Cross v Justice Michael Lee, Federal Court of Australia & Ors

[2018] HCATrans 166

[2018] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2018

B e t w e e n -

CRAIG RICHARD CROSS

Plaintiff

and

JUSTICE MICHAEL LEE, FEDERAL COURT OF AUSTRALIA

First Defendant

JUDGE JUSTIN SMITH, FEDERAL CIRCUIT COURT OF AUSTRALIA

Second Defendant

HARBOUR CITY FERRIES PTY LTD T/AS HARBOUR CITY FERRIES

Third Defendant

SYDNEY FERRIES CORPORATION

Fourth Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 AUGUST 2018, AT 10.11 AM

Copyright in the High Court of Australia

__________________

MR C.R. CROSS appeared in person.

MR M.J. FOLLETT:   May it please the Court, I appear for the third and fourth defendants.  (instructed by Lander & Rogers Lawyers and Corrs Chambers Westgarth)

HIS HONOUR:   I note that there is a submitting appearance for the first and second defendants.

MR FOLLETT:   That is so, your Honour.

HIS HONOUR:   Now, Mr Cross, we are concerned with your application for an order to show cause.

MR CROSS:   Yes.

HIS HONOUR:   We should commence by identifying the factual material on which you rely on that application and on which the third and fourth respondents rely.  So can you please start by identifying the affidavits upon which you rely?

MR CROSS:   My affidavits that I rely are filed on 7 June 2018, 20 July 2018 and 5 March 2018, your Honour.

HIS HONOUR:   Yes, thank you.  Is there any objection to those affidavits?

MR FOLLETT:   No, your Honour.

HIS HONOUR:   Very well.  I read those affidavits and I admit the exhibits to which they refer.

MR CROSS:   Thank you, your Honour. 

HIS HONOUR:   Now, Mr Follett, you have an affidavit as well, I think. 

MR FOLLETT:   Yes, your Honour.  We seek to read and tender the exhibits to the affidavit of Erin Louise Kiley affirmed on 5 July 2018.

HIS HONOUR:   Yes, thank you.  Mr Cross, do you have any objection to that affidavit?

MR CROSS:   No, your Honour.

HIS HONOUR:   I read that affidavit and I admit the exhibits.  Now, Mr Cross, I have read your written submissions.

MR CROSS:   Yes.

HIS HONOUR:   I have read the judgment of Judge Smith and I have read the judgment of Justice Lee.  Is there anything you want to add to your written submissions?

MR CROSS:   I have got some further cases that I would like to cite if you could tell me when the most appropriate time is to ‑ ‑ ‑

HIS HONOUR:   Well, this is the time to say anything in addition to what you have already said in writing.

MR CROSS:   Right now, okay. 

HIS HONOUR:   How long do you expect to be?

MR CROSS:   I would probably be 20 minutes.

HIS HONOUR:   All right, you have 20 minutes.

MR CROSS:   Okay.

HIS HONOUR:   So go ahead.

MR CROSS:   The first, Judge Smith, the whole cause of this action is the date is incorrect when I was removed and that is the whole crux of the matter.  The evidence that that was based on was from an informal document, so to reverse the onus of proof under the Fair Work Act you would require a direct statement from the decision‑maker.  On cross‑examination, and by me subpoenaing the correct records, it established that these – the decision that the judge based his decision on was an informal document.  It was not the formal document that actually was the one that they used to exercise my workplace right. 

So, the reversal of the onus of proof is impossible – it is impossible for me to test the intent – or why the action was taken for where Mr Rieck’s list was an informal list.  It had no bearing on my workplace right and that is what Judge Smith based his decision on, that he says I was removed in October 2012 where in actual sense, on the records that I subpoenaed from their records, I was removed in December 2011 and November 2011. 

Then in exhibit A it shows I was removed – these were subpoenaed from their records – I was removed on 23 July 2012.  The transfer happened on 28 July 2012.  I was removed the week starting – exhibit B – 30 July 2012.  Under cross‑examination the witnesses for the defendant established that these were the formal documents which they actually used.  Craig Rieck, the chief decision‑maker, also confirmed to the judge that these were the formal documents and the documents that the decision was based on were his informal documents.

So, on the balance of probabilities, it cannot be held that the decision is safe.  It is actually infected for the reasons I just described.  So that is the basis of my original claim, that it is in the public interest that justice be seen to be done as it is done.  The other issue in the first matter was the procedural fairness issue.

HIS HONOUR:   Yes.

MR CROSS:   The courts, from Hamod v New South Wales [2011] NSWCA 375, the courts have an overriding duty to ensure that a trial is fair. It is held – and this duty requires that the litigant does not suffer a disadvantage for exercising his or her right to be self‑represented. Further, in Italiano v Carbone, Justice Basten at 88 observed that to have procedural fairness you have to show an opportunity foregone that was reasonably available.

I had these telephone records subpoenaed on their advice.  They advised me that their provider was Telstra on several occasions.  I proceeded to subpoena those records and in the week before the trial in the Federal Circuit Court I was advised by Telstra that they could not find the records.  I contacted their solicitor, Harbour City Ferries’ solicitor, and they advised that Macquarie Communications was their provider now, an additional provider.

I contacted all parties, including the Justices’ chambers to advise this notion.  The solicitor for Harbour City Ferries, Corrs Chambers Westgarth, they emailed back saying “Well, you can just bring it up with the judge on the Monday” which I did do with the judge.  I brought it up with him on the Monday explaining that I am unable to get these telephone records and that is really integral to my case to show that they did not contact me.  

It shows from not being on the list they altered and injured my employment. It constitutes a refusal to employ. As soon as they offered another shift to another person on the casual list it was discrimination between me and the other employees of the employer. The basis for those principles are from section 340 of the Fair Work Act, 341, 342 of the Fair Work Act where those tables will show what actually is a workplace right ‑ ‑ ‑

HIS HONOUR:   Yes, I am familiar with those provisions.

MR CROSS:   Familiar with those, yes.  So they also would evidence that they made no effort whatsoever to contact me.  There were representations made by Harbour City Ferries that they did in fact contact me.  That was the basis of the misrepresentation against them.  There was an email sent on 29 April and then also the coercion by removing me from those lists the witnesses of the defendants when showing them a list they admitted that they could not – it would be impossible for them to contact me if my name was removed from the list.  Under sections 343 and 355 it would constitute that they did not allocate duties to a particular person, that that action was action where they would be unable to allocate the duties, employ me and on top of the previous refusal to employ. 

Further to the telephone records a party must be afforded the opportunity to advance his or her case reasonably and fairly by tendering the evidence.  There can be no relevant hearing unless the applicant is afforded natural justice or procedural fairness.  That is Reznitsky v Director of Public Prosecutions [2014] NSWCA 79 – it was Justice Tobias with Meagher and Emmett agreeing at 19.

Further, there were some other issues in the first hearing where the advice of the Legal Practice and Procedures to the self‑represented litigant - that is from SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445. The Chief Justice at [53] to [54] said:

Procedural fairness required at least that this appellant be given the opportunity of going into the witness box to give evidence, with knowledge of the issues that he had to address, including the exploration of the role of the migration agent . . . 

He should have been sworn and possibly, at the end of that evidence, he may have been required to be told of the inadequacy of the matters thus far, and of the issues that he had to address.

The judge with the telephone records – I was advised, even though it was not my problem, that I was unable to obtain the records - he said I would be able to if I paid a forthwith costs order.  I did not know what a forthwith costs order was.  I believed I was in a no costs jurisdiction and my position at the time I was unable to afford to adjourn.  He was aware of this with my contacting of Justice Connect.

HIS HONOUR:   Now, this argument that you are now putting by reference to a failure to afford procedural fairness, like the earlier argument you articulated, was an argument that you put to Justice Lee I think.

MR CROSS:   Yes, your Honour.  Do you want me to go forward to the next ‑ ‑ ‑

HIS HONOUR:   No, I am just wanting to understand that it is the same argument.

MR CROSS:   Yes.  I did put that forward to Justice Lee.

HIS HONOUR:   Yes.  I do not want to prevent you from saying anything you wish to say, Mr Cross.

MR CROSS:   Okay.

HIS HONOUR:   But you need to understand, of course, Mr Cross, that we are not concerned in this application with the merits of the claim that you sought to put before Judge Smith.  You are aware that we are concerned with questions of jurisdiction.

MR CROSS:   Yes, your Honour.  So, going forward to Justice Lee, I did present the arguments that I just stated.  Justice Lee, in his judgment he totally reverses my workplace right.  The error that Justice Lee – he states at paragraph 9 of that decision that there was no obligation and as a result that no obligation was in reference to the primary judge’s findings at 19 that the workplace right, there was an obligation to endeavour to equitably allocate shifts.  On 26 July 2012, I went to number 1 on the Pool A casual list.  I would be the first person to be offered any shift, any contract and the next permanent position.

HIS HONOUR:   Let me understand this.  At paragraph 9 Justice Lee is recounting Judge Smith’s judgment.

MR CROSS:   Yes, your Honour.

HIS HONOUR:   Your complaint is with Judge Smith’s finding that is recounted by Justice Lee at paragraph 9.

MR CROSS:   Yes.  Justice Lee gets the finding incorrect as to my workplace right.

HIS HONOUR:   All right, go on.

MR CROSS:   So, as a result, Justice Lee’s entire judgment is based upon it being reversed the other way around.  So, as a result, I have not been heard on the merits of the case.

HIS HONOUR:   Yes, I understand.

MR CROSS:   So every ground that is addressed by Justice Lee is read back to front, so to speak.  He did not address, as a result, any of the matters put forward and I have not been heard.  So the matter has not really been assessed on the correct merits.  As a result the obligation in the public interest, he has not carried out the judicial functions of the Commonwealth that the judgment is infected and should not stand on the public record.  I suggest that the Court decides how it is to be addressed because obviously being self‑represented I am not knowledgeable on those processes of the Court if a finding is to be made in that area.

HIS HONOUR:   Yes.  Thank you for those submissions.  Is there anything further you wish to say, Mr Cross?

MR CROSS:   I have got so much information, I am not sure if I have covered everything in its entirety.  I am pretty nervous and ‑ ‑ ‑

HIS HONOUR:   You have been very articulate.  Your written submissions are very full and you have gone to the gravamen of your complaint in your oral submissions.  I do understand the case that you seek to put.

MR CROSS:   Thank you, your Honour.

HIS HONOUR:   You do understand the limits of the jurisdiction you seek to invoke.

MR CROSS:   I do, your Honour.

HIS HONOUR:   Yes.

MR CROSS:   Thank you.

HIS HONOUR:   Thank you, Mr Cross.  Mr Follett, I do not need to hear you.

MR FOLLETT:   If your Honour please.

HIS HONOUR:   Before me is an application for writs of certiorari and mandamus directed to Judge Smith, a Judge of the Federal Circuit Court of Australia, and to Justice Lee, a Judge of the Federal Court of Australia. 

The application arises out of proceedings commenced in the Federal Circuit Court in which the plaintiff claimed that Sydney Ferries Corporation and Harbour City Ferries Pty Ltd, in 2012, contravened a number of the general protection provisions contained in the Fair Work Act 2009 (Cth). Judge Smith heard that application on 13 and 14 February 2017, finding none of the claimed contraventions established on the evidence. His Honour dismissed the application on 24 March 2017. His Honour’s reasons for judgment are to be found in Cross v Harbour City Ferries Pty Ltd [2017] FCCA 514.

On 19 April 2017, the plaintiff filed in the Federal Court an application for an extension of time in which to file a notice of appeal from the decision of Judge Smith.  Justice Lee heard that application on 18 September and 10 November 2017.  Concluding that each of the plaintiff’s proposed grounds of appeal was devoid of merit, his Honour dismissed the application on 29 December 2017.  His Honour’s reasons for judgment are to be found in Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577.

The present application for writs of certiorari and mandamus directed to Judge Smith and Justice Lee was commenced by an application to show cause filed in the original jurisdiction of this Court on 5 March 2018.  The grounds on which the relief is sought, as identified in the application, are fourfold.  First, it is said that both decisions were affected by factual errors.  Second, it is said that both judicial officers misapprehended the evidence.  Third, it is asserted that the plaintiff was not offered an opportunity to present his case fairly by reason of Judge Smith refusing his request to adjourn the hearing to allow him to obtain and adduce evidence of certain telephone records, an assertion which was put to, examined in detail and rejected by Justice Lee in dismissing the application for an extension of time in which to file a notice of appeal from the decision of Judge Smith.  Fourth, the plaintiff asserts that both decisions were unsafe and unsatisfactory due to an erroneous application of the Fair Work Act.

Each of those grounds is only sparsely particularised in the application.  The application, however, is supported by some 39 pages of written submissions and the plaintiff has today before me orally articulated the main points on which he seeks to rely.

Save in respect of the writ of certiorari directed to Justice Lee, the plaintiff would require an extension of time under the High Court Rules 2004 (Cth) were the application to proceed. For reasons I will explain, however, the application is to be dismissed under rule 25.03.3(a) of the High Court Rules, without needing to address any question of extension of time.

Insofar as the application seeks writs of certiorari and mandamus directed to Judge Smith, consistently with the approach I took in Waters v Federal Court of Australia [2015] HCATrans 347, I dismiss the application in the exercise of my discretion on the basis that it is inappropriate for the original jurisdiction of this Court to be invoked to challenge a decision which was amenable to appeal, subject to leave, in circumstances where the plaintiff has sought and was refused that leave to appeal.

Here, the reasons for judgment of Judge Smith reveal that his Honour weighed the contested evidence and dealt in considerable detail with each of the plaintiff’s claims under the Fair Work Act.  The appropriate forum for any complaint to be made about how his Honour dealt with the evidence to find the facts was, as the plaintiff recognised in making the application for an extension of time within which to appeal, an appeal to the Federal Court.  The plaintiff’s proposed grounds of appeal in that respect were carefully isolated and considered by Justice Lee, again in considerable detail.

Insofar as the application seeks writs of certiorari and mandamus directed to Justice Lee, I am not satisfied that the application raises an arguable case for the grant of either of those writs.  It is important to recognise that a mere error on the part of the Federal Court in evaluating evidence, in finding facts or in applying a legal criterion to the facts as found, does not provide a sufficient basis for the relief in the original jurisdiction of this Court that the plaintiff now seeks.  To adapt the language used by Justice Deane in R v Grey, Ex parte Marsh (1985) 157 CLR 351 at 389; [1985] HCA 67, which I quoted and applied in AUK15 v Minister for Immigration and Border Protection [2016] HCATrans 36:

to the extent to which the Federal Court is validly vested with jurisdiction to decide questions of fact or law . . . in a particular case, it does not lie within the original jurisdiction of this court to order that certiorari issue merely for the reason that, in the opinion of this Court, the Federal Court’s decision on those questions is mistaken.

In any event, I am not satisfied that there is an arguable case that Justice Lee was in any way mistaken. 

The plaintiff, in his oral submissions before me this morning, has pointed to paragraph 9 of his Honour’s reasons for judgment contending that there exists in the first sentence of that paragraph a fundamental error which infects the entirety of the judgment which follows.  In that paragraph his Honour was doing no more than recounting the reasons for decision of the primary judge.  His Honour did not misunderstand those reasons for decision, nor did his Honour misunderstand the nature of the jurisdiction that he himself was called upon to exercise.

I find no error in his Honour’s reasoning to the conclusion that each of the plaintiff’s proposed grounds of appeal lack merit.  The orders I therefore make are:

1.The application for an order to show cause is dismissed.

2.The plaintiff is to pay the third and fourth defendant’s costs.

AT 10.37 AM THE MATTER WAS CONCLUDED