Dixon v Watpac Ltd
[2022] FedCFamC2G 778
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dixon v Watpac Ltd [2022] FedCFamC2G 778
File number(s): ADG 149 of 2020 Judgment of: JUDGE BROWN Date of judgment: 16 September 2022 Catchwords: INDUSTRIAL LAW – general protection application – nature of workplace right asserted – burden of proof – involvement of third parties
PRACTICE & PROCEDURE – Statement of claim – interlocutory application – applicant seeks to amended filed statement of claim – application for discovery – application previously subject to summary dismissal application – summary dismissal application unsuccessful – previous docket judge determined issues arising could be sufficiently delineated in affidavits – affidavit evidence has now been filed – amendment and discovery sought in context of affidavit material filed – overarching principle applicable to court’s conduct of civil litigation – discovery not in interests of the administration of justice – trial refixed – application dismissed – costs reserved
Legislation: Fair Work Act 2009 (Cth) Pt 6 – 4, ss 340, 341, 342, 351, 361, 546, 550, 789FD, 789FC, 789FF
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 174, 190
Federal Circuit Court of Australia Act 1999 (Cth), s 17A
Federal Court of Australia Act 1976 (Cth) s 37M
Federal Magistrates Act 1999 (Cth) s 45
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 7, r 1.04
Federal Circuit Court Rules 2001 (Cth), rr 4.05, 45.08
Federal Court Rules 2011 (Cth)
Cases cited: Abrahams v Qantas Airways Limited (No 2) [1](2007) 210 FLR 314
Aon Risk Management Limited v Australian National University (2009) CLR 175
Barclay Mowlem Construction v Dampier Port Authority & Anor [2006] WASC 281
Bruce v Oldhams Press Ltd [1936] 1 KB 697
Caason Investments Pty Ltd v Cao [2015] FCAFC 94
Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306
CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Dixon v Watpac Ltd [2021] FCCA 622
Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17
Gaven & Gaven (No 2) [2012] FMCAfam 1005
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Kakayzich v Santa Sabinda College & Anor [2020] FCCA 11
Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271
Roberts‑Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081
Division: Division 2 General Federal Law Number of paragraphs: 151 Date of hearing: 10 June 2022 Place: Adelaide Counsel for the Applicant: Ms Billich Solicitor for the Applicant: RSA Law Counsel for the Respondents: Mr Spence Solicitor for the Respondents: DWF (Australia) Pty Ltd ORDERS
ADG 149 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TERRY DIXON
Applicant
AND: WATPAC LTD ACN 010 562 562
First Respondent
CRAIG DEARLING
Second Respondent
TIMOTHY TAPE
Third Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
16 September 2022
BY CONSENT THE COURT ORDERS THAT:
1.The third respondent, Mr Timothy Tape is discharged.
THE COURT FURTHER ORDERS THAT:
2.This matter be listed for final hearing before Judge Brown on 20, 21, 22, 23, & 24 March 2023 at 10.00am NOTING five (5) days hearing time has been allocated and will not be exceeded without leave of the Court.
3.The applicant file and serve an outline of submissions on or before 4.30pm on 27 February 2023
4.The respondent’s file and serve an outline of submissions on or before 4.30pm on 6 March 2023.
5.The applicant be at liberty to file and serve any submissions in reply on or before 4.30pm on 13 March 2023.
6.The parties file and serve a list of authorities they intend to rely on by 13 March 2023.
7.The question of costs are reserved to trial.
8.The interlocutory application filed 28 April 2022 and response filed 10 May 2022 are dismissed.
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
JUDGE BROWN:
INTRODUCTION
These reasons for judgment related to an Application in a Case, filed on 28 April 2022, in which Terry Dixon (“Mr Dixon”) seeks to file an Amended Statement of Claim in respect in respect of general protection proceedings commenced by him in April and August of 2020, pursuant to the provisions of the Fair Work Act 2009.[1]
[1] Hereinafter referred to as the “FWA” or “the Act”.
If the applicant establishes a breach of any such general protection owed to him, the respondents are each potentially liable to the imposition of a civil penalty and to pay Mr Dixon compensation for any loss suffered by him.
The two proceedings were amalgamated by order of Judge Heffernan, formerly of this court and the previous docket judge, on 9 November 2020. In addition, the applicant seeks an order for formal discovery and the discharge of the case against the third respondent, Mr Tape. Only this third aspect of the application is uncontroversial.
It is the position of the various respondents that the proceedings are advanced to such a degree, when coupled with the fact the adequacy of pleadings has previously been subject to the court’s oversight in an earlier summary judgment application that it would not be in the interests of the administration of justice and contrary to the overarching principle, which are contained in the Federal Circuit and Family Court of Australia Act 2021 and the rules of procedure made under it, for the court to allow such a late amendment or direct formal discovery.
On 9 November 2020 Judge Heffernan fixed the amalgamated proceedings for hearing on 1 September 2021. The hearing did not proceed and was vacated by order of Judge Neville on 7 June 2021. At that stage, Judge Neville directed that the case be refixed for a four day hearing, with priority, on a date to be advised.
Regrettably, for reasons not known to me, this order was not actioned, until the interlocutory application detailed above was listed before me on 29 April 2022. Significantly, Judge Neville had directed that each party file the affidavits for the anticipated but unscheduled trial, in a regime which concluded on 20 August 2021.
This led to the following affidavits being filed:
·An affidavit of Mr Dixon filed on 23 July 2021;
·An affidavit of Stephen Curnow filed 20 August 2021;
·An affidavit of Timothy Tape filed 20 August 2021;
·An affidavit of Benjamin O’Rourke filed 20 August 2021;
·An affidavit of Angela Liebke filed 26 August 2021;
·An affidavit of Craig Dearling filed 20 August 2021; and
·An affidavit of Jean-Pol Bouharmont filed 26 August 2021.
It is the position of the applicant that since these affidavits have been filed, he is better placed to particularise his claim against the first and second respondents, the pleading of which has been previously criticised by the respondents as not disclosing any basis for the case mounted under the FWA. In addition, the applicant now accepts that the third respondent has no accessorial liability for any adverse action taken against him by either of the other respondents.
In the process of preparing the affidavits listed above, the various deponents have alluded to notes of meetings and other correspondence passing between them, as well as with third parties, particularly members of the Construction, Forestry, Maritime, Mining and Energy Union.[2]
[2] Hereinafter referred to as “the CFMMEU”.
It is the applicant’s position that there needs to be a formal process of discovery instigated in respect of these documents and potentially others so that the issues in dispute between the parties can be properly adjudicated.
It is essentially the position of the various respondents that it would not aid the expeditious and inexpensive resolution of the proceedings currently pleaded before the court and as supported by the extensive affidavit material filed in anticipation of trial, for there to be a late amendment of the case currently pleaded against them.
In addition, the respondents assert that it would be prejudicial to them that the applicant, in effect, is authorised to re-configure his case in the light of the extensive evidence now filed by each of them, in anticipation of trial. They resist discovery on the same basis, asserting that they have provided all relevant documents and the call for more is tantamount to a fishing expedition and therefore it would be contrary to the proper administration of justice to make a discovery order.
In these circumstances, if leave to amend is granted, the respondents seeks indemnity costs on the basis that, from their perspective, the deficiencies in the applicant’s case, which he now seeks to remedy, were comprehensively delineated to him in submissions prepared for the earlier summary judgment application dealt dismissed by Judge Heffernan on 23 March 2021.
At the summary dismissal hearing, the respondents focussed on the workplace rights as pleaded by Mr Dixon, which centred on allegations that he had an entitlement not to be bullied or harassed at work; was entitled to have a safe working environment; that Watpac Ltd[3] owed him a duty of good faith to ensure that he not be bullied; and that an inquiry, commissioned by Watpac into allegations of misconduct levelled against him was flawed because it had denied him natural justice and procedural fairness.
[3] Hereinafter referred to as “Watpac”.
In general terms, the principle respondent asserted that the applicant had not established that these were work place rights attaching to him, particularly given the fact it was apparently Mr Dixon’s case that it was the actions of third parties, namely officials and members of the CFMMEU, who had subjected him to direct forms of bullying and harassment in the workplace rather than it.
Watpac conceded that Mr Dixon had been subject to adverse action emanating from it but asserted that he has not established any casual connection between the workplace right asserted by him (the existence of which is denied by it) and such adverse action.
In this context, Watpac relied on Federal Court authority, which indicated that in any general protection proceedings, involving the potential for the imposition of a civil penalty, it was incumbent that the relevant contraventions be precisely pleaded as a matter of fundament fairness.[4]
[4] See Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 at [102].
Ultimately, as indicated above, Judge Heffernan rejected the summary dismissal application, as well as any subsidiary application for a re-pleading of the central aspect of Mr Dixon’s case regarding a contravention of a workplace right. He said as follows:
I gave very close consideration to whether or not I should order the applicants to re-plead paragraphs 9.1, 3 and 4 – and, in fact, all of the paragraphs. But I have come to the conclusion that in all of the circumstances, and given the fact that there will be directions made for affidavit material to be filed prior to trial, and the availability of other case flow techniques if the parties seek to avail themselves of them, that it is possible with sufficient precision to identify the issues raised by the applicant in these pleadings. And that accordingly, I should not be striking out the impugned paragraphs and requiring them to be re-pleaded.[5]
[5] See Dixon v Watpac Ltd [2021] FCCA 622 at [20].
Legal provisions applicable to general protection proceedings
In general terms, in order to establish that any person has suffered a contravention of a general protection provision, under section 340 of the FWA, they must establish:
·That they have a workplace right protected under the Act, as defined by section 341(1) of the FWA;
·That they have suffered a form of adverse action, as defined by section 342 of the FWA; and
·There is a sufficient degree of connection between the relevant workplace right asserted and the adverse action taken against them.
Again, in general terms, pursuant to section 341, workplace rights accrue to employees from the application any applicable workplace laws to their employment, which includes the right to engage in industrial activities and to complain or inquire about issues to do with an employer’s compliance with such a workplace law.
A related general protection is created by section 351, which prohibits the taking of adverse action against an employee on the basis of one of other of a number of specified attributes, which in general terms, refer to discrimination in respect of matters relating to a person’s ethnicity, sex or level of disability and so on and so forth, which applicable Commonwealth legislation has rendered illegal.
Adverse action, as defined by section 342 of the Act, includes termination of employment or the alteration or injury of an employee. As a consequence of the use of the word because in section 340 (and section 351) there must be a factual link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
For obvious reasons, it is a very difficult task for an applicant to prove what was occurring in the mind of any person alleged to have taken the adverse action in question. The task is made more difficult in the case of decisions made in a corporate or managerial environment, as in the present matter. These difficulties, arising in the context of beneficial legislation directed toward remedying injustices, against employees, in an industrial setting.
Considerations of this kind inform the rationale for the implementation of one of the central features of the general protection provisions, namely the creation of what is invariably referred to, by lawyers, as the reverse onus. The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which any alleged adverse action was taken.
Essentially, if it is established, by any applicant, that there their employment is subject to a relevant workplace right and they have also established that they have been subject to adverse action, the onus passes to the employer to provide the substantive and operative reasons for the adverse action, particularly that it was not for a reason protected by the FWA.
Section 361 of the Act comes into operation only after it has been established that adverse action was taken” and “that a relevant workplace right exists” “as an objective fact”.[6]In Jones v Queensland Tertiary Admissions Centre Limited (No 2) Collier J explained the operation of section 361 in the following terms:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[7]
[6] See CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].
[7] See Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
Necessarily, after adverse action has been established and its relation to a workplace right, the reverse onus must involve an analysis, by the court, of the reason or reasons why the adverse action was taken by the person or persons who made the relevant decision to take the adverse action.
The applicable principles are summarised by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant[8] as follows:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[9]
[8] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
It is also important to note what a general protection proceeding is not. This is not a broad inquiry as to whether Mr Dixon has been “subjected to a procedurally fair or substantially unfair outcome”[10] during the course of his employment by Watpac. Essentially, as the Full Court observed in Khiani v Australian Bureau of Statistics:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[11]
[10] See Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J.
[11] See Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ.
The respondents resist the application for formal discovery on the basis of the section 361 onus to which they are subject. On their behalf it is asserted that as relevant decision makers at Watpac will have to provide the substantive and operative reason for any adverse action taken by them against Mr Dixon, they will provide all documents relevant to this decision making process and have, indeed, done so in the affidavits filed to date.
As presently framed, the liability of Mr Dearling and Mr Tape to pay pecuniary penalties and compensation to Mr Dixon rests on the provisions of section 550 of the FWA, which provides that a person who is “involved in” the contravention of a civil remedy provision is to be taken as having contravened that provision and so be liable for the imposition of a penalty under section 546 of the FWA.
Section 550(2) of the section provides a definitive list of circumstances in which a person is to be treated as being involved in a contravention. They include a person being knowingly concerned in or a party to the contravention or having aided, abetted, counselled or procured such a contravention.
Background
In order to resolve the various controversies arising between the parties, in the context of the pleading and discovery issues, it is necessary for me to detail the background to the current proceedings.
As has previously been indicated, significant controversies arise as to the nature of the rights asserted by Mr Dixon and whether they can be characterised as workplace rights and what was the motivation for the adverse action taken. The respondents’ position has been consistently that Mr Dixon has not identified any such right under the Act and that the substantive and operative reason for its actions are not proscribed by the FWA.
In each case, the principle respondent is Mr Dixon’s former employer Watpac, a large Australia wide construction company. Also named in each proceedings, as the second and third respondents respectively are Craig Dearling and Timothy Tape. Mr Dearling was Watpac’s National Workplace Relations Manager; whilst Mr Tape was Watpac’s State Manager for South Australia.
Mr Dixon was employed by Watpac as its Occupational Health & Safety Manager, for its South Australian operations, between early June 2018 and 24 April 2020. He was directed in this role by Mr Dearling and Mr Tape, who were his superiors. In this capacity Mr Dixon worked predominately at the Adelaide Airport, as well as at a building site in Glenelg.
At each site, Watpac was engaged in large civil building projects. Workers at each site included members of the CFMMEU. It is the essential underpinning of Mr Dixon’s case that the CFMMEU was a fractious industrial organisation, with a reputation [for] using bullying, harassment and intimidation to advance [its] industrial interests.[12]
[12] See First Statement of Claim filed 17 April 2020 at page 9 [5.3].
In general terms, Mr Dixon was responsible for ensuring Watpac’s health and safety obligations were discharged at each of the Adelaide Airport and Glenelg sites. This involved his regular interaction with both members and organisers of the CFMMEU. There is no controversy between the parties that Mr Dixon’s employment was terminated by Watpac on 24 April 2020.
On 17 April 2020, Mr Dixon commenced his first action against Watpac and the related respondents. On 6 December 2019 Mr Dixon was stood down from his position by Mr Dearling, whilst investigations of misconduct, levelled against the applicant were investigated. The standing down was the first act of adverse action alleged by Mr Dixon against Watpac.
The standing down related to allegations that Mr Dixon had caused threats to be made against a member and delegate of the CFMMEU, Emosi Veron (“Mr Veron”). On 10 September 2019, an unsigned and computer generated note was found on the desk of Tim Wright, the Site Manager at Watpac’s Glenelg site. The note read as follows:
My name is Johno. I was paid by Terry Dixon to threaten Moss and his Family. Terry is a liar and a thief. I was told the union threatened Terry and that’s why I did this on behalf of him.[13]
[13] See Annexure TD12 to affidavit of Terry Dixon filed 23 July 2021; Annexure CD1 to affidavit of Craig Dearling filed 20 August 2021.
The note was not formally signed and “Moss” is apparently the soubriquet of Mr Veron. Mr Dixon denies that he had any involvement with the allegation contained in the note and asserts that it was manufactured to discredit him and assist the CFMMEU achieve its industrial objectives, which included removing him from his position.
On 10 September 2019, Mr Dearling directed Mr Dixon not to attend at the Glenelg site and not attend a consultative committee meeting regarding Enterprise Bargain Agreement negotiations. It would appear to be his case that he did not attend this particular meeting or any further similar meetings.
Executives at Watpac referred the issue relating to the threatening note to the South Australian Police. Mr Dearling was subsequently directed to conduct an internal investigation into the matter and whilst this investigation took place Mr Dixon was stood down, on full pay. The matter was also of interest to the executive of the South Australian branch of the CFMMEU, given that Mr Veron was a union delegate.
During the course of this investigation it became apparent that Mr Dixon had complained that he had received a threatening phone call, at his home, on 11 May of 2019, from a person whom he assumed to be a member of the CFMMEU, warning him not to fuck with the brothers.
This followed allegations that Mr Dixon himself had been involved in a dispute with members of the CFMMEU, at the Adelaide Airport site, over a number of industrial issues, on the previous day, which had involved Mr Veron. On 13 May 2019, Mr Dixon informed Mr Tape of this conversation but otherwise took no formal action in regards to it.
Prior to his investigation, Mr Dearling had been informed by Mr Benjamin O’Rourke, previously the CEO of Watpac, that in July of 2019, an official of the CFMMEU had complained to him that a delegate at the Glenelg site had complained of being harassed by an employee of Watpac. Mr O’Rourke also informed Mr Tape, Watpac South Australian State Manager and Ms Liebke, who was its personnel manager.
During the course of his investigation, Mr Dearling interviewed Mr Veron and his partner, who complained that they had been subject to multiple threatening phone calls in June and July of 2019. He also interviewed Mr Tape and Fidalgo Dias, who was Watpac’s operations manager. They indicated that they had received phone calls from a person who identified himself as Johno. The implication of these complaints being that this person was either Mr Dixon or a person associated with him and it all formed some sort of connection, with the threatening note.
Ultimately, Mr Dearling found the allegation against Mr Dixon to be unsubstantiated as Mr Dixon denied being the source of the note and the person Johno could not be located. This outcome was not acceptable to the CFMMEU, who requested of management at Watpac that an external investigation take place. In October of 2019, Stephen Curnow was appointed to undertake the investigation. His appointment was approved by Mr O’Rourke. Mr Curnow is a former member of the Victorian Police.
Mr Curnow’s report was completed in early December of 2019. As with Mr Dearling before him, he interviewed the various individuals concerned in the matter, including Mr Veron and Mr Dixon. Mr Curnow however reached very different conclusions to those reached by Mr Dearling. Mr Curnow found that a person associated with Mr Dixon, a Nick Angelakis was responsible for the placement of the note and had done so with the intent of discrediting Mr Dixon, for personal reasons.
Mr Curnow found that Mr Veron and his partner had been subject to threatening phone calls and there was a strong likelihood that Mr Dixon had caused the calls to be made and their content was threatening and intimidatory in nature and therefore potentially illegal. In addition, Mr Curnow was critical of the manner in which Watpac had conducted its internal investigation and what he regarded as the inaction of the Australian Building & Construction Commission.
Mr Dearling provided Mr Curnow’s report to Mr Bouharmont, who succeeded Mr O’Rourke as Watpac’s CEO in October of 2019 and to Ms Liebke. In the light of the conclusions of the report, on 4 December 2019, both Mr Dearling and Ms Liebke recommended to Mr Bouharmont that Mr Dixon should be stood down and given an opportunity to respond to the report’s contents.
It is Mr Dixon’s case that he had a workplace right, protected by the relevant provisions of the FWA, not to be subject to bullying, by Watpac or any of its employees and agents and he has been bullied, in some way or other, by Watpac. The alleged influence of the administration of the CFMMEU and its interaction with senior management at Watpac is at the centre of this current controversy.
On 6 December 2019, Mr Dearling convened a meeting with Mr Dixon, at which the latter was informed of the results of the external investigation. Following this meeting, Mr Dearling wrote to Mr Dixon advising him that he remained stood down and was required to attend a further meeting with him to show cause as to why his employment should not be terminated on the basis that, in causing Mr Veron to be threatened, he had breached Watpac’s code of conduct; endangered the health and safety of another employee; and had committed an act of deliberate and wilful misconduct. The meeting was ultimately scheduled for 13 December 2019.
The meeting scheduled for 13 December 2019 did not take place as Mr Dixon submitted a medical certificate indicating he was unfit. Concurrent with this certificate, he made a claim for worker’s compensation. Thereafter, issues arose as to whether the claim would be accepted or not by the relevant insurer. In these circumstances, on 15 April 2020, Ms Liebke formed the view that Mr Dixon had been given an adequate opportunity to respond to the allegation of misconduct but had declined to utilise such opportunity.
In these circumstances, it is the effect of Ms Liebke’s evidence that she made the relevant decision to terminate Mr Dixon’s employment with Watpac, with the relevant letter sent via email to Mr Dixon on 24 April 2020. This is the second major incident of adverse conduct of which Mr Dixon complains. It is also Ms Liebke’s evidence that her decision was supported by Mr Bouharmont.
The reasons provided for the termination were that Watpac accepted the conclusions of Mr Curnow’s report that Mr Dixon had caused Mr Veron and his partner to be threatened and although Mr Dixon had verbally denied any involvement in this conduct, Watpac considered his behaviour to constitute unacceptable misconduct. Termination of employment was effective immediately from 24 April 2020.[14]
[14] See Annexure TD25 to Mr Dixon’s affidavit filed 23 July 2021.
It is Mr Dixon’s case that he had a workplace right, protected by the relevant provisions of the FWA, not to be subject to bullying, by Watpac or any of its employees and agents. The influence of the administration of the CFMMEU and its interaction with senior management at Watpac is at the centre of the current controversy. Essentially, as I understand his evidence, Mr Dixon asserts that Watpac only agreed to the appointment of Mr Curnow because of pressure from the CFMMEU and the report in itself is flawed in its reasoning.
Mr Dixon’s affidavit is one of 304 paragraphs. In it he details incidents in which he claims to have been harassed and threatened by members of the CFMMEU, including being the subject of a confected allegation of assaulting a union organiser at the Adelaide Airport site on 28 November 2019.
In these circumstances, he deposed that it was his perception that the CFMMEU had engaged in a campaign against him of industrial bullying and harassment, which included fabricated allegations of misconduct and criminal actions, which was directed towards compelling him either to resign or for Watpac to terminate his employment.
It is now, as I understand it, Mr Dixon’s position that he complained about the 28 November incident to Mr Dearling.[15] He further alleges that he was later told by a person who has not provided an affidavit in the proceedings that an unspecified person in the CFMMEU had indicated to him that Watpac had been told that the Union would agree to doing work at a Watpac site in Victoria, over the Christmas break, if Terry Dixon was removed from Watpac SA.[16]
[15] See Annexure TD19 to Mr Dixon’s affidavit filed 23 July 2021.
[16] See affidavit of Terry Dixon filed 23 July 2021 at [228].
That Mr Dixon was subject to adverse action is not in doubt. The central issue is whether that adverse action arose because of his exercise of a relevant workplace right and what was the effective and operative reason for this action, the onus of establishing that it was for a non-protected reason being on Watpac. It is incumbent on Mr Dixon to plead the material facts which he asserts establish this.
It would appear to be the gravamen of Mr Dixon’s case that Watpac has itself been subject to some form of duress emanating from the CFMMEU relating to his activities in the workplace. By necessary implication, he asserts that he was terminated because of his profile with the CFMMEU and Watpac’s desire to stay on side with it.
On the other hand, Watpac asserts that Mr Dixon was terminated because of the conclusions of Mr Curnow’s report that he had engaged in illegal and intimidating behaviour towards other staff members and this was the substantive and operative reason for its decision to terminate Mr Dixon’s employment.
Conduct of the proceedings
The proceedings were commenced in the Federal Circuit Court prior to the creation of Division 2 of the Federal Circuit and Family Court of Australia pursuant to the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth).[17]At the time, the applicable provisions of the Federal Circuit Court Rules 2001 (Cth) required applications to be commenced by the filing of an approved form.[18]
[17] Hereinafter referred to as “the FCFCOA Act”.
[18] Hereinafter referred to as “the FCC Rules”.
Pursuant to rule 4.05 of the former FCC Rules, an applicant was ordinarily required to file an affidavit stating the facts relied upon in support of the relevant application. However, pursuant to rule 4.05(2), an affidavit was not required if the proceedings were filed in the court’s Fair Work Division, in which case a Statement of Claim or points of claim could be filed. In these circumstances rule 45.08, which applied to general protection applications, mandated the approved form be accompanied by a claim, the form of which was also subject to approval.
The application is a simple document, analogous to a summons to attend court. It stipulates a place, date and time for hearing and indicates that the orders sought by the applicant and the grounds on which those orders are sought are set out in the claim accompanying the application.
In accordance with the rules, Mr Dixon’s solicitor filed such a claim contemporaneously with his first application on 17 April 2020. The first mention of the matter was fixed for 3 August 2020. Pursuant to rule 4.05(3) of the former FCC Rules, if a Statement of Claim, or points of claim are filed, any relevant respondent must file a defence or points of defence instead of an affidavit. Watpac filed a defence and response document on 27 May 2020.
At the first mention of the matter on 3 August 2020, it was noted that Mr Dixon’s employment had been terminated and he was considering either bringing a further application or amending his current one. In these circumstances, the case was adjourned until 9 November 2020. In this context, on 3 August 2020 a second Statement of Claim was filed, which precipitated a defence filed on 7 October 2020. As previously indicated, on 9 November 2020 the two proceedings were amalgamated by order of Judge Heffernan.
The term pleading refers to the formal documents, in which litigants set out the presentation of their claims and defences to those claims, in the suit, which they wish the court to determine. They are filed and served sequentially, according to the rules of the particular court in question. In Takemoto v Moody’s Investors Service Pty Limited,[19] Flick J observed that as a general proposition the function of pleadings is to state with sufficient clarity the case that must be met.
[19] Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081 at [23] (Flick J).
A Statement of Claim must identify a set of alleged facts that have a particular quality, which if established at trial, will entitle the applicant to the remedy or remedies claimed. A defence is the formal rebuttal of those alleged facts. Pleadings are required to contain statements of material fact, which a defence, in turn, will either admit or deny.
An admission will have the effect of ending factual controversy about an allegation made in a statement of fact. The intent is to confine the issues to be determined by the court invoked to resolve the dispute between the parties concerned.
Essentially, a respondent is made aware of the case it is required to meet, and an applicant knows which elements of that case are in dispute. From the court’s perspective, the controversies that it is required to adjudicate are clearly delineated at an early stage. The object being, for all concerned, the ready clarification of issues and a saving of time and resources as any need for investigation of superfluous issues is avoided.
Material facts, in this context, have been defined as facts, whose existence is necessary for the purpose of formulating a complete cause of action.[20]By necessary implication, to provide a legal answer to the cause of action so raised, a defence must provide a rebuttal of each such material fact. Accordingly, there must be a connection between the material fact alleged and a legal principle, which founds the relevant cause of action.
[20] See Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712 (Scott LJ).
In Gaven & Gaven (No 2) Judge Jarrett, of this court, succinctly summarised the distinction between an affidavit and a pleading in the following terms:
An affidavit is a statement, sworn or affirmed, by a deponent who gives evidence. The purpose of an affidavit is to provide evidence. An affidavit is different to a pleading. A pleading alleges facts and facts alone (or at least is intended so to do). An affidavit, however, is of a quite different character.[21]
[21] Gaven & Gaven (No 2) [2012] FMCAfam 1005 at [8] (Jarrett J).
Formal pleadings were not mandated in the former Federal Circuit Court by the FCC Rules. However, at the same time, the FCC Rules recognised that some types of proceedings are likely to be better served by the use of pleadings. The FCC Rules do not specifically indicate which type of cases is better suited to the use of affidavits and which is more amenable to pleadings.
This, in my view, is the source of what I have termed the perennial problem of whether it is better for applicants to set out what they assert is their case in affidavit form, which is the more usual course as stipulated in the former rule 4.05, or take the option of not providing any affidavit evidence as is open pursuant to rule 45.08.
In my experience, the former course is usually the more productive one, so far as self-represented litigants are concerned, for providing the prerequisite information, for both the court itself and the relevant respondent, about what is the basis of any particular case being undertaken.
In this context, comments made by Judge Driver in Kakayzich v Santa Sabinda College & Anor are pertinent. His Honour said as follows:
[I]t is pertinent to note that the Federal Circuit Court, unlike the Federal Court, is not generally a court of pleadings. Matters most commonly proceed in the absence of pleadings on the basis of written evidence. It is with this in mind that this Court has simply adopted the rules of the Federal Court in relation to pleadings for the relatively small number of cases in which pleadings are necessary. The Parliament has tasked this Court to deal with matters of less complexity than those dealt with by the Federal Court and the Family Court... Drawn out interlocutory disputes as to the quality of a pleading so sought and provided are alien to the normal practice and procedure of the Court and should, in my view, be discouraged.[22]
[22] Kakayzich v Santa Sabinda College & Anor [2020] FCCA 11 at [134] (Driver J).
In a later case, Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd, Judge Driver after having noted the court’s remit as a lower level court directed towards resolving cases in a quick and cost effective manner with as little adherence to legal technicality as possible, observed further as follows:
The Court has, as I have noted, taken a liberal attitude to the drafting of pleadings, and I have myself had cause to express some frustration with demands for different pleadings on the basis of perceived technical defects.[23]
[23] Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552 at [8] (Driver J).
The first Statement of Claim is an eighteen page document. The second Statement of Claim, as best I can understand it, adopts the first claim. In clause 9, Mr Dixon asserts that he has the following workplace rights:
·A right not to be bullied or harassed at work and an expectation that there would be compliance with the bullying provisions of the FWA;
·A right to be provided with a safe place of work as defined by provisions of the South Australian work health and safety legislation;
·A right that Watpac would comply with its duty of good faith towards him pursuant to the contract, including that he not be bullied or harassed; and
·A right to be dealt with in a procedurally fair way and in accordance with principles of natural justice.
Part 6 – 4B of the FWA, which is headed Workers bullied at work details the provisions of the legislation relevant to bullying, including a definition of bullying [section 789FD] and the remedies available to a worker, if subject to bullying [section 789FC] Essentially, a worker may apply to the Fair Work Commission for an order to stop the bullying. In this context, it needs to be pointed out that the Act does not specifically provide a right not to be bullied.
In its defence, Watpac asserted that the assertions regarding the workplace rights asserted by Mr Dixon were generic and not relevant. It sought the dismissal of his actions on the basis that they were vexatious and had no reasonable prospects of success.
This was the context for Watpac to file an application in a case seeking that the summary dismissal of the applicant’s claim pursuant to the provisions of section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) or alternatively relevant paragraphs of the statement of claim be struck out on the basis that they were prejudicial, embarrassing, likely to cause delay or failed to disclose a reasonable cause of action.
The application was supported by an affidavit of Watpac’s solicitor, Mr Fettel. It has been Watpac’s position throughout that the matters pleaded in clause 9 of the Statement of Claim are not workplace rights as defined by section 341 of the FWA and Mr Dixon, in his pleadings, has not established a nexus between the workplace rights asserted and the adverse action to which he was subject.
It is not my role to re-hear the summary dismissal application. However, as previously indicated, it is a significant element of Watpac’s case in opposition to Mr Dixon’s application to amend his Statement of Claim that it pointed out to him, at some length, the defects of his case as then pleaded and it would therefore be grossly unfair to it if Mr Dixon was able to amend his claim at this comparatively late stage. As such, I will briefly set out the grounds put forwarded for the summary dismissal, which largely focussed on deficiencies said to appear in clause 9.
Counsel for Watpac prepared detailed written submissions in support of its application for summary dismissal. Firstly, it was submitted that Mr Dixon’s complaint centred on complaints of having been bullied by officials and member of the CFMMEU, which was not a party to the proceedings. More significantly, it was submitted that Mr Dixon’s right, if he believed he was being subject to bullying was to apply to the Commission pursuant to section 789FF(1)(b) of the FWA.
Secondly, it was submitted that the work health and safety legislation did not create a workplace right falling within the purview of the general protection provisions of the FWA. Rather those provisions created a regulatory regime, which was enforceable through other mechanisms other than the general protection proceedings.
Thirdly, it was submitted that the any implied duty of care or obligation to act in good faith owed by Watpac to Mr Dixon as a consequence of his employment contract were not workplace rights within the purview of section 341. In addition, a contract of employment was not, as a matter of law, a workplace law or instrument [FWA at section 341].
As a consequence, it was submitted by Watpac, in general terms, that Mr Dixon’s claim was an inchoate plea that he had been subject to some species of unfair conduct by Watpac but this, in itself, was insufficient to base a general protection claim. As such, it was asserted that the application should be summarily dismissed as no amendment to the pleading [could] cure the [various] deficiencies outlined.[24]
[24] See Respondent’s submission in support of summary dismissal filed 5 March 2021.
As indicated above, this submission did not find favour with Judge Heffernan, who, in his reasons for decision elected not to delineate the central factual controversy arising between the parties, which as I understand it, centre on whether Mr Curnow’s report had been disingenuously relied upon, by Watpac, as a pretext to dismiss Mr Dixon, in order to curry favour with the CMMFEU. Certainly, His Honour did not address issues as to whether, in this factual matrix, Mr Dixon had delineated a specific workplace right germane to him, which had been the motivating factor for Watpac’s termination of his contract, This remains the central legal issue in the case.
Rather, Judge Heffernan was satisfied that the pleadings, as they then stood, although perhaps not without their shortcomings, sufficiently delineated the issues between the parties and, in these terms, in conjunction with what he characterised as contemporary case management techniques and pre-trial directions would preclude little opportunity for surprise or ambush at trial.[25]He also noted that the court’s authority to summarily dismiss an application, pursuant to section 17A was a rare and exceptional remedy.
[25] See Barclay Mowlem Construction v Dampier Port Authority & Anor [2006] WASC 281 at [5] & [6].
He adopted the following passage from Barclay Mowlem Construction:
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or Defence as the case may be and apprising the parties of the case they have to meet; the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derived from a very different case management environment.[26]
[26] See Barclay Mowlem Construction v Dampier Port Authority & Anor [2006] WASC 281 at [7].
By necessary implication, Judge Heffernan considered that the Statement of Claim, then filed, fulfilled this neccessary function of delineating the issues to be determined and it was antithetical to modern case management practice to take the matter further until trial. Essentially, as the pleadings then stood, he concluded that neither party faced any disadvantage in preparing for trial.
Given that those advising Mr Dixon were content to advocate to the court, on this basis, at the summary dismissal stage, and had metaphorically tied their colours to the mast in this regard, it is the position of Watpac, that Mr Dixon’s application to amend, at a late stage, when significant preparations for trial have been made by it, is contrary to modern case management techniques. Essentially, what was good for the goose in March of 2021 should be good for the gander in June of 2022.
The application to amend and for discovery
In September of 2021, the solicitor for Mr Dixon wrote to Watpac’s solicitor indicating that the applicant was now better placed to particularise his pleadings and address Watpac’s concern that he had not delineated any workplace right or pleaded its connection with the adverse action to which he had been subjected. At this stage it was also indicated that it was accepted that Mr Tape could be not regarded as having any accessorial liability for the termination of Mr Dixon.
On 6 October 2021, the solicitor for Mr Dixon wrote to Watpac’s solicitor seeking discovery inter alia of documents relating to Mr Dearling’s inquiry; correspondence between Watpac and the CFMMEU regarding working over the 2019 Christmas break; correspondence between the CFMMEU and Watpac about the assault allegations involving Mr Dixon; and correspondence relating to Mr Angelakis.
Watpac supplied some of the documents sought, resisted the production of others on the basis of relevance and denied that it had any in respect of Mr Angelakis. It formally opposed any amendment. This was the background to the current application which was filed on 29 April 2022. The applicant also seeks a direction that an informal settlement conference be convened.
In broad terms, the amendments were directed towards the following issues:
·Mr Dixon had been a potential witness in proceedings brought by the Australian Building and Construction Commission against the CFMMEU regarding the Adelaide Airport, which had resulted in pecuniary penalties being imposed upon the Union;
·He was responsible to ensure compliance with the provisions of the FWA regarding the Union’s right to enter Watpac sites; and
·Adverse action taken against him by Watpac included the prejudicial alteration of his position and discrimination, particularly forbidding him to attend Watpac’s Christmas party in December 2019.
Accordingly, the applicant now seeks to plead adverse action in the form of alteration of his position, which is characterised by him being forbidden by Mr Dearling to attend at the Glenelg site and consultative meetings; and he has been discriminated against. No grounds were provided as to the particular personal characteristic germane to him which ground this allegation.
In a proposed paragraph 9A the following was asserted to be the relevant workplace rights engaged:
9A. The Applicant says the First Respondent took the Adverse Actions against him because:
9A.l.He had a role or responsibility under a workplace law and/or workplace instrument, namely he was a person with "management and/or control of a workplace" under 20 of the WHS Acts which placed a duty on him to ensure the First Respondent's workplaces were without risk to the health and safety of any person, including the Applicant,
9A.2.He was the victim of a campaign of bullying and harassment by members of the CFMMEU because he legally and adequately exercised his duty under the WHS Acts and was entitled to expect the First Respondent would comply with the anti-bullying provisions of the FW Act despite being entitled to expect a safe place of work, the First Respondent instead determined to side with the CFMMEU to maintain industrial harmony and interests;
9A.3.Further to paragraph 9A.2, on 28 November 2019 by email the Applicant exercised his right to complain and did complain to the First Respondent about the bullying and harassment he was experiencing at the hands of the CFMMEU and its organisers;
9A.4.He was entitled to expect the First Respondent would provide him with a safe place of work pursuant to Section 19 of the WHS Act including that he not be bullied or harassed;
9A.5.He was entitled to expect the First Respondent would comply with its duty of good faith pursuant to the Contract, including that he not be bullied or harassed;
In written submissions, in support of the amendment application, the applicant asserts that the CFMMEU have made false and malicious complaints about him to Watpac in the agency of Mr Dearling because the Union did not approve of the manner in which he (Mr Dixon) carried out his duties as a health and safety supervisor. He complained about the CFMMEU to Mr Dearling, which complaint was inadequately investigated by Watpac. Thereafter Mr Dixon was firstly stood down and then terminated on fabricated or misconceived complaints of misconduct, relating to Mr Curnow’s report.[27]
[27] See applicant’s written submissions filed 19 May 2022 at [5].
In this context, it is asserted as follows:
Should the Court grant leave to the Applicant to amend the Statement of Claim, there is no, and will not be any, prejudice to the Respondents.
Based on the original pleadings the Respondents were more than capable of marshalling their defence to the allegations. If anything, the proposed amendment to the Statement of Claim provides them with greater particulars and, therefore, an even better understanding of the case of the Applicant.
Further, there is no detriment on the basis of the delay in pursuing the matter. The delay is not of such significance as to impact upon memories of witnesses or any other relevant evidentiary material.
The Respondents were on notice as to the issues from the point of the commencement of proceedings. They did not make any application promptly. However, the Applicant does not claim to have suffered any detriment from this failure.
We submit the Respondents cannot articulate any prejudice caused to them by the proposed amended Statement of Claim either with respect to the content or as to the timing.
The proposed amendments to the Statement of Claim do not catch the Respondents by surprise. Given the Respondents have previously applied, unsuccessfully, for summary dismissal, and it is not appropriate to reargue the same issues.[28]
[28] See applicant’s written submissions filed 19 May 2022 at [44] – [49].
Counsel for Watpac is critical that the proposed amendments appear to identify unspecified members of the CFMMEU as the primary contravenors of the relevant provisions of the Act but do not specify who the actual contraventions involved and more significantly how it and Mr Dearling were knowingly involved in them.
Applicable legal principles
As a consequence of the inception of Division 2 of the Federal Circuit and Family Court of Australia, the applicant’s application is to be determined by reference to the FCFCOA Act.
Section 174 of the FCFCOA Act authorises the court to make rules to govern its practice and procedure but in circumstances in which those rules prove to be deficient it may apply the Federal Court Rules 2011 (Cth). The court is entitled to modify these rules to suit its own idiosyncratic jurisdiction. In this context, section 190 of the FCFCOA Act is germane.
It provides a directive to the court to, in the application of its practice and procedure, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. This reflects the objects of the FCFCOA Act as contained in section 5 and is referred to as the court’s overarching purpose.
Pursuant to section 190(2) the overarching purpose also includes such case management concerns as the efficient use of the administrative and judicial resources of the court; its caseload as well as efficiency and timeliness. Division 2 of the Federal Circuit and Family Court is a busy court of first instance. Part of its raison d’être is to facilitate the just resolution of disputes through the efficient allocation of its resources.
The relevant rules of Division 2 of the court are the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).[29]Rule 1.04 delineates the obligation of parties to assist the court to achieve its objectives delineated in the overarching purpose. Parties are required to avoid undue delay, expense and technicality. They are also directed to consider options for primary dispute resolution as early as possible.
[29] Hereinafter referred to as “the Division 2 Rules”. Rule 1.06 provides that these Rules principally govern general federal law proceedings in Division 2 of the Court.
The Federal Court, pursuant to section 37M of the Federal Court of Australia Act 1976 (Cth),[30] is subject to a broadly similar overarching purpose in respect of how it is directed to conduct civil proceedings coming before it. It is also subject to the direction that it consider the proportionality of the cost to the importance and complexity of the matters in dispute.
[30] Hereinafter referred to as “the FC Act”.
In respect of the manner in which proceedings are to be commenced, the requirement for the filing of an affidavit and the modification of this requirement in general protection proceedings to allow for pleading, the new rules do not modify the old regime.
In this context, by necessary implication, it seems to me to be self-apparent that parties are required to consider which of the mechanisms of pleadings, on the one hand or the filing of affidavits of evidence, on the other, in general protection proceedings, will best fulfil the aspirations of the overarching purposes, both in terms of reducing delay, the expense and technicality, and achieving the expeditious application of primary dispute resolution in appropriate cases.
Part 7 of the Division 2 Rules deals with amendment of documents and in general terms grants the court a discretion to permit amendment, even if the effect of the amendment is to include a new cause of action. Rule 7.03(4) provides as follows:
(4) The Court may give leave to make an amendment even if the effect is to include a new cause of action, if:
(a) the Court considers it appropriate; and
(b) the new cause of action arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding by the party seeking leave to amend.
In Roberts‑Smith v Fairfax Media Publications Pty Limited (No 5),[31] Justice Besanko has summarised the principles applicable to such late amendments as follows:
·The nature and importance of the amendment sought to be made;
·The extent of any delay which the amendment will occasion and any costs associated with it;
·Any delay in applying for the amendment and the reason for such delay;
·Any prejudice occasioned to the opposing party by the amendment;
·How the parties have previously chosen to conduct the litigation;
·Possible detriment to other court users; and
·Potential loss of confidence in the administration of justice by the court too readily acceding to an application to amend without adequate explanation or justification.[32]
[31] Roberts‑Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067.
[32] Roberts‑Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 at [16]-[23] (Besanko J).
In Caason Investments Pty Ltd v Cao[33] the Full Court described the power to amend as being broad and being principally directed to ensuring that real questions in the [relevant] controversy [before the court] are properly agitated with a concomitant avoidance of the possibility of the court falling into error.
[33] Caason Investments Pty Ltd v Cao [2015] FCAFC 94 at [20] – [21].
Accordingly, in my view, both the form of pleadings (and whether they are required at all) along with the question of their subsequent amendment are issues which can and should be approached from a case management perspective. The issues to be considered by the court, in this context, being not necessarily wholly centred on the rights of the parties themselves but on the efficiency of the court itself and how it considers it will be best placed to adjudicate any relevant controversy which comes before it.
As was pointed out by French CJ in Aon Risk Management Limited v Australian National University (“Aon”)[34] courts have an obligation to ensure that the litigation coming before them is transacted effectively and efficiently, not only in the interests of the individual parties concerned but also in the interests of other litigants and users of the court, whose cases are inevitably affected by how other cases in the system are managed. His Honour said as follows:
…the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.[35]
[34] Aon Risk Management Limited v Australian National University (2009) CLR 175.
[35] Aon Risk Management Limited v Australian National University (2009) CLR 175 at 188 [23].
In the case, French CJ also noted that courts have the inherent authority to control their processes and prevent their application in a way which would be unfair to a party or would otherwise bring the administration of justice into disrepute among right-thinking people.[36]
[36] Aon Risk Management Limited v Australian National University (2009) CLR 175 at 193 [33].
The majority in the case (Gummow, Hayne, Crennan, Kiefel & Bell JJ) considered the meaning of the expression just resolution, which as indicated above also appears in section 190 of the FCFCOA Act. Their Honours considered that speed and efficiency, in the sense of a minimum of delay and expense were essential ingredients in what constituted a just resolution but this should not detract from a proper opportunity being given to parties to present their respective cases.[37] However, the court always retains the authority to control its processes according to appropriate case management principles.
[37] Aon Risk Management Limited v Australian National University (2009) CLR 175 at 213 [98].
Section 176 of the FCFCOA Act provides as follows:
(1) Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).
(2) However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(3) In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Court or the Judge considers relevant.
Again, it seems axiomatic that the issue of discovery and whether it should be permitted is one which is to determined by reference to the overarching principles. Section 176(2), in my view, creates a rebuttal presumption that discovery will not ordinarily be permitted in non-family law proceedings.[38] In deciding whether the presumption should be rebutted, it is necessary for the court to determine whether it is appropriate to do so, in the interests of the administration of justice.
[38] See NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271 at [5].
Administration as a noun refers to the process or activity involved in running an organisation. In a broader sense, it refers to the management of public affairs or government generally. Accordingly, the concept contained in section 176(2) is distinct from the interests of the parties concerned in any particular piece of litigation. It has wider connotations and can encompass the interests of other users of the justice system and the community generally, who have an interest in ensuring the court resources are utilised rationally and carefully for the benefit of all, within the terms envisaged by the High Court in Aon.
In this context, it is likely to be beneficial to these other stakeholders that cases be concluded expeditiously, through a focus on the main issues arising in them, so that the court’s scarce judicial resources can be applied as widely as possible to the speedy resolution of other cases.
In my view, considerations of this type have informed the legislature’s directive in respect of the issue of interrogatories and discovery, in this court, which is placed on the longest rung of the Federal Judiciary and, as such, is directed to towards the resolution of less complicated matters falling within its jurisdiction.
In Abrahams v Qantas Airways Limited (No 2)[39] Federal Magistrate Lucev (as His Honour then was) identified some of the consideration likely to be relevant to whether an order for discovery was likely to be in the interests of the administration of justice. They included the following:
·the relevance of any documents sought to be discovered;
·the volume of documents sought to be discovered;
·whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
·whether discovery would narrow the issues;
·whether both parties seek discovery;
·whether there is consent to discovery;
·whether discovery is “of benefit” to the litigation; and
·the effect of discovery on litigants; especially vulnerable litigants.
[39] Abrahams v Qantas Airways Limited (No 2) [39](2007) 210 FLR 314 at [25].
Clearly, all these considerations are not relevant to the present matter. However, I am concerned that discovery will widen rather than narrow the issues in dispute between the parties and so prolong the litigation. This is not in keeping with the overarching principle. In these circumstances it is question the benefits like to accrue in terms of the court’s efficient management of the litigation.
Lander J considered the legislative precursor to section 176 of the FCFCOA Act (section 45 of the Federal Magistrates Act 1999 (Cth)) in Devine Marine Group Pty Ltd v Fair Work Ombudsman.[40] In the case, the Ombudsman had brought an application seeking discovery of wage records said to be relevant to its civil prosecution of the applicant for breach of award conditions. The then Federal Magistrate had made such an order, which was subject to appeal.
[40] Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442.
The appeal was allowed and the order for discovery set aside. In part, Lander J considered that the Ombudsman, as a model litigant, should not have brought the relevant civil penalties application if it did not have the required documentary evidence to support and therefore, by necessary implication, the discovery application was tantamount to a fishing expedition.
Lander J said as follows:
The presumption in s 45(1) of the Federal Magistrates Act is that discovery will not be permitted in any proceedings in the Federal Magistrates Court unless the Federal Magistrate has made the declaration provided for in s 45(1).
Section 45(1) assumes that, unless the declaration is made, discovery is not necessary for the orderly disposal of proceedings in the Federal Magistrates Court. That assumption is consistent with s 3(2) of the Federal Magistrates Act, which provides that the objects of the Act are for informality, streamlined procedures, and the use of appropriate dispute resolution processes.
The purpose of discovery is to assist in resolving disputes as to fact. Discovery can be a lengthy and expensive process. Because of the high cost to the parties of the discovery process, both in giving discovery and taking inspection, the modern trend is to contain the obligation to give discovery by giving the Court control over the process; by limiting the circumstances in which discovery is to be given; and, if discovery is to be given, by limiting the extent of the discovery given. The cost of discovery can far outweigh the benefits.
Section 45(2) identifies the circumstances in which it would be “appropriate”, in “the interests of the administration of justice”, to make an order for discovery, by requiring the Federal Magistrate to have regard to whether an order for discovery “would be likely to contribute to the fair and expeditious conduct of the proceedings” and any other relevant matter. An application for discovery in the Federal Magistrates Court should be approached on the basis that the application should be refused unless the making of an order requiring a party to give discovery would be likely to contribute to the fair and expeditious conduct of the proceeding or there is some other relevant matter that would mean that an order would be in the interests of the administration of justice. The expression, “the administration of justice”, must be understood by reference to the scheme of the Act and the presumption that discovery is not usually necessary for the fair and expeditious disposal of the proceeding.
Proceedings of the kind with which the Federal Magistrate was concerned should be dealt with inexpensively and expeditiously. Too often, proceedings of this kind can cause the respondents to pay more in legal costs than they become obliged to pay in pecuniary penalties. That itself is a penalty.[41]
[41] Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [51] – [55].
In my view, similar considerations continue to apply to Division 2 of the recently re-configured court. The assumption remains that discovery is not a matter of right in this lower level court, which remains directed toward the cost efficient resolution of cases, which supports the eschewal of technicality.
Watpac is a large corporation. However discovery will involve some expense for it and the court must make some assessment of the utility of this process, within the context of the litigation to date. Watpac has provided some of the documents sought, which it concedes have relevance, rejected the production of others and denied the existence of others.
This occurred in the context of the detailed affidavits it has provided to the court and Mr Dixon from the various key managerial figures in its chain of decision making regarding Mr Dixon. In my view, the application does seem to have the flavour of a fishing expedition in the sense that he is seeking some documentary evidence to support his assertion of collusion between Watpac and the CFMMEU, which he does not have in circumstances where the existence of such collusion is based on conjecture.
In addition, these proceedings have been outstanding for a significant period of time and were able to be fixed for hearing with the implicit imprimatur of Mr Dixon without issues of discovery having been previously ventilated in circumstances in which he bears the onus of establishing the workplace right germane to him, said to have been contravened. I am concerned that the discovery application is an effort to find support for his case and its potential expense may outweigh its utility, certainly in terms of facilitating the efficient administration of justice.
Conclusions
In the context of both the amendment application and the discovery application, I consider that I must focus on the nature of the application before me. It is a general protection application under the FWA. It is not an inquiry, per se, into the activities of the CFMMEU. It is incumbent on Mr Dixon to identify what is the workplace right on which he relies and the adverse action taken against him in contravention of such right. It would not be an efficient use of the court’s resources if Mr Dixon seeks to utilise discovery in an attempt to ascertain what he asserts is the workplace right contravened by him.
It is at this stage, if both such incidents are identified that the onus shifts to Watpac and it must demonstrate, on the balance of probabilities what was the substantive and operative reason for it taking the impugned adverse action and establishing it was not for a protected reason. In this context, it is necessary to emphasise again that this is not a review generally of the fairness of Watpac’s conduct, vis-à-vis Mr Dixon and the union.
Counsel for Mr Dixon asserts that the amendment sought by him causes no prejudice to Watpac. I do not agree. It will be necessary for Watpac to file an amended defence in respect of the amendments, regardless of the gravamen of their significance. This may further delay the proceedings, which have already been subject to significant delay. Neither outcome, in my view, is in keeping with the overarching principle to which litigation in this court is subject.
I have taken some time to delineate the evidentiary issues which the case throws up. That Mr Dixon was terminated cannot be doubted. The central issue is why did that occur? Watpac asserts that it was because of the outcome of the inquiry conducted by Mr Curnow. Mr Dixon asserts that it was because of some form of covert influence from the CFMMEU, who wanted Mr Dixon gone from the relevant building sites.
In my view, this evidentiary issue, although not without its challenges in the legal context, has been thoroughly delineated in the material before the court – firstly in pleadings and then secondly, in lengthy affidavits prepared by all the major actors in the incident, apart from those associated with the CFMMEU, who are not parties to the proceedings. It will be resolved at trial.
It has been consistently the position of Watpac that the evidence as it is currently framed does not disclose a workplace right germane to Mr Dixon. He does not agree. At the summary dismissal stage, this issue was canvassed before Judge Heffernan, at some length. His Honour did not favour Watpac. Rather, he determined that the appropriate mechanism by which the relevant controversy between the parties was to be quelled was through a trial based on firstly affidavits of evidence in chief and then cross-examination.
The parties, perhaps with some reluctance, I do not know, were content to abide by this directive and the affidavit material so ordered has been prepared and filed. The only thing as yet missing is the appointment of the trial foreshadowed by Judge Heffernan, which I propose to remedy, as expeditiously as I can.
In my view, the controversy between the parties remains essentially as it was when Judge Heffernan dismissed the summary dismissal application. At this stage, His Honour did not consider any lack of specificity regarding the workplace rights said to be asserted by Mr Dixon or controversy about whether such rights were amenable to protection under the Act justified summary dismissal. Rather it was directed that the matter proceed to trial on the basis that formal evidence would throw into sharper relief whether these controversy were well founded or otherwise.
That decision having been made and the parties having acted in accordance with it, in my view, renders it counter to the overarching principle to allow a late amendment to the pleadings. As Besanko J pointed out in Roberts-Smith v Fairfax, one of the factors relevant to whether a pleadings should be subject to late amendment is the manner in which the parties have previously chosen to conduct the relevant litigation.
At the stage of the summary dismissal application, those advising Mr Dixon vigorously asserted that the thrust of their client’s case was readily discernible to Watpac and therefore the dismissal application should itself be dismissed. Watpac disagreed. Judge Heffernan determined that the case should be conducted on the basis of affidavit evidence, which could be controlled through modern case management principles.
Accordingly, perhaps with some reluctance on the part of Watpac but with acceptance by Mr Dixon, the parties embarked on preparing their respective cases. In my view, in these circumstances, each party has nailed their colours to the mast and elected to file the evidence relied upon by each of them in respect of their competing position.
I have previously alluded to what I termed the perennial problem of pleadings in general protection proceedings. Pleadings are technical in nature and may not be suited to the resolution of workplace issues, involving controversies arising between management and an employee, in which the latter asserts that there is some occult reason for the adverse action and the former asserts that the substantive and operative reason for the adverse action is some clearly defined incident of unacceptable conduct in the workplace.
These are evidentiary issues which are to be determined largely in the context of the evidence to be mustered by each of the parties, in the light of the reverse onus provisions. This, in my view, is the axiomatic implication of the earlier ruling of Judge Heffernan and his direction that affidavits be filed and the case fixed for hearing. The issue currently before the court being whether an amendment, in this setting, will serve any useful purpose.
These are civil penalty proceedings. In CFMEU v BHP Coal Pty Ltd[42] the Full Court indicated the probity consideration relating to cases involving allegation of contraventions of the industrial law against individuals who were potentially liable to the imposition of a civil penalty, vis-à-vis pleadings. It held that such cases were in a special category of case, which dictated that such individuals should know with some precision the case to be made against them.[43]
[42] CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298.
[43] See CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63] – [65].
However, in the present case, it is Watpac and Mr Dearling who are exposed to the imposition of fines. They oppose the amendment and seek that the delayed hearing be re-fixed. They have indicated to the court they are confident that each knows with sufficient clarity the case, which they have to meet. The Full Court went on to say as follows:
The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant’s pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant’s case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading.[44]
[44] See CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298 at [65].
I am also sanguine that each party has delineated in the affidavit material filed sufficient material for a fair trial to take place. The case is much delayed, after a significant interlocutory event in the form of the summary dismissal application. In these circumstances, in my view, it would be contrary to the overarching principles of efficient and economical case management to allow the amendment proposed.
I am also not persuaded that it would in the interest of the administration of justice to allow discovery. Given the late stage of the application, I do not consider it would assist in the narrowing of issues and the reduction of expense. Thus such an order cannot be said to be congruent with the overarching principle which the court must apply in its conduct of civil litigation coming before it.
I will fix the case for trial before myself, for five days, on 20 March 2023 and make appropriate directions regarding the filing of case statements and lists of authority to ensure that the case can proceed as listed. With the consent of all concerned the third respondent will be discharged from the proceedings. Otherwise the application in case and the response filed will be dismissed. I will reserve any issue arising in respect of costs to the trial as listed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 16 September 2022
[9] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]
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