Commissioner of the Australian Building and Construction Commission v Hall and Ors (No.2)
[2017] FCCA 18
•12 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMISSIONER OF THE AUSTRALIAN BUILDING & CONSTRUCTION COMMISSION v HALL & ORS (No.2) | [2017] FCCA 18 |
| Catchwords: PRACTICE AND PROCEDURE – Very late application to transfer proceedings to Federal Court of Australia – issues of “complexity” and “public importance” considered – all issues raised by the Applicant had been raised in multiple earlier directions hearings as well as all parties knowing of the issues in dispute since the original Statement of Claim was first filed in December 2014 – application of principles stated by High Court in Aon Risk Services Australia Pty Limited v Australian National University regarding efficient use of public resources of Courts and the impact on other litigants and the Court – Model Litigant Obligations of Applicant – matter was specially fixed in May 2016 for 10 day hearing to commence in January 2017 – transfer Application refused with costs on the basis of the extremely late Application and the litigious over-reach the urgent Application constituted and therefore the terms of and provisos contained in s.570(2) of the Fair Work Act 2009 in relation to “unreasonable act” were established. |
| Legislation: Fair Work Act 2009 (Cth), ss.570, 570(2)(a) & (b) Federal Circuit Court Act 1999 (Cth), ss.39(1), (3) & (6) Federal Circuit Court Rules2001 (Cth), rr.8.02 (1), (2) & (4) |
| Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 |
| Applicant: | COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION |
| First Respondent: | DEAN HALL |
| Second Respondent: | HALAFIHI KIVALU |
| Third Respondent: | JOHNNY LOMAX |
| Fourth Respondent: | JASON O’MARA |
| Fifth Respondent: | ZACHARY SMITH |
| Sixth Respondent: | KENNETH MILLER |
| Seventh Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | CAG 78 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 12 January 2017 |
| Date of Last Submission: | 12 January 2017 |
| Delivered at: | Canberra |
| Oral Reasons (Transfer App) Delivered on | 12 January 2017 |
| Written Reasons (including costs) delivered on: | 10 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms T McDonald SC & Ms P Bindon |
| Solicitors for the Applicant: | Clayton Utz, Canberra |
| Counsel for the First, and Third – Seventh Respondents: | Mr P Morrissey SC & Ms K Argiropolous |
| Solicitors for the First, and Third – Seventh Respondents: Second Respondent: | Slater & Gordon, Melbourne No appearance (now self-represented) |
ORDERS:
Order 2 – 6 (inclusive) are intended to replace the Orders made on 12 January 2017, noting that these Orders were made on the Court record on 12 January 2017.
The Court dispenses with the requirements in relation to “time” for an Application to transfer to the Federal Court of Australia pursuant to r.8.02(2) of the Federal Circuit Court Rules 2001.
The Application in a Case, filed 23rd December 2016, be dismissed.
The First, and Third – Seventh Respondents’ costs be reserved.
Extension of time granted in relation to the production of documents under subpoena issued by the Applicant to the Seventh Respondent.
The matter remains listed for Final Hearing for 10 days, commencing on 30 January 2017 at 10:15am in CANBERRA.
THE COURT FURTHER ORDERS THAT:
The Applicant pay the legally Represented Respondents’ (First, and Third – Seventh Respondents) costs in relation to the urgent transfer Application, either as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 78 of 2014
| COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION |
Applicant
And
| DEAN HALL |
First Respondent
| HALAFIHI KIVALU |
Second Respondent
| JOHNNY LOMAX |
Third Respondent
| JASON O’MARA |
Fourth Respondent
| ZACHARY SMITH |
Fifth Respondent
| KENNETH MILLER |
Sixth Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Seventh Respondent
REASONS FOR JUDGMENT
Introduction
In the climactic last scenes of the rightly acclaimed mini-series, The Night Manager, there is a confrontation between the two main characters, played by Tom Hiddleston (Jonathan Pine) and Hugh Laurie (Richard Onslow Roper). One asks the other (with no “spoilers”) why certain action was taken. The other replies: “You have to commit.”[1]
[1] Detailed oral reasons were delivered at the conclusion of the hearing on 12th January 2017 dismissing the transfer Application. The parties at the time were advised that the reasons would be revised and published. What follows here are those reasons which have been revised from the transcript. At that hearing on 12th January 2017, costs were reserved. The reasons for refusing the transfer application and in relation to costs have now been consolidated into these reasons.
All parties and the Court have likewise been “committed” to the conduct of this litigation since the Application and Statement of Claim were filed on 10th December 2014. The same entities have been even more committed to the efficient conduct of this litigation since it was specially fixed on 12th May 2016 for a 10 day hearing to commence on 30th January 2017.
As just noted, on 10th December 2014, the Applicant Commissioner (as that statutory entity is now known) filed an Application and Statement of Claim which pleaded various contraventions (said to be 27 in total) relating to alleged breaches of specified sections of the Fair Work Act 2009 (Cth) (“the FW Act”) against the Respondents.
At that time, the Second Respondent, Mr Kivalu, was a member of the Seventh Respondent, the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and was legally represented by the lawyers who act for all other Respondents. Following certain findings made in the course of the Royal Commission into Trade Union Governance and Corruption Mr Kivalu was prosecuted and convicted of certain offences. He is now no longer a member of the CFMEU; nor is he legally represented by the lawyers who act for the other Respondents to the current proceeding.[2]
[2] Mr Kivalu has not relevantly engaged in these proceedings, apart from filing an Amended Defence, for quite some time. He did not attend the interlocutory hearing on 12th January 2017.
On 12th May 2016, after various attempts by the parties to resolve the matter via mediation and otherwise, and after a contested interlocutory hearing regarding “prosecutorial discovery” in 2015,[3] the matter was fixed for final hearing for ten (10) days. Senior Counsel for the Applicant was in attendance on that date by telephone. The Solicitor for the Respondents (except the Second Respondent who did not attend at all) also attended on that occasion via telephone. Various procedural Orders were also made on 12th May 2016. The commencement of the 10 day hearing was specially fixed to commence on 30th January 2017.
[3] See the detailed discussion of the various classes of documents sought, especially by the Respondents, in Director, Fair Work Building Industry Inspectorate v Hall & Anor (2015) 303 FLR 126; [2015] FCCA 2874.
Since 12th May 2016 there have been case management/directions hearings on 2nd August, and on 8th and 21st December 2016. Other procedural Orders have been made in Chambers by consent in relation to alterations to the timetable for the filing of documents.
On each of these directions hearings after the matter was fixed for a 10 day trial, among other things, the issues of (a) the proper duration of the trial, (b) the number of witnesses to be called at the hearing, (c) the management of the large documentation involved, and (d) time-management for the trial more generally, have each been discussed, usually in some detail. It is also the case that on at least one occasion whether the matter should be transferred to the Federal Court of Australia was briefly raised. No Application for such transfer has ever been made – until the current Application filed on 23rd December 2016.
As just noted, on 23rd December 2016, the Applicant filed an Application in a Case in which Orders were sought for the matter to be transferred to the Federal Court of Australia. In the primary affidavit in support of this Application a range of grounds were set out. These are dealt with below. No Orders were sought in relation to any relevant dispensation of time or other matters that are set out in Rule 8.02 of this Court’s Rules.
The legally-represented Respondents oppose the transfer Application. The Applicant has advised the Court that Mr Kivalu consents to the transfer Application. Mr Kivalu did not attend the hearing on 12th January 2017.
From comments made in Court, I understand that the Applicant was so concerned to have the Application in a Case dealt with as a matter of extreme urgency, albeit only filed two days before Christmas, that it was suggested to the Registry that it be put before a list or duty Judge. Because the matter has been able to be listed relatively quickly, this urgent listing was not ultimately pressed.
On 9th January 2017, the parties were notified that the Application in a Case would be heard on 12th January 2017 notwithstanding that the Court (like all other Courts) is formally in recess throughout January. In preparation for this hearing, the parties were directed to file a two page outline of submissions by 3pm on Wednesday 11th January 2017.
For the reasons that follow, the Application must be dismissed. Further, for the same reasons and for others noted later in these reasons, while costs were initially reserved in favour of the legally-represented Respondents’ favour, there should now be an Order for costs in those Respondents’ favour, either as agreed or taxed in relation to the transfer Application. In summary, the reasons for dismissing the transfer Application were as follows:
(a)the lateness of the Application with little or otherwise insufficient explanation for such;
(b)the circumstances of it, not least how long all parties have been seized of the logistical issues in conducting litigation of this size and the multiple directions hearings at which the case management of the matter was addressed at length (including the number of witnesses);
(c)the legal issue of importance raised by the Applicant, being the interpretation and application of s.793 FW Act, was first pleaded in the original Statement of Claim that was filed on 10th December 2014. Until the current Application, it has never been raised as an issue of legal importance that warranted the attention of a superior Court;
(d)the previous opportunity to consider a transfer to the Federal Court of Australia;
(e)the Applicant is bound by the “model litigant” rules of the Commonwealth as set out in the Legal Services Directions2005 (Cth) (cl.4.2 and Appendix B), and
(f)there must be proper regard to the High Court’s comments in Aon Risk Services Australia Limited v Australian National University (“Aon”) in relation to Courts being “public resources” and the flow-on effects in the efficient use of those resources for other litigants.[4]
[4] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5], [23] – [27] & [30] (French CJ), [92] – [95], [100] – [101] & [113] - [114] (Gummow, Hayne, Crennan, Kiefel & Bell JJ). See also the comments in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 (“Expense Reduction”) at [56] – [57] (French CJ, Kiefel, Bell, Gageler & Keane JJ).
Grounds of the Application
As set out in a supporting affidavit, sworn by the solicitor for the Applicant and filed on 23rd December 2016, summarily stated the grounds for the Application were as follows:
(a)The late issue of subpoenæ by the legally-represented Respondents directed to the Applicant, the ACT Director of Public Prosecutions and the Australian Federal Police seeking production of documents in relation to the Second Respondent, Mr Kivalu. Comment: In this regard I note that (i) Mr Kivalu filed an Amended Defence on 19th August 2016 in which he admitted all contraventions pleaded against him; (ii) in the Amended Statement of Claim filed in August 2016, the Applicant contended there to be 27 contraventions to be determined (this has now been confirmed to be 22 contraventions in the light of certain admissions made by the Second and Sixth Respondents); and (iii) as pleaded, only three (3) of these contraventions are directed to the Second Respondent;
(b)The legally-represented Respondents confirmed at the directions hearing on 8th December 2016 that the documents sought under subpoena to the entities just named were for the legitimate forensic purpose of the credit of the Second Respondent, Mr Kivalu. Comment: in relation to the recent contests regarding subpoenæ, “documents” involving the matters in issue between the parties have been the subject of contest from a very early stage of the proceedings, including the contested hearing in 2015 which was the subject of a detailed judgment (noted earlier). Moreover, in the Orders made in the October 2015 judgment, leave was granted for any further Application regarding discovery to be made within 21 days. No such Application was ever made – by anyone. How and why it was not until December 2016, with the self-represented Mr Kivalu’s Amended Defence having been filed in August 2016, that the current imbroglio regarding subpoenaed documents erupted remains a mystery of this litigation. Put another way, issues regarding documents generally should have been addressed very much earlier in the proceedings;
(c)The Amended Defence filed by the legally-represented Respondents on 21st December 2016 removed a previous admission in relation to the Second Respondent that he was acting within the scope of his authority as a union official at the relevant time of the alleged contraventions. It was said by the Applicant that this has led to the need to pursue the obtaining of additional evidence, albeit at short notice;
(d)The Applicant contended that there was an issue of general legal importance that warranted the determination of a superior Court. That issue was the application of s.793 of the FW Act. The Applicant noted that there was a first instance decision of the Federal Court in May 2016 in which obiter dicta comment was made in relation to the scope of s.793.[5] Comment: the issue of s.793 of the FW Act was pleaded in the original Statement of Claim when filed on 10th December 2014. At no time between December 2014 and the current Application in December 2016 was s.793 of the FW Act said to be an issue of general importance that warranted or required the proceeding being transferred to the Federal Court;
(e)The Applicant contended that the complexity of the matter warranted it being transferred to the Federal Court. The complexity arose out of the number of witnesses (“almost 20 witnesses” par.26 of the supporting affidavit of Ms Wyborn. Comment: it is unclear what the significance is of the word “almost” in listing the number of witnesses; one might reasonably expect in a supporting affidavit that a precise figure rather than an approximate one would be given), seven Respondents, 27 alleged contraventions (now confirmed as 22 contraventions), and “a multiplicity of disputed questions of fact.” Comment: each and every one of these matters has been the subject of detailed discussion and comment at each of the directions hearings. The general scope of the litigation and the number of likely persons or witnesses involved has been obvious, and the subject of comment, since the proceeding commenced, including direction hearings regarding the preparation of things like “witness lists” and the like. Further, at the hearing regarding discovery in August 2015, it was clearly stated by the Respondents’ Counsel that there were [then] 23 contraventions. This statement was not corrected;
(f)A further area of “complexity” is said to arise out of the unusual position of the Second Respondent, including that neither the Applicant nor any of the legally-represented Respondents intend to call him as a witness. It is not known whether Mr Kivalu will attend the hearing;[6]
(g)Finally, the Applicant acknowledged, in my view in a very constrained manner, that the Application for the transfer was made “at a late stage.” Respectfully, “late” is a gross understatement, especially given (i) how long the litigation has been on foot, (ii) how much preparation has been given to the matter by all parties and by the Court, and (iii) how very close the scheduled commencement of the trial is (or was at the time). There is no mention of the transfer Application being filed after the Court had risen at the end of 2016, or that the hearing is due to commence at the commencement of the legal calendar, with the usual Court recess in between. No such Application was foreshadowed at the direction hearing on 21st December 2016 although there were “hints” of procedural disquiet and concern. The Applicant says, again with considerable understatement (par.31) that “the case management efforts of the Court will not be wasted on transfer to [sic: “the”] Federal Court where the proceedings will be in a position to be heard with substantial interlocutory issues already resolved.” Respectfully, doubtless unintentionally, this is a discourteous and disrespectful comment on the immense accommodation and devotion of very significant public resources of the Court made available to all the parties throughout the course of this litigation. But for the recent couple of subpoenæ and issues relating to same (which have now largely been resolved between the parties as might have been expected of experienced lawyers involved in this matter, including Senior Counsel on both sides), at each directions hearing there has been no suggestion of anything untoward in the preparation of the matter for hearing.
[5] Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525.
[6] As at the date of the revision of these reasons, it can be confirmed that Mr Kivalu took no part in the hearing in late January and early February 2017.
Applicant’s Written Submissions
The Applicant’s written submissions were as follows.
1) The Applicant (the Commissioner) requests the transfer of these proceedings to the Federal Court of Australia (the FCA) pursuant to s. 39(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (the Act).
2) The decision whether to transfer proceedings to the FCA is a discretionary one. In exercising that discretion the Court is required to have regard to the mandatory factors listed in s. 39(3) and to the relevant factors in r 8.02 of the Federal Circuit Court Rules 2001. These are addressed in turn below.
Question of general importance involved on which superior court decision is desirable - r 8.02(4)(a)
3) It is anticipated that a matter of general importance may arise from the proper construction of s 793 of the Fair Work Act 2009 (Cth) (FW Act) relating to the vicarious liability of a body corporate (including a union) for the contraventions of its officials.
4) Recent obiter statements in the decision of Director of the Fair Work Building Industry Inspectorate v Robinson[7] have suggested a particularly narrow interpretation of this provision (and one that the Commissioner would dispute) in terms of how the ‘status’ of the official can be attributed to the body corporate.
[7] [2016] FCA 525.
5) This interpretation is bound to be a live issue in these proceedings, given that the Commissioner has alleged 22 contraventions based on s 793,[8] the Respondents dispute all but one,[9] and many of the contraventions hinge upon other contraventions in which a person’s status is relevant.
[8] Further Amended Statement of Claim at paras [15], [16], [23], [24], [45], [46], [63], [64], [77], [78].
[9] Amended Defence at para [15].
6) This is a factor in favour of transferring the proceedings.
If likely to be heard and determined at less cost and more convenience if transferred r 8.02(4)(b)
7) The costs of each court hearing and determining the proceedings may be less in this Court than if transferred to the FCA.
8) However, there is unlikely to be a significant difference to the parties in terms of their costs or convenience. The procedures will largely be the same, the parties will have the same amount of legal representation in (including both senior and junior counsel), and the proceedings will be heard in the same building.
9) To the extent that this Court determines legal questions against either the Commissioner or the Respondents, there is a greater chance that the affected party would look to appeal the decision than if the question were determined by a superior court. The cost of any appeal will obviously greatly enhance the overall costs to the parties.
10) On balance, this factor is neutral.
Whether likely to be heard earlier in this Court r 8.02(4)(c)
11) Given the pending hearing date in this Court, the proceedings will be heard earlier in this Court than if transferred to the FCA. However, as explained below, there is a real risk that the proceedings may not conclude in the allotted time, in which the proceedings may not be concluded for many months.
12) On balance, this factor is slightly against the transfer of the proceedings.
Particular procedures available that are appropriate for the class of proceeding r 8.02(4)(d)
13) Given the concurrent jurisdiction of this Court and the FCA in matters under the FW Act, this factor is neutral.
Wishes of the parties r 8.02(4)(e)
14) The Commissioner desires the proceedings to be transferred for the reasons set out generally in this Outline of Submissions and the Affidavit of Jennifer Wyborn filed on 3 January 2017 in support of this Application (Wyborn Affidavit). The Second Respondent also consents to the application to transfer.[10] The other Respondents (who are jointly represented) object to the proceedings being transferred.[11]
[10] Wyborn Affidavit para [3].
[11] Wyborn Affidavit para [4].
15) This factor is neutral towards, or slightly in favour of, transferring the proceedings.
Whether the resources of this Court are sufficient to hear and determine the proceedings s39(3)(c)
16) The resources of this Court are currently under considerable pressure. The Commissioner understands that if the proceedings do not conclude in the allotted time, it may be more than a year before the proceedings can be brought back before the Court.[12]
[12] Transcript of directions hearing before His Honour Judge Neville on 21 December 2016 page 8 lines 10-15.
17) Given that there are close to 20 witnesses, more than 20 alleged contraventions across 6 different dates, and significant areas of disputed facts, there is a real risk that the hearing will not be completed within the already substantial time allotted (by this Court’s standards). A further factor contributing to that risk is that there has been a late amendment to the Respondents’ defence which has necessitated the Commissioner seeking new evidence under subpoena. That subpoena is contested and, if upheld, it is unlikely that the documents it seeks will surface much before the hearing commences.[13]
[13] Wyborn Affidavit para [17]–[18].
18) Additionally, the allotted two weeks of Court time will only deal with liability. There will need to be a further hearing on penalty (given that at least some contraventions have been admitted already) which may itself involve disputed questions of fact.
19) This factor weighs in favour of transferring the proceedings.
Interests of the administration of justice s39(3)(d)
20) In addition to the factors already addressed above, it has also been said that the interests of the administration of justice encompass the management of justice, including the object in r 1.03(1) to facilitate a just, efficient and economical resolution of proceedings.[14]
21) These proceedings have, to date, required extensive case management and supervision by this Court. While this has occurred effectively, it has, to a large extent, flowed from the complexities and number of issues in the proceedings.
22) With that in mind, it is in the interests of the just, efficient and economical resolution of proceedings that they now be transferred to the FCA for the substantive hearing. As was pointed out in Verge v Devere Holdings Pty Ltd (No 4)[15], ‘.. the fact that this Court has dealt with interlocutory stages of this matter … is not itself a reason why a more complex matter ought not to be transferred.’
23) The case management processes which have brought the parties to present state of preparedness for trial will in no sense be lost if the proceedings are transferred. Rather, the trial will be capable of proceeding with less risk of the complexities stymying the progress of the substantive hearing as would be the case if the matter remained in this Court.
24) This factor weighs in favour of transferring the proceedings.
Conclusion
25) Overall, the balance of factors favours the transfer of the proceedings to the FCA.
[14] Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28]-[29] (Lucev FM).
[15] [2008] FMCA 142 at [133] (Lucev FM).
Applicant’s Oral Submissions
The Applicant’s further oral submissions (without commenting on those given in writing), summarised, were as follows.
First, concern was expressed about the risk of the evidence being able to be heard in the time allocated by the Court. Unfortunately, no estimate was given as to how much “extra time” might be required to accommodate any possible “over-run” in taking the oral evidence.
Secondly, subject to the Court’s findings on the contraventions (noting that there have been a limited number of admissions thus far), the parties will have to return to Court to deal with any issue regarding penalty. To this there was the parry that it was not uncommon to deal with such matters by way of written submissions only. Indeed, in this regard there was something of an acknowledgement that written submissions are relatively common in this Court when dealing with issues of “penalty.”
Thirdly, the evidentiary and legal denouements provided by, among other things, the admissions made by the now unrepresented Mr Kivalu may mean that more evidence would be required to deal with such matters. Again, no estimate of possible further Court time required was able to be given. In any event, Mr Kivalu is alleged to have been involved in only a small number of contraventions which, perforce, would involve relatively little [extra] time to that which has already been allocated.
Legally Represented Respondents’ Written Submissions
The Second Respondent did not file any written submissions. Nor did he attend the hearing of the transfer Application. The submissions of the other Respondents were as follows.
1) The Second [sic: First] and Third to Seventh Respondents (the Respondents) oppose the Commissioner’s application filed 23 December 2016 to transfer these proceedings to the Federal Court. The Respondents wish for the proceedings to remain in the Federal Circuit Court for trial commencing on 30 January 2017.
Relevant statutory provisions and principles
2) The transfer of proceedings from the Federal Circuit Court to the Federal Court is governed by s 39 of the Federal Circuit Court of Australia Act 1999 and rule 8.02 of the Federal Circuit Court Rules 2001.
Proceedings commenced in Federal Circuit Court
3) The Applicant commenced these proceedings in the Federal Circuit Court on 10 December 2014. It therefore accepted that the Federal Circuit Court was the appropriate court for the determination of the proceedings notwithstanding the number of respondents, alleged contraventions and witnesses involved, and the number of alleged contraventions based on s 793 of the Fair Work Act 2009.
Timing of application to transfer
4) The first court date in this proceeding occurred on 2 February 2015. The Applicant made no application on or before the first court date for transfer of the proceedings, as mandated by rule 8.02(2). The trial date is now imminent and the Respondents have expended substantial resources preparing for trial. The Court has set aside 10 days for the hearing and has intensively managed the proceedings to date. It is not in the interests of justice for the proceedings to be transferred to the Federal Court in these circumstances.[16]
[16] See Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [28]-[31], [34] & [39].
Subpoenas
5) The only outstanding subpoena is that issued by the Applicant on 22 December 2016 to the Seventh Respondent, returnable on 20 January 2017. The remaining subpoenas have been complied with or withdrawn.[17]
[17] The subpoena issued by the Respondents to the Australian Federal Police (AFP) has been complied with by the AFP and the notice of objection previously filed by the AFP withdrawn.
No question of general importance
6) The Respondents submit that no question of general importance is raised by these proceedings.
Complexity
7) While the proceedings involve a degree of complexity, this does not render the matter inappropriate for hearing and determination by the Federal Circuit Court. Moreover, many of the complexities were known to the Applicant when it commenced the proceedings in this Court.
Other relevant factors
8) The Respondents wish for the proceedings to remain in the Federal Circuit Court.
9) The Respondents will incur substantial costs and inconvenience if the proceedings were to be transferred to the Federal Court, particularly at this late stage.
10) The Federal Circuit Court has a trial date available commencing 30 January 2017. No earlier date could be obtained in the Federal Court.
11) There are no proceedings in an associated matter pending in the Federal Court.
Conclusion
12) The application should be refused. The respondents reserve the right to make application for costs.
Legally Represented Respondents’ Oral Submissions
These Respondents’ oral submissions, summarised (and without traversing what was said in relation to the written submissions), were as follows.
First, it was said that contraventions that previously were contested in relation to Mr Miller and Mr Kivalu were now admitted. Therefore, with fewer contraventions to address the amount of Court time required would correspondingly be less.
Secondly, as earlier indicated, the Respondents accepted that issues in relation to any “penalty” could be dealt with by way of written submissions.
Thirdly, the Court would obviously be impacted significantly by having set aside such a large number of hearing days.
Fourthly, it was submitted that the matter would likely not be listed in the Federal Court until the second half of 2017, which would mean, among other things, that the personal/individual Respondents (in contrast to the Seventh Respondent Union) would be waiting even longer to have the contraventions alleged against them dealt with. As well, Counsel who are currently retained and who have reserved the current lengthy period of time/dates for the currently listed trial may not be available later in the year.
Outline of Principle
Earlier in these reasons I noted particular sections from the High Court judgments notably in Aon and briefly from Expense Reduction. It is important now to set out specific comments from the High Court in Aon because of their relevance to the current Application. Curiously, the written submissions contain not even a passing reference to either of these seminal High Court authorities. Both parties briefly addressed these principles when requested to do so by the Bench in the course of argument.
First, at [5] in Aon French CJ said: “… the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.”
Then at [24], his Honour said (emphasis added):
… Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation….
At [26], French CJ noted comments from the earlier High Court decision in Sali v SPC Ltd, thus (internal citations omitted; emphasis added):[18]
By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.” Brennan, Deane and McHugh JJ went on to say:
What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
[18] Sali v SPC Ltd (1993) 116 ALR 625 (Brennan, Deane & McHugh JJ).
Finally, at [27] French CJ said:
The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.
Accepting that the current Application is for a transfer and not, strictly speaking, an application for an adjournment or to amend, the practical effect is the same. Any transfer will necessarily mean a delay in the resolution of a matter that has been on foot since December 2014. Accordingly, in my view, the principles set out by French CJ in Aon apply, mutatis mutandis, to the current Application for a transfer.
Somewhat parenthetically, I note that in the usual course, any matter transferred to the Federal Court would first come before the List Judge (Jagot J) for mention or directions. Then, subject to her Honour’s view, it would then be “docketed” to a trial Judge from the relevant panel who in turn may list the matter for further directions. Of course, he or she may also simply list the matter for trial at some later stage, whenever that might be. On such a view, potentially the matter may not be listed for trial in the Federal Court for perhaps another 4 – 6 months.
Returning then to Aon, the comments of the plurality, which noted (at [93], [95] and [114]) that “the timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants”, are equally apposite. So too are the comments (at [100] – [101]) regarding the stress on litigants and the need for a prompt and efficient determination of the matters in issue.
Consideration & Disposition (transfer application)
Section 39(1) of the Federal Circuit Court of Australia Act1999 (Cth) (“the FCC Act”), and Rule 8.02(1) of the Federal Circuit Court Rules 2001, enable this Court relevantly to transfer matters to the Federal Court of Australia. In particular, s.39(3) of the FCC Act provides:
In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
I note that s.39(6) of the FCC Act provides that “an appeal does not lie from a decision of the Federal Circuit Court of Australia in relation to the transfer of a proceeding under subsection (1).”
In relation to this Court’s Rules regarding a transfer to the Federal Court, I note the following.
Rule 8.02(2) states (emphasis added): “Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.”
Rule 8.02(4) provides:
In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
Having regard to (a) s.39 of the FCC Act, (b) Rule 8.02 of this Court’s Rules, and the statements of principle from Aon to which I have referred, summarily I note the following.
First, the matter has been on foot since December 2014. There has been no Application to transfer until 23rd December 2016, which is just over one month before the scheduled commencement of the 10 day trial. Apart from commenting in the course of oral submissions that certain things went “under the radar” (e.g. some obiter comments by a Justice of the Federal Court in approximately mid-last year), and that there were issues relating to certain subpoenæ, in my view, why there has been such a delay in making this Application has not been adequately explained.
The Applicant offered the explanation at the hearing of the Application that it was their obligation as a Model Litigant to bring the transfer Application because the Commissioner had only just become aware that the matter may not be able to be accommodated in the 10 days fixed for the hearing. It was submitted that failure to bring this issue to the Court’s attention could have resulted in a breach of the obligation not to waste Court resources. Counsel for the Respondents submitted in Reply that alternative means for raising such an issue were available, and that the “nuclear option” to file the transfer Application was inappropriate in all of the circumstances.
There was not, in my view, any relevant explanation why there had not been compliance with the Rule that prescribes that a transfer Application should be made, absent any other Order of the Court, before the first Court date. A transfer Application two years after the commencement of the proceeding suggests neither urgency nor a matter (or matters) of “general importance.”
Secondly, a transfer Application so late and so close to the long-fixed final hearing adversely impacts not only the parties but other litigants who might otherwise have access to the Court’s limited public resources, including other contravention Applications, some involving one or more of the same Respondents in the current matter. At such late notice, it is highly unlikely that the Court would be able to re-schedule and hear any other matters during the trial period allocated for the current matter, other than such urgent interim or interlocutory matters that may arise.
Further, there are other matters involving some of the Respondents (notably the CFMEU) which, in certain respects, are said to be dependent on (or at least potentially or significantly affected by) the resolution of the matters before the Court in the current proceeding. Those matters could likely be further delayed pending the determination of issues in the current litigation.
Necessarily the transfer Application more generally adversely impacts the Court, which has set aside significant hearing time for this specially-fixed matter. I have earlier mentioned the many directions hearings, and the interlocutory determination in relation to discovery, as further instances of the significant allocation and “investment” (so to speak) of Court time and resources given to this proceeding.
Also, while various interlocutory matters have been dealt with in the course of preparation for the final hearing, there would be no guarantee that any interlocutory or procedural rulings or directions would necessarily or automatically carry over to proceedings in the Federal Court.
Thirdly, in relation to the so-called “complexity” of the matter, I simply record that (a) this Court regularly deals with contravention matters under the FW Act, and (b) there appears nothing peculiarly or dramatically unique about the contraventions alleged in this matter. Volume of contraventions, as here, is not, of itself, I suggest sufficient to amount to “complexity”. Volume of contraventions simply goes to matters of case- and time-management of evidence. Moreover, the number of contraventions has been known since 2014; they have in fact recently been slightly reduced in number.
Fourthly, nor is “complexity” a necessary function of the number of Respondents or parties more generally. Again, such matters are simply factors for appropriate time- and case-management. Indeed, this Court not infrequently deals with matters involving many parties. For example, in the Sydney Registry of the Court, there is on foot a matter under the FW Act that involves the same Commissioner, the same [national] Union, the NSW Branch of the same Union, and [in total] fourteen Respondents, compared to the modest seven Respondents in the current proceeding.[19]
[19] See Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors (No.2) [2016] FCCA 3322.
Fifthly, the issue raised by the Applicant of a matter of “general importance”, being the consideration and application of s.793 of the FW Act, suffers from a specific defect. As earlier noted, this section was pleaded in the original Statement of Claim filed in December 2014. Presumably due consideration was given at that time, and regularly since, whether the interpretation and application of that section warranted the matter being transferred to the Federal Court. A reasonable inference is that it has not warranted a transfer prior to 23rd December 2016. The same comment applies to whatever consideration was (or was not) made of the “matter of general importance” since 16th May 2016 upon the delivery of judgment by the Federal Court in the matter of Robinson, noted below.
Given that the Applicant is a “model litigant” as defined and bound by the “Model Litigant Obligation” as prescribed in clause 4.2 of, and Appendix B to, the Legal Services Directions2005 (Cth), and that it has significant resources at its disposal, both internal and through the large firm of solicitors externally retained the Court is confident that the matter will be ready to be run, and that it will be conducted efficiently. The same general comments apply to the experience and efficiency of the Respondents’ lawyers.
And further, giving every respect to the obiter comments by a single Judge of the Federal Court in Director of the Fair Work Building Industry Inspectorate v Robinson, given that they were made in mid-May 2016, there has been no expedition in bringing the transfer Application before this Court. The Applicant simply says that these comments simply “slipped under the radar” and that the Application was brought as soon as there was [again] relevant awareness of the Federal Court decision and its potential impact on the current proceeding.
Sixthly, with proper attention to detail, and having regard to the competence of the Senior and Junior Counsel involved, and the parties’ respective solicitors, the Court remains of the view that any currently outstanding issues (e.g. arguments over documents produced or objected to in relation to any particular subpoena, or possible evidence by the single self-represented Second Respondent) will be able to be properly managed and dealt with appropriately (noting that some issues have already been resolved with the indication by Senior Counsel for the Respondents of confidence in resolving most other procedural issues). As it happened, all such matters were able to be resolved without the need for judicial intervention.
In this regard I note the comments of the High Court in Expense Reduction, at [56] and [57] (emphasis added):
[56] … Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. … The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs…
Moreover, with an additional Judge now having been appointed to this Court in this Registry, there is likely to be some scope for the management of other matters to accommodate any potential over-run in the currently scheduled time allocated for the hearing.
For these reasons, the Application to transfer the proceeding to the Federal Court must be refused and the Application dismissed. Costs should be reserved for the legally represented Respondents. It is to that matter that I now turn on the basis of the oral submissions made on behalf of the parties at the conclusion of the transfer Application.
Costs Application
Upon the dismissal of the transfer Application, Senior Counsel for the legally represented Respondents made an Application for costs.
Notwithstanding that the Application before the Court was simply one for a transfer of the proceedings, and therefore (strictly speaking) it was not an Application under the Fair Work Act 2009, Senior Counsel for both sides confirmed that the relevant provision that governed the costs Application was s.570 of the FW Act. That section is in the following terms:
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
The submissions of the parties in relation to the substantive transfer Application were essentially identical to the submissions in relation to the legally-represented Respondents’ application for costs. Special emphasis was given to the lateness of the Application as well as to its prematurity given that there were ongoing discussions between the parties in relation to matters such as documents to be produced under subpoena. In the succinct but poignant submission by Senior Counsel for the Respondents, there was simply no need to go for “the nuclear option” of the very late transfer Application to the Federal Court. Respectfully, I accept and agree with this submission. In addition, I note the following.
First, an interlocutory application can attract the operation of s.570 of the FW Act. However, any Order under that section (and its earlier iterations) remains discretionary.[20]
[20] See the discussion by Graham and Tracey JJ in Yirra Pty Ltd v Summerton (2009) 176 FCR 219 at [150] – [158].
Secondly, pursuant to s.570(2), for there to be an order for costs in favour of a party, it is necessary for the Court to be satisfied that, inter alia, the “the party instituted the proceedings vexatiously or without reasonable cause” or “party’s unreasonable act or omission caused the other party to incur the costs.” Whether this has been established will depend upon the particular circumstances of the instant matter before the Court.[21]
[21] See the general discussion on the question of costs of an earlier, comparable section under the Workplace Relations Act 1996, in Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392 (Tracey J), and by the Full Court (Gyles, Stone and Buchanan JJ) in Bahonko v Sterjov and Ors (2008) 166 FCR 415.
Thirdly, in Construction, Forestry, Mining and Energy Union v Clarke, the Full Court said (Tamberlin, Gyles and Gilmour JJ) said, at [29] (internal citations omitted):[22]
As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable… Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion … to make a costs order.
[22] Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574.
Mindful of the principles I have just outlined, and without repeating each of the Court’s comments in response to the grounds advanced in support of the substantive transfer Application, in view of (among other things) the extreme lateness of the transfer Application the legally represented Respondents have been put to additional expense to meet the current Application. To borrow from other disciplines, in my view, the Application was an exercise in litigious “over-reach”. This was compounded by the Application being filed while the Court was formally in recess, and requiring it to be heard, also during the recess period as a matter of urgency.
In Spotless Services Australia Ltd v Marsh the Full Court (Wilcox, Marshall and Jacobson JJ) said, at [13]: “Whether a proceeding has been commenced without reasonable cause is relevantly established as a matter of objective fact.”[23] Respectfully, in my view, I do not find that the actions of the Applicant in relation to the transfer Application constitute a proceeding “without reasonable cause” in s.570(2)(a); however, it was a near-run thing in this regard.
[23] Spotless Services Australia Ltd v Marsh [2004] FCAFC 155.
However, in the light of the history of the litigation and the detailed if not meticulous preparation for the trial over a very significant period of time that I have outlined earlier in these reasons, in my view, the nature, substance, circumstances and timing of the transfer Application bring the matter conformably within the terms of s.570(2)(b), namely that of an “unreasonable act.”
Accordingly, the Applicant should pay the legally represented Respondents costs for the transfer Application, as agreed or taxed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 10 March 2017
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