Australian Federation of Air Pilots v Regional Express Holdings Limited
[2019] FCCA 1543
•15 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN FEDERATION OF AIR PILOTS v REGIONAL EXPRESS HOLDINGS LIMITED | [2019] FCCA 1543 |
| Catchwords: INDUSTRIAL LAW – Ex tempore ruling on discovery application. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.42 |
| Cases cited: Abrahams v Qantas Airways Ltd (2007) 210 FLR 314 |
| Applicant: | AUSTRALIAN FEDERATION OF AIR PILOTS |
| Respondent: | REGIONAL EXPRESS HOLDINGS LIMITED |
| File Number: | MLG 788 of 2015 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 15 May 2019 |
| Date of Last Submission: | 15 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 15 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kelly |
| Solicitors for the Applicant: | Andrew Molnar |
| Counsel for the Respondent: | Mr Howard |
| Solicitors for the Respondent: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 788 of 2015
| AUSTRALIAN FEDERATION OF AIR PILOTS |
Applicant
And
| REGIONAL EXPRESS HOLDINGS LIMITED |
Respondent
REASONS FOR JUDGMENT
This is a discovery argument and, as Counsel for the respondent rightly submits, in this Court discovery is only allowed where the Court declares that it is appropriate in the interests of the administration of justice to allow discovery.
I have been referred to the – if I may, in my respectful view, helpful guidance provided by Federal Magistrate Lucev, as his Honour then was, in the matter of Abrahams v Qantas Airways Ltd (2007) 210 FLR 314. And I refer, particularly – although I have had regard to the entirety of the judgment – to paragraph 11 where his Honour observed:
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and in so doing the Court “must have regard to” whether discovery will be likely to contribute to the fair and expeditious conduct of the proceeding and such other matters as the Court considers relevant.
There is, however, one other statutory aspect of the matter which is relevant. Pursuant to section 42 of the Federal Circuit Court of Australia Act 1999, the Federal Circuit Court in proceedings before it must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
I would observe that the approach to pleadings points, necessarily, must have regard to section 42.
I would commence my substantive discussion of the matter by reference to the pleadings.
The first iteration of the applicant’s case was filed on 15 April 2015. At paragraphs 4 and 5 of Part G the pleading referred to the pilot cadet program allegedly operated by the respondent. It was asserted that the respondent offered some prospective employees a place in the pilot cadet program and then there were details of the program.
At paragraph 11 it was pleaded:
On or about 5 September 2014, the Respondent advised short listed applicants for the cadet program (prospective employees) in writing that –
And there are a number of matters set out. The point I make is that this pleading related to a group described as short listed applicants for the cadet program.
In paragraph 17, once again, the matter was pleaded in similar terms where the claim asserted the adverse action described at paragraphs 15 and 16 was taken to prevent prospective employees from exercising the workplace right, and so on.
At paragraph 21, the pleading asserted:
By reason of the matters set out –
And I will not set out those:
The Respondent:
a.threatened to organise and take action against employees including threatening to effectively stall their career progression; and
b.threatened to organise and take action against prospective employees.
Once again, in paragraph 22 the matter was described in terms of a category of employee known as ‘prospective employees’.
So although various matters were said to have occurred on or about 5 September 2014, it was clear, in my view, that the complaint arose in respect of short-listed employees and/or existing employees in the class, so to speak, of those who received the information on or about 5 September 2014 in writing.
The second iteration of the claim was filed on 22 May 2014. This, as it were, added a new group. Relevantly, at paragraph 13 it was pleaded that:
On or about 5 September 2014 the respondent advised short listed applicants for the cadet program (prospective employees) in writing –
And the various matters are set out. Once again, this is put as a, sort of, class or group.
At paragraph 15 it was pleaded that:
The statements described at paragraph 13 relate to persons who, as at 5 September 2014, were employees and former cadets of the respondent (affected class 1).
In other words, the persons who were referred to in the matters informed in writing on or about 5 September 2014. It was not, of course, pleaded that those letters were addressed to them. But by paragraph 17, it was pleaded that the matters were intended to come to their attention.
At paragraph 21 it was pleaded that:
On or about 5 September 2014 short-listed applicants for the cadet program (prospective employees) were advised by the respondents in writing –
And there were various matters set out. Once again, this is a class of persons.
And at paragraph 22:
Some of the prospective employees were ultimately offered, and accepted, a place in the cadet program and are currently undertaking or have undertaken cadetships (affected class two).
I note that at paragraph 23 there was a limitation in these terms.
For the purposes of the second adverse action, affected class two is limited to those prospective employees who were ultimately accepted into and are currently undertaking, or have undertaken, the cadet program.
I note that the coercion and misrepresentation are pleaded in the applicant’s claim were pleaded as to both affected class one and class two.
A further amended application was filed on 2 March 2018 but it does not materially alter the matters to which I have referred.
At this point it is appropriate to go back for a moment to correspondence, that has been handed up, in August 2015 between the legal representatives of the parties.
On 5 August 2015, Mr Molnar, on behalf of the applicant, wrote to Mr Trindade, on behalf of the respondent, and relevantly for these purposes, said:
Given these admissions, it follows that your client has knowledge of the identity of recipients of the motivational letter that formed affected class \two.
And it went on:
This is also true of affected class one.
The response from Mr Trindade dated 26 August 2015 said, relevantly:
In relation to the request for particulars of paragraph 19 of the response, we note that paragraph 19 contains an admission responsive to paragraph 22 of the amended application. If the AFAP does not know the identity of the persons referred to in paragraph 22 of the amended application, it should not have made the allegations set out therein. It seems to our client that what the AFAP is seeking to do by this request is to try to identify, after the claim has been made, a person whom the AFAP can then assert that it represents in circumstances where the AFAP has not yet presently identified any such person which is one of the issues raised in our client’s application in a case.
I note that that correspondence appended three redacted letters referred to in paragraph 9(a) of the then extant response which, it should be noted, I do not actually have.
On 9 April 2018 a further amended response was filed by the respondent. I do not have the earlier ones, save to the extent that the document has a lined through earlier version which I would take it is probably the second version of the response but I do not know for certain.
Relevantly, at paragraph 5 the response admitted the cadet program and, indeed, made further assertions as to its nature.
At paragraph 28 the pleading asserts:
As to the allegations in paragraph 28, subject to the letter being read on its terms and in its entirety, it says that:
(a)it admits that it sent a letter dated 5 September 2014 to short-listed applicants for the RECP program at the AAPA.
Paragraph 31 relevantly reads:
It denies the allegations in paragraph 31 and says further that the letter referred to in paragraph 28 above:
(a)was and was intended to be a private letter for the attention of the addressee only; and
(b)was not provided to or intended to be provided to anyone other than the person to whom the letter was addressed.
Thus, the pleadings stand at present.
On 7 September 2015 – going back a bit again – the parties were in front of Riethmuller J. And at transcript P6, the following exchange between Mr Trindade and his Honour took place.
MR TRINDADE: Well, there is that first issue that I said, your Honour, which is, effectively, is there a person. And who is the person and they are entitled to represent their industrial interest.
Relevantly, it continued at line 27:
What we said was “Look, we think it’s deficient but we would like to deal with it by way of particulars,” and we made that request, and, as I understand it, the registrar didn’t require them to identify a person, and they had indicated that they weren’t going to identify any person. And so, essentially, we then put in our response saying “Well, we think it’s deficient and we will apply to have it struck out”. But I think – I mean, certainly, your Honour, that was – our initial thought was that that could be dealt with by particularisation and it hasn’t transpired that way. And I think my friend’s view is that they don’t have to identify any such person. That’s not a requirement. So it’s a threshold issue.
In response, Ms Swanwick at line 45 asserting:
So the Federation’s position is that the threats that are alleged in this case or the conduct that’s impugned, my friend is correct and that is said to give rise to the adverse action, is or threatened. It’s just a threat, so there’s no actual adverse action against any individual person alleged. Now the threat or the threats which form the basis of this proceeding are entirely contained within a letter that was sent by the respondent to multiple recipients on one date.
At line 44 on P7 the matter was repeated when Ms Swanwick said:
Now, what was threatened was as contained in one letter which is very clear on its terms that in circumstances where the recipients of the letter and, in fact, others relied on that workplace right that their career progression would, effectively, be stalled.
The matter then went back before his Honour on 12 November 2015. Once again, Ms Swanwick asserted on P24:
This case is even clearer than that because here the two classes of affected person are wholly and finally ascertainable. The threats of adverse action contained in the letter were plainly directed at each and every recipient and certain non-recipient employees, as well.
Now given that all the union had at this point was knowledge of the 5 September 2014 letter, this concentration upon that letter is unsurprising. It is repeated, as counsel for the respondent correctly drew my attention to, in the Federal Court Full Court proceedings and in the High Court materials. This appears to continue to be the case, indeed, until after materials were filed when the matter came back before this Court following the eventual conclusion of the High Court proceedings.
The affidavit of Mr Darroch filed on 13 December 2018 appends a copy of a redacted version of the letter of 5 August 2014.
However, on 22 March 2019 Mr Howell filed his affidavit on behalf of the respondent. At paragraph 45 Mr Howell deposed:
On 5 September 2014, as part of the recruitment and selection process for the RECP Programme, “Rex17”, I prepared and sent a letter in the same terms to three short listed candidates for the RECP program.
And he then gives their names.
At paragraph 88 Mr Hull deposed:
The choice of accommodation played no part in my decision to send the Rex letter to the prospective cadets of the RECP program.
And at paragraph 91 he said:
I did not send the Rex letter or make any of the statements in the Rex letter to threaten anyone. Nor did I send it for any of the following reasons.
And, relevantly, at subparagraph (d) he says:
… to prevent prospective employees generally, once employed, from exercising their workplace rights or their workplace right to stay at the Mercure.
On 15 April 2019 the applicant served a Notice to Admit. I do not propose to go laboriously through each of the matters appended to the notice. They appear to involve a number of letters very similar at least to the letter of 5 September 2014 from 2012, 2013, 2016 and 2018.
E is a typed version of a letter that Mr Chamberlain sent for Rex14. Indeed, this must have been much earlier – one would assume in 2012 because that is when annexure A, which is a letter to him, was sent.
That Notice to Admit was the subject of a Notice of Dispute which is not presently before me.
But then there was an application in a case filed and the matter has come before me because Riethmuller J is overseas and, indeed, as I understand it, will be overseas until relatively proximate to the actual trial, itself.
This brings me to the submissions of the parties. These, of course, have been paraphrased from my notes, which is not a transcript.
Counsel for the applicant gave me the background history of the application. The matter was filed as long ago as April 2015. Following the dismissal of the case in the High Court, there was apparently a directions hearing on 23 February 2018 and a timetable set which has been adhered to, to progress the matter to trial for three days in July.
Counsel pointed to the fact that the applicant did not have copies of all of the letters that might have been sent. It was put that the misrepresentation claim, by way of illustration, could not properly be prosecuted because if it was not known how many persons had received the relevant form of correspondence then, as it were, the scope and scale of misrepresentation and the likely effects upon particular persons who had received it was not known.
There is some force to that submission but, in my view, like a number of the submissions made before me, it rather over-states the position. In one sense, once it is known that correspondence was sent to each of the Rex17 people and once the number is known, the scale of any alleged contravention is readily apparent. Nonetheless, there is a measure of force in that.
Counsel pointed to the various categories for which discovery was sought. It emerges that there are – and I will come to that when I come to Mr Howard’s submissions – sorry, I will go back a step.
Counsel asserted there were about 12 employees who might have received the letter in September 2014 and a number of them had apparently responded. The final category sought was the handwritten copy of Mr Chamberlain’s letter to which I have referred.
Counsel for the respondent pointed to the decision in Abrahams and pointed to the fact that on the pleadings it was put that the documents sought were irrelevant. He submitted that this was always a case about a letter sent to three applicants. He submitted that the matter is ready for trial. There would be a necessity for further affidavits. The three known recipients of the letter dated 5 September 2013 – two out of three are on affidavit already. It was submitted that this was a U-turn but it was confirmed that there were eight other persons in Rex17 of whom Mr Chamberlain was not one. It was submitted that the pleadings confined the case to the 2015 letter and counsel took me to the transcript references which I have already detailed. The short point put – and it was well put, if I may say so – is that the matters now sought are simply not relevant to the matter as pleaded. It was foreshadowed that there might be a necessity for an adjournment application if discovery was, indeed, granted.
The submissions in reply concentrated on the fact that the letters on or about 5 September 2014 were not within the applicant’s knowledge and it was put that the application had been brought in a timely way.
I should say that counsel for the applicant was at pains to describe the pleading both in terms of:
On or about 5 September 2014 –
as ambulatory. In one sense, that is correct. But in another sense, it is a piece of sophistry because, as a matter of practice, certainly in my experience, the phrase:
On or about –
is a standard pleading form designed to indicate the particular date designed to be listed but, as it were, leaving wriggle room if it turns out there has been a matter of error.
In my view, and taking the approach to the proceeding without undue formality that section 42 requires, but bearing in mind the overarching obligation that discovery should only be ordered where it is in the interests of the administration of justice to do so – in my view, the fair view of this case on the pleadings has been always about the cadet program which has now been refined as Rex17.
It is not just the three persons who happened to get a letter dated 5 September. It includes the eight others who, I infer, got the letter either on the – received a letter dated the 4th or the 6th or something around that time. The pleading was always put – when read fairly and as a whole, in terms of the class of cadet applicants at that time.
Those documents relating to those other persons, in my view, are clearly prima facie relevant. That is not, however, the end of the matter.
One way or the other, this application is made very late in the case. A trial date has been set. The case would, if discovery is ordered, undoubtedly expand, although it is not possible to say, at this stage, to what extent. This may, indeed, ultimately require an adjournment. It is already almost five years from the events with which the proceeding is concerned. Further significant lapses of time would be a matter of obvious prejudice, most particularly one might feel to the respondent. After all, they are the ones at risk of some sort of penalty at the end of it. But in the end, it is a matter of the interests of the administration of justice.
As I have said, this case, properly construed, was always about the 2014 intake. Bearing that in mind and turning to the application in a case, the documents sought in order 1(a) and (b) in my view are clearly discoverable and should be discovered. It seems there are only eight such further people. The amounts of documentation involved cannot logically amount to much more than 16 and it is well within the resources of these well-resourced litigants to cope with documentation on that scale.
Document (c) is slightly complicated by the fact that I do not have the Notice of Dispute referred to and do not know exactly what attachment F in it is. But insofar as it constitutes further direct responses to the documents in (b), then in my view, they would be discoverable also. Once again, their scope must necessarily be limited.
The documents in (d), in my view, are irrelevant to this proceeding. They relate to matters in 2012. It is asserted, without challenge, that Mr Chamberlain is not a member of Rex17. I am not prepared to order that there be discovery of (d) because the claim is not to be permitted to expand as a general inquiry as to the respondent’s practices over the period of time disclosed by the applicant’s Notice to Admit. It is limited to contraventions asserted arising out of the class of cadet intakes – some of whom received a letter on 5 September 2014 and the others of whom must have received it within a short period of that time.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: June 2019
Key Legal Topics
Areas of Law
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Employment Law
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Civil Procedure
Legal Concepts
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Discovery
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Jurisdiction
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Procedural Fairness
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