Faulkner v Tidewater Marine Australia Pty Ltd
[2014] FCCA 1487
•11 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAULKNER v TIDEWATER MARINE AUSTRALIA PTY LTD | [2014] FCCA 1487 |
| Catchwords: INDUSTRIAL LAW – Alleged contravention of general protection under the Fair Work Act 2009 (Cth). |
| Legislation: Fair Work Act 2009 (Cth), Part 3.1, ss.340, 341, 342, 372, 539, 545, 546 Federal Circuit Court of Australia Act 1999 (Cth), s.3 |
| Comcare v John Holland Rail Pty Ltd & Anor (No.5) (2011) 195 FCR 43; [2011] FCA 622 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| Applicant: | FRANK FAULKNER |
| Respondent: | TIDEWATER MARINE AUSTRALIA PTY LTD |
| File Number: | PEG 194 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 July 2014 |
| Date of Last Submission: | 8 July 2014 |
| Delivered at: | Perth |
| Delivered on: | 11 July 2014 |
REPRESENTATION
| For the Applicant: | No appearance |
| Solicitors for the Applicant: | Friedman Lurie Singh & D'Angelo |
| Counsel for the Respondent: | Mr Coppin |
| Solicitors for the Respondent: | Jarman McKenna |
ORDERS
Pursuant to r.15A.05 of the Federal Circuit Court Rules 2001 (Cth) the Court directs that subpoenas issue to:
(a)Colin Muir; and
(b)Treena Vivian.
Written Reasons for Judgment will be published at a later time from Chambers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 194 of 2013
| FRANK FAULKNER |
Applicant
And
| TIDEWATER MARINE AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Application in a case
These Reasons for Judgment relate to orders made last Tuesday in relation to an application in a case by the respondent for directions for the issuance of subpoenas under r.15A.05 of the Federal Circuit Court Rules 2001 (Cth).[1]
[1] “FCC Rules”.
The application in a case sought an order that:
1.The Respondent be granted leave to issue four additional subpoenas pursuant to r.15A.05 of the Federal Circuit Court Rules 2001.
The application in a case was supported by an affidavit of Rani Aria Retnam, affirmed 5 June 2014.[2] Ms Retnam’s Affidavit provides as follows:
[2] “Ms Retnam’s Affidavit”.
3.The applicant was formerly employed by the respondent as a Master. In these proceedings, the applicant alleges that he suffered loss as the result of the respondent taking adverse action against the applicant within the meaning of s342(1) of the Fair Work Act 2009.
4.The respondent has already issued subpoenas addressed to:
a)Edward Rose-Cooper;
b)Rachel Green;
c)Veronica Carter;
d)Renae Hesford; and
e)Daniel Pearson.
5.This affidavit is sworn in support of the respondent’s application for leave to issue four additional subpoenas addressed to:
a)Colin Muir;
b)Treena Vivian;
c)Paul Halliday Cook; and
d)Wayne Michael Morris.
6.The respondent’s solicitors have spoken with each of these witnesses on the phone, and corresponded with some by letter and email in relation to their evidence.
Subpoena to Colin Muir
7.Colin Muir was the State Manager during the applicant’s employment with the respondent. The respondent seeks to call Mr Muir to provide evidence and background information in relation to the circumstances of the alleged claim.
Subpoena to Treena Vivian
8.Treena Vivian was employed as the HR Manager for the respondent from 28 July 2011 to 31 October 2012 and directly dealt with the applicant in relation to the applicant’s concerns regarding his alleged termination. Rachel Green, Veronica Carter and Renae Hesford were also employed in the respondent’s human resources department during various periods of the applicant’s employment. Given the high turnover of staff in the respondent’s human resources department at the relevant time, it is necessary to call all parties as they all dealt with and had knowledge of the applicant and/or his claim.
9.I swear this affidavit in support of the respondent’s application for leave to issue two additional subpoenas against Colin Muir and Treena Vivian.
Subpoena to Paul Cook and Wayne Morris
10.Paul Cook and Wayne Morris were both employed by the respondent as casual Masters and shared a three-way roster with the applicant. The respondent seeks to call Mr Cook and Mr Morris to provide evidence in relation to the applicant’s employment status and background information in relation to the circumstances of the alleged claim.
Ms Retnam’s Affidavit was not especially helpful in identifying the legitimate forensic purpose and relevant evidence which might justify the Court directing that subpoenas be issued under r.15A.05 of the FCC Rules.[3]
[3] See para.17 below.
The applicant, Mr Faulkner, was Master of vessels engaged in relation to the Gorgon Project in Australia’s north-west waters, and was employed by the respondent, Tidewater Marine Australia Pty Ltd.[4]
[4] “Tidewater Marine”.
Mr Faulkner’s application seeks orders under the Fair Work Act 2009 (Cth),[5] and alleges contravention of general protection provisions under the FW Act.
[5] “FW Act”.
What is said to have occurred is set out in the Statement of Claim, as follows:
a)Mr Faulkner had workplace rights by reason of the provisions of the Occupational Safety and Health Act 1984 (WA),[6] that being a “workplace law” for the purposes of Part 3.1 of the FW Act;[7]
b)in the period from 30 March 2011 to 4 May 2011 an issue arose whilst Mr Faulkner was Master of the Dulaca Tide[8] concerning allegedly high levels of a dangerous gas, hydrogen sulphide in the tanks of another vessel, the Finnmarken, from which the Vessel was off-loading waste, and as a consequence of the occupational health and safety risks perceived by Mr Faulkner, he, as Master of the Vessel, decided on 26 April 2011 not to proceed with the off-loading;
c)Mr Faulkner was given a termination letter by Tidewater Marine on or about 11 May 2011 stating that the reason for termination was the necessity to reduce Tidewater Marine’s workforce;[9]
d)Mr Faulkner was informed by email on 7 June 2011 by Tidewater Marine’s Human Resource Manager that Tidewater Marine was unable to engage him as Master of the Vessel due to “client advice”;[10]
e)Mr Faulkner was subsequently reinstated in employment with Tidewater Marine, and was advised of this by letter of 22 February 2012;[11] and
f)Mr Faulkner says that there was therefore no employment relationship between him and Tidewater Marine between 11 May 2011 and 22 February 2012 and notwithstanding that there was an employment relationship on and from 22 February 2012 he did not receive any work from Tidewater Marine, and no compensation for the time off work or for any other damage caused to him.[12]
[6] “OSH Act”.
[7] Statement of Claim, para.1(c) and (d).
[8] “Vessel”.
[9] Statement of Claim, para.5.
[10] Statement of Claim, para.7.
[11] Statement of Claim, paras.8-9.
[12] Statement of Claim, paras.9-11.
The above matters are said to constitute adverse action within the meaning of s.342(1) of the FW Act, namely, dismissal, and following Mr Faulkner’s reinstatement, injury in employment and alteration of position to Mr Faulkner’s prejudice, which adverse action is said to arise from the fact that Mr Faulkner had a workplace right, exercised a workplace right, proposed to exercise a workplace right or that Tidewater Marine sought to prevent him from exercising a workplace right, giving rise to pecuniary loss of $387,604 for the “swings” that Mr Faulkner would have worked. A further sum is sought to represent the opportunity that Mr Faulkner lost to perform work remunerated at a higher rate to reflect the position of permanent or full-time Master.[13]
[13] Statement of Claim, para.12.
Mr Faulkner therefore seeks orders under ss.539, 545 and 546 of the FW Act for various declarations in relation to the taking of the adverse action and his loss, an order for compensation, and that a pecuniary penalty be paid by Tidewater Marine.[14]
[14] Statement of Claim, para.15.
Tidewater Marine’s Defence:
a)admits that Mr Faulkner had workplace rights under the OSH Act;
b)says that Tidewater Marine made Mr Faulkner redundant in accordance with the relevant processes under the applicable industrial agreement;[15]
c)says that Mr Faulkner did not have at the relevant time the required medical clearance allowing him to be reinstated;[16] and
d)says that Mr Faulkner was offered casual employment in February 2012 following the rescinding of the earlier redundancy letter.[17]
[15] Defence, para.5.
[16] Defence, para.11.
[17] Defence, paras.10-11.
The Court notes that there are various references in the Defence to Tidewater Marine’s “then human resources officer”, without identifying by name the “then human resources officer”.[18] Relevantly, however, it was the “then human resources officer” who informed Mr Faulkner that he could no longer work on the Vessel, on or about 31 May 2011, and who confirmed that advice in an email dated 7 June 2011. Further, that the “then human resources officer” for Tidewater Marine attended a meeting involving Mr Faulkner, and a union official, Mr Pearson, who has been subpoenaed already by Tidewater Marine, and the “then human resources officer” offered Mr Faulkner further casual work opportunities when those opportunities became available,[19] and that Mr Faulkner emailed the “then human resources officer” confirming arrangements for a medical certificate on 23 February 2012.[20] When regard is had to the terms of Mr Faulkner’s Affidavit set out below it is evident that on some of these occasions the “then human resources officer” referred to is in fact Ms Vivian.
[18] Defence, para.7(b) and (c) and para.11(b) and (d).
[19] Defence, para.11(b).
[20] Defence, para.11(d).
Mr Faulkner’s Affidavit:
a)deals with an incident of raised levels of hydrogen sulphide on board the Vessel;[21]
[21] Mr Faulkner’s Affidavit, paras.17 and following.
b)recounts interaction with Mr Rose-Cooper, who is said to be the Operations Manager and Company Security Officer for Tidewater Marine, and two other persons who have not been subpoenaed and are not sought to be subpoenaed, concerning the hydrogen sulphide incident;[22]
[22] Mr Faulkner’s Affidavit, paras.21-37, 41-48, and generally.
c)deals with conversations with:
i)Mr Colin Muir, said to be the Area Manager of Tidewater Marine, on 28 April 2011 concerning increased costs caused by the Vessel going “Off-Hire”;[23] and
ii)a telephone conference involving Mr Muir, Mr Rose-Cooper and a Renae McMahon on 29 April 2011 concerning the hydrogen sulphide incident;[24]
d)deals with the 4 May 2011 handover of command of the Vessel to Paul Cook, who is sought to be subpoenaed by Tidewater Marine;[25]
e)deposes to the fact of a meeting on 4 May 2011 (about which Mr Faulkner learnt subsequently) attended by Mr Muir, crew members of the Vessel and officers of various unions;[26]
f)refers to writing to Ms Renae McMahon, and an exchange of correspondence with her during May and June 2011;[27]
g)recounts that the AMOU dealt with Tidewater Marine on his behalf in relation to his purported termination, and of a meeting involving Mr Pearson, the Secretary of the AMOU (who has already been subpoenaed by Tidewater Marine) and Ms Treena Vivian, who is described as the Personnel Manager for Tidewater Marine, and Mr Faulkner which took place on 22 November 2011, and at which meeting Mr Faulkner says Ms Vivian offered him further work opportunities;[28] and
h)contains extensive reference to Ms Vivian’s ongoing involvement concerning Mr Faulkner’s reinstatement, and Mr Faulkner’s medical certification for fitness for work.[29]
[23] Mr Faulkner’s Affidavit, paras.39 and 44.
[24] Mr Faulkner’s Affidavit, paras.53-55.
[25] Mr Faulkner’s Affidavit, para.83.
[26] Mr Faulkner’s Affidavit, para.87.
[27] Mr Faulkner’s Affidavit, paras.92, 94 and 95.
[28] Mr Faulkner’s Affidavit, paras.97 and 99.
[29] Mr Faulkner’s Affidavit, paras.103-106, 113 and 120-121.
Rule 15A.05 of the FCC Rules (which was originally r.15.15 of the Federal Magistrates Court Rules 2001 (Cth)) provides as follows:
(1) Unless the Court directs otherwise, a party or independent children's lawyer must not request the issue of more than 5 subpoenas in a proceeding.
(2) For this rule:
proceeding does not include part of a proceeding.
The relevant Explanatory Memoranda for the abovementioned rules are uninformative as to the intention behind the making of r.15A.05 of the FCC Rules.
Taking the FCC Rules as a whole, and taking into account the provisions of the Federal Circuit Court of Australia Act 1999 (Cth),[30] some guidance can be obtained from the relevant objects in s.3 of the FCCA Act and r.1.03 of the FCC Rules which provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.[31]
[30] “FCCA Act”.
[31] MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at para.9 per Judge Lucev.
Ultimately, it might be perceived that r.15A.05 of the FCC Rules is intended to give effect to some of the objects of the FCCA Act and the FCC Rules by limiting the number of witnesses who might be called in proceedings in this Court, or, at the very least, causing the parties, and ultimately the Court, to give serious consideration as to the necessity for witnesses to be subpoenaed to give evidence in proceedings in this Court, and thereby using streamlined procedures to resolve proceedings justly, efficiently and economically, and without protracting proceedings or causing undue delay.
In Comcare v John Holland Rail Pty Ltd & Anor (No.5)[32] the Federal Court dealt with the source of the power and leave to issue subpoenas to persons to testify in proceedings before the Federal Court particularly having regard to the provisions of s.37M of the Federal Court of Australia Act 1976 (Cth),[33] which describe the overarching purposes of the practice and procedure provisions in the FC Act, and which, in general terms, is not inconsistent with the objects of the FCCA Act and the FCC Rules.[34] In relation to an application for leave to issue a subpoena (albeit in that case of one party’s barrister and made late in the proceedings) the Federal Court observed that:
a)the capacity to call a witness may be regulated by the Court’s power to control and supervise proceedings and the requirement on the Court to take into account case management considerations;[35]
b)the nature and importance of the step involved in a party adducing additional evidence can be assessed by examining whether a legitimate forensic purpose exists for calling the evidence, and the likely importance of the evidence to the determination of the proceeding. If importance is shown, a balancing process is required, one taking into account costs, delay and prejudice, in the context of the point the litigation has reached;[36] and
c)on an application to issue a subpoena, the test for the existence of a legitimate forensic purpose is apparent relevance, and apparent relevance is demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material might permit a case to be made.[37]
[32] (2011) 195 FCR 43; [2011] FCA 622 (“Comcare (No. 5)”).
[33] “FC Act”.
[34] Section 37M of the FC Act provides as follows:
[35] Comcare (No. 5) FCR at 49 per Bromberg J; FCA at para.19 per Bromberg J.
[36] Comcare (No. 5) FCR at 50 per Bromberg J; FCA at para.25 per Bromberg J.
[37] Comcare (No. 5) FCR at 51 per Bromberg J; FCA at para.28 per Bromberg J.
It is clear from the evidence from Mr Faulkner’s Affidavit set out above that both Mr Muir and Ms Vivian were persons critically engaged in the process of terminating Mr Faulkner’s employment, and in his reinstatement, and the terms of his reinstatement. As such, directing subpoenas to issue to Mr Muir and Ms Vivian to attend the proceedings to give evidence would, in the Court’s view, result in evidence that is relevant, in the sense that it serves a legitimate forensic purpose by throwing light on an issue in the proceedings being the alleged adverse action by Tidewater Marine against Mr Faulkner.[38]
[38] Comcare (No. 5) FCR at 50 and 51 per Bromberg J; FCA at paras.25 and 28 per Bromberg J.
In relation to Mr Cook the only references in the materials before the Court to Mr Cook are in Mr Faulkner’s Affidavit, and they are:
a)that he is a person who is a Tidewater Marine employee, who, together with Mr Morris and Mr Faulkner, was working a rotational swing shift as a Master with Tidewater Marine;[39] and
b)Mr Faulkner had handed over, as Master, the Vessel, to Mr Cook, as Master, on 4 May 2011, which appears to be at the end of the swing on which the hydrogen sulphide incident occurred. It is relevant to note that the content of the relevant affidavit material is limited to the following:
I handed over command of the … [Vessel] to Paul Cook on 4 May 2011.[40]
[39] Mr Faulkner’s Affidavit, paras.10 and 13.
[40] Mr Faulkner’s Affidavit, para.83.
In Ms Retnam’s Affidavit it is said that Mr Cook can “provide evidence in relation to the applicant’s employment status and background information in relation to the circumstances of the alleged claim.”[41]
[41] Ms Retnam’s Affidavit, para.10.
Mr Faulkner’s employment status is not however seriously in dispute, if at all. There was no dispute that at relevant times he was a casual Master,[42] and although there is a claim in respect of pecuniary loss for a further sum representing the opportunity Mr Faulkner alleges he lost to perform work remunerated at a higher rate reflecting the position of permanent or full-time Master,[43] there is no indication in the materials as to how it might be that Mr Cook might cast any light upon that issue.
[42] Statement of Claim, para.1(a); Defence, para.1(a); Mr Faulkner’s Affidavit, paras.12 and 13.
[43] Statement of Claim, para.12(d)(ii).
In relation to the provision of “background information” as “to the circumstances of the alleged claim” it is not evident on the papers, that is the Statement of Claim, the Defence, Mr Faulkner’s Affidavit and Ms Retnam’s Affidavit, what, if any, evidence Mr Cook can give by way of background information (to the extent that background information might be relevant, which is not apparent) or of the circumstances of the alleged claim, given that it would appear that Mr Cook was off swing and not on the Vessel at the time of the alleged hydrogen sulphide incident. It is not apparent that Mr Cook has had any involvement in the issues associated with the termination or reinstatement of Mr Faulkner, and without some evidence of involvement and therefore relevance, no legitimate forensic purpose can be served by issuing a subpoena to him to give evidence in the proceedings.[44] In the circumstances, the Court is not inclined to direct that a subpoena issue to Mr Cook.
[44] Comcare (No. 5) FCR at 50 and 51 per Bromberg J; FCA at paras.25 and 28 per Bromberg J.
Given that the same justification is proffered in respect of the application to issue a subpoena to Mr Morris, and that Mr Morris is not mentioned at all in any of the materials, save with respect to the fact that he is also a casual Master on a rotational swing shift,[45] and that Mr Faulkner’s employment status is not in dispute, it follows from the discussion above with respect to the issuance of a subpoena to Mr Cook that the same conclusion ought to follow with respect to Mr Morris, and that no legitimate forensic purpose is served by his being issued with a subpoena to attend and give evidence at the proceedings.[46] In the circumstances, therefore, the Court is not inclined to direct that a subpoena issue to Mr Morris to attend to give evidence in the proceedings.
[45] Mr Faulkner’s Affidavit, paras.10 and 12.
[46] Comcare (No. 5) FCR at 50 and 51 per Bromberg J; FCA at paras.25 and 28 per Bromberg J.
The Court notes that Mr Faulkner did not appear at the hearing but formally adopted a position, advised in writing to Tidewater Marine and the Court, of neither consenting nor opposing directions being made to issue the subpoenas. The Court merely notes that Mr Faulkner’s position does not remove from Tidewater Marine the obligation to persuade the Court that a direction to issue a subpoena ought be made, which in respect of Messrs Cook and Morris, Tidewater Marine has failed to do.
For the above reasons, the Court made an order on 8 July 2014, directing, pursuant to r.15A.05 of the FCC Rules, that Tidewater Marine be permitted to request the issue of subpoenas addressed to:
a)Mr Colin Muir; and
b)Ms Treena Vivian,
and those subpoenas were signed and issued forthwith by the Court before the proceedings were adjourned. The Court also made an order that these Reasons for Judgment be published out of Chambers at a later date.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 11 July 2014
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court made under this Act;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.
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