Davidson v McCann Worldgroup Pty Limited
[2010] FMCA 451
•30 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVIDSON v McCANN WORLDGROUP PTY LIMITED & ANOR | [2010] FMCA 451 |
| HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – whether proceedings instituted by two former employees of a respondent should be consolidated – whether two sets of proceedings instituted by an applicant should be consolidated. |
| Australian Human Rights Commission Act 1986 (Cth), s.3 Federal Court Rules, O.6 r.2, O.29 r.2, O.29 r.5 |
| Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 BHP Billiton Limited v Schultz and Others (2004) 221 CLR 400; [2004] HCA 61 Calmer Pty Ltd & Ors v Michel's Patisserie (WA) Pty Ltd & Anor [2009] FMCA 42 Lord v Agreserves Australia Limited ACN 080 646 251 [2006] FCA 598 Re Ling; Ex Parte Ling v Commonwealth of Australia (1995) 58 FCR 129; [1995] FCA 1410 Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384; [1981] FCA 48 Wylie v McCann Worldgroup Pty Limited & Anor [2010] FMCA 457 |
| Applicant: | JENNIFER DAVIDSON |
| First Respondent: | McCANN WORLDGROUP PTY LIMITED (ACN 000 154 889) |
| Second Respondent: | PAUL BROWN |
| File number: | SYG71 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 2 & 4 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Darams |
| Solicitors for the Applicant: | Harmers Workplace Lawyers |
| Counsel for the First Respondent: | Mr P Newall |
| Counsel for the Second Respondent: | Mr J Fernon SC |
| Solicitors for the Respondents: | Baker and McKenzie |
ORDERS
Matter number SYG535/2008 and matter number SYG71/2009 be heard together and evidence in one matter be evidence in the other matter.
The amended application in a case filed by the applicant on 2 March 2010 otherwise be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG71 of 2009
| JENNIFER DAVIDSON |
Applicant
And
| McCANN WORLDGROUP PTY LIMITED (ACN 000 154 889) |
First Respondent
| PAUL BROWN |
Second Respondent
REASONS FOR JUDGMENT
Background
Ms Davidson has instituted two sets of proceedings in this court. First, on 5 March 2008 she commenced proceedings against McCann Worldgroup Pty Limited (McCanns) alleging direct discrimination on the grounds of sex, marital status, pregnancy and/or potential pregnancy, indirect discrimination and breach of her contract of employment (referred to for convenience hereafter as Davidson No. 1).
Secondly, Ms Davidson commenced proceedings (referred to for convenience as Davidson No. 2) against McCanns (the first respondent), Paul Brown (the second respondent) and Baker and McKenzie (the third respondent), although she no longer maintains the proceedings against Baker and McKenzie. In Davidson No. 2 Ms Davidson alleged three kinds of victimisation said to constitute unlawful discrimination under s.94 of the Sex Discrimination Act 1984 (Cth) (the SDA) and s.3 of the Australian Human Rights Commission Act 1986 (Cth) (the AHRCA): first, that McCanns committed an act of victimisation against her within s.94(1) of the SDA by failing to pay her termination payments contrary to an express commitment to do so in a letter from its solicitors of 2 February 2007 (the “commitment conduct”); secondly, that Mr Brown had engaged in certain conduct during the course of a Australian Human Rights Commission (formerly known as the Human Rights and Equal Opportunity Commission) conciliation (the “conciliation conduct”) amounting to victimisation; and thirdly, that Mr Brown had engaged in certain other conduct amounting to victimisation during a dinner party (the “dinner party conduct”). It is also alleged that McCanns is liable as principal for the alleged conciliation and dinner party conduct of Mr Brown as its agent. On this basis both Mr Brown and McCanns are said to have engaged in victimisation and unlawful discrimination against the applicant.
By an application in a case filed on 4 February 2009 Ms Davidson sought orders that Davidson No. 1, Davidson No. 2 and the proceedings SYG70/2009 brought by Simone Wylie against McCanns and Mr Brown be heard at the same time with evidence in one proceeding being evidence in the other. Ms Wylie sought orders in the same terms in an application in a case filed on the same day (see Wylie v McCanns Worldgroup Pty Limited & Anor [2010] FMCA 457).
However, by an amended application in a case filed in Davidson No. 2 on 2 March 2010 Ms Davidson sought orders as follows:
1. Order that Matter No. SYG 535/2008, Matter No. SYG 70/2009 and Matter No. SYG 71/2009 be heard together and that evidence in one matter be evidence in the others.
2. Further and in the alternative, order that Matter No. SYG 535/2008 and Matter No. SYG 71/2009 be consolidated.
3. Further, and in the alternative, order that Matter No. SYG 535/2008 and Matter No. SYG 71/2009 be heard together and that evidence in one matter be evidence in the other.
This judgment addresses the orders sought in Ms Davidson’s amended application in a case. While this is referred to for convenience as the consolidation application, in fact Ms Davidson seeks either consolidation of Davidson No. 1 and Davidson No. 2 or that those two matters be heard together with evidence in one proceeding being evidence in the other, and that her matters be heard together with the Wylie matter.
There are, in effect, two separate issues: whether the Wylie matter should be heard together with the Davidson matters and whether Davidson No. 1 and No. 2 should be consolidated or heard together. Ms Davidson’s and Ms Wylie’s applications were heard together with submissions made on behalf of both applicants by their counsel.
Wylie and Davidson
The principal issue is whether the three matters should be heard together with evidence in one matter being evidence in the others. In support of these applications the applicants rely on affidavits of Freya Mocsari affirmed on 4 February 2009, 23 March 2009 and 24 March 2009.
It is not in dispute that the court has the power to make the orders sought pursuant to O.29 r.5 of the Federal Court Rules (which is applicable by virtue of r.1.05(2) of the Federal Magistrates Court Rules (see Calmer Pty Ltd & Ors v Michel's Patisserie (WA) Pty Ltd & Anor [2009] FMCA 42).
Order 29 rule 5 provides:
Where several proceedings are pending in the Court, then, if it appears to the Court:
(a) that some common question of law or fact arises in both or all of them;
(b) that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions; or
(c) that for some other reason it is desirable to make an order under this rule;
the Court may order those proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order them to be stayed until after the determination of any of them.
The applicants submitted that the court’s discretion should be exercised under O.29 r.5 on the basis that it was desirable to make the order sought for the effective administration of justice and use of the court’s time and resources (see Lord v Agreserves Australia Limited ACN 080 646 251 [2006] FCA 598).
As Hill J noted in Re Ling; Ex Parte Ling v Commonwealth of Australia (1995) 58 FCR 129 at 134; [1995] FCA 1410 at [18], an order for consolidation is not limited to the circumstances expressed in paragraphs (a) and (b) of O.29 r.5. It suffices that it is “desirable” that an order for consolidation should be made. In Re Ling this was said to confer a broad discretion on the court to make orders for consolidation “where it is in the interests of justice so to do” (at 134; [18]). Hill J suggested that it was relevant to have regard to “the desirability of avoiding multiple actions, the saving of time and expense and whether the parties would be prejudiced by such a course” and that there was no reason to interpret the rule so that consolidation was confined to cases involving several actions that could have been joined in the one writ.
Counsel for the applicants also submitted that the textual and policy considerations which underlie O.29 r.5 bear a close resemblance to those which apply to O.6 r.2, which provides for joinder of parties where “some common question of law or of fact would arise in all the proceedings” and “all rights to relief claimed in the proceeding are in respect of or arise out of the same transaction or series of transactions” or “where the Court gives leave so to do” (see Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943 at [25] per Jacobson J citing Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384). It was contended that the interests of justice were not limited to the interests of the parties to proceedings (see BHP Billiton Limited v Schultz and Others (2004) 221 CLR 400; [2004] HCA 61 at [15] – [16] per Gleeson CJ, McHugh and Heydon JJ) but included, relevantly, the proper and efficient use of the court’s time and resources.
The applicants also suggested that there was “commonality” in the Wylie and Davidson matters in that the first respondent in each matter was the same entity, and in Davidson No. 2 and Wylie in that the second respondent was the same person and it was alleged that the relationship between the respondents was one of solicitor and client.
It was said to be of particular relevance that the applicants were each employed by the same employer (McCanns, a respondent in each matter) during the same or at least a similar time period and that each applicant claimed to have been subject to the same type of action by McCanns during those periods of time. In particular, there were said to be similarities in that each applicant fell pregnant whilst in the employ of the first respondent and each took a period of maternity leave. Each applicant was said to have requested, but to have been denied, flexible working arrangements. In each case it was alleged that the applicant’s employment was terminated for reasons of redundancy at or shortly after the time she was on maternity leave. It was also said that each applicant was denied performance and/or pay reviews as a consequence of the taking of maternity leave. In each case it was alleged that the applicant was informed by Mr Cressall (who at the time was the managing director of McCanns) on behalf of McCanns that it was opposed to mothers holding particular roles within McCanns.
The applicants submitted that in essence the common factual matrix in the Davidson matters and the Wylie matter could be “boiled down” to the alleged conduct of the first respondent in or about July 2005. Particular reference was made to allegations in the Davidson No. 1 Points of Claim about conversations in which Mr Cressall was alleged to have stated that there was a need to “weed out” part-time employees and that he was opposed to women returning to work on a part-time basis after maternity leave and to an email from Mr Mort to the applicant that was said to indicate that in future the first respondent would only have full-time employees on its payroll.
It was submitted that there was, similarly, reliance in the Further Amended Points of Claim in the Wylie matter on imposition of a condition, requirement or practice on employees, including Ms Wylie, that employment was to be on a full-time basis. This was said to have been adopted from mid-2005 at the latest. The conversation that Ms Wylie claimed to have had with Mr Cressall was said to be relevant in relation to Ms Davidson’s claim.
It was submitted that the alleged factual matters relevant to the claims about indirect discrimination in this respect in Wylie and in Davidson No. 1 were in substance the same, as the claim was that each applicant was subject to conduct that was demonstrative of McCanns’ policy in this respect, albeit there were differences in the form of the conduct in each matter.
It was also contended that there was commonality in the allegations of direct discrimination. In Davidson No. 1 there was an allegation that there was an act of direct discrimination by McCanns offering Ms Davidson a significantly lower redundancy package when she was made redundant in the latter part of 2006 and in Ms Wylie’s case by McCanns offering her a significantly lower redundancy package when her employment was terminated shortly after her return from a second period of maternity leave.
It was said to be clear that Ms Wylie would give evidence in Ms Davidson’s case and vice versa and that it was possible that Mr Cressall and possibly Mr Mort would give evidence in both cases. Hence it was submitted that it would be beneficial to the court and the parties in respect of time in having these witnesses give evidence and be cross-examined once.
It was submitted that as a consequence of these matters there were certain questions of fact and law that were common to both the Davidson No. 1 and Wylie matters in relation to the policies and practices of McCanns during (at least) the period from mid-2005 to early 2007 in respect of women who were married and/or who had taken or intended to take maternity leave; McCanns’ approach to flexible working arrangements for mothers and whether McCanns had adopted a practice or policy whereby it would only employ persons on a full-time basis, thus denying flexible working arrangements to mothers; whether McCanns had a policy of not reviewing performance and/or remuneration of women who had taken a period of maternity leave as a consequence of the taking of such leave; McCanns’ practice as regards other employment terms and conditions for mothers (in relation to client-facing roles and participation in management meetings); whether McCanns had a policy, consistent with an alleged intention to “weed out” part-time positions, whereby women who had requested flexible working arrangements had their positions made redundant; whether McCanns had adopted a policy or practice in 2006 whereby the positions it made redundant were “non-client facing” positions and therefore the impact this had for mothers; McCann’s views and attitudes on part-time work and women with carer’s responsibilities and whether this created a hostile working environment; the legal effect and the consequence of the polices and procedures contained in McCann’s handbook, which was said to be relevant to both applicants’ arguments regarding contractual terms of employment and McCanns’ defences under s.106(2) of the SDA.
Counsel for the applicants submitted that O.29 r.5 did not require that there be identical material facts between applications before the court could order consolidation, but rather provided that the presence of common facts, among other factors, enlivened the court’s discretion to order consolidation.
The applicants submitted that having regard to the nature of the allegations in relation to direct and indirect discrimination and the policies and practices of the first respondent during the period of time in issue, it would be necessary to adduce the same evidence to establish such policies and practices in both the Wylie and Davidson matters.
It was also submitted that the court would benefit from a single hearing of evidence of what occurred to other employees who were or were not in similar or not substantially different positions and single cross-examination of those witnesses relevant to all the Wylie and Davidson cases. Counsel for the applicants suggested that it was most likely that the evidence of particular comparators would be the same because of what was said to be the commonality in these proceedings.
In relation to the breach of contract claims, the applicants contended that both Ms Davidson and Ms Wylie made allegations that there was a custom and practice within McCanns that each employee would be entitled to four weeks pay per year of service. In each case the applicant would seek to put evidence before the court as to how the first respondent made payments to other employees who had their employment terminated for reasons of redundancy.
Ms Mocsari has given affidavit evidence of an intention to call witnesses to establish differential treatment. At the time of her affidavit of 24 March 2009, her evidence was that Ms Davidson was not in a position to say with certainty who those persons might be because the first respondent had not discovered documents that enabled that determination to be made. There was said to be an ongoing dispute in relation to the relevance of certain documents in relation to other employees, apparent from correspondence between the solicitors for the parties in May 2008. It was contended that thereafter there had been a number of interlocutory steps that had taken up the time of the court and the parties and had involved additional costs and that this was one reason why the matter had not advanced any further. It was, however, submitted that when the witnesses were identified it would be preferable for them to give their evidence once and to be subject to cross-examination once and that the court would be in a position to determine what evidence was relevant to each claim that was made.
The applicants also submitted that (subject to a strike out application in relation to aspects of the Points of Claim in the Wylie matter) there were common issues about the scope of the retainer between McCanns and Baker and McKenzie and Mr Brown and common questions of law relevant to the Wylie and Davidson No. 2 matters about the relationship between s.94 of the SDA and s.3 of the AHRCA as well as about the liability of the first respondent for the actions of the second respondent.
It was contended generally that as certain issues were the same and occurred during the same period, the same evidence would be or would be likely to be adduced in each case to establish these allegations and that if the matters were heard at different times this would require the court to hear the evidence twice. There was said to be a real likelihood that similar or the same evidence would be led in Wylie and Davidson No. 1 and also in Wylie and Davidson No. 2. On this basis it was submitted that “consolidation” would streamline the court’s time and processes and would also mean that witnesses would only have to give evidence and be subject to cross-examination once and that this was in the interests of justice.
The applicants acknowledged that there were issues in the respective claims that differed and that this was something for the court to take into account, but submitted that this was not a determinative factor.
Counsel for the applicants indicated that if the court was not disposed to make an order consolidating the Wylie matter with the two Davidson matters, then Ms Davidson sought that the two Davidson matters be heard together and that evidence in one matter be evidence in the other (or that the two Davidson matters be consolidated). This aspect of the application is addressed below.
The first respondent opposed the applications to consolidate or hear together the Wylie matter and the two Davidson matters. It was submitted that the prima facie position was that matters should run before the court as they had been brought and pleaded and that the power to consolidate separate cases was a discretionary power turning essentially on whether the consolidation would serve the interests of justice. The onus was on the party seeking to persuade the court to alter the manner in which the cases had been brought before the court (in this instance the applicants).
The first respondent submitted that “consolidation” of the three matters (or hearing them together with evidence in one matter being evidence in the others) would not serve the interests of justice, essentially because there were said to be three discrete and distinct proceedings each raising different factual matters occurring at different times.
It was submitted that the facts agitated by Ms Davidson and Ms Wylie did not overlap but were discrete, that the matters were confined to particular incidents and that there was no pleading of any systematic or institutionalised discriminatory conduct, so that each matter stood alone and the asserted commonalities were superficial and not substantial. The first respondent contended that the Davidson and Wylie proceedings in reality turned on different facts and propositions of law and the fact that there were some common parties and common witnesses would only give rise to confusion (particularly in cross-examination) and the very real prospect that the evidence would be distorted and confused and the matters miscarry. It was submitted that the only real commonality was that the applicants were using the same solicitors and that this was not a basis for proceedings to be consolidated. On this basis the first respondent submitted that no issues of convenience arose but rather there was a real prospect of inconvenience and confusion and a real and substantial prejudice to the first respondent if the matters were joined.
It was contended that the circumstances did not satisfy the criteria in O.29 r.5 or the matters relevant to O.6 r.2 and that even if the criteria were notionally able to be satisfied, consolidation would cause such prejudice and difficulty that the court could not be satisfied that the orders sought would serve the interests of justice.
The respondents’ strike out and separate questions applications were also said to be relevant to the exercise of the court’s discretion in relation to the consolidation application.
In particular, the first respondent contended that running the cases together would not necessarily save time and costs, particularly as witness evidence could not be “rolled together” out of fairness and to avoid confusion. It was suggested that factual matters (which were said to be almost all separate and discrete) would in fact have to be addressed separately as matters of evidence and in submissions. If matters were to miscarry (which, it was submitted, may be more likely given the possibility of confusion or perceived confusion) and an appeal result on that basis, then costs and time would be exaggerated rather than saved.
It was also submitted that the Davidson matters had not to date been amenable to settlement and that the solicitors for Ms Davidson had indicated on instructions that they were not prepared to participate in off the record “without prejudice” discussions or would participate only on such basis as they decided. No such aversion to settlement discussion or mediation had been suggested in the Wylie matter. It was submitted that to consolidate the matters and therefore commingle their costs would immediately render the Wylie matter as intractable of settlement as the Davidson matters and that this was not a proper course of action and not in the interests of justice.
Counsel for the second respondent relied upon the first respondent’s submissions in contending that the three individual matters raised different factual considerations and that there were distinctions between the particular claims made. It was submitted that the thematic similarity relied on by the applicants was not such as to warrant consolidation.
It was also submitted that it would be inappropriate in any circumstance for evidence in one matter to be evidence in the others, as this would be conducive to confusion and would encourage the parties to debate the admissibility of evidence and hence delay the hearing, inconvenience the court and the parties and divert attention from matters of substance.
Counsel for the second respondent also suggested that it was significant that the evidence that the applicants had put before the court (in the Mocsari affidavits) in relation to their intention to seek various witnesses went no higher than to refer to such an intention in early 2009, and that it could not be said that there had not been the opportunity to seek to speak to any proposed witnesses. However there was nothing before the court to suggest that specified persons may be witnesses in both the Davidson and Wylie proceedings. Hence it was submitted that on the evidence before it the court could not be satisfied that any of the witnesses who would be called for the respective applicants would in fact be common as between Davidson No. 1, Davidson No. 2 and/or Wylie or that such witnesses as would be called would give evidence in respect of facts that were common as between the matters.
It was also submitted that while each of Ms Davidson and Ms Wylie would be cross-examined in relation to their respective claims, it was difficult to see how these matters would pertain to the other claims within “consolidated” proceedings.
Counsel for the second respondent contended that there was a compelling case that none of the proceedings should be consolidated or joined in any way and a significant risk that if there were such “consolidation” the proceedings would be lengthier and more prone to procedural debate than otherwise.
Resolution
Order 29 rule 5 gives the court a broad discretion to order consolidation or make the other orders sought in this case, where it is in the interests of justice to do so. The applicants point to a number of factors in support of the contention that the Wylie and Davidson matters should be heard together with evidence in one matter being evidence in the others. However, for the reasons given below, having considered all the submissions and the material before the court, I am not satisfied that the Wylie and Davidson matters should be heard at the same time with evidence in one to be evidence in the others or that an order for consolidation of the Wylie matter with the Davidson matters should be made.
The applicants’ contentions in this respect focused on commonality of parties and suggested factual similarities in the claims made by each applicant and the suggested bases for such claims. It was also submitted that there were common questions of fact and law relating to policies and practices of McCanns, in particular in relation to mothers, the scope of the retainer between McCanns and Mr Brown and the liability of McCanns under the SDA and AHRCA for the actions of Mr Brown as its solicitor (subject to the result of the strike out application).
First, O.29 r.5(a) refers not simply to common facts but to “some common question of law or fact”. Further, while this is one basis on which the discretion arises, the ultimate question is whether it is in the interests of justice to make the orders sought.
This is not a case in which all the parties are the same (cf Re Ling at 134). Nor is it a case in which an issue is common to both the Wylie and Davidson matters in the sense considered in Lord v Agreserves Australia Limited (where corporate insolvency was in issue in numerous proceedings against persons said to have received amounts as unfair preferences).
There are some common questions of fact and law arising in these cases because of the similar nature of the basis for the claims by the applicants, both of whom worked for McCanns, both of whom became mothers while in employment and both of whom took issue with what occurred thereafter and the circumstances in which they ceased to work for McCanns. Both allege discrimination on grounds of sex, pregnancy and/or potential pregnancy and breach of contract. Ms Wylie also alleges discrimination on the grounds of marital status. Both applicants assert that Mr Brown engaged in conduct that constituted victimisation and that McCanns also engaged in such conduct. I have borne this in mind, notwithstanding my conclusions in relation to the strike out application in Wylie, given the leave to replead.
However, as the respondents contended, the extent of this initial similarity must be seen in light of the fact that the applications brought by Ms Wylie and by Ms Davidson involve claims arising out of separate transactions and separate incidents. The claimed rights to relief do not arise out of the same transaction or series of transactions. The applicants each allege breaches of the same provisions of the SDA in several respects, but each alleged breach arises out of different facts. In this sense the questions of law that arise are quite distinct and will turn on their own discrete facts (see Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 521). I accept the submissions of the respondents that in these circumstances a consolidated or joint hearing would raise a real possibility of confusion in relation to the separate allegations.
Insofar as the applicants’ submissions appear to suggest that it is not merely alleged that the applicants were each treated less favourably than comparators but also that there was some thematic or systematic discrimination by McCanns (on some basis that is not pleaded), the relevant legislation does not permit this approach.
In Davidson No. 1, Ms Davidson alleges breach of contract and direct and indirect discrimination by McCanns (her former employer) for whom she was employed between 1996 and February 2007. None of these allegations relate in any way to Ms Wylie, but arise out of particular events alleged to have occurred during Ms Davidson’s employment. In particular, in paragraph 50 of the Points of Claim it is specifically alleged that McCanns directly discriminated against Ms Davidson as a result of four particular incidents from May 2005 involving the appointment of other persons to certain positions, an alleged freeze on Ms Davidson’s remuneration level and an alleged failure to pay Ms Davidson monies and benefits on par with those of a person appointed to another position.
In addition, there is an allegation of indirect discrimination by McCanns against Ms Davidson as a result of alleged conditions, requirements or practices (specified in paragraphs 55 and 56 of the Points of Claim in Davidson No. 1) that she work full-time and that the “stated views” of McCanns on part-time employees and women with carer’s responsibilities subjected her to a “hostile work environment” for women.
In contrast, Ms Wylie claimed that she was employed intermittently by McCanns between 1996 and 2006 but her contractual claims arise out of her own contractual relationship with the first respondent, wholly unrelated to Ms Davidson’s contract and her claim in that respect.
Ms Wylie’s claim of discrimination, while of a similar nature to that of Ms Davidson insofar as it is said to arise under the SDA, is based on different transactions and circumstances to those asserted by Ms Davidson. Ms Wylie claims direct discrimination on the basis of specified alleged events between 2003 and 2006, consisting of a failure to review her performance or remuneration after her first period of maternity leave, a failure to keep her position open or to return her to the same position after her first or second period of maternity leave, cessation of requests for her attendance at management meetings and notification that she could not take client-facing roles.
Ms Wylie also alleges indirect discrimination on the basis of four asserted conditions, requirements or practices at different times between 2004 and 2006 (that McCanns would not review performance or remuneration of employees commencing or recently returned from maternity leave; that part-time employees could not take on client-facing roles; that positions of employment were to be on a full-time basis; and that the only positions to be made redundant in late 2006 were those the termination of which would not impact on any direct client relationships).
Insofar as such “conditions” are said to involve common policies or practices of McCanns, the commonality is limited. The alleged “policy” in the Davidson case called the “hostile working environment” does not appear in the Wylie case as pleaded in the further amended Points of Claim, while the so-called review, part-time and redundancy conditions, requirements or practices alleged in the Wylie matter do not appear in the Davidson case.
In relation to the so-called full-time condition, there is some commonality in the pleadings. A similarly worded condition is alleged as a form of indirect discrimination in each of Wylie and Davidson No. 1. However when one considers the detail of such allegations it is apparent that the issues in the Wylie matter in this respect arose in a different way and at a different time to those involving Ms Davidson.
Ms Davidson’s complaint is that in November 2006 she requested flexible working arrangements on her return to work (working full-time but spending one day a week at home or working part-time for four days a week) and that McCanns advised that her request for flexible working arrangements was denied. In Wylie it is alleged that in June 2004 Ms Wylie asked to spend one day a week working from home to care for her child, but that this request was denied and she returned to work (to what was initially a full-time role that was to be reviewed after one month). However, it is said that in about August 2004 Ms Wylie and McCanns agreed to her working part-time and that she commenced to do so and that Ms Wylie was subsequently promoted to another part-time position. It is then alleged that after Ms Wylie fell pregnant with her second child, a meeting was held to discuss her present and future roles, in which she queried McCanns’ willingness to allow part-time work. Ms Wylie claims that she subsequently requested and was denied the ability to work one day a week from home. However insofar as her complaint about what occurred after her return from her second period of maternity leave relates to her employment in a role that was not client-facing, no such issue is raised by Ms Davidson. Hence, while there is some similarity in the bases for the claimed discrimination, the facts underlying the particular questions or issues are not the same and are not common in each matter. The factual circumstances alleged in relation to the claims about part-time work are different in each case.
Similarly, while it is contended that both applicants were denied performance and/or pay reviews as a consequence of the taking of maternity leave, it is apparent from the points of claim that in each case specific facts concerning the specific applicant are relied upon and the positions are factually quite different.
Insofar as the applicants suggested that McCanns’ practice as regards other employment terms and conditions for mothers was a common factor, these matters are pleaded in respect of Ms Wylie but not Ms Davidson. The issue of whether there was a policy in 2006 of making positions that were not “client-facing” redundant is an allegation in the Wylie matter and not in the Davidson matter, whereas the issue about the so-called hostile working environment concerned Ms Davidson but not Ms Wylie.
The applicants submitted that a common issue would be the legal effect and consequences of the policies and procedures contained in the first respondent’s “Worldgroup Sydney Office Information Handbook”. This was said to be relevant to both applicants’ arguments relating to their contractual terms of employment and to the first respondent’s defences under s.106(2) of the SDA. Each applicant does allege breaches of her contract of employment, including “terms” about the first respondent’s compliance with its “guiding principles” as to equal opportunity in the workplace, meeting requests for part-time or flexible employment and return to an original or similar position after maternity leave. However the “terms” in the Handbook relied upon are not identical, Ms Wylie alleging a term in relation to regular reviews of performance and remuneration not relied on by Ms Davidson.
Further, while both Ms Davidson and Ms Wylie assert the existence of implied terms based on the “custom, practice and usage” of McCanns, the alleged implied terms are not identical. Thus Ms Davidson claims that there was an implied term in her contract of employment about payment of an annual bonus (an issue not raised by Ms Wylie) and that if McCanns terminated her employment by reason of her redundancy it would pay her a severance payment calculated to be equivalent to four weeks per year of service or pro rata thereof. Ms Wylie also claims that there was an implied term about a redundancy arrangement, but that in her case it also included other matters about its calculation for periods of full and part-time employment. Consideration of these similar but distinct contentions in the one proceeding is likely to lead to confusion. More importantly, the terms of a contract for any particular employee is always a discrete question.
The applicants also argued that there were common questions in relation to the scope of the retainer between the first respondent and the second respondent in Wylie and Davidson No. 2. However (assuming satisfactory repleading in Wylie) it is apparent from the respective Points of Claim as they presently stand that there are different considerations in that respect. Importantly, in the Davidson matter it is specifically pleaded that in or about September 2007 the first respondent retained the services of Baker and McKenzie and Mr Brown to act on its behalf in relation to the first complaint by Ms Davidson and the terms of the retainer are addressed. There is no comparable allegation in the Wylie matter.
Moreover the allegations in each case involving Mr Brown relate to completely different matters, described as the “conciliation conduct” and the “dinner party conduct” in Davidson No. 2 as distinct from the alleged conversation with Ms Wylie (the “Paul Brown Conduct”) relied on in the Wylie matter.
None of the matters relied on in Davidson No. 2 have common facts in issue with those relied on in Wylie, except that McCanns and Mr Brown are said to be involved. Insofar as the applicants contended that there was a similarity or overlap arising out of the alleged course of conduct by Mr Brown, no course of conduct is pleaded or identified. Rather, there are separate allegations about discrete incidents showing no course of conduct.
Moreover, in Davidson No. 2 the pleading in relation to attributing liability to the first respondent is based on an allegation of agency by reference to a specific retainer, whereas in the Wylie matter the facts relied upon, as far as this is revealed by the Further Amended Points of Claim, are quite different. In such circumstances the fact that both matters raise issues of agency (assuming repleading in Wylie) is of limited weight in considering whether consolidation is in the interests of justice. There may then be a common issue in relation to the application of s.94 of the SDA, as well as more general common questions as to whether there is liability under the SDA or the AHRCA. However in proceedings based on allegations of sex discrimination there will always be a question as to whether there was a breach of a particular section and consequent liability. This does not of itself provide a reason for consolidation on the basis of common questions of law. As stated in Lambroglou (at 524), a question of law is not simply the grounds relied on in support of an order sought and as Lucev FM stated in Calmer at [18], it is “not sufficient for the applicants to say that because the causes of action are the same, there are common questions of law. There are many proceedings with the same causes of action, however the legal question or questions a court must address in each instance varies depending on the facts”.
In this instance, although similar legal issues may arise in some respects, different questions of law arise where the factual issues differ.
On balance, the “commonality” in the questions of law or fact in the Wylie and Davidson matters is not such as to weigh significantly in favour of consolidation (or trial at the same time on the basis proposed by the applicants) when seen in light of other relevant circumstances and the difficulties that would be associated with such a consolidated hearing.
The applicants referred to the fact that the “main” witnesses might give evidence in each matter (each applicant, Mr Cressall, perhaps Mr Mort and, presumably, Mr Brown). The respondents see no issue arising from any need for their witnesses to give such evidence. The alleged conduct of Mr Brown relied on in each case is quite separate and distinct.
Of more force is the applicants’ submission about the need for evidence from witnesses such as comparators and other employees in both the Wylie matter and in Davidson No. 1. However, insofar as reliance was placed on the affidavits of Ms Mocsari, these affidavits were sworn over a year ago. It was deposed that there was an intention on the part of those acting for the applicants to speak to certain people who might be potential witnesses. While these affidavits were advanced in support of the proposition that there would be a commonality of evidence, nothing further has emerged to identify such witnesses. There is no evidence suggesting that anything has been done in this respect. In these circumstances the general prospect of the same witnesses being required to give evidence in two matters is not such as can be given great weight in support of the consolidation application.
There has been no identification at this stage of all potential witnesses and while the question of the length of a consolidated hearing was raised by me, it was not addressed clearly by the applicants. In any event, were such witnesses to give evidence and be cross-examined only once, there would be a real prospect of confusion and a lack of clarity about which evidence was relevant to which matter. While this may be convenient for the as yet unidentified witnesses, on the evidence before the court I cannot be satisfied that there would be consequential savings of time and expense for the parties or for the courts.
Further, while there may be some common witnesses, there are different factual matters relevant to each application. The nature of these applications is such that it is not unlikely that a consolidated hearing may become confused and hence protracted because of the differences between the applications and the facts and law in issue in the Wylie and Davidson matters.
There may be some savings in preparation time, given that the same lawyers act for both applicants. However in all the circumstances any potential savings of time and expense in that respect do not weigh significantly in favour of consolidation given the possibility of confusion, prejudice and possible protraction of a consolidated hearing. I note that if the orders sought are not made, some such savings may still be available to the applicants given their common representation, the common causes of action and the similarities between some of the legal issues to be addressed (particularly if there were separate but consecutive hearings).
This is not a case in which the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions.
The anti-discrimination claims arose out of the individual circumstances of each individual employee at particular times. There is no common or “class” claim of discrimination as the legislative tests require the assessment of an individual’s circumstances on a particular occasion and not a collective approach to that assessment. Each of the Davidson and Wylie matters involve allegations of discrimination and breach relating to different transactions and personnel within the employment of McCanns at the relevant times.
According to the first respondent it appears that in Davidson No. 1 there will be at least eight potential witnesses, in Davidson No. 2 three witnesses and in Wylie at least nine potential witnesses. The court will be required to make findings of fact in each matter. It is likely that the evidence in each case, given the number of allegations and the time period involved, will be substantial and complex thus raising the potential for evidence about separate and distinct events and allegations to be confused. I am satisfied that this would result in a real potential for prejudice to the parties, in particular to the first respondent.
It is not a sufficient answer to say that the court can determine which evidence relates to which matter as counsel for the applicants submitted. There is likely to be a significant impact on the parties’ and the court’s time and resources if it is necessary to untangle such evidence and there is also the very real potential for proceedings relating to different parties to confuse witnesses themselves, particularly if witnesses are cross-examined and re-examined in relation to both the Wylie and Davidson matters at the same time. The potential for confusion is such that, in fairness and to avoid confusion, some witnesses might be obliged to give their affidavit evidence and be cross-examined separately in each of the matters. If that were to occur any saving of time or costs would be significantly reduced.
It was contended that credit would be in issue. A finding of credit on one matter of fact would not be determinative of credit on another and a finding of credit in one case would not determine the assessment of credit in another. I accept that this is a matter of concern. As counsel for the first respondent submitted, consolidation would create a real potential for difficulty in relation to credit. There is a possibility of prejudice to all parties if findings of credit are made in relation to particular evidence and it is not clear as to which case such evidence and the credit ruling are properly applicable. As Lucev FM stated in Calmer (at [32]): “To run these … different cases together runs a risk that evidence will be conflated, or that evidence intended to be relevant to one matter is considered as part of the other matter” and (at [38]):
Failure to separately hear the two cases may give rise to injustice because of the potential for confusion, especially as to which case the principal respondents’ witness’ evidence may relate. Unless very carefully examined, and, in particular, cross-examined, there is significant potential for that evidence to be confused and possibly misapplied. Each case will, in the Court’s view, be clearer, more easily defined and more easily decided, if kept separate rather then (sic) consolidated.
On balance, I am not satisfied on the material before the court that it is desirable or in the interests of justice that the Wylie and two Davidson matters be consolidated or heard at the same time on the basis that the evidence in one case is evidence in the others.
Ms Davidson’s and Ms Wylie’s respective cases will, in my view, “be clearer, more easily defined and more easily decided, if kept separate rather then (sic) consolidated” (Calmer at [38]).
Ms Davidson’s application in relation to consolidation of Wylie and Davidson No. 1 and No. 2 should be dismissed.
Davidson No. 1 and Davidson No. 2
If Wylie is not to be heard at the same time as or “consolidated” with Davidson No. 1 and No. 2, Ms Davidson seeks that the two Davidson matters either be consolidated or heard at the same time with evidence in one matter being evidence in the other.
Counsel for Ms Davidson pointed to the fact that Ms Davidson and McCanns are parties to both Davidson No. 1 and Davidson No. 2. In Davidson No. 1 the applicant alleges discrimination and breach of the contract of employment by McCanns. Both McCanns and Mr Brown are respondents in Davidson No. 2 in which the applicant alleges victimisation constituting unlawful discrimination by McCanns on three separate bases: the “commitment conduct”; the “conciliation conduct”; and the “dinner party conduct”. In addition, it is alleged that McCanns committed acts of victimisation constituting unlawful discrimination by the conciliation and dinner party conduct.
The respondents opposed the orders sought in relation to the two Davidson matters. In respect of the alleged non-payment identified in paragraph 11 of the Davidson No. 2 Points of Claim (the “commitment conduct”) it was submitted that the court should be cautious in having regard to this allegation in the context of the consolidation application as it was said to be based upon without prejudice discussions between the parties and would be the subject of further submissions during the course of any hearing.
The first respondent also submitted that these matters did not give rise to common questions of law or fact. It was submitted that the alleged non-payment did not arise out of the same transaction or series of transactions as in Davidson No. 1 as all of the matters alleged in Davidson No. 2 arose at the end of Ms Davidson’s employment.
It was contended that if the matters were consolidated there was a risk of “blurring” across incidents by reference to some unpleaded and unparticularised course of conduct and that the commonality of parties was not a reason for consolidation where the legislation required and only admitted separate factual allegations of discrimination to be made out and there were differences in time, place and circumstances in the allegations. It was submitted that the evidence would have to be heard discretely and separately and that no evidence would “do” across the two cases so that nothing was to be gained and there was a real risk in making the orders sought in relation to Davidson No. 1 and No. 2.
The second respondent submitted that if Davidson No. 1 and Davidson No. 2 were consolidated that would greatly lengthen the facts that the court would need to examine and would also be likely to prompt the second respondent to make an application that the part of the Davidson proceedings that concerned him be separated, on the basis that it would be a significant inconvenience to him if he had to be involved in and participate in lengthy proceedings in relation to the first respondent where the facts and law concerning him were confined.
In my view it is clear that if Davidson No. 2 involved only the claim against McCanns based on an alleged failure to pay Ms Davidson termination benefits as allegedly stated in a letter from McCanns’ solicitors (the “commitment conduct”), it would be desirable and in the interests of justice that the matters be heard together. The parties in relation to that issue are those in Davidson No. 1. The rights of relief claimed in that respect overlap insofar as they relate to Ms Davidson’s entitlements on termination of her employment with McCanns. That matter is in issue in Davidson No. 1 (in particular in connection with her claim about a breach of the contract of employment in relation to redundancy arrangements). The alleged “commitment” was said to be made in a letter of 2 February 2007. That was prior to the end of Ms Davidson’s employment with McCanns according to the Points of Claim in Davidson No. 1 (although I note that the Further Amended Points of Claim in Davidson No. 2 take issue with non-payment of Ms Davidson’s “legal entitlements” on 9 February 2008 (sic) or thereafter). There is also an apparent overlap between the claim for damages for alleged breach of the redundancy provisions in the contract of employment against McCanns in Davidson No. 1 and the damages claimed for the alleged non-payment in relation to the commitment conduct in Davidson No. 2.
In a broad sense the claimed rights to relief arise out of the same circumstances, notwithstanding that one claim is in contract and the other based on an allegation of victimisation consisting of a failure to meet a commitment in a solicitor’s letter. I am satisfied that it would be desirable and in the interests of justice that such claims be heard and determined at the same time, notwithstanding the issue foreshadowed by the first respondent about whether the commitment conduct occurred in “without prejudice” discussions. That is a matter to be resolved at the hearing.
The issue of “consolidation” of the Davidson matters is, however, more complex because the other two incidents relied on in Davidson No. 2 involve alleged conduct of Mr Brown, albeit it is conduct in which McCanns is also said to have engaged.
The fact that the proceedings are both based on the SDA and the AHRCA does not establish that there are common questions of fact or law between Davidson No. 1 and Davidson No. 2. They do, however, both have a connection with the employment relationship and proceedings between Ms Davidson and McCanns. Davidson No. 2 involves additional claims between the parties to Davidson No. 1. Moreover the claim for damages against McCanns arising out of the alleged dinner party conduct (which is made against McCanns as well as Mr Brown) is conduct said in the Points of Claim to have “added to” the non-economic loss claimed against McCanns as a result of the conduct the subject of Davidson No. 1. It cannot be said that the claims in Davidson No. 2 are unconnected with those in Davidson No. 1.
I am not satisfied that if the matters were consolidated or heard together this would lengthen the facts the court had to examine. It is not clear how having one hearing instead of two would increase the time required for the hearing of all matters in issue between the parties.
The prospect of further interlocutory proceedings (in the nature of an O.29 r.2 application) if the matters are consolidated is of concern. It should not however be determinative.
The most significant factor against consolidation is Mr Brown’s understandable concern that he would have to be involved in lengthier proceedings in relation to matters alleged against McCanns only in Davidson No. 1. However this could be addressed by hearing the evidence in relation to the alleged conciliation conduct and the dinner party conduct separately, as foreshadowed in relation to the Paul Brown conduct in the Wylie proceedings (see Wylie v McCann Worldgroup Pty Limited & Anor) and by excusing Mr Brown from participation in that part of any combined hearing relating only to the allegations against McCanns. Such an approach would also address the risk of “blurring” or confusion raised by the respondents. Even taking such an approach, it is likely that there would be some savings in time were the Davidson No. 1 and No. 2 matters to be heard together.
On balance, given all of the circumstances, on the material before the court I am satisfied that it would be desirable and in the interests of justice that the Davidson No. 1 and Davidson No. 2 proceedings be heard together, with evidence in one matter being evidence in the other. I consider that such an order is preferable to an order for consolidation.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 June 2010
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