting use of the FWC Materials in the recent mediation to use in the conduct of the contested proceeding. 5

[11] Mr Le Blond’s affidavit stated that there was a significant overlap between the factual matters heard in the Commission proceedings (including evidence provided in witness statements and the cross-examination of witnesses) and the factual allegations in the FCFCA proceedings, and because of the overlapping issues, large parts of the Commission material produced in the bullying matter, if available, could be deployed by Mr Farac efficiently to articulate in his affidavit evidence, the case he is to make in the FCFCA proceedings. 6

[12] It was stated by Mr Le Blond that Mr Farac has taken the view that seeking the proposed order is:

(a) in his interests by reducing the costs he will incur in preparation of his evidence in the FCFCA Proceedings;

(b) protective of the interests of Pendal, Mr Gor and himself by ensuring that any permission to use the FWC materials is limited to the conduct of the FCFCA Proceedings and by ensuring that there is no permission to disclose the content of any of the FWC materials except by the adducing of evidence (at which point the FCFCA would have the power to make suppression orders pursuant to Part 6A of the Federal Circuit and Family Court of Australia Act 1999 (Cth) if satisfied that that was necessary);

(c) protective of the administration of justice by reducing the risk that inconsistent evidence will be given by any party on the overlapping issues; and

(d) consistent with the Commission’s obligations under s.577 of the Act. 7

[13] Mr Le Blond further stated that Mr Farac has considered that he could obtain the Commission materials for use in the FCFCA proceedings by issuing a notice to produce in those proceedings to Pendal, but considered it more appropriate and according respect to the Commission to seek the proposed order from the Commission in the first instance so that if the Commission made the proposed order, access will be pursuant to the order of the Commission, and if not, that the Commission’s reasons for declining to do so will be available in the event that the question is further pursued in the FCFCA proceedings. 8

[14] In opposing the application, the respondents’ correspondence of 17 August 2021 stated that:

•  the Commission materials are irrelevant to the FCFCA Proceedings;

•  prior consent for use in mediation is not a proper basis for the orders to be made;

•  it is an improper use of the Commission’s powers; and

•  there would be prejudice to the respondents should the orders be made.

[15] Regarding the relevance of the materials, it was submitted by the respondents that by and large, the materials filed in the Commission proceedings, or provided in response to the order for production made on 23 November 2020, are not relevant to the FCFCA proceedings. The respondents submitted that whilst there is an overlap in some of the factual matters between the proceedings, the matters for proof in the FCFCA proceedings are entirely different. The respondents did not accept that there was significantoverlap in the two matters. 9

[16] The respondents also submitted that there is a large amount of commercially sensitive material filed in evidence in the bullying matter before the Commission relating to the basis for the alleged bullying, that is not in any way relevant to the FCFCA proceedings, and further, that the parties in the proceedings are not the same parties. 10

[17] It was submitted that the material in the Commission proceedings is subject to the Harman Undertaking, and that the undertaking cannot be dispensed with by agreement of the parties. The respondents submitted that due to the Commission’s previously made confidentiality orders, Mr Farac is not permitted to use the Commission materials elsewhere, including a different set of proceedings before a different court. 11

[18] Whilst the parties had subsequently agreed that the materials could be used for the purposes of mediation between the parties, and the Commission made orders to reflect this, it was submitted that it was not correct to say that the proposed orders now sought are an extension of the orders made by consent. The mediation was subject to strict confidentiality undertakings, consistent with the Commission’s previous non-disclosure orders. 12

[19] It was submitted by the respondents that the FCFCA proceedings are not subject to the same non-disclosure orders or confidentiality undertakings and there is no guarantee that the FCFCA will make the same or similar orders as have been made by the Commission in respect of the material. 13

[20] The respondents contended that if the applicant seeks to adduce the Commission material in the FCFCA proceedings, the proper process is for the applicant to seek an order for production in the FCFCA so that the respondents in those proceedings can seek an appropriate ruling in respect of confidentiality and relevance at that time. If not provided the opportunity to do so, it is submitted that this would prejudice the respondents. 14

[21] With regard to the contention that it is an improper use of the Commission’s powers, the respondents submitted that Mr Farac is seeking to use the Commission’s powers to advance his interests in another jurisdiction, and that it is not a matter for the Commission to decide whether material may be used by Mr Farac in circumstances where the proceedings are currently before the FCFCA and therefore matters for a FCFCA judge to determine. 15

[22] It was also submitted that there would be prejudice to the first respondent should Mr Farac be permitted to use the Commission materials, as the affidavit evidence filed in the Commission was largely not subject to the rules of evidence, and if the Commission permits the material to be used in the FCFCA proceedings, the respondents would be prejudiced as they would need to object to each aspect of the materials that did not comply with the rules of evidence, which would increase costs for both parties and possibly delay the FCFCA proceedings. 16

Consideration

[23] On 23 November 2020, in the bullying matter before the Commission and upon the application of Mr Farac, orders directed to Pendal were made for the production of documents. 17

[24] In the decision of the Commission, which was issued on 17 August 2021, disposing of the bullying application, the Commission noted that Pendal had made an application for a number of confidentiality orders pursuant to ss.593(3) and 594(1) of the Act. While no confidentiality orders were issued, the Commission had agreed to restrict the hearing to the parties only and considered the transcript and material filed in the proceedings as confidential. The Commission also determined not to publicly identify the names of Pendal’s clients or funds being managed on the basis of its commercial sensitivity. The names of particular funds and clients were anonymised in the decision. 18 No confidentiality ‘orders’ were made.

[25] During the bullying application proceedings, but before the final decision, the parties by consent, requested that the Commission grant permission for certain documentation filed in the bullying proceedings to be used for the purposes of private mediation in the general protection proceedings in the FCFCA. On 5 December 2020 and 9 June 2021, the Commission, to the extent that permission was required to be given, provided email confirmation that the documentation could be used for the specified purpose of mediation and no other.

[26] While the bullying proceedings in the Commission have concluded, 19 the documentation filed in the proceedings remains confidential to the parties, meaning that any third-party request for access to the transcript and material filed, will be declined by the Commission.

The Harman principle

[27] In opposing the application, the respondents raised the ‘implied Harman undertaking’ as having application to the material in the Commission proceedings.

[28] The Harman principle 20 comes into play whereby a court (in this case a tribunal) has required by specific order that a party disclose documents or information in the proceedings. Where this occurs, there is an obligation owed to the institution that ordered the disclosure of the documentation or information that the material not be used for any purpose other than the actual proceedings without leave of the institution. The exception to this obligation is where the documentation is received into evidence. This is set out in the High Court majority decision of Hearne v Street (2008)21 (Hearne) in the following manner:

“where one party to litigation is compelled, either by reason or by rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits (at [96]).”

(My underline, references omitted)

[29] In a recent Western Australian Supreme Court decision in Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5], 22on the basis that the case law exhibits a division of opinion as to whether or not the Harman obligation survivesthe relevant document being admitted into evidence, Le Meire J drew the following conclusions from the authorities at [34]:

“First, the Harman obligation ceases to apply to documents which have been read or referred to in open court in a way that discloses their contents.

Secondly, the obligation ceases to apply to a document filed or referred to in court as a result of which the public is entitled to access the document.

Thirdly, the obligation ceases to apply to documents which have entered the public domain by being accessible to the public and

Fourthly, whilst it has not been determined authoritatively in this jurisdiction, the better view is that the obligation ceases to apply to a document once it has been received in evidence and marked as an exhibit or read out, in whole or in part, in open court.”

(Emphasis added)

[30] As can be seen, Le Meire J qualified his conclusions to circumstances where the public was entitled to access the documentation and it had been received in open court. These two qualifications were not present in the Commission’s bullying proceedings, as the parties had consented to the hearing being held in private with the documentation being classified as confidential.

[31] In Esso Australian Resources Ltd v Plowman 23 Mason CJ stated at [41]:

“In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed.

… The implied undertaking is subject to the qualification that once material is adduced in court proceedings it becomes part of the public domain, unless the court restrains publication of it.”

(My underline)

[32] In the bullying application before the Commission, documents were produced pursuant to a Commission direction and witness statements were directed to be filed and served. On an examination of the order sought by Mr Farac, this material is included.

[33] In applying the ratio in Hearne there is no requirement of either party to seek leave of the Commission to use witness statements or any documents that was received into evidence, in the ordinary course. However, in the bullying application the material was not received in open court, nor was it made available in the public domain by the consent of the parties and agreement of the Commission. 24

[34] On two previous occasions, leave was sought to use the Commission documents in another jurisdiction with the consent of the parties and while the bullying matter was still active before the Commission.

[35] On the basis of the confidentiality attached to the documents and material in the Commission bullying application, it is appropriate, accepting that the Harman principle has application to Commission matters, that permission be sought for the material to be used in other proceedings.

Functus officio

[36] While not raised in the 17 August 2021 correspondence from the respondent’s representative, the issue of functus officio was raised by MinterEllison at the Commission telephone conference held on 26 August 2021.

[37] The effect of the application of the doctrine of functus officio is that once the statutory function is performed by the Commission, there is no further function or act for the Commission, authorised under the statute, to perform. 25

[38] The doctrine of functus officio has been held to have application to administrative tribunals. 26 In Ex Parte Hassell and Others Re Quirk and Another,27 the principle of "functus officio" was defined by Davidson J (at p.195):

"It is established by the cases to which reference has been made that, when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done…”

[39] In Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh and others a Full Court of the Federal Court rejected a submission that the “jurisdiction of the Commission is always alive”. 28

[40] Where the doctrine of functus officio has application, Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj expressed the view that it is not to be applied in a manner so rigid as to be inconsistent with good administration and fairness. 29

[41] In Boral Australian Gypsum Ltd v FMWU, 30a Full Bench concluded that the legal concept of functus officio is not one that fits easily with the Industrial Relations Act 1988. This position was also adopted by the Full Bench in Spotless Services Australia Ltd v M Wookey and others.31

[42] It is accepted that the Commission has no inherent jurisdiction and has only the powers and functions provided by the Act.

[43] The Federal Court in Otter Gold Mines Ltd v Deputy President G L McDonald of the Administrative Appeals Tribunal & Ors 32 had cause to consider the power of a Tribunal to release a party from the implied undertaking where the Tribunal in question, the Administrative Appeals Tribunal had no inherent powers and whose statute made no provision for the release. Sundberg J stated:

“The power to release from the implied undertaking of confidentiality is incidental to the power to require the documents to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking. It is the other side of the coin.”

[44] In this application nothing is being sought that impacts on the decision of the Commission to dismiss the bullying application, and there is no suggestion that the Commission reconsider or amend its decision. The Commission is thus satisfied that it has the power to make the order sought by Mr Farac, and rejects the contention that it would be an improper use of the Commission’s powers to make the order. The proposed order does not determine any outcome that the FCFCA may arrive at should the documentation sought to be relied upon in the general protections proceedings, as this would be a matter for the FCFCA.

[45] In releasing a party from the implied undertaking, Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd 33 referred to ‘special circumstances’ required to release the parties from the undertaking:

“For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.”

(My underline)

[46] In determining whether there exist special circumstances to grant the orders sought the reasons put forward must be ‘cogent and persuasive’. 34 Burchett Jof the Federal Court in Holpitt Pty Ltd v Varimu Pty Limited described the expression in the following manner:

“(6) As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context. In relation to animals generally, any man is special; but when you are speaking of poets, he may need to be a Milton. If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty.

…

(8) In my opinion, the court's duty, in an application of this kind, is to consider whether the applicant has shown some circumstance which takes the matter out of the ordinary course, according to which production of documents pursuant to an obligation to make discovery involves the implied undertaking to the court; and, if so, whether an exercise of the court's discretion in favour of the application would be in the interests of justice. Although the present case is clearly distinguishable from the English cases because of the conflicting obligation pursuant to the order for discovery, I do not think I should decide it upon so narrow a footing as that distinction. I think the interests of justice in the current litigation require that an order should be made in the applicants' favour, and that the order I shall make will not occasion injustice to the bank.”   

(My underline)

[47] Having examined the affidavit and its accompanying attachments, I accept as submitted on behalf of Mr Farac that there is a significant degree of commonality in the factual matrix between the Commission bullying proceedings and the general protection proceedings in the FCFCA. Prima facie, the bullying documentation deal with matters related to the general protection proceedings and have the potential to be relevant to the determination of the matter before the FCFCA. 35

[48] While the respondents to the general protections proceedings do not include Mr Gor, all other parties were party to the Commission proceedings. 36 The proposed order retains the protection that was put in place in the Commission proceedings in not allowing use of the documents other than in the FCFCA proceedings.

[49] In the Commission’s view there does exist special circumstances to warrant the order sought by Mr Farac; namely the commonality of the factual background of the two proceedings, the parties other than Mr Gor are the same and any prejudice to the respondents does not outweigh the interests of justice being served, including the potential to reduce costs. Although it is noted that the utility of the Commission documents in the FCFCA proceeding is to be seen in the context of the Commission not being bound by the rules of evidence and procedure in any matter before it 37 and admissibility of any Commission documents would be subject to any FCFCA determination.

[50] For the above reason an order will issue restricted to the documentation that was admitted into evidence in the bullying proceedings. As such, it will not include any discovered document not tendered in the proceedings or any witness statement not relied upon. 38

[51] Order [PR734590] reflects the Commission’s decision.

DEPUTY PRESIDENT

Matter dealt with on the papers

Printed by authority of the Commonwealth Government Printer

<PR734186>

 1   As of 1 September 2021

 2   See letter from respondents’ representatives of 17 August 2021

 3   Application by Peter Farac [2021] FWC 5107

 4   See letter from applicant’s representatives of 16 September 2021

 5   2.2 of Form F1

 6   Affidavit of Mr Le Blond of 13 August 2021 at [23], [33]

 7   Ibid at [34]

 8   Ibid at [35]

 9   Ibid at [1]

 10   Ibid at [2]; Vimal Gor, the Second Respondent in the FWC proceedings, is not a party to the FCFCA proceedings and Richard Brandweiner, the second respondent in the FCFCA proceedings, is not a party to the FWC proceedings.

 11   Ibid at [4-5]

 12   Ibid at [6]

 13   Ibid at [8]

 14   Ibid at [9]

 15   Ibid at [10-11]

 16   Ibid at [15]

 17   [2020] FWC 6204

 18   [2021] FWC 5107 at [8]

 19   The statutory time frame for an appeal has also passed

 20   Harman v Secretary of State for the Home Department [1983] 1 AC 280

 21   (2008) 235 CLR 125 Hayne, Heydon, Crennan JJ

 22   [2020] WASC 470 at [17]

 23   (1995) 183 CLR 10 at para [41]

 24   [2021] FWC 5107 at [8]

 25   The Transport Workers’ Union of Workers, Western Australian Branch v Pinnacle Services Pty Ltd 80 WAIG 307 at 308

 26   Chandler v Alberta Association of Architects [1989] 2 SCR 848 and decision of Sopinka J speaking for the majority in the Supreme Court of Canada

 27   (1937) 37 SR 192 NSW, Davidson, Street and Maxwell JJ

 28   [2004] FCAFC 136 at [24]

 29   (2002) HCA 11 Gleeson CJ at [8]

 30   Print K5241

 31   PR929400 (2003) at [33]

 32   [1997] FCA 694

 33 (1992) 110 ALR 685 at [26]

 34   [1991] FCA 269 at (6) Burchett J

 35   Re Springfield Nominees Pty Ltd; Ligon Seventy One Pty Ltd; Donald Ivor Alexander Fraser; Anne Patricia Fraser and Others v Bridgelands Securities Ltd; John Hyla Preston; Estate Mortgage Managers Ltd; Estate Mortgage Financial Services Ltd and Others N [1992] FCA 472 (22 September 1992) per Wilcox J

 36   Although objected to by the respondents, Mr Brandweiner was made a respondent to the bullying proceedings, see [2021] FWC 5107 at [5-6]

 37   Fair Work Act 2009 s.591

 38   For example a statement of Mr George Bishay as tendered in evidence