Australian Federation of Air Pilots v Regional Express Holdings Limited
[2023] FedCFamC2G 764
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Federation of Air Pilots v Regional Express Holdings Limited [2023] FedCFamC2G 764
File number: MLG 788 of 2015 Judgment of: JUDGE FORBES Date of judgment: 25 August 2023 Catchwords: INDUSTRIAL LAW – practice and procedure – alleged contraventions of ss 340 and 343 of the Fair Work Act 2009 (Cth) - remittal of matter by Full Court of Federal Court to Federal Circuit and Family Court for rehearing in accordance with the Full Court’s reasons – dispute regarding scope of remittal – whether hearing de novo or reconsideration of evidence and transcript – where subjective intention of witness relevant to determination of outstanding questions – consideration of Full Court’s reasons as relevant to remittal – rehearing of some evidence and cross-examination may be necessary Legislation: Fair Work Act 2009 (Cth) s 340, 342, 343, 345, 348, 361
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 245
Federal Court of Australia Act 1976 (Cth) s 28, 30Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 16
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1398
Australian Building and Construction Commissioner v Molina [2020] 277 FCR 223
Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226
Australian Federation of Air Pilots v Regional Express Holdings Limited (No.2) [2020] FCCA 219
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
The Commissioner of Taxation of the Commonwealth of
Australia v Pratt Holdings Pty Ltd [2005] FCA 1247
The Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844
TheCommunity and Public Sector Union v Telstra Corporation Ltd (No.2) (2001) FCR 324
Waterways Authority v Fitzgibbon (2005) 221 ALR 402Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 4 August 2023 Place: Melbourne Counsel for the Applicant: Mr Crosthwaite Solicitor for the Applicant: Australian Federation of Air Pilots Counsel for the Respondent: Mr Howard Solicitor for the Respondent: Clayton Utz ORDERS
MLG 788 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN FEDERATION OF AIR PILOTS
Applicant
AND: REGIONAL EXPRESS HOLDINGS LIMITED
Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
25 August 2023
THE COURT ORDERS THAT:
1.The matter be listed for a Directions Hearing on 5 September 2023 at 9.30am
2.Prior to the Directions Hearing the parties’ representatives confer with a view to bringing forward consent orders for the further hearing and determination of the remitted questions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
On 16 December 2021, the Full Court of the Federal Court of Australia after allowing an appeal (in part) against an earlier decision made by the Federal Circuit Court of Australia (as it was then known) ordered, inter alia:[1]
“4.[…] the application is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing in accordance with these reasons of the appellant’s claims that the respondent contravened s 340 and s 343 of the Fair Work Act.”
[1] Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226 Order 4 (the Full Court decision)
By an order made by the Chief Judge of this Court on 17 July 2023 and pursuant to s 245(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the proceeding has been allocated to me for the rehearing of the applicant’s claims as remitted by the Full Court.
The matter which now falls for determination is how the Court should exercise its jurisdiction to rehear the application in accordance with the Full Court remittal. In particular, the question arises as to whether the Court should conduct a new trial de novo, as contended for by the applicant (Federation), as a continuation of the first trial with the remitted issues to be determined on the evidence already adduced, as contended for by the respondent (REX), or some other species of rehearing to be determined by the Court having regard to the Full Court’s reasons.
The parties have sought a procedural ruling in relation to this threshold matter.
BACKGROUND
It is not presently necessary to rehearse the factual background to the current proceeding. Suffice to say the Full Court has done so at [2]-[53] of its reasons. The following will suffice for the purposes of this procedural ruling.
On 15 April 2015, the Federation filed its application in this matter in the Federal Circuit Court of Australia. The Federation alleged that the respondent contravened the Fair Work Act 2009 (Cth) (the FW Act) by sending a letter to applicants for its cadetship program that:
(a)in contravention of section 340 of the FW Act, threatened to take adverse action against the cadets if they did not forgo workplace rights;
(b)in contravention of section 343 of the FW Act, threatened to take action with the intent of coercing the cadets not to exercise their workplace rights; and
(c)in contravention of section 345 of the FW Act, knowingly or recklessly made various false representations to the cadets[2].
[2] The Full Court decision at [22]
Following preliminary disputes including an appeal to the High Court of Australia, the substantive dispute was heard between July and October 2019 before his Honour Judge Blake.
His Honour handed down his decision on 6 February 2020, dismissing the application[3]. Relevantly, Judge Blake found that the letter sent to applicants for the cadetship program did not convey the threats alleged by the Federation. His Honour reached this conclusion substantially based on his construction of the text of the letter [4] and his Honour’s findings as to the respondent’s purpose in sending the letter.
[3] Australian Federation of Air Pilots v Regional Express Holdings Limited (No.2) [2020] FCCA 219 (the first instance decision) at [56]-[62]
[4] First instance decision at [56]-[62]
As to the respondent’s intention and purpose, the author of the letter, Mr Neville Howell, its Chief Operating Officer, gave evidence about his reasons for sending the letter[5].
[5] First instance decision at [63]-[69]; see also summary at [60] of the Full Court decision
At trial, Mr Howell expressly disavowed that he sent the letter to threaten people in relation to their exercise of workplace rights. Judge Blake noted that Mr Howell had been cross-examined at length. At [65] of his judgment, his Honour stated that he had considered the evidence of Mr Howell in chief and in cross-examination “closely”. Judge Blake made a number of observations about Mr Howell’s presentation in the witness box, the manner in which he gave evidence and his impression of Mr Howell’s evidence overall. His Honour’s conclusion about Mr Howell’s intention in sending the letter was informed by “[h]aving seen Mr Howell in the witness box”[6].
[6] First instance decision at [67]
The Federation appealed Judge Blake's decision to the Full Court of the Federal Court of Australia.
The Federation’s appeal concerned three questions of law, being:
(1)whether section 361 of the FW Act governed the trial;
(2)whether the trial judge applied the correct legal framework when considering whether the letter was a “threat” for the purposes 342(2) of the FW Act; and
(3)whether the letter conveyed a misrepresentation for the purposes of section 345 of the FW Act.
On 16 December 2021, the Full Court handed down the appeal decision. The Full Court found that the primary judge erred by finding that the letter did not convey any threat substantially to the effect alleged by the Federation.
The Federation succeeded largely due to a change in the law after the trial judgment. At trial, Judge Blake addressed questions of onus of proof. His Honour characterised the Federation’s claims for contravention of section 340 and s 343 of the FW Act as involving threats of action, and held that the evidentiary presumption in s 361 of the FW Act did not apply to such threats, citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1398 at [70] (Tracey J). His Honour therefore considered the Federation’s claims on the basis that the Federation bore the onus of proof in relation to all elements. However, after the judgment below, in Australian Building and Construction Commissioner v Molina [2020] 277 FCR 223 the Full Court (Bromberg, Colvin and Abraham JJ) held that section 361 of the FW Act applies to allegations of threats of action or organising action with intent to coerce that would contravene s 348, which concerns coercion with respect to industrial activity.
The questions of law raised by the appeal infected the trial judge’s legal approach to fact finding. The Full Court made orders allowing the appeal in part; setting aside the orders made at first instance; dismissing the Federation’s claim that the Respondent contravened section 345 of the FW Act; and remitting the Federation’s application in respect of ss 340 and 343 of the FW Act for rehearing in accordance with the Full Court’s reasons.
The remittal expressly requires the “rehearing” to be framed in accordance with the Full Court’s reasons. Accordingly, for the purposes of resolving the present dispute it is instructive to extract a number of observations made by the Full Court in the course of its analysis.
At [154] of its reasons the Full Court confirmed that the question of whether a communication amounts to a threat to take adverse action is a question of fact to be determined objectively in the context of the surrounding circumstances[7]. At [157], after addressing the notion of “threat”, the Court then continued:
[157]Having regard to the above authorities, and to the text of s 340(1) and 342 of the FW Act , in determining whether a threat was made, purpose is relevant at two levels. First, to constitute a threat, the communication itself must communicate an intent to take adverse action or, in other words, a warning of an intention to take adverse action for the purpose of intimidating a person which, viewed objectively, will induce a belief that it will be carried into effect. As Bromberg J stated in FWU v AWU at [54], threatening to take action "must involve an expression of an intimidatory purpose". This expression of purpose goes to the content of the communication, and not to the subjective purpose of the person responsible for the communication. Second, threatening to take adverse action against another person will constitute adverse action if the threat is made for one of the prohibited reasons referred to in s 340(1). This invites attention to the question why the adverse action was taken, and whether a prohibited reason was a substantial and operative reason for the action: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 ( Barclay ) at [103]-[104], [127] (Gummow and Hayne JJ), citing General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 (Mason J), and see also French CJ and Crennan J at [59]. For this enquiry, under s 361 adverse action against a person will be presumed to be action taken for an alleged prohibited reason, or for reasons that included an alleged prohibited reason, unless the person responsible for taking the adverse action proves otherwise. This is a question of fact to be determined on the whole of the evidence but where the reason might be peculiarly within the knowledge of the decision-maker responsible for the action, whose direct evidence may be relevant, and if accepted may discharge the onus: Barclay at [45] (French CJ and Crennan J), and [71] (Gummow and Hayne JJ); see also, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 at [6]-[9] (French CJ and Kiefel J), and at [85] (Gageler J). There will likely be cases where the meaning that a person responsible for a communication intended to convey will be relevant to the reasons why the communication was made, and whether any prohibited reason was a substantial and operative reason for the communication.
[158]Having regard to the above principles, we respectfully consider that the primary judge erred in his consideration of whether the Letter conveyed threats substantially to the effect alleged by the Federation. At [63]-[67] of the reasons for judgment, which we have set out under [66] above, the primary judge referred to the evidence of Mr Howell and made findings as to his intention in writing the Letter. It is not at all clear whether these findings were made as part of his Honour's consideration of whether the Letter conveyed the threats alleged, or whether the findings related to Mr Howell's purpose in sending the Letter. His Honour's conclusion at J [70] that the adverse action claims must be dismissed is a rolled-up conclusion that does not appear to be the product of sequential stages of analysis that distinguish between the objective meaning of the Letter and the subjective purpose of Mr Howell. Because the question whether the Letter constituted a threat is objective, the findings about Mr Howell's intention in writing the Letter were not relevant to the question whether the threats were made.
[7] CPSU, The Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844 (Finkelstein J)
At [161] the Full Court concluded in light of the above that the meaning that a person responsible for a threat of adverse action intended to convey may be relevant to the reasons why the communication was made, and therefore to whether any prohibited reason was a substantial and operative reason for the communication. On this issue, the Court found that the primary judge had proceeded on the basis that the Federation bore the onus of demonstrating that the threats were made for the prohibited reason alleged, whereas pursuant to s 361(1) of the FW Act the onus was on the respondent in accordance with the principles discussed by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32.
In the appeal, the Federation invited the Full Court to redetermine the matter, submitting that it was in as good a position as the primary judge to make findings about whether REX had discharged its onus of showing that a relevant prohibited purpose was not included as a substantial and operative reason for making the threats. In rejecting that invitation, the Full Court noted that Mr Howell had impressed the trial judge as a witness and reiterated that the advantages enjoyed by a primary judge include the benefit of seeing a witness give their evidence and the ability to form impressions about that evidence including by the “subtle influence of demeanour”[8].
[8] The Full Court decision at [22] citing Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 (McHugh J, Mason CJ, Deane, Dawson and Gaudron JJ agreeing).
As to whether REX had discharged the evidentiary onus under section 361 in relation to the threat to take adverse action, the Full Court said at [168] -[169]:
[168][…] we are not in a position to determine that question for ourselves. That is because a finding by this court as to Mr Howell's intent or purpose in sending the letter would be founded only on part of the material that was available to the primary judge, being the transcript and the documentary evidence. The manner in which Mr Howell gave his evidence was clearly relevant to the primary judge's evaluation of his testimony in circumstances where his evidence was mixed. This court therefore cannot substitute its own finding: see, Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [132]-[134] (Hayne J).
[169]For the above reasons, the question whether REX made the threats for reasons that included a prohibited reason as a substantial and operative factor will have to be remitted to the Federal Circuit and Family Court of Australia (Division 2)."
At [173] the Full Court also found that the primary judge was in error in finding that the letter did not convey threats of adverse action. The Court found that the findings as to the objective meaning of the letter which formed part of Judge Blake’s reasoning could not be disentangled from his Honour’s other reasons concerning the purpose of the letter which was based on evidence from Mr Howell. Accordingly, the Full Court held that the claimed contravention of section 343 must be reconsidered. However, again that was not a matter the Full Court was prepared to undertake because of the benefit the primary judge had enjoyed in evaluating Mr Howell's evidence.
Relevantly, the Full Court disposed of the appeal proceeding in the following terms:
Conclusions
[193]The appeal will be allowed in part.
[194]The primary judge's orders to the extent that the Federation's claim of contravention of s 345 of the FW Act was dismissed should stand to that extent.
[195]Otherwise, the Federation's claims that REX contravened s 340 and s 343 of the FW Act must be remitted to the Federal Circuit and Family Court (Division 2) for rehearing in accordance with these reasons. In arriving at this decision we are mindful that a new trial "is a most deplorable result, not to be entertained upon any but the most solid grounds, as the only means of redressing a clear miscarriage": Dakhyl v Labouchere [1908] 2 KB 325 at 327 (Lord Loreburn LC). See also: Orr v Holmes (1948) 76 CLR 632 at 640-41 (Dixon J); and Waterway s Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [135] (Hayne J). However, for the reasons that we have given, that is the unavoidable outcome of this appeal.
[196]Whether the primary judge should rehear the remitted issues is a matter for the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) to consider. We can see that there are likely to be efficiencies if the matter on remitter is allocated to the primary judge, but we can also see that the parties may wish to be heard, should it be allocated to his Honour: see generally, Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8; 174 FCR 175.
[197]There will be no order as to costs: FW Act, s 570.
On 17 July 2023, the parties appeared before Chief Judge Alstergren on the question of whether the new trial should be remitted to the primary judge, Judge Blake. His Honour decided that the matter should be allocated to a different judge and remitted the question as to the form of the rehearing to the docket judge.
THE REHEARING CONTROVERSY
The Federation contends that the Court should hear and determine the claims advanced pursuant to s 340 and s 343 of the FW Act de novo, as opposed to making a determination on the papers, having regard to existing and dated transcript from the previous trial that occurred in 2019. The applicant submits that consistently with the Full Court’s reasons for judgment, the key issue on rehearing - the subjective intention of the respondent’s main witness, Mr Howell - should be determined with the benefit of the remittal judge being in a position to see and evaluate Mr Howell giving evidence under cross-examination.
Conversely, the respondent submits that the Full Court’s orders were made under section 28 of the Federal Court of Australia Act 1976 (Cth). The respondent submits that the Full Court exercised the power in s 28(1)(c) of that Act to “set aside the judgment appealed from” (the effect of Order 3) and to “remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit” (the effect of Order 4). Crucially, the respondent submits that what the Full Court did not do was to exercise its appellate jurisdiction to “grant a new trial” pursuant to s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth), nor did the Full Court exercise any of its powers in relation to a new trial under s 30.
The respondent contends that a remittal hearing ordered under s 28(1)(c) should be conducted as a continuation of the first trial, with further submissions on the remitted issues based on the evidence that has already been adduced and with the parties being bound by the way in which they conducted the initial trial (subject to any application to reopen). The respondent submits that the Full Court carefully chose its language and recorded its decision to order a remittal rather than the new trial.
PRINCIPLES AND SUBMISSIONS
At [195] of its reasons, the Full Court cited Justice Hayne in Waterways Authority v Fitzgibbon (2005) 221 ALR 402 (‘Waterways’) in the context of its reflection that a rehearing of the applicant’s claims in accordance with the Court’s reasons was a “most deplorable result” but an “unavoidable outcome” of the appeal.
In Waterways, an appeal Court made a finding of fact that was founded upon only part of the material that had been available to the primary judge, namely the transcript of what the witnesses had said and the documentary evidence that was received. The High Court found that the appeal Court was correct to find that a new trial was warranted in the circumstances, but it erred in confining the new trial in the manner described. The error lay in the fact that the appeal Court was not able to make any evaluation of the credibility of witnesses without seeing and hearing them for itself.
At [133] in Waterways, Justice Hayne said:
“As Fox v Percy recognises, the Court of Appeal “must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record”. The defect in the primary judge’s fact-finding lay in the failure to evaluate all of the evidence bearing upon the relevant issue of fact. The Court of Appeal could not substitute its finding when that too was based on only part of the material which ought properly to have been considered by the primary judge. Yet that is what the Court of Appeal did”
In the present matter, the Federation submits that the Full Court’s application of Waterways is instructive as it highlights the “natural limitations” of a “court proceeding wholly or substantially on the record”. The Federation submits that the orthodox approach where a new trial is ordered is that it should be of the case as a whole unless the Court thinks otherwise.
Again, emphasising that the Full Court remitted the matter for rehearing pursuant to section 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), rather than ordering a new trial pursuant to s 28(1)(f), the respondent submits that this Court is bound to adopt more narrow approach such as described in TheCommunity and Public Sector Union v Telstra Corporation Ltd (No.2) (2001) FCR 324 (‘CPSU v Telstra’).
In CPSU v Telstra, a similar controversy arose to that here after the Full Court allowed an appeal, set aside an order made at first instance and “remitted [the matter] to the primary judge to be determined in accordance with [the Full Court’s] reasons for judgment”[9]. The question arose was how the “remitted” application should be conducted and, like here, the parties had competing contentions. Relevantly, the parties accepted that the Full Court had proceeded under s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) and Finkelstein J resolved the matter on that basis.
[9] TheCommunity and Public Sector Union v Telstra Corporation Ltd (No.2) (2001) FCR 324 at [1]
In CPSU v Telstra, Justice Finkelstein surveyed the common-law distinction between a new trial and a further hearing. His Honour concluded that an order for a remittal and rehearing under section 28(1)(c) is a separate species of discretion from an order for a new trial under s 28(1)(f) and held that the former contemplates a more limited form of rehearing namely a “further hearing”. At [15] of the judgment His Honour described a “further hearing” as “[…] just that, namely a continuation of a trial that has already begun, though interrupted by a final order which has been set aside”. At [17], his Honour concluded:
“The better view appears to me to be that an order under s 28(1)(c) does not result in a new trial. Accordingly, the “further hearing” will be conducted on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well-known rules.”
Relevantly, Justice Finkelstein’s ruling in CPSU v Telstra went to the question of whether the applicant union should be permitted to cross-examine the author of a discriminatory email which was alleged to have been sent for a prohibited reason, namely to deny employees the entitlement of an industrial instrument. By reason of his ruling that the Full Court envisaged a further hearing rather than a new trial, and noting that the parties had already closed their cases, Finkelstein J declined to permit the union to cross-examine the author on his denial that the email had been sent for a prohibited reason. His Honour seems to have been of the view that the applicant union had already been afforded that opportunity at trial.
In Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 (‘Pratt Holdings’), Kenny J also considered the scope of a remittal pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth). Citing Finkelstein J in CPSU v Telstra, her Honour said at [8]:
"Where a matter is remitted pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), the further hearing is conducted on the basis that it is a continuation of the first trial: see Community and Public Sector Union v Telstra Corporation Ltd (No.2) (2001) FCR 324 at 329; [2001] FCA 479 at [17] per Finkelstein J. Thus, the remaining issues fall to be determined on the evidence that has already been adduced and on the basis of the parties further written submissions, which are discussed below. The respondents submitted, and I accept, that the Court must weigh the affidavit evidence, as tested in cross-examination and the content of the documents themselves, if the Court considers it necessary, and determine whether on the balance of probabilities the respondents have satisfied the court about dominant purpose."
Unsurprisingly, the respondent submits that by reason of the remittal being an exercise of the Full Court’s discretion pursuant to s 28(1)(c), this Court is bound to conduct the rehearing as a continuation of the first trial, with the remitted issues to be determined only on the evidence that has already been adduced and any further submissions. The respondent submits that the parties are otherwise bound by the way in which they conducted the initial trial subject to any application by the Federation to reopen.
CONSIDERATION
Order 4 of the Full Court’s orders provide that the Federation’s “application is remitted […] for rehearing in accordance with these reasons of the appellant's claims that the respondent contravened s 340 and s 343 of the Fair Work Act”. Plainly, order 4 was intended to be read with the Full Court’s reasons.
While the orders made by the Full Court are easily accommodated within the scope of s 28(1) of the Federal Court of Australia Act 1976 (Cth), I do not accept the premise of the respondent’s submissions that the Full Court clearly exercised its power of remittal in accordance with s 28(1)(c) and clearly did not exercise its power to order a new trial pursuant to s 28(1)(f). The orders of the Full Court are silent as to the source of the appellate discretion being exercised.
While I think it more likely that the Full Court did exercise its power of remittal in accordance with s 28(1)(c), that power is expressed in generous terms permitting proceeding to be remitted “[…] for further hearing and determination, subject to such directions as the Court thinks fit”[10]. An order directing a “rehearing” of the applicant’s claims “in accordance with [the Full Court’s] reasons” seems to neatly fit within that general discretion.
[10] Federal Court of Australia Act 1976 (Cth) s 28(1)(c)
However, I disagree with the respondent’s submission that s 28(1)(c) necessarily requires any rehearing to be narrowly constrained. I do not accept that the provision consigns the remittal to be heard only within the bounds of the evidence already before the Court.
I am mindful of the decision in CPSU v Telstra and the observations of Justice Finkelstein in the circumstances of that case. However, it is important to note that in both CPSU v Telstra and Pratt Holdings the remittal returned the matter to the first instance judge who had heard all the evidence and had observed all relevant witnesses cross-examined. The trial judges enjoyed all of the advantages of a trial judge and were in a position to determine any remaining questions in accordance with the law as pronounced by the Full Court on appeal.
That is not the case here. Indeed at [195] the Full Court speculated that the Chief Judge of this Court might allocate the remittal to a judge other than the primary judge, after hearing the parties. Like the Full Court, I do not enjoy the advantages of having heard or seen Mr Howell and I am in no better position than it to determine the matter on the current evidence and transcript. To do so would test the natural limitations of a Court discussed in Waterways and lead to injustice.
Order 4 requires the remittal to be a rehearing of the Federation’s claims of contraventions of ss 340 and 343 of the FW Act “in accordance with” the Full Court’s reasons. It is those reasons which define the boundaries of the rehearing in accordance with law and as to other matters, including procedure.
Relevant passages from the Full Court’s judgment have been extracted and are set out above. If it had been intended that the applicant’s claims should be determined on the affidavits and transcript of the hearing below, the Full Court could have decided those questions for itself as it was invited by the Federation to do. However, at [168] and [173] the Full Court did not consider it was in a position to determine those questions because it did not have the benefit that the primary judge enjoyed in evaluating Mr Howell’s evidence.
The Federation submits that there were advantages that the primary judge enjoyed that were relevant to the questions left unanswered by him. For example, in relation to the Federation’s allegation under s 340 of the FW Act, the primary judge did not decide whether the respondent had discharged its onus under s 361. In relation to the coercion allegation under s 343, the primary judge had failed to separately consider (or disentangle[11]) the purpose of the letter and the respondent’s intention in sending it. Accordingly, the Federation submits that those questions can only be determined by evaluating Mr Howell’s evidence including by having regard to the manner in which his evidence is given, his demeanour and his responses to cross examination. The Federation submits, and I accept, that the answers to these critical questions cannot be divined from the affidavits filed and from the words of the transcript.
[11] Full Court decision at [173]
Where, as here, the rehearing has been remitted to a different judge, that judge must engage with the relevant evidence and take advantage of the ability to evaluate relevant witnesses. It was clearly the intention of the Full Court that the judge on remitter should take the necessary steps to be in a better position to decide the outstanding claims. If that were not the Full Court’s intention, there is no logical reason why it could not have decided the matters for itself.
I accept the Federation’s submission that there is no requirement for it to seek leave to reopen its case. The Full Court has ordered that the outstanding issues be remitted for rehearing in accordance with the Court’s reasons. In my view, it is implicit in that order, and having regard to the Court’s reasons, that the outstanding claims will require (at the very least) the author of the letter and the respondent’s central witness, Mr Howell, to give evidence under cross-examination and for that evidence to be evaluated by the new judge. Only then can the Court determine whether the respondent made the threats for reasons that included a prohibited reason (for the purposes of s 340) and whether there was an intention by the respondent to negate choice (for the purposes of s 343).
That is not to say that the entire first instance proceeding must be replayed as if it never occurred. I anticipate that the parties may be content to rely upon the evidence in chief of some witnesses and the transcript record of their cross examination and re-examination. I also anticipate, in light of the first instance and Full Court judgments, that the parties are in a position to substantially agree on most facts. In respect of any witness who is required for cross examination, I would anticipate that cross-examination would be much more confined and targeted than it was at first instance. These are all matters in relation to which case management orders can be directed.
The rehearing ordered by the Full Court is qualified by its finding that the letter at the centre of the dispute conveyed a threat as alleged by the Federation. Accordingly, the questions which remain for determination are:
(1)whether the respondent made the threat for a prohibited reason or reasons which included a prohibited reason as a substantial and operative factor in contravention of s 340 of the FW Act; and
(2)whether in making the said threat there was an intention by the respondent to negate choice in contravention of s 343 of the FW Act.
I do not accept the applicant’s submission that the remitter should proceed on pleadings or that they are necessary to prescribe the boundaries of what is left to be determined in this case. I accept the submission of the respondent’s counsel that the parties cases are sufficiently well-known to each other that formal pleading will only add to cost, delay and duplication.
I am also not enamoured to the applicant’s proposal that there should be further discovery prior to the rehearing. I am mindful of the caution that injustice may arise “by setting the matter at large again”[12]. The remittal of the remaining questions is not a warrant for the case to be reformulated and the parties should be denied that temptation.
[12] CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [80]-[81]
The Full Court's observation at [195] that the “deplorable result” of a new trial was “unavoidable”, serves to acknowledge Court’s recognition that determination of the outstanding claims will involve something more than hearing further submissions based on the current record of evidence. For the remaining matters to be determined in accordance with the Full Court's reasons, the parties must be afforded the opportunity to adduce evidence on those matters and for that evidence to be tested under cross-examination. It is a matter for each party to determine what evidence they wish to rely on and the extent to which they are content to proceed on whatever is already before the Court or whether that needs to be supplemented in some way.
DISPOSITION
In my view, section 28(1) of the Federal Court of Australia Act 1976 (Cth) does not present a binary choice between a remittal hearing on the existing evidence on the one hand and a complete start-again new trial on the other. The range of discretions available to the appellate Court permit it to return a proceeding to the trial Court and to mould the scope and conditions of the remitter to meet the need to do justice according to law.
In the present case, the Full Court has plainly expressed the view that the remaining questions cannot be heard and determined without hearing and evaluating the evidence of Mr Howell. In order for me to rehear the matter in accordance with the Full Court’s reasons, the respondent must be able to adduce evidence to rebut the presumption in s 361 and the applicant must be afforded the opportunity to test that evidence under cross-examination. Whether that will require any more than Mr Howell been called and cross-examined is a matter for the parties.
I would hope that sensible heads can prevail in this case to bring it to a hearing as expeditiously and efficiently as possible. This matter will be listed for further directions on 5 September 2023. Prior to that date counsel for both parties should confer with a view to reaching consensus about trial directions, having regard to my observations in this ruling.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 25 August 2023
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