FAULKNER v Tidewater Marine Australia Pty Ltd (No.5)

[2019] FCCA 3826

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAULKNER v TIDEWATER MARINE AUSTRALIA PTY LTD (No.5) [2019] FCCA 3826

Catchwords:
PRACTICE & PROCEDURE – Whether it is in the interests of the administration of justice that the matter be reheard before another Judge given the substantial delay and the circumstances of the case – orders made that the matter be reheard before another Judge.

Applicant: FRANK FAULKNER

Respondent: TIDEWATER MARINE AUSTRALIA PTY LTD

File Number: PEG 194 of 2013

Judgment of: Judge Street

Hearing date: 23 October 2019

Date of Last Submission: 23 October 2019

Delivered at: Perth

Delivered on: 23 October 2019

REPRESENTATION

Solicitors for the Applicant: Mr D Singh
Friedman Lurie Singh & D’Angelo

Counsel for the Respondent: Ms M Saraceni

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The matter be re-heard before another Judge of this Court.

2. The matter is fixed for final hearing at 10:00am on 29 January 2020 and 30 January 2020.

3. The evidence that has been adduced in respect of the exhibits, transcripts and affidavits are to be treated as evidence before the Court in the re-hearing.

4. Grant leave to the respondent to adduce the evidence of the remaining witness Mr E R Cooper by video or audio link from overseas provided that the audio or video link is to take place within the ordinary hours of sitting of this Court in Perth and on condition that any material requested by the applicant is to be made available and be before the witness for the purpose of cross examination.

5. The matter is referred to mediation before Registrar Trott pursuant to s.34 of the Federal Circuit Court of Australia Act 1999 (Cth) at 10:00am on 20 January 2020.

6. The parties and their representatives conduct themselves for the purpose of the mediation as if bound by Part VB of the Federal Court of Australia Act 1976 (Cth).

7. Direct the applicant to file and serve any further submissions on which the applicant wishes to rely on or before 18 January 2020.

8. Direct the respondent to file and serve any further submissions on which the applicant wishes to rely on or before 23 January 2020.

9. An application in a case that is filed by either party will be listed for hearing at the same time as the commencement of the final hearing.

NOTES

1. Cross examination will be limited to half an hour without further leave.

2. Oral submissions will be limited to half an hour without further leave.

3. If any issue of contravention is made out and the Court delivers an ex tempore decision, the Court is likely to proceed to deal with any issue of penalty and the party’s submissions should accommodate this.

DATE OF ORDER: 23 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 194 of 2013

FRANK FAULKNER

Applicant

And

TIDEWATER MARINE AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 30 July 2013 seeking relief under the Fair Work Act 2009 (Cth) (“the Act”) in respect of alleged adverse action concerning the dismissal of the applicant on 11 May 2011.

2. The proceedings were the subject of a part-heard hearing before his Honour Judge Lucev. Substantial evidence had been adduced on behalf of the applicant and also in relation to a number of the respondent’s witnesses. There was one remaining outstanding witness, in respect of which a contest arose as to whether the evidence should be adduced by video or audio link.

3. A hearing before Judge Lucev commenced on 28 October 2016 and ran into 1 November 2016. His Honour reserved on that date. It was not until about the end of September 2019 that his Honour delivered a judgment in respect of the issue concerning the video link. There had been a number of other issues on which his Honour had reserved and delivered interlocutory decisions.

4. The delay which has taken place in respect of these proceedings, having commenced in 2013, is unsatisfactory. The relevant Judge is now on compassionate leave and will not be returning for approximately 12 months. In these circumstances, and given the substantial delay, the Court is satisfied that it is an appropriate matter to make an order that the matter be reheard before another Judge of the Court. The matter is not likely to be able to be finally determined otherwise for a further period, which is unacceptable.

5. The applicant did not oppose the matter being reheard. The respondent opposed the same, and identified concern in respect of the witnesses and evidence which had been adduced. This Court has made orders which facilitate the evidence that has been adduced being treated as evidence before the Judge rehearing the matter.

6. Notwithstanding the opposition of the respondent, the Court is satisfied that it is necessary, in the interests of the administration of justice, to order that the matter be reheard before another Judge. The Court has made orders facilitating that occurring at a hearing to take place on 29 January 2020. This Court has also made orders facilitating other steps, including the further provision of the expert services of a Registrar of this Court to assist the parties to explore mediation prior to that hearing date. It is for these reasons that the Court makes the orders which are now published.

I certify that the preceding six (6) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 23 October 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  20 January 2020