Buckley v Terrigal Grosvenor Lodge (Erina) Pty Ltd
[2014] FCCA 1098
•28 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUCKLEY v TERRIGAL GROSVENOR LODGE (ERINA) PTY LTD | [2014] FCCA 1098 |
| Catchwords: PRACTICE AND PROCEDURE – Evidence – admissibility of evidence – call for documents – Rule 15A.03 of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Evidence Act 1995 (Cth), ss.48, 64, 69, 102, 103, 104 Aged Care Act 1997 (Cth) ss.94A-1, 96-1 Fair Work Act 2009 (Cth), ss.340, 361, 365, 545, 546 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 |
| Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 Oates & Q and Anor [2010] FamCAFC 202 Graham v Colonial Mutual Life Assurance Society Limited (2013) 216 FCR 458; [2013] FCA 1213 Al-Shennag v Statewide Roads Pty Limited & Anor [2009] NSWSC 210 AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Kassis v Republic of Lebanon [2014] FCCA 155 |
| Applicant: | SHANE MARK BUCKLEY |
| Respondent: | TERRIGAL GROSVENOR LODGE (ERINA) PTY LTD |
| File Number: | SYG 1553 of 2012 |
| Judgment of: | Judge Nicholls |
| Date of Last Submission: | 16 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Edwards |
| Solicitors for the Applicant: | TDP Lawyers Wyong |
| Counsel for the Respondent: | Ms C Ronalds SC |
| Solicitors for the Respondent: | DC Balog & Associates |
ORDERS
The applicant’s request pursuant to Rule 15A.03 of the Federal Circuit Court Rules 2001 (Cth) is granted.
The respondent’s requests pursuant to Rule 15A.03 of the Federal Circuit Court Rules 2001 (Cth) are granted.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1553 of 2012
| SHANE MARK BUCKLEY |
Applicant
And
| TERRIGAL GROSVENOR LODGE (ERINA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 18 July 2012 Mr Shane Mark Buckley (“the applicant”) commenced proceedings in this Court pursuant to the Fair Work Act 2009 (Cth) (“the FWA”) alleging dismissal from employment in contravention of a “general protection”.
In particular the applicant alleged that his employer, Terrigal Grosvenor Lodge (Erina) Pty Ltd (“the respondent”) had contravened s.340 of the FWA by taking “adverse action”, being the alleged actions by the respondent preventing the applicant exercising his workplace rights both under his Employment Agreement and the “Aged Care Complaints Scheme” in accordance with the “Complaints Principles” created under s.94A-1 and s.96-1 of the Aged Care Act 1997 (Cth) (“the ACA”) (as it was at the relevant time).
Prior to commencing these proceedings the applicant had made an application to Fair Work Australia pursuant to s.365 of the FWA. A certificate was issued by a Commissioner of Fair Work Australia on 10 July 2012 certifying that a reasonable satisfaction had been reached that attempts at resolution of the dispute between the parties had been, or were likely to be, unsuccessful.
The Applicant’s Claim
The applicant’s claim before the Court, as set out in his amended Statement of Claim (“ASOC”) filed on 9 November 2012, asserts that the applicant had been employed by the respondent as the Deputy Director of Nursing at the Matthew John Nursing Home in Erina, NSW (“the nursing home”) from 1 March 2012 to 25 May 2012. He had been employed on a probationary period of six months and his employment was terminated about three months into that period. A copy of the written notice of dismissal of employment was issued on
25 May 2012 by the Managing Director of the respondent,
Ms Veronica Klumper-Peters.
The applicant seeks “special compensation” from the employer in the amount of $1,512.00 per week from 1 June 2012 to date and continuing for lost wages, and general damages in the amount of $15,000.00 for “humiliation and upset”. Further the applicant claims that breach of s.340 of the FWA is subject to the maximum penalty of 300 penalty points, and seeks any penalty order to be paid as a “moiety” to the applicant under ss.545 and 546(3)(a) of the FWA in addition.
Background before the Court
This matter has had a long and protracted history before the Court. It appears to previously have been in the dockets of, at least, two other Judges (or Federal Magistrates as they then were) of the Court for some 21 months. A final hearing commenced before another Judge of this Court on 8 April 2014.
During the second day of that hearing, scheduled for three days, the previous Judge withdrew from hearing the matter, and the matter was transferred to my docket.
The parties, both represented by counsel, attended directions before the Court on 30 April 2014 at 9.15am. Ms K Edwards of counsel appeared for the applicant. Ms C Ronalds of Senior Counsel appeared for the respondent.
A number of matters are of note. First, given the lengthy history of these proceedings, and the transfer of the matter to my docket after the commencement of the final hearing, I made clear to the parties that the focus in the directions was to determine what could be “salvaged” from the proceedings to date, and how the matter could be brought back to a final hearing as expeditiously, and reasonably, as possible.
Second, the parties indicated that they wished to “resume” the final hearing at the earliest available opportunity. While I considered that it would be preferable, and of some advantage to the Court in commencing the final hearing afresh, I was persuaded that the hearing should resume, in essence, part heard. Ultimately, I was mindful of the length of the proceedings to date, the inconvenience to the witnesses who had already given their evidence and been cross-examined, and the preference of both parties to proceed in this way.
Third, and in this light, I sought and subsequently obtained from the parties their written agreement to proceed in this fashion. The agreement was filed on 9 May 2014 and is in the following terms:
“1. The parties agree that the evidence of Mr Raymond Garner and Ms Leonie Edgar, including all rulings made on the admissibility of that evidence (in brief, under cross-examination and in re-examination), found at:
(a) Mr Garner – transcript of 8 April 2014 from page 15 line 33 to page 71 line 46,
(b) Ms Edgar – transcript of 8 April 2014 from page 72 line 35 to page 86 line 47.
2. All documents admitted into evidence and given exhibit numbers to be evidence in the proceedings continued before [Judge] Nicholls. A list of those exhibits and relevant references to the transcript is set out below.
3. The parties also agree that the document marked for identification ought to be noted by the Court in the proceedings continued before [Judge] Nicholls (transcript reference provided below).
APPLICANT’S EXHIBITS
Number
Description
Transcript Reference
A1
Email string and 21 pages of attachments from Kathy Mulligan to Shane Buckley dated 10 April 2012
8 April 2014
Page 44 line 13A2
Terrigal Grosvenor Lodge Enterprise Agreement 2010
9 April 2014
Page 2 line 45A3
Letter from John Fitzpatrick, Direct 2U to David Balog, DC Balog dated 1 April 2014 (5 pages)
9 April 2014
Page 16 line 11A4
Letter from David Balog, DC Balog & Associates to John Fitzpatrick, Direct2U, dated 3 April 2014
9 April 2014
Page 16 Line 14RESPONDENT’S EXHIBITS
R1
3 page document headed Matthew John Aged Care – Record of Interview – Registered Nurse (RN) – Management Position
8 April 2014
MFI1 – Page 22 line 41
R1 – page 82 line 28R2
Email string from Raymond Garner to Leonie Edgar and Letitia Quirk dated 13 and 14 February 2012 (2 pages)
8 April 2014
Page 27 line 19MFI/R3
Email string from Veronica [Klumper]-Peters to Shane Buckley and others (with handwriting) dated 19 March 2012 (1 page)
8 April 2014
Page 47 line 1R4
Not attributed
R5
Bundle of documents (22 pages) relating to Applicant’s alleged job description, quality issues and audits.
9 April 2014
Page 23
lines 20 – 26R6
Bundle of documents (38 pages) relating to investigations done, advice received in relation to the Applicant and the termination of his employment
9 April 2014
Page 23
lines 20 ‑ 29
[I made orders granting the applicant access to the Court’s copy of the Transcript of the hearing on 8 and 9 April 2014 given I was satisfied as to his “financial difficulty”. The respondent indicated it already had a copy of the Transcript.]
Fourth, it became apparent during the course of the directions that, despite the matter having reached, and commenced, a final hearing and proceeding into the second day, a number of outstanding issues remained unresolved.
It must be said that the issues appeared to emerge in a “piecemeal” fashion, even after I advised the parties that given that the matter had reached, and entered into the hearing of evidence in the final hearing, I assumed all threshold issues, matters of “discovery”, and questions of the admissibility of affidavit evidence, had been addressed.
That proved not to be the case. In any event, by the end of the directions on that day I repeatedly made clear to the parties that, given the stage of the proceedings, it was not unreasonable to expect that any outstanding issues would be known to the parties by that time, needed to be identified before the Court immediately, and steps be put in place for their disposition as soon as possible with a view to concluding the hearing of the matter commencing on 3 June 2014.
The outstanding issues were identified, by the end of the directions hearing on 30 April 2014, as follows:
1)The applicant’s objections as to the admissibility of parts of the respondent’s affidavit evidence.
2)The respondent’s objections to the admissibility of parts of the applicant’s affidavit evidence.
3)Pursuant to r.15A.03 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) the applicant had given notice on 1 April 2014 seeking production from the NSW Local Court (at Gosford) of the transcript of certain criminal proceedings. The respondent objected to the applicant being given permission to inspect this document.
4)The respondent’s application for leave to put on further evidence. The applicant objected.
5)The respondent’s call for documents that commenced a complaint by the applicant to the Age Care Complaints Scheme. (I note that this was subsequently resolved between the parties).
I made orders on that day as follows:
“1. Leave is granted to the parties to file and serve a statement of agreement as to how the matter will proceed by 7 May 2014.
2. Leave is granted to the parties to file and serve written submissions on the following matters:
(a) Provision under Subpoena of NSW Local Court documents.
(b) Respondent’s application to file further evidence by way of affidavit.
(c) Respective objections to admission of evidence in affidavits filed in these proceedings.
(d) The respondent’s call for certain documents.
by 7 May 2014.
3. Leave is granted to the parties to file and serve written submissions in reply on 14 May 2014.
4. Liberty is granted to the parties to apply to the Court on three clear days’ notice.”
It is of note, again, that at the directions on 30 April 2014, on a number of occasions, I sought from the parties a definitive list of all outstanding issues. Both parties stated there was nothing further to that set out above. Given what is set out immediately below, I note that the respondent’s counsel, with instructing solicitor present, made clear to the Court in answer to the Court’s direction to check whether there were any additional issues, that there were not.
At some point after the directions hearing on 30 April 2014, the respondent’s solicitors approached the Registry of this Court seeking to inspect certain NSW Local Court (Gosford) Coronial documents. On 7 May 2014 the respondent made a similar approach in relation to certain NSW Supreme Court documents. The applicant objected and the matter came before me for further direction on 15 May 2014.
This judgment seeks to deal with all the outstanding issues, as ultimately identified by the parties such that the final hearing of this matter may proceed without hindrance. Therefore I have dealt with the issues raised on 30 April 2014, the subsequent issues raised in the submissions, and the application made by the respondent for other documents. These issues are set out below as follows:
1)Issue 1 – Agreement as to Progress of the Case
2)Issue 2 – Applicant Request for Access to Local Court (Gosford) Documents
3)Issue 3 – Respondent’s Request for Access to Local Court (Gosford) and NSW Supreme Court Documents
4)Issue 4 – Respondent’s Call for Other Documents
5)Issue 5 – Application by the Respondent to File Further Evidence
6)Issue 6 – “Outstanding” Objections to the Affidavit Evidence of Mr Buckley and Ms Klumpers-Peters
7)Issue 7 – How The Matter Will Proceed
8)Issue 8 – Applications for Costs
Issue 1 – Agreement as to Progress of the Case
As set out above (at [11]) the parties have complied with order 1 made on 30 April 2014 and the Court notes the matters agreed between the parties.
Issue 2 – Applicant Request for Access to Local Court (Gosford) Documents
As background to the various applications now for access to a number of NSW Supreme Court and Local Court documents, I note that on 23 November 2012 an order was made, amongst others, concerning the production of documents, which granted leave to the parties to request the issue of more than 5 Subpoenas (with reference to r.15A.05(1) of the Rules). Importantly, for current purposes, the Court’s order was that all subpoenas and notices to produce were to be made returnable before a Registrar of this Court at a time before the final hearing of this matter.
It was plain even at that time (over 18 months ago) that the proper conduct of these proceedings required applications, or calls for documents, and their resolution, to be made at a time prior to the commencement of the final hearing.
The parties are now in dispute, relevantly, over the “production” of three sets of documents (see [15] and [18]). All are Court documents and therefore under the Rules are not susceptible to production by subpoena. The relevant process is provided for in r.15A.03 of the Rules:
“15A.03 Documents and things in possession of another court
(1) The court must not issue a subpoena requiring the production of a document or thing in the possession of the Court or another court.
(2) A party who seeks production of a document or thing in the possession of another court must give to a Registrar a written notice setting out:
(a) the name and address of the court having possession of the document; and
(b) a description of the document to be produced; and
(c) the date when the document is to be produced; and
(d) the reason for seeking production.
(3) On receiving a notice under subrule (2), a Registrar may ask the other court, in writing, to send the document to the filing registry by a specified date.
(4) A party may apply for permission to inspect and copy a document produced to the court.”
Notwithstanding the distinction between production by subpoena and the process provided for in this Rule, although the Court’s orders were expressed with specific reference to the latter, the Court’s intention that production, and any dispute over production, of all documents should be finalised before the final hearing would in my view have been tolerably clear to both parties.
On 19 March 2014 the applicant issued a subpoena seeking access to documents held by the NSW Local Court (Gosford). This was withdrawn on 1 April 2014, and by letter of the same date the applicant made a written application to the Registrar seeking access to NSW Local Court (Gosford) documents concerning criminal proceedings in that Court involving Ms Klumper-Peters, the managing director of the respondent. When the applicant called for these at the final hearing the respondent objected, and it appears it was not resolved at that time.
Through his submissions, the applicant appears to have some knowledge of the contents of these documents, including the finding and sentencing of Ms Klumper-Peters for “offences involving fraudulent conduct” (see applicant’s written submissions of 8 May 2014 at [16]). His position is that there is not a basis at law to refuse the applicant access to these documents (see applicant’s written submissions of 8 May 2014 at [15]).
The applicant argues that the “relevance” of these documents to the current matter is as follows. Ms Klumper-Peters is giving evidence to this Court in these proceedings. The respondent bears the burden of persuading the Court as to her relevant intentions at the time of terminating the applicant’s employment. The applicant says that his employment was terminated because he had made a complaint about how she managed the respondent’s aged care facilities, and not for reasons to do with the performance of his duties (see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [44] – [45] per French CJ and Crennan J).
The applicant’s argument in the substantive issues before this Court is said, in relevant part, to be that in making the decision to terminate his employment, and in her attendant conduct, Ms Klumper-Peters was proceeding in her own interests as a director of the respondent company, or even in the interests of the respondent, rather than the interests of the residents of the aged care facility as required by relevant legislation (relevantly, the ACA).
For current purposes, the applicant argues that the contents of the Local Court (Gosford) documents are relevant to these proceedings for essentially two reasons. First, the nature of the Local Court’s finding against Ms Klumper-Peters, which the applicant believes is revealed in the Local Court (Gosford) documents, shows that she was guilty of acts in the same nature as those the applicant was concerned about while employed by the respondent, and were the subject of his complaint. Second, that the documents reveal her alleged propensity to lie where financial benefit may accrue to the respondent.
In summary, the applicant foreshadowed at least two uses to which the information in the documents, if consistent with his expectations, may be used by him in these proceedings.
A number of points are said to arise from this. First, the relevance of the “tendency” evidence is said to be revealed from the documents attached to her evidence in these proceedings, particularly as to the reason for the termination of the employment (see in this context Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 particularly at [74] – [76] per Sackville J).
Second, the possibility of “substantial effect” on the assessment of
Ms Klumper-Peters credibility. This is put in acknowledgement of the exceptions to the “credibility rule” in the Evidence Act 1995 (Cth) (“the Evidence Act”) (with specific reference to ss.102 and 103 of the Evidence Act).
The respondent is correct to point out that the applicant’s written notice to the Registrar, made pursuant to r.15A.03 of the Rules, did not comply with r.15A.03(2)(d) of the Rules, in that no reason for seeking access to the documents was provided.
However, the fact remains that despite this omission the Registrar did write to the Local Court (Gosford) and the relevant document (which according to the respondent is a transcript of the proceedings presumably involving Ms Klumper-Peters) was provided to the Registry.
Rule 15A.03(2)(d) of the Rules, is in my view, directed to the exercise of the discretion of the Registrar whether, on receipt of the relevant notice, to write to the “other Court” requesting the document. Despite noting the deficiency, the respondent does not appear to press the matter further or to argue that this omission is a reason for not granting the permission the applicant seeks. Nor, importantly, does the respondent press any miscarriage of the exercise of the Registrar’s discretion here.
The respondent argues that the content of the Local Court (Gosford) transcript could have “absolutely no relevance to the reasons for termination of the Applicant’s employment” (see respondent’s written submissions of 8 May 2014 at [12]). This is said to be because the transcript relates to matters of the administration of the nursing home in 2008, while the applicant’s period of employment was March to May 2012. In short, the respondent’s argument is that the contents of the Local Court (Gosford) transcript have no temporal, or factual, basis for any of the matters pleaded by the applicant (with specific reference to his ASOC). In addition, the respondent says that the matter is currently on appeal (see respondent’s written submissions of 14 May 2014 at [12]).
Further, the respondent submits that “the only reason” the applicant seeks access is in an attempt to impugn the credibility during
cross-examination of Ms Klumper-Peters (see respondent’s written submissions of 8 May 2014 at [13]). The respondent relies on, essentially, arguments as to why the material in the Local Court (Gosford) transcript is not admissible (with specific reliance on s.102 of the Evidence Act and with reference to ss.103 and 104 of the Evidence Act).
Some care needs to be taken in the resolution of this dispute as to the exact nature of what the Court is being asked to do at this time. The issue currently before the Court is whether the applicant, pursuant to r.15A.03(4) of the Rules, should be given permission to inspect and copy the Local Court (Gosford) documents that have been produced to the Registry of the Court.
A distinction needs to be drawn between this and the admissibility of any evidence that the applicant may subsequently seek to proffer, or tender, and rely upon. The applicant has made no such attempt at present in relation to the Local Court (Gosford) documents.
I am satisfied on the submissions before me that the applicant should be given permission to inspect and copy the documents pursuant to r.15A.03(4) of the Rules. I am persuaded by the applicant’s submissions to the extent that they apply to the question of permission to inspect, and not necessarily by the subsequent admissibility of any evidence sought to be proffered.
While the applicant has signalled his intention as to how he may seek to rely on the contents of the documents, or the use he may seek to make of it, both in an evidentiary context, and in pursuit of his case generally, I do not comprehend that he has made any attempt to date to put the document, or any part of it, before the Court in any evidentiary context. In fact, the applicant makes specific note of the distinction between the seeking and granting of permission to access documents and the tender and admissibility of any “evidence” that may subsequently be found in them (see for example applicant’s written submissions of 8 May 2014 at [18]).
The respondent’s arguments that go to the question of admissibility of any evidence under the Evidence Act presumably to be derived from the document, are, in my view and on their face, sound, and have some strength. But, whether any subsequent attempt by the applicant to seek to proffer any evidence arising from the document, or even the document in its entirety, will obviously be determined by the exact nature of what is offered and its relevance to a fact, or facts, in issue. The Court is not in a position to make specific findings in the absence of any such requests by the applicant, and any specificity as to what is being sought to be adduced.
In the current circumstances, the granting of permission is the “first” step in this process. What the applicant may seek to do, if anything, must await the applicant’s election. As the respondent notes in its submissions (of 8 May 2014 at [21]), if the applicant’s counsel “did seek to cross-examine on such material, then there would be objections”. The resolution of any such objections, dependent on the applicant’s election as the respondent recognises, must await that attempt, if indeed such attempt is made.
I note the respondent’s argument that the exercise of the matter at r.15A.03(4) of the Rules is at the Court’s discretion, and that the Court should act judicially (see respondent’s written submissions of 14 May 2014 at [7] – [9]). The exercise of that discretion is generally explained above.
I should also note that in granting the permission the applicant seeks, I did not rely on the applicant’s argument that he should be granted such permission because the information was known to the respondent’s witness (Ms Klumper-Peters) and is information already within her knowledge. I agree with the respondent that the exercise of the discretion is not assisted by such argument in the current circumstances.
Further, the applicant submits that r.15A.03 of the Rules is in similar terms to r.24.24 of the Federal Court Rules 2011 (Cth) (“the FC Rules”) and r.24.13 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”). That is, the applicant, in essence, submits all three deal with the permission to inspect and copy Court records. Although, as the respondent submits, “they are not identical”.
The applicant’s reliance on Oates & Q and Anor [2010] FamCAFC 202 (“Oates”) must be seen, as the respondent submits, in light of its relevance to r.24.13 of the Family Law Rules. I agree with the respondent that that rule deals with access to documents held by the Family Court Registry by certain specified persons as listed in that Rule. That is, a category of persons whom the Rule provides have “a proper interest in the case”.
Regard to the circumstances of Oates provides some focus. There a solicitor who was in a relationship with a man involved in Family Court proceedings was given access to documents held by the Family Court, in those proceedings, because the man’s former wife had made a “professional complaint” that the solicitor had given false evidence in the proceedings.
What is immediately apparent is that the circumstances in Oates involved access to the Court’s own documents, by a person who had been a witness in those proceedings, and who was said to have an interest in the documents because of a matter arising from those proceedings. These differences are of such a nature that what was said in Oates, in my respectful view, does not directly assist in the current matter.
The applicant is on stronger ground, however, with his submission that r.15A.03 of the Rules, while appearing in the same part of the Rules (Part 15 of the Rules) as matters relating to subpoenas, should be seen as standing apart and separate. I agree if for no other reason than the existence of r.15A.03 of the Rules, of itself, is in recognition of it being inappropriate for one Court to “subpoena” the documents held by another Court. To the extent therefore that the respondent’s arguments derive from the circumstances pertaining to subpoenas they do not assist with the exercise of the Court’s discretion pursuant to r.15A.03(4) of the Rules. Further, that distinction, in my respectful view, is also made clear in Graham v Colonial Mutual Life Assurance Society Limited [2013] FCA 1213 per McKerracher J (“Graham”).
Graham of assistance to the current matter. That case involved r.24.24 of the FC Rules. That rule, as the respondent submits, is not in identical terms to r.15A.03 of the Rules. However it is, as the applicant submits, “similar” particularly as to its scheme. It addresses, albeit in part, access to documents in custody of a Court other than the Federal Court, as is the case here. It requires a written communication to the Registrar of that Court identifying the documents, as is required here.
Further, it requires the Registrar to write to the other Court, which is in part different to Rule 15A.03 of the Rules, as r.24.24 “requires” the Registrar to write to the other Court. In this Court’s Rules this is discretionary. However, the mode of communication is the same. Some care must be taken, however, given what the Court in Graham (as in Oates) saw as the special nature in terms of privacy of the documents in Family Law proceedings. This is not necessarily the case here.
What is respectfully, and relevantly, drawn from Graham is that “some specific utility would be produced by the inspection” (see Graham at [11]). In part the respondent’s submissions are directed in a general and broad sense to the matter of “utility”.
The argument that the information in the documents is inadmissible in an evidentiary context has been dealt with above. The respondent’s submissions on the lack of connection, and therefore lack of assistance to the Court or utility of the information in Local Court (Gosford) documents which is said to be about a completely different factual scenario is also answered by what is set out generally above.
Further, I do not agree with the respondent, on the submissions before me, that the applicant’s request for access to the documents is for the “sole” purpose of discrediting Ms Klumper-Peters. It is plainly “a” purpose as the applicant openly submits, however not the “sole” purpose. I am persuaded that some specific utility would be produced by the inspection.
That utility is to allow the applicant to properly consider the efficacy of what he describes as the “tendency evidence”. On his submissions, that appears to be an important plank in the applicant’s response to the evidence of Ms Klumper-Peters. It is, in my view, appropriate that he be given the opportunity to consider this. This does not mean, of course, as set out above, that any information available to the applicant would be admissible into evidence. But that is a different argument for another (albeit imminent) day.
I cannot help but note that in submissions on this issue the respondent referred to s.42 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”). It is in the following terms:
“In proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”
What must immediately be said is that this appeared in submissions made by the respondent in circumstances where some of the “issues” raised by the respondent were put forward after the Court was told on 30 April 2014 that there were no other issues for consideration (see [17] – [18] above). As stated above, the respondent’s solicitors then went to the Court’s registry with another issue, and even later a further issue arose.
While the respondent’s submissions were put in relation to the issue above, they should also be instructive to the respondent, and it must be said its solicitors, in revealing their own conduct in relation to the access of documents now sought by the respondent. The manner, and timing, of their requests being raised, at the time that they were raised, without satisfactory explanation can only be seen as protracting the proceedings.
Issues 3 – Respondent’s Request for Access to NSW Local Court (Gosford) and NSW Supreme Court Documents
The documents the respondent now seeks are the transcript of findings made by a Coronial inquiry (NSW Local Court (Gosford)), where the applicant’s work practices were said to be the subject of negative comment by the Coroner, and access to documents in proceedings before the NSW Supreme Court brought by the applicant in circumstances where it is said his employment was terminated at the initiative of a former employer.
Both matters are to be treated as being made pursuant to r.15A.03 of the Rules. What is generally set out above in relation to the applicant’s request pursuant to r.15A.03 of the Rules applies here and does not need to be repeated.
A number of points specific to the requests in relation to these documents need to be made.
First, the respondent has attempted to provide some explanation as to why no mention was made of either of those two documents on 30 April 2014 in circumstances where I made it clear that the timely resumption of the hearing required everything to be “put on the table” at that time. That there was an intention to call for at least one of the documents during the hearing still does not explain why no mention of it was made as would have been expected given the circumstances. I do not find its submissions helpful in this regard.
Second, however, there is some substance in the respondent’s position that the applicant has adopted a “contradictory position” (see respondent’s written submissions on additional issues of 14 May 2014 at [5]) in relation to the applicant’s view of the application of “the case law” as a basis for allowing his request, but not the respondent’s request.
In this regard, matters of the ultimate admissibility of any “evidence” the respondent may seek to extract from these documents are, as the respondent says, not immediately relevant to the disposition of the consideration of r.15A.03 of the Rules, as I have set out above in relation to the applicants’ request for documents. I note further in this regard, the guidance provided, as the respondent submits, by the NSW Supreme Court in Al-Shennag v Statewide Roads Pty Limited & Anor [2009] NSWSC 210 (see respondent’s written submissions on additional issues of 14 May 2014 at [11] – [13]).
Third, to the extent that the respondent relies on the proposition that the applicant has now changed his case, as a part of the reasons for seeking access to the documents now, and not at an earlier time, that submission must be rejected for the reasons set out below. Essentially, I do not accept that the applicant has changed his case in the way the respondent claims.
Fourth, I note the respondent’s submission that attempts were made by the respondent’s solicitors to obtain “any employments documents of the applicant between 2007 and 2010”, and documents associated with the Supreme Court matter as early as 19 March 2014, and the Supreme Court documents earlier by subpoena (see respondent’s written submissions on additional issues of 14 May 2014 at [17] and
[18] – [24]).
Fifth, it is important to note that the dates referred to by the respondent when it says it attempted to obtain these documents are all before 7 April 2014, when the respondent says the applicant’s counsel “changed” the applicant’s case. This appears to contradict the respondent’s submission now that it seeks these documents at this “late” stage because the applicant changed his case. A proposition which in any event, as set out below, I do not accept.
Sixth, the failure to mention these issues at the directions on 30 April 2014 stands against the respondent. Whatever had occurred in the past, that was the occasion to have acted in a clear and direct fashion. By not pressing it at the directions on 30 April 2014 it was open to infer that the respondent no longer sought to access the documents, or that there were no documents to be sought.
Nonetheless, I am of the view that the respondent should be granted the access it seeks. I apply that part of the reasoning in relation to the applicant’s request as is relevant to the respondent’s request.
Further, I agree with one important and relevant aspect of the respondent’s submissions here. That is, that the documents, if they contain information as the respondent expects, are relevant to the issues for disposition in the substantive proceedings (see respondent’s written submissions on additional issues of 14 May 2014 at [22] – [23]). The applicant’s argument that this is a “fishing expedition” is not accepted, essentially for the same reasons that I did not see his request in that light.
The respondent provides some commentary in its submissions (see respondent’s written submissions on additional issues of 14 May 2014 at [24]) as to the “requirement” that parties to litigation should
co-operate with each other. To the extent that that can be done without compromising their respective positions, then it is in the interests of the administration of justice and consistent with s.3 and s.42 of the FCCA Act, that it also apply that worthy sentiment to its own conduct in this case.
Issue 4 ‑ Documents Called for By Respondent
At the directions on 30 April 2014 the respondent indicated that it had called for certain documents relating to the applicant’s complaint to the Aged Care Complaints Scheme. The position appeared to have been that the applicant had not provided the documents, although the applicant’s counsel indicated that that would be done.
I nonetheless made the appropriate order (order 2(d) of 30 April 2014). It appears the matter has now been resolved (see applicant’s written submissions of 14 May 2014 at [16]).
Issue 5 – Respondent’s Application to File Further Evidence
The respondent sought leave to file, at this late stage, further evidence in the form of an affidavit to be made by Ms Klumper-Peters. A “proposed” affidavit was provided with the respondent’s submissions on 8 May 2014.
I subsequently made orders, by consent, granting leave for this to occur. I note that while two bundles of documents, said to be annexures to the affidavit were filed in the Registry on 8 May 2014, to date no affidavit, as foreshadowed, from Ms Klumper-Peters has been filed.
In his submissions, the applicant, presumably working from the “proposed” draft, has listed his objections to the evidence. The respondent has not responded to these objections in its written submissions, beyond stating the “necessity of filing the further evidence.
A Further Issue Arising From Issue 5
A further issue that emerged in submissions in relation to this fifth issue requires some attention. The respondent says that the reason it needed to put on the further affidavit evidence of Ms Klumper-Peters at this time was that the applicant has raised “two new claims”, and
Ms Klumper-Peters’ evidence was required to address these.
The “new matters” or “alterations” to the applicant’s case were both said to have been raised at the hearing by the applicant’s counsel.
The first is described by the respondent as the “no bona fides” claim. The applicant’s counsel stated (see respondent’s written submissions of 8 May 2014 at [29] quoting the transcript of the hearing on 8 April 2014 at page 6, line 47 to page 7, line 2):
“the fact that he wasn’t afforded procedural fairness we say shows that the acts were not taken for bona fide purposes related to performance.”
The respondent says this was not pleaded by the applicant. While the respondent’s submissions assert that there “should not be a fundamental change” in the case in the circumstances in which this matter was raised, nonetheless, the respondent has endeavoured to meet this “new claim” with the exhibits R5 and R6 (see respondent’s written submissions of 8 May 2014 at [30] – [31]).
The second “significant new claim” is described by the respondent as “the punishment claim” (see respondent’s written submissions of 8 May 2014 at [35]). That is, how the applicant claimed to have been treated by the respondent. This also was said to have been articulated for the first time by the applicant’s counsel at the hearing (see respondent’s written submissions of 8 May 2014 at [35] and the reference there to the Transcript of 8 April 2014 at page 7
lines 28 ‑ 31).
The exact position of the parties was not clear in certain respects. The respondent says that the applicant should not be permitted to amend his claims given that the amendments were “significant” and the circumstances in which the new claims were first made (that is at the opening of the hearing).
However, the submissions do not expressly say that the applicant should not be permitted to pursue these “new claims”. In this regard the respondent seeks, in the event that the applicant presses these new claims, that he be ordered to file a further ASOC (see respondent’s written submissions of 8 May 2014 at [38]).
I therefore take the view that the respondent’s attempt to put the additional evidence of Ms Klumper-Peters before the Court is predicated either on the basis that the applicant would be granted such leave or, in a sense, “protectively” should leave be so granted.
It is important to note that the applicant does not seek to file any further ASOC. In any event, this would be inconsistent with his position that there were no new claims raised by his counsel at the beginning of the hearing, but rather that what was said fell within the ambit of the ASOC filed on 9 November 2012.
The applicant further asserts that the respondent’s claim that the applicant has “substantially” attempted to change his case is said in an attempt to put on further evidence that it should have put on at an earlier time (see applicant’s written submissions of 8 May 2014 at [35]). The applicant states that the respondent should be limited to the oral submissions made at the hearing (with reference to the Transcript of 9 April 2014 at page 4 line 12).
The applicant on his own submission, however, agreed to “allow” (through the consent orders made on 8 May 2014) the respondent to file further evidence, albeit limited to what the applicant says had been agreed between the parties on 30 April 2014 and 1 May 2014. Namely, a “narrative from Ms [Klumper]-Peters of the documents already before the Court in Exhibits R5 and R6…” and “a further email” to be provided to the applicant (see applicant’s written submissions of 8 May 2014 at [37]).
The applicant’s submissions then present in some detail what are said to be exchanges between the applicant’s and respondent’s solicitors (see applicant’s written submissions of 8 May 2014 at [38] – [45]). The thrust of the applicant’s reference here is that the respondent has attempted to enlarge the range and scope of evidence which it wishes Ms Klumper-Peters to give and including the further documents to be provided annexed to that evidence (see in particular applicant’s written submissions of 8 May 2014 at [39] – [40]).
The applicant’s position can be understood as follows. He agrees to the filing of evidence from Ms Klumper-Peters to the extent that such evidence only provide “narrative evidence about Exhibits R5 and R6” (already before the Court) (see applicant’s written submissions of 8 May 2014 at [45]).
The applicant then says that he “would object to the admission” of the further documents which the respondent has sought to put forward, and further evidence in relation to those documents (see applicant’s written submissions of 8 May 2014 at [45]). It is not entirely clear whether the applicant’s position is that the respondent should not be given leave to file further evidence, or that he would object to the material (documents) which the respondent expects Ms Klumper-Peters can put before the Court, and her evidence in relation to these documents (leave would be required given the matter has proceeded to a final hearing).
Having regard to the entirety of the applicant’s submissions (and in particular see applicant’s written submissions of 8 May 2014 at [51]) I formed the view that the applicant opposes leave being granted to the respondent to file the evidence of Ms Klumper-Peters. That is, other than that which can be said to be the “narrative” relating to Exhibits R5 and R6.
For the Parties to Consider
Before proceeding to consideration of the questions that emerge here (see below at [103]). I should note the following. At [70] of its written submission of 14 May 2014 the respondent says:
“It is noted that the Applicant now concedes that there has been a significant change in his case as he writes that this is “not incorrect”.
This is an obvious reference to the applicant’s submissions of 8 May 2014 at [50] where the applicant stated:
“The six documents apparently go to the Respondent’s reason for terminating the Applicant’s employment (including related issues surrounding our client’s performance). These were matters on which the onus of proof rests with the Respondent and not the Applicant. In that way, the Respondent’s argument that there has been a ‘significant change’ in the Applicant’s case (which is not incorrect and not in any way supported by a plain reading of the Application and the Amended Statement of Claim) is a doomed attempt to provide an explanation as to why this evidence was not on earlier (and in accordance with the orders made by this Court)…”
[Emphasis added.]
What is put by the applicant here, the reference to “not incorrect”, is plainly a typographical error, and clearly apparent as such, when read both in the immediate and wider context of the applicant’s written submissions. The respondent’s written submissions can only be seen as unhelpful.
This is not of assistance generally in litigation, but especially in this case where there has been long delay and other difficulties associated with the “interrupted” final hearing. This can only serve as a time wasting distraction from the real issues, and tasks, at hand.
Elsewhere in its “bundle” of submissions (see respondent’s written submissions of 8 May 2014 at [18]), as stated above, the respondent makes reference to s.42 of the FCCA Act and in particular that the Court “…must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”.
The respondent makes this specific reference to the following point:
“…Permitting cross-examination that goes only to credibility will needlessly add to the time of the proceedings when timing is an important issue, given unforeseen and unpredicted delays and the short time available for the Court to hear the evidence. It can be anticipated that if access to the documents was granted and cross-examination as to credibility was permitted, then considerable time would be expended with objections and rulings.”
It is often the case in some jurisdictions in this Court (for example Human Rights and Migration) that legal representatives take the view that “point scoring” and repeated and protracted arguments over the admissibility of evidence should be avoided. The approach taken is, where appropriate, to allow matters to be dealt with in submissions to the Court as to the weight to be assigned to the disputed matter being asserted.
This is not to say that the provisions of the Evidence Act are to be ignored. It is trite to say that that is not appropriate. But the Evidence Act, as with all legislation, is susceptible to subtleties of interpretation and understanding. Different factual scenarios can often provide fertile ground for competent counsel to reasonably argue opposing points.
Obvious and egregious attempts to admit evidence that is plainly not admissible should be avoided. But, both parties might consider the utility of adopting in this case, at least, the spirit of what is set out above and to which the respondent has made reference (albeit for a different purpose). In this way these proceedings, which have had “some history”, can proceed in the manner directed by s.42 of the FCCA Act, and for that matter consistent with s.3(2)(a) and (b) of that Act.
As I said to the parties on 30 April 2014 after the matter came into my docket, the immediate task was to see what could be “salvaged” from what had previously occurred so that the matter could proceed expeditiously, albeit reasonably. That task is ongoing. It requires attention by the parties.
The Two New Claims
The respondent’s descriptions as to the “new claims” are set out at [80] and [82] above and following.
Two questions emerge. First, has there been a “substantial” change in the applicant’s claims from that set out up to, and including, the ASOC. In light of the answer to that question is whether the respondent should be granted leave at this stage of the proceedings to file the evidence of Ms Klumper-Peters (and the attached documents) which have not already been admitted into evidence before the Court. Noting of course the distinction between leave to file evidence by way of affidavit and the subsequent “admission” of that evidence before the Court.
The respondent’s submissions require, and direct, attention to what exactly, and relevantly, the applicant pleaded in his ASOC and a proper understanding, in context, of the extracts taken from the transcript of the hearing before the Court on 8 April 2014 by the respondent.
The respondent asserts that there were “manifest deficiencies” in the applicant’s ASOC. The respondent, therefore, submits that it “made forensic decisions based on its understanding of the [ASOC] despite its manifest deficiency” (see respondent’s written submissions of 14 May 2014 at [71]).
The reason for making this submission in relation to this issue is not clear. The respondent’s otherwise stated position for seeking to provide the evidence of Ms Klumper-Peters now was that the applicant significantly changed his case. The question then arises, did the respondent not provide the evidence of Ms Klumper-Peters that it now seeks to provide because of deficiencies in the ASOC, or, as it now submits, because the applicant changed his case.
The respondent’s argument that it made forensic decisions, such as not seeking to produce Ms Klumper-Peters’ evidence earlier, based on a “manifestly deficient” ASOC needs greater explanation than mere assertion. While the respondent may feel that the deficiencies are clearly revealed (the sense in which, in context, I understand the term “manifest”) some explanation and link to its central argument is required (that is, that the applicant has now changed his case).
If one “deficiency” is said to be that the ASOC provides a “narrative” for a “limited period”, whereas the applicant now seeks to address the “entire period” of his employment through the “no bona fide” claim (as stated at respondent’s written submissions of 14 May 2014 at [71]) then a number of difficulties arise.
First, this still leaves the statement that the “punishment claim” was new to the proceedings unexplained in this context.
Second, to speak of the “entire” period of employment, with the implication that it was of some, or sufficient, duration that the applicant only focussed on one part, fails to address the fact that there is no dispute that the applicant was only employed by the respondent for less than three months.
Third, and this relates to the entirety of the respondent’s argument on the “new claims”, I agree with the applicant that that part of the respondent’s argument in submissions on this issue which is directed to the disagreement with the factual matters asserted by the applicant (see for example the respondent’s written submissions of 8 May 2014 at [28]) is of no assistance in the resolution of the immediate interlocutory dispute.
Disputes about the filing of evidence at this “preliminary” stage cannot be resolved by the Court making finds of fact about the matters in dispute. Such findings of fact are for determination once the relevant affidavit has been filed, if leave is otherwise granted, and then after the evidence is read and “tested” at a hearing.
In my view, the applicant’s ASOC is reasonably clear as to the case that he sought to raise. In an abundance of caution I note that what follows is not the Court’s concluded view as to the facts found on the evidence (this is to be done and expressed in any subsequent judgment after the hearing), but for current purposes what can be said to be reasonably understood as the applicant’s claims and their ambit at the time of the filing of the ASOC is as follows.
In the ASOC the applicant alleged that during the course of his employment by the respondent he made a number of complaints to a relevant authority raising concerns about aspects of the management of the nursing home, staffing levels, and other matters (ASOC at [9]).
He also set out what he said was the subsequent conduct, and process, undertaken on behalf of the respondent. This included his suspension (ASOC at [10]), the claimed treatment on suspension (ASOC at [11]), the drafting of a report by an “external investigator” that “alleged poor performance and unprofessional conduct” on his part and the claimed basis for this (ASOC at [12]).
He also referred to his claimed efforts in seeking particulars about these matters and the respondent’s alleged failure to provide these in the relevant time scale (ASOC at [13] – [17]). Further, he claimed that the respondent prevented him from properly responding to the allegations made against him (ASOC at [19]).
Further, he made claims in relation to the manner and mode of the termination of his employment (ASOC at [20]), and that the termination was “unfair” (ASOC at [21]).
He outlined subsequent action he took pursuant to the FWA (ASOC at [22]). He specifically referred to the “workplace rights” he asserted he had, and he made specific reference to the claim that the respondent had terminated his employment to prevent him from notifying a dispute under the relevant Employment Agreement, and making complaints regarding the provision of care at the nursing home because of the “workplace rights” that he had (ASOC at [26]).
The “first” alleged new claim raised by the respondent is in relation to the applicant’s counsel’s remarks in opening submissions at the hearing on 8 April 2014 (see [80] above). In my view, it is clear that the thrust of those remarks was open to the applicant’s counsel to make in the sense of its relevance to, and arising from, the applicant’s pleading in his ASOC (as outlined above).
The ASOC directed attention to the applicant’s claims as to the reasons for the termination of his employment, the process adopted by the respondent in the events leading up to the termination and what the applicant asserts were the reasons for the termination, as opposed to the reasons provided to him by the respondent.
The applicant’s counsel’s statement relied on by the respondent now was directed to that process and the reasons for termination. It does not constitute the articulation of a “new claim”, “significant” or otherwise.
The extract quoted by the respondent makes reference to “procedural fairness”. Here again, this submission was probative of some of the matters raised in the ASOC. For example, that the applicant claimed to have been denied further and better particulars of the respondent’s concerns about him.
The alleged second “new claim” is referred to at [82] above. This statement, again when read in context, is directed to what the applicant said was a lawful exercise of his right to make the complaints he did, and seeks to explain (as is one of the aims of submissions) the applicant’s case, as to the consequences of the respondent’s conduct towards him and the termination of his employment. All of this arises from the ASOC.
The statements made by counsel, therefore, were not the expression of any “new claim”, and certainly not “significantly new matters”. They were submissions directed to claims made in the ASOC and in explanation of them.
The second question now is whether the respondent should be granted leave to file the proposed affidavit of evidence by Ms Klumper-Peters and the documents annexed to it, other than “R5” and “R6”.
It is important to note that the respondent has sought to enliven this issue on, essentially, one basis. That is these are “new” claims and it should be given the opportunity to file evidence in relation to those new claims. As set out above, I do not accept the central premise of the respondent’s argument here. In the absence of any other substantial argument to the contrary, the respondent’s application for leave in this regard is to be refused.
In his submissions on this issue, the applicant says that the respondent “should be bound by the forensic decision it made at the commencement of the case not to lead evidence which might go to the reasons why it terminated the Applicant’s employment” (see applicant’s written submissions of 8 May 2014 at [51]).
There are of course circumstances where parties to litigation often seek and are, on occasion, granted leave, to file affidavit evidence some time into the conduct of the matter, and even after the hearing has started. However, this is not one of those occasions.
I note that the applicant’s submissions (reported above at [128]) echo the direction provide by the High Court, in circumstances with some relevance to the current situation, in AON Risk Services Australia Limited v Australian National University [2009] HCA 27. In light of what was pleaded, particularly in the ASOC, and in light, relevantly, of s.361 of the FWA, which was in force at the time of filing of the ASOC (9 November 2012), the respondent, which was legally represented at that time by a firm of solicitors, would have known of the operation of that section. In any event, the respondent now says that it was “fully cognisant of the reverse onus imposed by section 361” at the earlier times (see respondent’s written submissions of 8 May 2014 at [40]).
As stated above, the respondent now says it made “forensic decisions” at the earlier times based on its understanding of the ASOC. Any misunderstanding of what was reasonably clear in that ASOC, and the state of the relevant law, is not a basis for granting the leave now sought. Particularly in circumstances where the respondent now does not assert any misunderstanding on its part, but a failure on the applicant’s part which, for the reasons set out above, I do not accept.
I note for clarity, that the documents marked as “R5” and “R6” will remain in evidence before the Court as they were admitted during the course of the adjourned final hearing.
In all, therefore, the scope of the relevant order made on 8 May 2014 was to allow the respondent to file the affidavit evidence of Ms Klumper-Peters to the extent that that provided a “narrative” in relation to “R5” and “R6” which were admitted into evidence at an earlier time. The respondent does not have leave to file evidence further than within that ambit.
Issue 6 – “Outstanding Objections to the Affidavit Evidence of Mr Buckley and Ms Klumper-Peters
The sixth issue for resolution involves the parties’ respective objections to certain parts of affidavits filed in these proceedings and said not to have been resolved (albeit some not “satisfactorily resolved”) prior to the matter being transferred to my docket (see Order 2(c) made on 30 April 2014).
A number of preliminary matters are of note. First, the applicant submits that the objections should be dealt with on the basis as “going to weight and not requiring deliberations as a whole, unless there are significant issues affecting the admissibility of evidence” (see applicant’s written submissions of 15 May 2014 at [14]). This reflects the approach that I have set out at [99] – [101] above.
The respondent now takes a contrary position. This is encapsulated at [72] of its written submissions of 14 May 2014:
“The Respondent presses all of its objections as it did on 9 May 2014. Specific rulings were sought for some issues and it was accepted, albeit not explicitly stated, that the rulings on relevant and hearsay were to be given weight if necessary consistent with previous rulings made on similar objections on 8 May 2014. This is an unsatisfactory position and the Respondent presses for rulings on all of its objections as set out in the objections schedule at Tab 4 to the 7 May submissions.”
[I note that “9 May” and “8 May” above are factually incorrect. In context they should be read as “9 April” and “8 April” respectively.]
At the “first” directions of this matter before me (on 30 April 2014) I made clear my preference that, notwithstanding that the hearing had previously proceeded into its second day, the hearing now should commence “afresh” before me.
As I told the parties, I did, and still do not know the reason why the Judge dealing with this matter withdrew from considering this case. Nor does the transcript of the hearing advance that position.
It is difficult to see that the respondent’s “dissatisfaction” now with how that Judge was said to have dealt with some of its objections (see further below) forms the basis for reconsidering what was decided, simply on the basis that the respondent believes this to be “an unsatisfactory position”.
The intent of the relevant orders (specifically order 2(c)) that I made on 30 April 2014 was to give the parties the opportunity to identify the respective objections each made to the affidavit evidence which had been filed, and which had not been disposed of by the Court in some fashion.
In any event, two things need to be made clear. First, the disposition of any objections to the oral evidence of the two witnesses who were
cross-examined at the hearing stand, as both parties agreed (see above at [11]). My consideration of the issues in this matter will proceed on that basis.
Second, it appears that the previous Judge took the approach at the hearing in dealing with the affidavit evidence that objections on the basis of relevance and hearsay were disposed of by ruling that they would be left to submissions as to weight, and considered ultimately, one way or the other, in this light and at the time of final consideration of the issues. In my respectful view, I regard the Court’s dealing with some of the objections on the basis of weight in submissions to be a disposition or resolution of the objection.
The respondent states that this was “accepted” at the time (see respondent’s written submissions of 14 May 2014 at [72]). However, the respondent now seeks to revisit this and presses for rulings to be made on all of its objections, including it appears those not pressed at the hearing before the previous Judge
This matter is one example of a number that highlights my concern and expressed preferred option on 30 April 2014, at the first directions, that the hearing begin afresh. Both parties took the position that the hearing should resume part heard.
In agreeing to this I did not understand that this was the opportunity for either party to re-agitate matters resolved at that hearing, even if they were not satisfied with the Court’s disposition. The order I made was to enable objections not resolved to be resolved now before the resumptions of the hearing. To revisit what has already been dealt with is a strong argument in favour of starting the hearing “afresh”. This is so even if either party was dissatisfied as to how the Court disposed of, or decided, how to deal with the objections.
What arises from the submissions now, and from the transcript of the hearing is that the respondent accepted at that time the previous Judge’s disposition of some of its objections. What is therefore dealt with below are those objections which, first, the respondent pressed and asked for “specific rulings” in relation to the affidavit of Mr Buckley and second, the applicant’s objections to the affidavit evidence of
Ms Klumper-Peters.
I have also “revisited” those objections where the respondent now has made specific written submissions, even though the previous Judge dealt with the objections on the basis of assigning weight after submissions. As set out above, I respectfully see the previous Judge’s approach as consistent with the objects of, and directions in, the FCCA Act. Nonetheless, in the interest of avoiding further delay in this matter I made the “specific” rulings as now pressed by the respondent even in circumstances where it had previously indicated its (albeit concerned) acceptance.
[The following is the key to the rulings made in the tables below:
“A”: Admitted into evidence
“N.A.”: Not admitted into Evidence.
“A.P.P.D.”: As per previous disposition in adjourned final hearing.“*1”: The respondent made no specific written submissions and was read as a “general objection”.]
The respondent’s objections as to Mr Shane Buckley’s affidavit made on 28 March 2013 (as derived from the document titled “Respondent’s List of Objections” filed on 8 May 2014):
| Paragraph | Section | Objection | Ruling |
| 8 | Entire paragraph | Relevance *1 | A [I agree with the applicant’s submissions.] |
| 9 | Entire paragraph | Relevance *1 Hearsay *1 | A [I agree with the applicant’s submissions.] |
| 10 | Entire paragraph | Relevance *1 Hearsay *1 | A [I agree with the applicant’s submissions.] |
| 11 | Entire paragraph | Relevance *1 Hearsay *1 | A [I agree with the applicant’s submissions.] |
| 12 | Entire paragraph | Relevance Hearsay | A. [The discussion relates to management at the time of Mr Buckley’s employment. Ms Klumper-Peters reported statement provides context for the applicant’s claimed action.] |
| Annexure C referred to in paragraph 12 | Entire Annexure | Relevance | N.A. [I am not satisfied that the “Notice” relates to the relative that Mr Buckley says he spoke to.] |
| 13 | Entire paragraph | Relevance *1 Hearsay *1 | A. |
| 16 | Second paragraph starting with “Mr Garner … copies of emails” | Hearsay *1 | A. |
| 17 | Second sentence the words “unrealistic time frame” | Opinion *1 | A. [I agree with the applicant’s submissions as to “perception”.] |
| 17 | “At this time I considered this demand to be unreasonable” | Opinion *1 | A. |
| 17 | “At the time I took the demand that I conduct the Audit on such short notice as a message to me that I not raise the matters that I had with the Respondent and that I not rock the boat” | Opinion *1 | A. |
| 18 | “New employee: I’ve been told to return my swipe card.” | Hearsay *1 | A. [I agree with the applicant’s submissions as to s.64 of the Evidence Act.] |
| 19 | “Ms Quirk: Because she has only been employed on an affidavit and does not have a police check yet.” | Hearsay *1 | A. [I agree with the applicant’s submissions.] |
| 19 | “Ms Quirk: I run the facility not you” | Hearsay *1 | A. |
| 20 | “Departmental employee: “It is not illegal but it is frowned upon” | Hearsay *1 | A. |
| 20 | “Departmental employee: I understand what you are saying” | Hearsay *1 | A. |
| 26 | Entire paragraph with the exception of the words “went to my car it the car park and rang Mr Murchie from my mobile phone” | Opinion – forms a conclusion | A.P.P.D. (N.A). Further, I note that the first sentence was not pressed by the applicant. |
| 28 | “that my confidential report appeared to have been leaked to the Respondent” | Opinion – draws a conclusion | N.A. |
| 38 | Entire paragraph | Opinion Forms a conclusion | N.A. |
| 48 | “The respondent did not appear” | Conciliation proceedings confidential | A. [I agree with the applicant’s submissions.] |
The respondent’s objections as to Mr Shane Buckley’s affidavit made on 19 September 2013 (as derived from the document titled “Respondent’s List of Objections” filed on 8 May 2014):
| Paragraph | Section | Objection | Ruling |
| 5 | “In the past I have heard him refer to me as a former work colleague” | Hearsay *1 | A. [With reference to s.64 of the Evidence Act.] |
| 22 | “Mr Garner: Shane as part of your employment conditions you will be working a nine day fortnight” | Hearsay *1 | A. |
| 22 | “Mr Garner: I have set Friday off. You can have the other that way one of us will be on when the other is off” | Hearsay *1 | A. |
| 30 | Entire paragraph | Relevance | A. [I agree with the applicant’s submissions.] |
| Annexure SB-3 referred to in paragraph 30 | Entire annexure | Relevance | A. |
| 38 | From “As I understand it … Can you have a look at it” | Hearsay *1 | A [I agree with the applicant’s submissions. See specifically respondent’s written submissions of 8 May 2014 at [53] and applicant’s written submissions of 15 May 2014 at [15].] |
| 42 | “The concerns, such as she sets them out in her response, were unfair because … I was not given opportunity to respond or improve” | Opinion*1 Draws a conclusion *1 | A [I agree with the applicant’s submissions.] |
| 44 | “but disagree with the gloss put on that email in that paragraph” | Opinion *1 | N.A [See applicant’s submissions of 15 May 2014 at [15].] |
| 47 | “I deny the gloss put on the emails by Ms Klumper-Peters in the affidavit” | Opinion *1 | N.A [See applicant’s submissions of 15 May 2014 at [15].] |
| 47 | “As my response makes clear (and the evidence provided above) | Opinion *1 Draws a conclusion *1 | N.A [See applicant’s submissions of 15 May 2014 at [15].] |
| 47 | “It was unfair in the circumstances for reasons already set out above and in my first affidavit” | Opinion *1 Draws a conclusion *1 | N.A [I agree with the respondent’s submissions.] |
| 49 | “Dr Massey: Yes Shane, what are they” | Hearsay *1 | A [I agree with the applicant’s submissions.] |
| 49 | “Dr Massey: If he wants to keep his ventolin with him that is not a problem. I’ll send you a new chart today for his pain relief” | Hearsay *1 | A [I agree with the applicant’s submissions.] |
| 49 | “Dr Massey: Bye. It is my professional knowledge that an asthmatic in a distressed state can neither yell nor run for help” | Hearsay *1 | A. [I agree with the applicant’s submissions.] |
| 50 | Entire paragraph | Opinion *1 | A. |
| 52 | “I say that in my professional opinion the action plan provided by Mr Garner was of a high quality” | Opinion | N.A [See applicant’s submissions of 15 May 2014 at [15].] |
| 53 | Entire paragraph | Opinion | A. [See applicant’s submissions of 15 May 2014 at [15].] |
| 64 | Entire paragraph | Relevance | A. [See “access” issue above.] (Note: I do not agree with the respondent’s submissions that that paragraph is “difficult to understand” or “the point” is “confusing”.) |
| Annexure SB7 referred to in paragraph 64 | Entire annexure | Relevance | N.A [I agree with the respondent’s submissions of 8 May 2014 at [57].] |
The applicant’s objections as to Ms Veronica Klumper-Peters affidavit made on 12 August 2013 (as derived from the document titled “Applicant’s Objections to the Affidavit of Ms Klumper-Peters” filed on 8 May 2014 – I note that the “objections” are direct quotes):
| Paragraph | Section | Objection | Ruling |
| 20 | Hearsay (procedural fairness) | “Ms Quick not available for cross–examination. No reason given for not contacting her to give evidence on behalf of the Respondent.” | N.A: Words said to be those of Ms Quirk. A: The remainder. |
| 45 | As above. Vague for certainty. | “Ms Quirk not available for cross-examination. ‘other staff’ not identified. Prejudicial to the extent it purports to represent others not identified. No reason given for not contacting Ms Quirk or other staff to give evidence on behalf of the respondent. Vague and general allegations not able to be tested on cross-examination” | N.A. The words “in which staff said words to the effect of ‘Shane is difficult to deal with, I don’t like his manner with staff or clients’” were not pressed by the respondent (see respondent’s written submissions of 14 May 2014). A: The remainder. |
| 67 | Hearsay (procedural fairness) and relevance. | “Nothing in the documentation ties this to Mr Buckley in any way. Ms Quirk and Ms Blair are not available for cross-examination” | A. [Relevant] VKP1-101 is also admitted. [Relevant and with reference to s.48 of the Evidence Act.] |
| 81 | Hearsay (procedural fairness). | “This is one of the allegations made in the letter leading to termination dated 21 May 2012. It is allegedly one of the reasons the Respondent decided to terminate the Applicant’s employment and yet the person responsible for that allegation is not present to be cross-examined. It would be highly prejudicial to allow this hearsay statement and document in this case. It would amount to a lack of procedural fairness of this Court to allow such matters into evidence in the absence of the parties making the allegations and cross-examination of them in relation to the relevant facts and matters. “ | A: “Just after receiving the LASA audit, on 10 May 2012 I had a conversation with Alyson Lines (Hostel Manager)” and “Alison could you put this in writing for Letitia so I have a record of it, and can properly discuss your concerns”. N.A: Remainder |
| 82 | As above. | “The paragraph and the letter from Ms Lines is objected to on the same bases as those listed immediately above, but in addition, the applicant says that when this letter was requested by Ms Klumper-Peters is a live issue and it is clearly a contest as to whether she took any action against the Applicant prior to finding out about the ACCS complaint on or about 16 May 2012. The fact that Ms Lines is not available to say that she in fact drafted that letter and when she was requested to produce that letter means the Applicant would be prejudiced by not being able to cross-examine the maker of the statements.” | A. Associated annexure: VKP1-180 is also admitted with reference to s.48(1)(e) and its effect on s.69 of the Evidence Act. |
Further, I note that I agree with the respondent’s submissions as to the applicant’s objections as set out [58] of his written submissions of 8 May 2014 (see respondent’s submissions of 14 May 2014 at [74]). I also note that the “third” affidavit of Mr Buckley filed on 4 April 2014 was not pressed by the applicant.
Issue 7: Future Conduct of the Proceedings
Following directions on 30 April 2014, the respondent sought clarification as to whether this case would be conducted in two stages. That is, to complete the hearing and determination as to whether there has been a breach of the FWA, and then to proceed to a second hearing, in the event that breach is established, in relation to penalties and any other remedies the applicant may seek. The respondent says that this is the process “common” in this and the Federal Court. The respondent says that it had always proceeded on the assumption that this would be the case.
The applicant says that this matter had not been raised previously and that there is no proper basis on which to conduct two separate hearings. The applicant further says that it “has always been the case that this matter was to be listed to determine all the matters between the parties” (see applicant’s written submissions of 15 May 2014 at [18]).
The applicant says that issues of breach and penalty “are routinely handled in the same hearing” (see applicant’s written submissions of 15 May 2014 at [18]). That is, that is the usual way such proceedings are conducted. Further, he refers to Kassis v Republic of Lebanon [2014] FCCA 155 (“Kassis”) where he says this occurred.
The applicant’s concerns are expressed to be that the respondent’s position would only increase legal costs in a case within a “no costs” jurisdiction, and in circumstances where there is no proper basis for insisting that the matters be dealt with separately.
The applicant’s argument regarding legal costs, and for that matter lengthening the proceedings has merit. However, the arguments from both sides, at best taking opposing views, that the proceedings should proceed in the “usual way”, how matters are usually done, on the one hand, and what is said to be the “common practice” on the other, only serve to distract, or divert attention, from what is the appropriate way to proceed in the circumstances of this particular case.
The parties’ description of the reasons (albeit directly opposing) of how these proceedings should be conducted are, with respect, formulaic. They both avoid consideration of the competing issues that need to be resolved in determining what is appropriate in the circumstances of each case. In short, they are not helpful.
Having regard to the actual circumstances of this case, I agree with the respondent that the matter should proceed as it proposes.
The applicant’s argument concerning costs proceeds on the assumption that the applicant will be successful in establishing, on balance, that the respondent breached, relevantly, the FWA. The applicant may succeed, in which case his argument as to costs would have some validity. Equally he may not succeed, in which case his argument, applied to that circumstance, would result in increased legal costs for both parties having expended time and effort on preparation for and arguing penalties and other remedies at an earlier time and which would be otiose in that circumstance.
I do not agree with the applicant that there is no proper basis for the respondent’s position. In addition to the matters immediately above, the respondent is entitled, if the matter were to proceed to consideration of penalties and remedies to know the exact basis and extent of any breach found such as to be able to properly respond to the applicant’s call for “relief”. Similarly, such certainty would also assist the applicant in framing his request for penalties and remedies with some precision. In short, these matters require reference to what findings the Court may or may not make in the applicant’s favour on the question of breaches of the FWA.
It is relevant to note that in Kassis the applicant made an application to this Court pursuant to the FWA. She was a former employee of the respondent in that case. The respondent did not respond to or appear in those proceedings. In those circumstances I can respectfully see why the Court, which obviously had decided to proceed to a hearing in the absence of the respondent, did not separate out the “two stages” pressed by the respondent in the current case.
This case, given the relevant circumstances, will proceed on the basis as proposed by the respondent.
Issue 8 ‑ Facts in Dispute
In his submissions of 15 May 2014, the applicant (at [3]) expressed disagreement “with the respondent’s submissions on the facts”. This appeared to involve the matter of whether the “respondent was aware that the applicant proposed to make a complaint under the ACA”. The applicant’s position was expressed to be that “there can be no serious dispute on the facts”.
In further submissions filed on 16 May 2014, the respondent says that there “is a serious factual dispute between the parties on this pivotal issue” (see respondent’s written submissions of 16 May 2014 at [5]).
If the respondent’s intention was to make clear, contrary to the applicant’s submission that there “can be no” dispute about this matter, then that is noted.
It must be said that on one reading of the applicant’s submission it could be said that what the applicant was saying was not that the respondent did not dispute his assertion, but rather, that any dispute could not in the circumstances be reasonably asserted or sustained. In this way, I read the applicant’s submission as being his forcefully expressed view as to the relevant facts.
In any event, I note the respondent’s position and that this is a “live” matter for the Court, following the hearing (including any submissions), to resolve.
Issue 9 – Costs
The Court notes that both parties have sought costs in relation to the matters above. The parties will be given the opportunity to make submissions as to costs at the resolution of this case. These particular and specific applications now are to be considered at that time, in light of the operation of s.570 of the FWA.
Conclusion
It is to be hoped that the hearing of this matter can now be resumed and that the parties take note of the various relevant matters discussed above including the “spirit” in which this matter is to proceed to ensure an appropriately expeditious, and fair, resolution of the dispute which has been on foot for some time. In light of the above, I will make the appropriate orders.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 28 May 2014
1
7
8