Fair Work Ombudsman v Chatime Australia Pty Ltd
[2021] FCCA 1766
•22 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fair Work Ombudsman v Chatime Australia Pty Ltd [2021] FCCA 1766
File number(s): SYG 3321 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 July 2021 Catchwords: PRACTICE AND PROCEDURE – a witness who had made an affidavit was cross examined by video during the first two days of a hearing – on the morning of the third day of the hearing the witness, whose cross-examination had not concluded, forwarded to the court a medical certificate containing the opinion the witness was not fit to continue to give evidence – whether medical certificate admissible – whether in any event the medical certificate proved witness not fit to continue to be cross-examined – medical certificate did not so prove – whether in those circumstances the affidavit made by the witness that was read should be struck out or whether the affidavit could be given such weight as the Court found appropriate – party calling witness permitted to use the affidavit but subject to terms. Legislation: Evidence Act 1995 (Cth) s 79(1)
Federal Circuit Court of Australia Act 1999 (Cth) s 64 Federal Circuit Court Rules 2001 (Cth) r 15.29A
Uniform Civil Procedure Rules 2005 (NSW) Pt 35, rr 3, 35.2(3)
Cases cited: Dasreef Pty Limited v Hawchar [2011] HCA 21
DCT v John Barnes and DCT v Judith Barnes (No. 2) [2008] FMCA 1229
HG v The Queen (1999) 197 CLR 414
Kumar v Northrop Grumman (M5 Network Security Proprietary Limited) [2020] FCCA 1545
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Maria Saravinovski v Krste (Chris) Saravinovski [2015] NSWSC 128
Number of paragraphs: 25 Date of hearing: 22 July 2021 Place: Sydney Counsel for the Applicant: Mr J Darams and Mr M Harker, by video Solicitor for the Applicant: Mr A Fiorenza of Office of the Fair Work Ombudsman Counsel for the Respondents: Mr D Mahendra, by video Solicitor for the Respondents: Piper Alderman ORDERS
SYG 3321 of 2019 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: CHATIME AUSTRALIA PTY LTD ACN 136 677 453
First Respondent
CHEN ZHAO
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 JULY 2021
THE COURT ORDERS THAT:
1.Pursuant to r 15.29A of the Federal Circuit Court Rules 2001 (Cth), but subject to order 2, the applicant may continue to use the affidavit made by Lawrence Budiman Chen on 12 April 2021.
2.If, in the course of preparing his reasons for judgment, Judge Manousaridis forms the view that there is a prospect that if the second respondent does not read his affidavit made on 2 June 2021 and make himself available for cross‑examination Judge Manousaridis may accept any part of Mr Chen’s affidavit that is adverse to the first or second respondents, the proceeding will be listed for directions for the purpose of setting the matter down for the continuation of the cross‑examination of Mr Chen and, if the second respondent so elects, for the second respondent reading his affidavit and making himself available for cross‑examination.
REASONS FOR JUDGMENT
(Revised from transcript)
There is currently in progress before me for hearing an application brought by the Fair Work Ombudsman (FWO) against two respondents, Chatime Australia Pty Ltd (Chatime), the first respondent, and Mr Chen Zhao, the second respondent. The FWO alleges, and Chatime to a large extent accepts, that Chatime failed to make payments to employees it was required to make under the Fast Food Industry Award 2010. The FWO also alleges, however, that Mr Zhao was a person involved in those contraventions. Mr Zhao denies that claim.
The FWO relies on the affidavit of Mr Lawrence Budiman Chen, made on 8 April 2021, and filed on 12 April 2021 pursuant to directions made by the Court. The respondents notified the FWO that Mr Chen was required to attend the hearing for the purpose of being cross-examined. On the first day of the hearing, Mr Chen made himself available to be cross-examined. He made himself available via video link. That occurred by reason of the limitations that the current COVID restrictions impose on courts. Mr Chen was sworn in, and Mr Mahendra, counsel for the respondents, commenced his cross-examination.
Towards the end of the day, by about 3:30 pm to be a little more precise, Mr Chen indicated that the battery powering the computer he was using to access the hearing by video was running low; and he said that he had approximately eight minutes left on it. Mr Chen said that he had lost the computer battery charger. I suggested that the FWO provide to Mr Chen overnight a charger to enable him to charge the battery used to power his device. The cross-examination continued, but was abruptly cut short when communication with Mr Chen ceased. This occurred at around 3:41 pm, at which time the hearing was adjourned.
Before the hearing was due to commence on the following day, Mr Chen contacted the Court or the parties or both (I have not checked to see to whom precisely the communication was made) to say that he was not feeling well; that he had booked a COVID test; and that he would be unavailable to continue with his cross-examination until 2:00 in the afternoon. In those circumstances, Mr Mahendra agreed to the FWO interposing another witness she proposed to call. The affidavit of that witness was read, and he was cross-examined. The matter was then adjourned, and the hearing resumed at around 2:42 in the afternoon.
Mr Chen then made himself available for cross-examination. He said that no charger had been delivered to him, and that the battery on his computer, which he used to access the hearing by video, remained dead. Mr Chen communicated that by mobile telephone. A brief discussion then ensued which indicated that the application Mr Chen used on his computer to access the hearing by video could be downloaded onto his mobile phone and, once downloaded, Mr Chen could again dial in to the hearing and communicate by video. That was done, and Mr Mahendra continued his cross-examination of Mr Chen.
I previously said the hearing resumed at 2:42 pm. That is incorrect. What I ought to have said, and what I say now, is that the cross-examination of Mr Chen commenced at 2:42 pm. It continued until 4:12 pm. The cross-examination had not been concluded, and the expectation was that Mr Mahendra would continue cross-examining Mr Chen on the following day, namely, today. Mr Mahendra indicated that he expected he would take approximately another hour in cross-examining Mr Chen.
At 9:04 this morning my associate received an email from Mr Chen. The email had attached to it a document, which I will call a “medical certificate”, issued apparently by the Beecroft General Practice. It is signed by a Dr Roland Machado. The medical certificate is dated 22 July 2021, being today’s date, and it states as follows:
To whom it may concern,
Re: Mr Lawrence Chen
….
This is to state that Mr Chen is unwell with upper respiratary [sic] tract infection. He is unable to attend online court hearing today.
In these circumstances, a question has arisen about how the case should now proceed. Mr Mahendra, counsel for the respondents, submits that the certificate or, how he would describe it, the purported certificate, is incapable of having the status of evidence. More particularly, he submitted that it was inadmissible to prove the matters that the opinion expressed in it purported to assert, namely, that Mr Chen has an upper respiratory tract infection and that he is unable to attend the online court hearing today. Mr Mahendra relied on a paragraph from the judgment of Heydon J in Dasreef Pty Limited v Hawchar [2011] HCA 21, at [89], where his Honour said:
It is not true to say that Ramsay v Watson held that a failure to prove the assumed factual basis of an expert opinion goes only to weight, not admissibility. It is not true to say that no “basis rule of admissibility” was laid down. The Full Court of the Federal Court of Australia correctly cited Ramsay v Watson as holding, “The proposition that an expert’s opinion based upon certain assumptions which are not ultimately proved in evidence is irrelevant is a fundamental principle of the law.” Irrelevant evidence is inadmissible.
Mr Mahendra further submitted that I should strike out Mr Chen’s affidavit in its entirety, and all the evidence he has given under cross-examination. He submitted that the Court had read Mr Chen’s affidavit on a particular assumption, and that assumption was that Mr Chen, in response to a notice given by the respondents to the FWO, would make himself available to be cross-examined; and given, on Mr Mahendra’s submission, Mr Chen has provided no reasonable explanation for not being available for his cross-examination to be continued, the assumption on the basis of which Mr Chen’s affidavit was read now no longer applies; and that has the consequence that his affidavit should be struck out.
Mr Mahendra relies on the judgment of Kunc J in Maria Saravinovski v Krste (Chris) Saravinovski [2015] NSWSC 128. In that case the question was whether the court should read an affidavit made by a person who had subsequently become incompetent. The court, in those circumstances, considered whether it should exercise the power provided for in Pt 35, r 3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which, in effect, provides that if notice is given to a person who has sworn an affidavit for the purpose of being cross-examined, but does not attend for cross-examination, the affidavit may not be used unless, among other things, the court orders otherwise. The issue Kunc J had to consider was whether his Honour would permit the affidavit to be used.
His Honour identified the principles relevant to the exercise of that discretion at paragraph 86 of his Honour’s reasons. His Honour there said:
The analysis in the preceding two paragraphs conforms with and endeavours to give a principled expression to what occurred in the authorities to which the court’s attention has been drawn. In Russell Caldar v Public Trustee of New South Wales, as referred to in Cairns at 15, Mr Caldar was both present and able to answer questions. However, he had refused to permit himself to be cross-examined for his own peculiar reasons. Master McLaughlin, as he then was, decided that Mr Caldar’s affidavits had been read on the assumption that he would be available to be cross-examined. Given that assumption was no longer correct, the learned master held that the affidavits should be treated as not having been read. Similarly, in Cairns itself, the witness appeared on one day of the hearing but was uncooperative and unresponsive. Her cross-examination was adjourned until the following day. The next day, it became apparent that she would not attend. Campbell J proceeded on the basis that those circumstances enlivened rule 35.2(3), but for discretionary reasons gave leave for her affidavits to be relied upon, notwithstanding that the witness would not attend for examination.
Given that passage, Mr Mahendra accepts that whether the FWO should be able to use the affidavit of Mr Chen is a matter that is within my discretion; but for reasons I will turn to later, Mr Mahendra submits the discretion should be exercised against allowing the FWO to rely on Mr Chen’s affidavit.
Mr Darams, counsel for the FWO, submitted, or at least I will take him to have submitted, that the medical certificate or purported medical certificate is admissible, and I should give it weight. The basis of that submission goes no further than its being a document which appears to have been issued by a person who has, or is expected to have, the expertise of a general practitioner. I take Mr Darams in effect to submit that there is a reasonable explanation for Mr Chen’s not appearing before the Court today for the continuation of his cross-examination. In the alternative, Mr Darams relies on s 64 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act), which is as follows
(1)Testimony in a proceeding in the Federal Circuit Court of Australia is to be given orally or by affidavit.
(2)However, the Federal Circuit Court of Australia or a Judge may:
(a) direct that particular testimony is to be given orally; or
(b) direct that particular testimony is to be given by affidavit.
(3) Subsections (1) and (2) have effect subject to:
(a) any other provision of this Act; and
(b) the Rules of Court; and
(c) any other law of the Commonwealth.
Cross‑examination of person who makes an affidavit
(4) If:
(a) a person makes an affidavit; and
(b) a party to a proceeding in the Federal Circuit Court of Australia adduces, or proposes to adduce, evidence by the affidavit;
a party to the proceeding may request the person to appear as a witness to be cross‑examined with respect to the matters in the affidavit.
(5) Subsection (4) has effect subject to the Rules of Court.
(6) If:
(a)a request under subsection (4) is given to a person who has made an affidavit; and
(b) the person does not appear as a witness to be cross‑examined with respect to the matters in the affidavit;
the Federal Circuit Court of Australia is to give the matters in the affidavit such weight as the Federal Circuit Court of Australia thinks fit in the circumstances.
Mr Darams submits that s 64 of the FCC Act, and in particular s 64(6), in effect compels the Court to have regard to an affidavit on which a party relies, even if the deponent is not available for cross-examination, but may give it such weight as the Court thinks fit in the circumstances. Mr Darams relied on a judgment of Judge Jarrett J in Kumar v Northrop Grumman (M5 Network Security Proprietary Limited) [2020] FCCA 1545. In that case an applicant, as he was directed to do, filed an affidavit; but he refused to make himself available to be cross-examined. Judge Jarrett examined s 64 of the FCC Act or, more correctly, he referred to the consideration of that provision by Lucev FM (as Judge Lucev then was) in DCT v John Barnes and DCT v Judith Barnes (No. 2) [2008] FMCA 1229. Judge Jarrett concluded that the affidavit the applicant had filed was admissible, notwithstanding the deponent’s refusal to be cross-examined, and that the only question was what weight should be given to it.
The first question, therefore, I must consider is whether the purported medical certificate is admissible. It is true that the passage from Dasreef on which Mr Mahendra relies supports a ruling that the medical certificate is not admissible for the reasons set out in the passage on which Mr Mahendra relies. However, account must be taken of the judgment of the plurality in Dasreef, and in particular the passage in paragraph 37 of the plurality’s reasons. In that passage their Honours refer to what Gleeson CJ said in HG v The Queen (1999) 197 CLR 414, and to what Heydon J said in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, and how those decisions should be read against the text of s 79(1) of the Evidence Act 1995 (Cth). In that context, their Honours said:
The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in her or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge” will require little explicit articulation or amplification once the witness has described his or her qualifications and experience and has identified the subject matter about which the opinion is proffered.
It is true that the purported medical certificate is sparse on the details of the person who signed it; but there is sufficient information in the certificate to rationally ground the inference, assuming the document is what it purports to be (and that is an assumption rather than a finding I am going to proceed with), that it is a general medical practitioner who issued the certificate, and the medical practitioner would have the expertise to diagnose a person who suffers with upper respiratory tract infection. I therefore find that the opinion expressed in the medical certificate is admissible to prove the subject of the opinion. That, however, is a very different question from whether I should give any weight to it; and I am not prepared to give any weight to the medical certificate.
The medical certificate does not say whether Mr Chen attended the surgery. Assuming Mr Chen did attend personally on the doctor, the medical certificate does not say whether the doctor conducted any examination or, if he did, the nature of the examination. The medical certificate does not state the basis on which the opinion that Mr Chen suffers from an upper respiratory tract infection has been given; nor does it identify the basis on which the medical practitioner expresses the opinion that Mr Chen is unable to attend any court hearing online. Also lacking is any recommended course of remedy. I am not fitted to form the view whether an upper respiratory tract infection is one which doctors recommend would heal itself or whether it is a condition in relation to which a doctor would recommend the prescription of some form of medication. But the absence of any consideration of how the condition described in the certificate should be addressed is a matter which also leads me to give the medical certificate no weight.
The position, therefore, is Mr Chen has not made himself available for the purpose of his cross-examination being continued; and that although an explanation in the form of an email attaching a medical certificate has been provided, that explanation, I find, is inadequate.
I then turn to whether s 64 of the FCC Act compels me to allow the FWO to use Mr Chen’s affidavit. I confess that, in the little time I have had available, I have had some difficulty in giving s 64 of the FCC Act a clear construction. Nevertheless, there are a number of points that may be made about the text of s 64. The first is that although it permits evidence to be given either orally or by affidavit – and that is to be found in s 64(1) – s 64(2) provides that the Court may direct the type of evidence that may be given. The fact s 64 of the FCC Act has that provision must place some limit on s 64(6). And by that I mean this: if the Court gives a direction that evidence be given by way of affidavit, it is reasonable to assume that the Court would have done so on a certain assumption, and it is an assumption that any lawyer versed in the practice of litigation in this country would readily share and not give a second thought to, and that is that a person who makes an affidavit must make himself or herself available for cross‑examination if that person, or if the person filing the affidavit, wants the Court to rely on it. In my opinion, that has the consequence that the principles Kunc J in Saravinovska found applied to r 35.2(3) of the UCPR would equally apply to s 64 of the FCC Act. The consequence of that, therefore, is that s 64 of the FCC Act, at least in circumstances where the Court has directed that evidence be given by way of affidavit, reserves to the Court a discretion not to read an affidavit if the party wishing to rely on the affidavit is notified that the deponent must attend for cross‑examination, but the party does not make the deponent available for cross‑examination.
I appreciate that this might well conflict with the judgment of Judge Jarrett in Kumar; but this brings me to the second matter that is relevant to s 64 of the FCC Act. There is a point of distinction between the facts in Kumar and in the facts before me. In Kumar the deponent made it clear from the outset that he would not submit himself to cross‑examination. The circumstances in the case before me are that Mr Chen had made himself available for cross‑examination, and has been cross‑examined; but, for reasons I have found to be inadequate, he has not continued to make himself available to be cross-examined. Subsection 64(6) of the FCC Act – and this is a matter I brought to the attention of Mr Darams – appears to be engaged only if a person does not appear as a witness to be cross‑examined. In my view, that does not cover the situation where a witness does appear to be cross‑examined but, in the course of that cross‑examination, the witness decides to make himself or herself unavailable.
The end result, therefore, is that Mr Chen’s not being available for reasons I found are not adequate or reasonable to continue with his cross‑examination gives rise to a discretion as to what I should do. The overriding consideration that should guide me in the exercise of this discretion is what the interests of justice require. To be less abstract, it requires me to identify as best I can the respective prejudices that the parties will suffer if I adopt one of a number of options. The first is the prejudice the FWO will suffer if I adopt the course urged on me by Mr Mahendra, and that is, in effect, to strike out the evidence Mr Chen has given in his affidavit. The immediate prejudice is the FWO will not have available to it evidence on which the FWO has always intended to rely. Relevant to the weight I should give to that prejudice is that it has not been suggested, and there is nothing to suggest, that Mr Chen’s not making himself available for the continuation of his cross‑examination is due to any fault on the part of the FWO. It appears that Mr Chen was and has been out of the FWO’s control. The position may well have been different if the hearing was in person, where, at least in some circumstances, the issuing of a subpoena could have added to the security of a deponent making himself or herself available to be cross‑examined. The option of issuing a warrant to secure compliance with a subpoena is not a realistic one, however, given the COVID restrictions that are currently in place.
That, then, leads me to consider the prejudice to the respondents if I do permit the FWO to use the affidavit of Mr Chen. The principal prejudice, – and although I say “principal” prejudice I do not think Mr Mahendra has identified any other prejudice - is a forensic one. Mr Mahendra says that he has not committed himself to deciding whether he will read the affidavit of Mr Zhao has filed. Mr Mahendra says he intended to reserve making that decision until after he were to complete the cross‑examination of Mr Chen. On the face of it, that is prejudice. Mr Zhao should not be required to make a decision whether he should rely on his affidavit, and expose himself to cross‑examination, without knowing the full extent of the evidence that has been adduced against him.
What I ought to have added before is that my having decided that it is within my discretion whether to permit the FWO to use the affidavit of Mr Chen implies that the discretion can be exercised subject to terms. It is therefore open to me, if I find it is appropriate to do so, to exercise the discretion in favour of the FWO if I can do it on terms that will protect Mr Zhao. In my view, I think I can impose terms that will protect Mr Zhao, and those terms are as follows: I will permit the FWO to use the affidavit of Mr Chen on the basis that if, in the course of preparing my reasons for judgment, I form the view there is a prospect that, if Mr Zhao does not read his affidavit made on 2 June 2021 and make himself available for cross‑examination, I may accept any part of Mr Chen’s affidavit that is adverse to the respondents, I will list the matter for directions for the purpose of setting the matter down for the continuation of the cross‑examination of Mr Chen and, if Mr Zhao so elects, for him to read his affidavit and make himself available for cross‑examination.
So the end result will be my making an order permitting the FWO to use the affidavit of Mr Chen, and I will make that order, subject to the terms I have indicated, in a moment; but I wish to be clear about one other thing. In assessing, and in the parties making submissions about, the findings I should make in relation to Mr Chen’s evidence and his credibility, it will be open to the parties and on me to give such weight as may rationally be given to the history of Mr Chen’s giving evidence and, in particular, the absence of any reasonable explanation for Mr Chen’s not making himself available for the purpose of his cross‑examination being continued.
The last thing I should mention is the rules or powers I rely on. Given the Court has directed that the parties file affidavits, it would have done so pursuant to s 64(2) of the FCC Act. Subsection 64(3) of the FCC Act provides that, where that is done, it has effect subject to, among other things, the rules. That directs me to r 15.29A of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). That is equivalent to r 35.2(3) of the UCPR, to which Kunc J in Saravinovska referred. In my view, r 15.29A is engaged, as r 35.2(3) of the UCPR was found to have been engaged in Saravinovska. My permitting the FWO to rely on the affidavit of Mr Chen, therefore, is a permission I have power to grant under r 15.29A and, being a discretionary power, I can exercise that power subject to the terms on which I have indicated I will exercise it.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 2 August 2021
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