Chambers v Commonwealth of Australia (Bureau of Meteorology)
[2023] FedCFamC2G 1239
•24 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chambers v Commonwealth of Australia (Bureau of Meteorology) [2023] FedCFamC2G 1239
File number(s): SYG 1632 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 24 October 2023 Catchwords: INDUSTRIAL LAW – Fair Work – Contraventions of the Fair Work Act 2009 (Cth) Legislation: Fair Work Act 2009 (Cth) Cases cited: Monash Health v Singh [2023] FCAFC 166 Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 24 October 2023 Date of hearing: 24 October 2023 Place: Parramatta Counsel for the Applicant: Mr Brennan SC and Mr Whitbread Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr White SC and Ms Wright Solicitor for the Respondent: McInnes Wilson Lawyers ORDERS
SYG 1632 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASMINE CHAMBERS
Applicant
AND: COMMONWEALTH OF AUSTRALIA (BUREAU OF METEOROLOGY)
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
24 OCTOBER 2023
THE COURT ORDERS THAT:
1.The respondent has leave to file any additional evidence which may be relied upon.
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
(As revised from the transcript)JUDGE D HUMPHREYS
This matter commenced before the Court yesterday in relation to claims made by the applicant of various adverse actions and/or contraventions of the Fair Work Act2009 (Cth) in relation to her employment and her termination of employment from the Bureau of Meteorology. This matter is listed to run before me for some 10 days, which, I might add, is an extraordinarily long period of time in this Court for a fair work matter. Extensive pleadings have been filed, and indeed, the amended statement of claim that is now relied upon runs to 128 pages. A defence has been provided. Unusually in this matter, no particulars were sought by the respondent in relation to any of the matters contained in the statement of claim.
Again, unusually, yesterday, for a matter in this Court, opening submissions were taken from both the applicant and the respondent. During the course of the respondent’s opening, it was put to the Court that there had been new matters raised and - which enlarged on the applicant’s case and created the significant fairness issue. I invited the parties to overnight provide the Court with submissions in support of their objections to meeting a new case and I have now received written submissions from both the applicant and the respondent. In particular, I have been referred to the very recent case of Monash Health v Singh [2023] FCAFC 166, which is a decision of Katzmann, Snaden and Raper JJ in the Full Federal Court. That case has reinforced the need for there to be some fairness in relation to the pleadings so that the respondent is not taken by surprise. The Court notes, however, that at paragraph [57] of that judgment that the Court approves with the following, where, at subpara (1):
To assert that a party is to be held to its pleadings or that the scope of the trial is to be determined by the pleadings and only the pleadings is misconceived. The course of the proceedings is in the control of the Court in the attainment of a just outcome. Mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party.
And there is references there which I will not go into. Of course, they turn around and say at subparagraph (2):
Allegations of contravention of the general provisions are inherently serious. As a matter of fairness, such a claim should be pleaded with sufficient precision for a respondent to know the case against it. Some precision is required, but they do not involve a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome.
At paragraph (3):
Despite ambiguity or infelicity in an applicant’s proceedings, however, no procedural unfairness may arise where the respondent has meaningfully engaged with the pleading in its defence and the trial proceeded in a way, by reason of the applicant’s opening and the manner in which the hearing was conducted and defended, it can be reasonably inferred that the respondent understood the applicant’s case against them.
Now, I have made it clear, and it has been agreed, I think, by counsel for the applicant, that the only matters I propose to deal with are the alleged 10 contraventions that are set out in the pleading. I would not and do not propose to allow any further contraventions to be dealt with, and I will only deal with those matters that are set out in the pleadings.
It is significant to note that probably the real gravamen of this particular matter is the issue that relates to - which I think is the ninth contravention in terms of the dismissal or termination of the applicant from her position within - from the respondent. In so doing, the Court will be reasonably entitled to look at the entirety of the course of conduct of the respondent in determining what was the operative reason for the termination of the respondent. That will require a fairly wide consideration of the evidence.
Now, to the extent that the applicant has said that they have been - or the respondent has said they have been taken by surprise, in the submissions provided to me by the applicant, at paragraph 16, there have been provided particulars of the dismissal that have been set out in some detail. Counsel for the respondent takes objection, and he said there are new matters, being (a) the announcement of a restructure. Well, that is pretty much a given fact. The next matter is (b) the restructure would have an impact on the particular team in which the applicant was employed and including the transfer of duties from - to other parts. Again, that appears to be very much a fact, and I have some difficulty in seeing how they would be taken by surprise by that. They then say (f), (i) and (j), which include the failure to consider the applicant’s suitability for potential deployment, (i) making no prospect representation and note as pleaded in the statement of claim at 118 that each of the three elements was false, and they set out there in (j) early termination. Again, the early termination is a matter of fact which I do not think is in issue.
To the extent that some of the matters that have been raised as complaints by the counsel for the respondent, they have been addressed and clarified by the counsel for the applicant, and, to an extent, those matters have been now clarified. I am probably left with just a couple of issues to deal with.
In my view, noting that this matter is listed for some 10 days and there is going to be lengthy evidence provided, noting that a complaint is that there was a meeting at which two people were apparently involved which they were not aware of, I am prepared to allow any additional evidence which might address those concerns to be filed, and I will consider whether or not I will allow that evidence, but I am assuming that I would have to find specific reasons why I would not. That then addresses the issues of whether or not they have been taken by surprise. They are now clearly on notice and they are entitled to and I will allow any evidence which is germane to those matters to be brought as part of the respondent’s case.
To the extent which they say that the evidence which is currently on - has been filed by any of the respondent’s witnesses, that additional matters need to be then adduced as evidence-in-chief. I am prepared to allow that, obviously subject to objection, so that those matters can be addressed fairly. This case has a long time to run. It is the fact that cases take on a life of their own and matters that may not have been considered at the beginning of a case to be important sometimes can become a central issue in the case. So, in my view, the matter should proceed on the basis that I have indicated, that is, if any additional evidence is sought to be provided by the respondents, I would be minded to allow that evidence. Should any additional evidence be required from the witnesses whose evidence has already been filed, I would allow that as evidence-in-chief.
In those circumstances, in my view, the matter can proceed without any unfairness to the respondent. Should the respondent be of a view that they would require more time in order to obtain evidence, noting, of course, they are instructed by a very senior firm that has a lot of resources, I would be prepared to allow an adjournment or additional time to allow that evidence or those clarifications to take place to ensure that there is no unfairness to the respondent. I am, however, of a view that this matter needs to go on, and, subject to those matters, I think it can go on, on the basis of being fair to both parties. I so rule.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 24 October 2023
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