Crowden v Commissioner for Public Employment
[2022] FedCFamC2G 766
Federal Circuit and Family Court of Australia
(DIVISION 2)
Crowden v Commissioner for Public Employment [2022] FedCFamC2G 766
File number(s): BRG 1089 of 2018 Judgment of: JUDGE YOUNG Date of judgment: 26 August 2022 Catchwords: FAIR WORK - unfair dismissal – where the applicant is not in Australia – where leave is required to give evidence in a foreign country – where the matter should be adjourned Legislation: Fair Work Act 2009 (Cth)
Foreign Evidence Act 1994 (Cth) s 7
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 26 August 2022 Place: Darwin The Applicant: No appearance for or by the Applicant Solicitor for the Respondent: Mr Grove of Ward Keller ORDERS
BRG 1089 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID ROHAN CROWDEN
Applicant
AND: COMMISSIONER FOR PUBLIC EMPLOYMENT
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
26 AUGUST 2022
THE COURT NOTES THAT:
A.The applicant informed the Court by email that he was unable to appear today due to work commitments;
B.Counsel for the applicant advised the court by email that he no longer held instructions from the applicant;
C.The Court is not prepared to make an order under the Foreign Evidence Act without prior consent of the relevant authorities of Vietnam.
THE COURT ORDERS THAT:
1.The applicant is not permitted to give evidence-in-chief or be cross-examined by AVL while he remains in Vietnam without the consent of the relevant authorities of Vietnam.
2.The applicant’s application to have the conduct of trial on day 2 and day 4 heard only between the hours of 12.30 and 2.00pm CST is refused.
3.The applicant is to be present in Australia for the conduct of the trial and if present in Australia he has leave to appear by AVL and to give evidence-in-chief or be cross-examined and cross-examine witnesses and make submissions.
4.The respondent and witnesses likewise has leave to give evidence by AVL from within Australia.
5.If the applicant fails to appear in Australia for the conduct of trial orders may be made in his absence and his application may be dismissed.
6.The matter remains listed for trial commencing 10.00am on 5 September 2022.
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
Ex TemporeJUDGE YOUNG
This is a proceeding commenced by the Applicant, Mr Crowden, under the Fair Work Act 2009 (Cth) (“the Act”) for remedies under the general protection provisions. The respondent is the Commissioner for Public Employment, and this is a proceeding against the Department of Education. The witnesses are, for the most part, employed by the Northern Territory Department of Education and are resident in Darwin or in the Northern Territory. Hence, the matter was transferred to this registry from the Brisbane registry.
Orders have been made by me on three occasions. On 9 June 2021, when Mr Jones of counsel appeared for the Applicant and Mr Grove appeared for the Respondent, the matter was set down for trial for four days, commencing on 21 March 2022. On 16 March 2022 there was a mention to make sure the matter was ready to commence on 21 March 2022. It was confirmed that the matter was set to proceed. On the morning of 21 March 2022, Mr Jones of counsel appeared for the Applicant and he told the Court he was unwell he did not believe he could conduct the trial. Mr Grove for the Respondent quite properly accepted that was the case. In the circumstances, I felt there was no option but to vacate the dates and relist the matter for four days beginning on 5 September 2022.
The discussion that took place on 16 March 2022 was to the effect that there would be no objection to Mr Jones appearing by Audio-Visual Link (“AVL”) from Brisbane, or his client being cross-examined by AVL from Brisbane. Some of the Respondent’s witnesses were also interstate and Mr Grove presumably took the view that in all the circumstances, it was appropriate that there by evidence by AVL. There did not appear to be any dispute about that.
On 23 August 2022, the Applicant wrote directly to my chambers and asked for leave to appear by AVL. I note that I do not recall that there was a formal grant of leave, but as there appeared to be general agreement that may well have been construed as leave by Mr Crowden, particularly as a letter was sent from chambers to him to that effect. That letter was perhaps not strictly correct in that I do not know that leave was granted but it was tantamount to leave, I agree.
Mr Crowden, on 23 August 2022 asked that that leave be extended. It became clear from the correspondence that Mr Crowden was, in fact, in Vietnam and no longer in Australia. That matter had not been raised by him and a reply was made to him that if he was in Vietnam, the matter would be listed to today to discuss. Mr Crowden replied that at such short notice he was unable to attend today. He said,
I have classes all day and have just started a new job. There is no way that I can attend the directions hearing.
To add to the difficulty, Mr Jones emailed chambers yesterday afternoon past 5:00pm that he no longer had instructions from Mr Crowden and would not be appearing this morning. The effect of that is that I am satisfied Mr Crowden was given adequate notice, given the urgency of the matter, and has chosen not to appear this morning. Mr Crowden also advised my chambers on 23 August 2022 that he is unavailable for parts of the trial. As I have said, the matter is set down for four days, commencing on 5 September 2022. He said that he is available all day on 6 September 2022 and 8 September 2022. In relation to 5 September 2022 and 7 September 2022, day 1 and 3 of the trial, he is only available from midday to 1.30 pm (AEST). In other words, from 12.30pm to 2:00pm (ACST). Mr Crowden said, “Can you please let me know if we can work with this schedule.” Of course, if the matter has been set down for four days, Mr Crowden making himself unavailable for the bulk of two of those days is an unacceptable interference or expectation. This matter has been set down for many months. The respondent appears to be ready and the matter should proceed.
The second issue is one that is not addressed at all, but in the email to Mr Crowden that I caused to be sent this week. I raised the issue of the need for the consent of the relevant authorities in Vietnam if an Australian trial was, in part, to be conducted on their sovereign territory. As would also be the case if Mr Crowden was sworn or affirmed in Vietnam, if Mr Crowden gave evidence from Vietnam under oath or affirmation, and if Mr Crowden was cross-examined in Vietnam or made submissions while in Vietnam in these proceedings. In the circumstances, I do not propose to accede to any of Mr Crowden’s requests for the trial to be conducted in part in Vietnam, or for the trial to be conducted according to his availability on the Monday and Wednesday of the set dates.
There will be an order that the Applicant is not permitted to give evidence-in-chief or be cross-examined while he remains in Vietnam without the consent of the relevant authorities of Vietnam.
I am familiar with the process for obtaining consent from a foreign country for the conduct of proceedings on its Territory. I know that it is a time-consuming process and requires a ledger to be written by the Australian authorities to the relevant foreign authorities, and for permission to be forthcoming, if it is forthcoming. In the case that I am familiar with, it took many months.
I should say something about the Foreign Evidence Act 1994 (Cth). Mr Grove raised section 7 of the Foreign Evidence Act which permits a Court to take evidence from a person outside Australia, to have that person examined on commission in a foreign country, or to permit a judicial officer to take evidence in that foreign country, and to issue letters of request to the judicial authorities of that foreign country for those purposes. The Foreign Evidence Act does not deal directly with the issue that faces us, that is, the request of a party or a witness to give evidence from a foreign country by AVL which is technically possible. However, I am not prepared to make an order under the Foreign Evidence Act, even under subsection 1(a) which, on its face, would appear to permit the taking of evidence from a person outside Australia, without the prior consent of the relevant authorities in that country. I will not do so because this could well be construed as an infringement of the sovereignty of that foreign country.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 26 August 2022
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