Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 6)
[2024] FedCFamC2G 434
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 6) [2024] FedCFamC2G 434
File number(s): SYG 2432 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 14 May 2024 Catchwords: INDUSTRIAL LAW – Practice and procedure – application by respondent for an order staying hearing submissions on damages, compensation, and penalties pending determination of application for leave to appeal against declarations that by purporting to summarily dismiss the applicant the respondent repudiated the applicant’s employment contract and contravened s 340(1) of the Fair Work Act 2009 (Cth) – whether proposed notice of grounds of appeal reveal reasonable prospects of success – whether balance of convenience favours the granting or refusal of a stay – application for a stay refused. Legislation: Fair Work Act 2009 (Cth) ss 340, 361, 570
Federal Court of Australia Act 1976 (Cth) s 24(1)(d)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 25.04
Federal Court Rules 2011 (Cth) r 36.01(2)(c)
Cases cited: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 756
Briginshaw v Briginshaw (1938) 60 CLR 336
Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286
Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20
Nationwide News Pty Limited v Rush [2018] FCAFC 70
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Division: Fair Work Number of paragraphs: 42 Date of last submission/s: 10 May 2024 Date of hearing: Decided on the papers Place: Sydney The Applicant: In person Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYG 2432 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THOMAS HALEY
Applicant
AND: LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
1.The respondent’s application for a stay claimed in the application in a proceeding filed on 26 April 2024 is dismissed.
2.The balance of the application in a proceeding stand over for directions at 4:15 pm (AEST) on 28 May 2024.
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
INTRODUCTION
On 28 March 2024 I published reasons for judgment (earlier reasons) on the basis of which I made three declarations, the first two of which are as follows:[1]
1.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent repudiated its obligations under the contract of employment the respondent made with the applicant on or about 25 July 2018.
2.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act).
[1] Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286
I also ordered that the parties file and serve written submissions on two subjects, one of which was damages and compensation. I did not deal with the question of damages and compensation in the earlier reasons, not because I had made an order that liability and remedy be determined separately, but because I agreed at the request counsel for the respondent (LOA) made on 28 November 2022 after evidence had closed, that if Mr Haley were to succeed on any of his claims, I should defer hearing submissions on damages and compensation.[2]
[2] T562.15
On 8 April 2024 I made orders in chambers by consent extending the time by which the parties would file their submissions on damages and compensation. On 11 April 2024, however, LOA lodged for filing with the Western Australia Registry of the Federal Court of Australia an application for leave to appeal from the orders I made on 28 March 2024;[3] and on 24 April 2024 LOA lodged for filing in this Court an application in a proceeding in which it sought two orders, the first of which is as follows:
An order pursuant to rule 25.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that (i) the judgment and orders of the Court made on 28 March 2024; and (ii) the orders of the Court made on 8 April 2024, be stayed pending the determination of the Respondent’s Application for Leave to Appeal dated 11 April 2024, or alternatively until further order.
[3] Laing O'Rourke Australia Management Services Pty Ltd v Haley WAD86/2024
The application in a proceeding was supported by an affidavit made by Mr Davis, LOA’s solicitor to which he annexed, among other things, the application for leave to appeal LOA filed with the Federal Court, and a draft notice of appeal.
The application in a proceeding came before me for directions on 30 April 2024; and on that day I made orders for the filing of written submissions in relation to LOA’s application for a stay. The parties have filed written submissions, and have indicated they are content for me to deal with the application for a stay without any oral hearing.
In these reasons for judgment (which assumes familiarity with the earlier reasons), I consider LOA’s application for a stay.
PRINCIPLES
Rule 25.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provides that a “party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed”. LOA relies on the following principles for a stay stated by White J in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[4]
(a)prima facie, a successful party is entitled to the benefit of the judgment which it has obtained and the Court should commence with a presumption that the judgment is correct . . . A final judgment is not to be regarded as provisional, contingent or operating only subject to confirmation on appeal
(b) nevertheless, the Court has a broad discretion under r 36.08 of the Federal Court Rules 2011 (Cth) to grant a stay pending an appeal in an appropriate case . . .
(c) an applicant for a stay should demonstrate that there is “a reason or an appropriate case” warranting an exercise of the discretion departing from the prima facie position. The mere filing of a notice of appeal is not sufficient . . .
(d) an applicant for a stay must usually demonstrate that the appeal has at least reasonably arguable prospects of success. The threshold is low and, in order to see whether an appellant has discharged it, the Court makes a “preliminary non-speculative assessment”. . .
(e) an applicant for the stay should also satisfy the Court that the proposed stay is “fair to all parties” having regard to the balance of convenience (i.e., the balance of risks and irremediable harm) and the competing rights of the parties” . . . . and
(f) the existence of a real risk that the appeal will be rendered nugatory if the stay is not granted is a substantial factor in favour of granting the stay, but it is not conclusive. It is to be weighed against the risk of prejudice to the successful party at first instance if execution of the judgment is stayed.
[4] Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 756, at [9] (references omitted)
These principles were stated in relation to an application for a stay of a final judgment or order that is the subject of appeal that has been regularly instituted. LOA’s application before me, however, is not for a stay of any final order or judgment; it is an application for a stay of a procedural order I made on 8 April 2024 that the parties file submissions about damages and compensation. Although LOA also purports to apply for a stay of all of the orders I made on 28 March 2024, the declarations I made do not have legal effect other than to declare the rights of the parties; they are not orders that are capable of being stayed. Thus, LOA’s application is in effect an application for a stay of the determination of the question of damages, compensation, and penalties pending the determination of LOA’s application for leave to appeal against the declarations I made on 28 March 2024.
When applying the principles for a stay White J stated in Bethell, therefore, it will be necessary to consider LOA’s application for a stay, not on the footing that LOA has in fact lodged an appeal, but on the footing that LOA has applied for leave to appeal against the declarations I made on 28 March 2024, and it has done so because it has taken the view that the declarations I made on 28 March 2024 are interlocutory orders. That in turn requires me to address the principles that appellate courts apply when determining whether to grant leave to appeal from an interlocutory judgment or order. The relevant principles were stated by Lee J in Nationwide News Pty Limited v Rush:[5]
The principles informing the determination of whether to grant leave to appeal from a decision of a single judge of this Court are not novel. The starting point is that in exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the Federal Court of Australia Act 1976 Cth) (Act) that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Consistently with the facilitation of a just resolution, an applicant must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).
Additionally, consistent with the facilitation of a quick, inexpensive and efficient resolution is the principle which emerges from the oft-cited warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323, that if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”.
[5] Nationwide News Pty Limited v Rush [2018] FCAFC 70, at [2], [3]
It is the case, however, that the factors that are relevant to the exercise of the discretion to grant leave to appeal against an interlocutory order or judgment substantially overlap with the factors that are relevant to the exercise of the discretion to stay the execution of a final judgment or order pending the determination of an appeal against such judgment or order. It would be convenient, therefore, to consider LOA’s application for a stay within the framework on which LOA has elected to rely in applying for a stay.
APPARENT MERITS OF PROPOSED GROUNDS OF APPEAL
LOA submits it would have reasonably arguable prospects of succeeding on the grounds of appeal contained in the draft notice of appeal. LOA submits:[6]
[6] Respondent’s Submissions on Application for a Stay, [6]
(a)The “number of grounds of appeal set out in LOA’s draft notice of appeal reflects the length and complexity of the primary judgment”, noting that the issues in dispute in relation to liability were numerous and were the subject of a considerable volume of contested oral and documentary evidence.[7]
(b)Many of the Court’s findings “turned upon whether certain inferences were available to be drawn, and should properly be drawn, from the evidence”. Given the nature of appellate review under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), “there is a real and not remote or fanciful prospect that the Federal Court, exercising its appellate jurisdiction, may take a different view of the evidence and findings the subject of LOA’s proposed grounds of appeal”.[8]
(c)By way of “example”, the ruling that LOA contravened s 340 of the Fair Work Act 2009 (Cth) (FW Act) “arose directly from the Court’s finding that the evidence from Mr Simon Chatwin, which was expressly to the effect that he was the sole decision-maker in relation to Mr Haley’s termination, should be rejected on the basis of certain inferences, which will be challenged on appeal”.[9]
(d)LOA will also contend on appeal that:[10]
the effect of the approximately 17-month delay between Mr Chatwin giving evidence in the proceeding and the delivery of the primary judgment was to deny to LOA a fair hearing in respect of the Court’s decision to reject Mr Chatwin’s evidence.
(e)LOA will further contend on appeal that:[11]
even were Mr Haley’s conduct limited to that which the Court found to have occurred, given Mr Haley’s seniority and level of responsibility within his employment, that conduct was inconsistent with his continuing employment and accordingly warranted summary dismissal.
[7] Respondent’s Submissions on Application for a Stay, [7]
[8] Respondent’s Submissions on Application for a Stay, [7]
[9] Respondent’s Submissions on Application for a Stay, [7]
[10] Respondent’s Submissions on Application for a Stay, [7]
[11] Respondent’s Submissions on Application for a Stay, [8]
“Length and complexity of the primary judgment”
That the draft notice of appeal contains 24 grounds is not a basis for inferring that this reflects the “length and complexity of the primary judgment”, or that the “issues in dispute in relation to liability were numerous, and were the subject of a considerable volume of contested oral and documentary evidence”. On the contrary, and despite their length, the earlier reasons reveal there were not “numerous” “issues in dispute in relation to liability”; and to the extent there were any such disputes, they were not the subject of a “considerable volume of contested oral and documentary evidence”.
As I noted in paragraph 3 of the earlier reasons, Mr Haley’s claims gave rise to two principal questions. The first was whether LOA had discharged the onus of proving the matters on which, in its response (LOA Response) to Mr Haley’s amended Form 2, LOA relied as justifying its decision to summarily dismiss Mr Haley from his employment. The second was whether Mr Haley exercised any workplace rights and, if so, whether LOA, through Mr Chatwin, summarily dismissed Mr Haley from his employment for the reasons Mr Chatwin in his first affidavit says he decided LOA should summarily dismiss Mr Haley from his employment.
Summary dismissal of Mr Haley’s employment
As to the first of the two questions, although LOA did not in the LOA Response positively allege it was entitled to summarily dismiss Mr Haley from his employment,[12] I construed the LOA Response as relying on two broad matters to justify LOA’s summary dismissal of Mr Haley’s employment.[13] The first were the matters LOA alleged in paragraph 18(AB) of the LOA Response, and in particular paragraph (iv), in which LOA alleged that Mr Haley “said to [Mr and Ms P]: “Go home you fucking silly old cunt … go home old man, old lady” (Offensive Words)”. The second were the allegations that Mr Haley made the 13 fraudulent statements alleged in paragraphs 34(ab), (ad), and (ag) of the LOA Response (Alleged Fraudulent Statements).
[12] Earlier reasons, [511]
[13] Earlier reasons, [515]
Summary dismissal based on Mr Haley having uttered the Offensive Words “to” Mr and Ms P
It was not in issue that Mr Haley uttered the Offensive Words. What was in issue was whether Mr and Ms P heard Mr Haley utter those words, which I determined as follows:[14]
Further, having regard to my hearing of the audio recording, and to the fact that Mr and Ms P have not claimed they heard Mr Haley utter the words “go home you fucking silly old cunt”, I also find:
. . .
(c)Ms P and Mr P did not hear or notice Mr Haley say the words “[g]o home you fucking silly old cunt” because at the time Mr Haley spoke them Mr Shaun Boyle and Mr Shane Neely were arguing with Ms and Mr P, and Mr Grierson was attempting to dissuade them from doing so, and Ms P’s attention was directed to what Mr Shaun Boyle, Mr Shane Neely, and Mr Grierson were saying
[14] Earlier reasons, [216]; and see also [151], [152]
This finding must be viewed in the light of other findings, which include the following: although there are records of the complaints Mr and Ms P made about Mr Haley’s conduct, there is no record Mr and Ms P complained or otherwise stated that Mr Haley uttered the Offensive Words;[15] there is no evidence Mr Curnow-Rose or any other person asked Ms P or Mr P any questions with a view to eliciting from either of them any memory that Mr Haley uttered the Offensive Words;[16] in neither the First Purported Investigation Report nor in the Second Purported Investigation Report is it recorded or otherwise expressly or impliedly stated that Mr or Ms P complained or alleged that Mr Haley uttered to them the Offensive Words;[17] LOA had not called Ms P or Mr P to give evidence about what they heard Mr Haley say; [18] and LOA had adduced no evidence to explain LOA’s not calling or not attempting to call Mr P or Ms P.[19] Given these other findings, which do not appear to be challenged in any of the 24 grounds stated in the draft notice of appeal, it would be difficult not to characterise as hopeless LOA’s prospects of overturning the finding that Mr and Ms P did not hear Mr Haley utter the “Offensive Words” and, moreover, persuading an appellate court that Mr and Ms P did in fact hear Mr Haley utter “the Offensive Words”.
[15] Earlier reasons, [151]
[16] Earlier reasons, [154]
[17] Earlier reasons, [155]
[18] Earlier reasons, [154]
[19] Earlier reasons, [154]
LOA states that it will contend on appeal that, “even were Mr Haley’s conduct limited to that which the Court found to have occurred, given Mr Haley’s seniority and level of responsibility within his employment, that conduct was inconsistent with his continuing employment and accordingly warranted summary dismissal”. LOA does not identify Mr Haley’s conduct “the Court found to have occurred”, or the matters on which LOA will rely for submitting to the appeal court that such conduct warranted summary dismissal. Whatever the conduct will be said to be, however, the LOA Response does not allege, and LOA did not conduct its case at the hearing on the basis that, Mr Haley engaged in the conduct “which the Court found to have occurred”. The only misconduct LOA alleged and submitted Mr Haley committed during the Incident was his having uttered the Offensive Words to Mr and Ms P, and Mr and Ms P having heard the Offensive Words. It is therefore likely that LOA will need to obtain the leave of the appeal court to amend the LOA Response to raise a fresh ground of misconduct, a forlorn forensic prospect.
Alleged Fraudulent Statements
In the earlier reasons I concluded that, with the possible exception of one of the Alleged Fraudulent Statements (being what I identified as “Statement No 9”), the facts and particulars on which the LOA Response relied for alleging Mr Haley made fraudulent misrepresentations were incapable of raising fraud or dishonesty as an issue to be tried.[20] In the draft notice of appeal LOA contends that I erred in so holding because LOA “did not plead or seek to establish any cause of action based on fraud”, and, in any event, “no objection, strike-out application or application for summary judgment was made by [Mr Haley] in relation to [LOA’s] pleading”. This proposed ground does not address the finding to which it is purportedly directed because I did not find that LOA pleaded or sought to establish a cause of action based on fraud; my finding was directed to LOA having alleged fraud.
[20] Earlier reasons, [516]
There can be no doubt that LOA alleged fraud; it alleged Mr Haley made 13 representations, each of which LOA alleged was false, and each of which LOA alleged Mr Haley knew to be false at the time he made them.[21] My finding that the matters the LOA Response alleged were incapable of raising fraud or dishonesty as an issue to be tried was not based on the assessment of any “considerable volume of contested oral and documentary evidence”. It was based on my assessment of the contents of the LOA Response. In any event, LOA’s counsel did not open on any of the Alleged Fraudulent Statements; and it did not rely on them in closing submissions, LOA’s counsel having instead put forward what I describe in the next paragraph as the “closing 3 grounds”.
[21] Earlier reasons, [509(d)]
Closing 3 grounds
In addition to the matters it raised in the LOA Response, LOA purported to raise for the first time in closing 10 separate grounds on which it purported to rely as justification for its summary dismissal of Mr Haley (closing 3 grounds).[22] I found that these grounds went beyond the LOA Response, but I nevertheless decided to consider and determine them.[23]
[22] Earlier reasons, [545]-[577]
[23] Earlier reasons, [533]
The closing 3 grounds did raise considerable complexity; but that complexity did not arise from the necessity of having to consider a “considerable volume of contested oral and documentary evidence”. The complexity arose from LOA relying on allegations of dishonesty it did not make in the LOA Response; and from the number and nature of LOA’s submissions, which were based on or directed to a limited number of discrete items of evidence.
Adverse action
The principal question that arose on Mr Haley’s adverse action claim was whether LOA discharged the burden of proving that it did not decide to terminate Mr Haley’s employment for the reason, or it decided to terminate Mr Haley’s employment for reasons that did not include as a substantial factor, that Mr Haley exercised workplace rights. That translated into the question whether I should accept the evidence Mr Chatwin gave in his affidavits that he, and he alone, decided that Mr Haley’s employment should be terminated.[24] The determination of that question did not turn on my assessing a “considerable volume of contested oral and documentary evidence”. My conclusion that LOA did not discharge the burden of proving that Mr Chatwin, or Mr Chatwin alone, decided to terminate Mr Haley’s employment was principally based on the following matters:
[24] Earlier reasons, [471]
(a)A finding that the evidence Mr Chatwin gave in his affidavits lacked detail, and was expressed in conclusory terms.[25]
(b)Evidence Mr Chatwin gave under cross-examination.[26] As I noted at the beginning of the earlier reasons,[27] this included Mr Chatwin’s evidence that the “decision” Mr Chatwin made that Mr Haley be summarily dismissed was subject to Mr Chatwin’s discussing his “decision” with LOA’s managing director, Mr Cathal O’Rourke, who had “the right to potentially overturn [Mr Chatwin’s] decision”; and that Mr Cathal O’Rourke, “as the ultimate managing director of the business, of course, has the right of objection or the right to request more information” and, for that reason, Mr Chatwin “had to keep him [that is, Mr Cathal O’Rourke] informed” and, to that extent, Mr Cathal O’Rourke “was involved” in the decision to summarily dismiss Mr Haley from his employment.
(c)Two texts Mr Chatwin authored, but which he did not include or refer to, and therefore did not explain, in his affidavits, these being:
(i)the email Mr Chatwin sent to Mr Curnow-Rose and Mr Pat Cashin on 17 July 2020 in which Mr Chatwin said he had read the “the report” (being the Second Purported Investigation Report), and that he was going to read it again “just to form my recommendations” (not “decision”);[28] and
(ii)the comment Mr Chatwin posted on about 20 July 2020 to a draft of the Show Cause Letter that “I haven’t concluded any discussions with Cathal [O’Rourke] yet that our view is to terminate”.[29]
(d)Documents to which Mr Chatwin did not refer in his affidavit but which, unexplained, and which LOA did not seek to explain, suggested that other persons made or were involved in the making of the decision to terminate Mr Haley’s decision. These consisted of the limited number of documents I described as the “Post Show Cause Meeting Documents”.[30]
Reasonably arguable prospects of succeeding on the grounds of appeal contained in the draft notice of appeal?
[25] Earlier reasons, [25], [472], [477], [478]
[26] Earlier reasons, [479]-[491]
[27] Earlier reasons, [25]
[28] Earlier reasons, [362]
[29] Earlier reasons, [300]
[30] Earlier reasons, [473], [493]
Form of notice of appeal
It is not possible from the terms of the draft notice of appeal to determine whether LOA has reasonable prospects of obtaining an order setting aside the declarations I made. First, the grounds go no further than baldly asserting errors. Second, the draft notice of appeal does not articulate what connection, if any, is said to exist between the many asserted errors and the ultimate findings I made that LOA did not discharge the burden of proving it was justified in summarily dismissing Mr Haley from his employment, and that LOA did not discharge the burden of proving that it terminated Mr Haley’s employment for the reasons Mr Chatwin in his affidavit says LOA terminated Mr Haley from his employment. The draft notice of appeal therefore suffers from the defects Branson J identified in Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited, namely:[31]
A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge’s process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.
A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant’s submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O 52 r 13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case.
[31] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, at [4], [5]
The reference to O 52 r 13(2)(b) is a reference to the predecessor of r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) (Federal Court Rules) that a notice of appeal must state “briefly but specifically, the grounds relied on in support of the appeal”.
Misrepresentation of some challenged findings
This leads me to another feature of the draft notice of appeal; it misrepresents a number of findings that consisted of my not being satisfied of the existence of facts or matters LOA alleged, and which it was necessary for LOA to prove, as positive findings that those facts or matters did not exist. For example:
(a)The draft notice of appeal claims the primary judge erred in finding at paragraphs 539 and 581 of the earlier reasons that Mr Haley had not committed misconduct sufficient to justify his summary dismissal.[32] The finding at paragraph 539 of the earlier reasons, however, is that LOA had not identified anything “that could satisfy me that, in the circumstances in which he uttered them, Mr Haley’s uttering “the Offensive Words” constituted misconduct sufficient to justify LOA’s summarily dismissing him”; and the finding at paragraph 581 of the earlier reasons is that LOA has not established that it was entitled to summarily dismiss Mr Haley from his employment when it purported to do so on 24 July 2020 by sending the Termination Letter to him.
[32] Draft notice of appeal, [18]
(b)The draft notice of appeal claims the primary judge erred in finding at paragraphs 543, 544, and 581 of the earlier reasons that Mr Haley had not committed misconduct that caused “imminent and serious risk” to LOA’s reputation such as to warrant his summary dismissal.[33] The findings at paragraphs 543, 544, and 581 of the earlier reasons, however, are not findings to the effect claimed in the draft notice of appeal. They are as follows:
[33] Draft notice of appeal, [19]
[543] LOA’s submissions reflect the difficulties of Mr Chatwin’s evidence. LOA identifies nothing more than the possibility of a risk; it does not articulate that such risk was an imminent or serious risk to LOA’s reputation; and LOA does not identify any link between Mr Haley’s having uttered the Offensive Words (as opposed to the conduct of all involved in the Incident) and any risk to, or to any substantial or imminent risk to, LOA’s reputation.
[544] Closing ground 2, therefore, also fails for these additional reasons.
. . . .
[581] LOA has not established that it was entitled to summarily dismiss Mr Haley from his employment when it purported to do so on 24 July 2020 by sending the Termination Letter to him. That means that by purporting to summarily dismiss Mr Haley from his employment on 24 July 2020 LOA repudiated Mr Haley’s contract of employment.
(c)The draft notice of appeal claims the primary judge erred in paragraphs 545-580 and 581 of the earlier reasons in finding that Mr Haley did not engage in wilful or deliberate behaviour that was inconsistent with the continuation of his employment for the purpose of clause 2(a) of Mr Haley’s contract of employment, such as to warrant his summary dismissal.[34] This part of the draft notice of appeal purports to represent as one finding at least 10 separate findings I made in relation to the 10 closing 3 grounds; and, moreover, does not accurately reflect any one of the findings.[35] The findings I made at paragraphs 545-581 of the earlier reasons are as follows:
[34] Draft notice of appeal, [20]
[35] Incidentally, to allege one error in relation to at least ten separate findings does not comply with r 36.01(2)(c) of the Federal Court Rules which requires that a notice of appeal must state “briefly but specifically, the grounds relied on in support of the appeal”.
(i)In relation to what the earlier reasons describe as “Dishonest Non-Disclosure Allegation No 1”, I found there “is no basis … on which LOA could have made Dishonest Non-Disclosure Allegation No 1”.[36]
[36] Earlier reasons, [548]
(ii)In relation to what the earlier reasons describe as “Untrue/Misleading Allegation No 1”, I found “[t]his submission . . . goes beyond what is alleged in the LOA Response. In any event, I do not accept the submission”.[37]
[37] Earlier reasons, [551]
(iii)In relation to what the earlier reasons describe as “Untrue/Misleading Allegation No 2”, I found “I do not accept that Mr Haley admitted in the Show Cause Meeting that “he never had a genuine belief that the “push in the back” that be [sic] received from [Mr P] was a “physical attack” or a serious matter”; and I repeat that, even if Mr Haley did make any such admission, that is incapable of supporting a finding that Mr Haley did not believe, at the time he made the statement, that Mr P represented a risk and danger to the safety and welfare of the residents”.[38]
[38] Earlier reasons, [555]
(iv)In relation to what the earlier reasons describe as “Untrue/Misleading Allegation No 3”, I found “there is no substance to Untrue/Misleading Allegation No 3”.[39]
[39] Earlier reasons, [556]
(v)In relation to what the earlier reasons describe as “Dishonest Non-Disclosure Allegation No 2”, I made the following findings:
(A)This allegation is not made in the LOA Response.[40]
[40] Earlier reasons, [561]
(B)Dishonest Non-Disclosure Allegation No 2 does not articulate how Mr Haley’s having recognised that the person whose voice could be heard on the audio recording was his voice rendered dishonest his not expressly admitting in the Response to 9 July Letter that it was his voice.[41]
[41] Earlier reasons, [562]
(C)In any event, there are four matters, each of which satisfies me that Mr Haley did not act dishonestly when he did not, in the Response to 9 July Letter, expressly state that it was Mr Haley’s voice that could be heard on the audio recording.[42]
[42] Earlier reasons, [563]
(vi)In relation to what the earlier reasons describe as “Dishonest Non-Disclosure Allegation No 3”, I found “there can be no basis for suggesting that Mr Haley acted dishonestly when he did not, in the Response to 9 July Letter, expressly state that the person whose voice could be heard on the audio recording was Mr Haley’s voice”.[43]
[43] Earlier reasons, [565]
(vii)In relation to what the earlier reasons describe as “Untrue/Misleading Allegation No 3”, I found that “LOA does not articulate how Mr Haley’s having no doubt that his was the voice that was on the audio recording could support an allegation that Mr Haley stating that Mr and Ms P had made “false and malicious allegations” against him and that he “continue[d] to refute the allegations” were untrue or misleading”.[44]
[44] Earlier reasons, [566]
(viii)In relation to what the earlier reasons describe as “Statement No 9 – Part 1”, I found that to “the extent . . . Mr Haley stated “[he] was subjected to a physical assault by [Mr P] and received physical injuries”, I do not accept it was false. Even if, however, it were false, I cannot be satisfied that Mr Haley believed it to be false at the time he made the statement”.[45]
[45] Earlier reasons, [576]
(ix)In relation to what the earlier reasons describe as “Statement No 9 – Part 2”, I found that “even if Mr Haley had made admissions to the effect LOA alleged he made in the Show Cause Meeting, I am not satisfied that the statement Mr and Ms P were “seeking to avoid criminal charges” was false, or that Mr Haley knew it to be false at the time he made it”.[46]
[46] Earlier reasons, [580]
(x)In relation to LOA’s claim based on summary dismissal as a whole, and as I have already noted, I found that “LOA has not established that it was entitled to summarily dismiss Mr Haley from his employment when it purported to do so on 24 July 2020 by sending the Termination Letter to him”.[47]
[47] Earlier reasons, [581]
(d)The draft notice of appeal claims the primary judge erred in paragraphs 474 and 615 of the earlier reasons in finding that at the time Mr Chatwin sent the Termination Letter to Mr Haley Mr Chatwin did not hold any reasons in his own mind about why Mr Haley should be summarily dismissed or, if he did, he did anything more than adopt the reasons stated in the Termination Letter that had been formulated by another person or other persons or, indeed, reasons not stated in the Termination Letter.[48] That does not reflect the findings I made. My findings are as follows (emphasis added to paragraph 615):
[48] Draft notice of appeal, [12]
[474] . . . That means that I cannot be satisfied that, at the time he on-sent the Termination Letter to Mr Haley, that is, at the time LOA purported to summarily dismiss Mr Haley from his employment, Mr Chatwin held any reasons in his own mind about why Mr Haley should be summarily dismissed or, if he did, he did anything more than adopt the reasons stated in the Termination Letter that had been formulated by another person or other persons or, indeed, reasons not stated in the Termination Letter.
. . . .
[615] LOA submitted that Mr Chatwin, and Mr Chatwin alone, was the person who decided that LOA should summarily dismiss Mr Haley. For the reasons I have already given I have not accepted the evidence Mr Chatwin gave that he, or that he alone, decided that LOA should summarily dismiss Mr Haley from his employment. Further, to the extent Mr Chatwin did play any role in LOA’s decision to summarily dismiss Mr Haley from his employment, I am not satisfied that by the time LOA purported to terminate Mr Haley’s employment:
(a) Mr Chatwin had brought to his consciousness as the reasons for terminating Mr Haley’s employment:
(i)the reasons stated in the Termination Letter on which LOA purported to rely for purporting to terminate Mr Haley’s employment; or
(ii) the reasons on which, in his first affidavit, Mr Chatwin says he relied in deciding to summarily dismiss Mr Haley from his employment; or
(b) to the extent Mr Chatwin did bring to his consciousness any of the reasons referred to in (a), his having done so was the product of anything other than adopting the views another person or other persons had formulated.
The draft notice of appeal similarly misrepresents other findings of non-satisfaction.
A primary judge’s finding that he or she is not satisfied that an alleged fact exists is different from a positive finding that the fact does not exist; and the question that arises on appeal when a finding of fact is challenged differs according to whether the challenged finding is that the primary judge was not satisfied that a fact exists, or whether the challenged finding is that the fact does not exist. Where the challenged finding is one of non-satisfaction of the existence of an alleged fact, the questions on appeal are whether there was evidence before the primary judge such that it was not open to the primary judge not to be satisfied of the existence of the alleged fact or, perhaps, whether the appeal court itself feels “an actual persuasion of [the] occurrence or existence” of the alleged fact.[49] Where, on the other hand, the challenged finding is that a fact does not exist, the questions on appeal are whether on the evidence before him or her it was open to the primary judge to find the alleged fact does not exist or, perhaps, whether on the evidence before the primary judge the appeal court cannot reach “an actual persuasion” that the alleged fact does not exist.
[49] Briginshaw v Briginshaw (1938) 60 CLR 336, at page 361: “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.”
Paragraph 17 of the draft notice of appeal
Paragraph 17 of the draft notice of appeal claims that the primary judge “erred at J [536] in holding that the Applicant’s contractual right to summarily dismiss the Respondent for “misconduct” was no broader than that under the common law”. That misrepresents the findings to which this paragraph of the draft notice of appeal is purportedly directed, which are as follows (emphasis added):
Although it is the case that a contract of employment may expressly provide for circumstances in which an employer may summarily dismiss an employee that are broader than the circumstances the common law allows, I do not understand that LOA submits that LOA’s right to summarily dismiss Mr Haley for “misconduct”, as that word is used in the Employment Contract, and in relation to conduct that falls outside (b) – (e) of cl 2 of section 4 of the Employment Contract, is broader than under the common law. And there is no controversy about the circumstances in which, under the common law, an employer may summarily dismiss an employee for misconduct. These were stated by Dixon and McTiernan JJ in Blyth Chemicals Ltd v Bushnell
Apparent misunderstanding of effect of s 361 of the FW Act
Ground 23 of the draft notice of appeal appears to be based on a misunderstanding of the effect of s 361 of the FW Act. Ground 23 is as follows:
The primary judge erred at J [614]-[617] by not answering the question whether the Appellant had displaced the statutory presumption under section 361 of the Fair Work Act by reference to all of the evidence, including in circumstances where:
(a) it was never put to Mr Chatwin in cross-examination that he decided to summarily dismiss the Respondent from his employment because of one or more of the complaints the subject of the primary judge’s findings at J [608], J [611]-[612] and J [613], or that Mr Chatwin’s reasons (alternatively, the Appellant's reasons) for summarily dismissing the Respondent from his employment included as a substantial and operating factor the Respondent having made those complaints and inquiries; and
(b) notwithstanding the fact that the Appellant gave comprehensive production of documents in the proceedings, there was no contemporaneous evidence to support the proposition that Mr Chatwin (or any other employee or representative of the Appellant) decided to summarily dismiss the Respondent from his employment because of one or more of the complaints the subject of the primary judge’s findings at J [608], J [611]-[612] and J [613], or that Mr Chatwin’s reasons (alternatively, the Appellant's reasons) for summarily dismissing the Respondent from his employment included as a substantial and operating factor the Respondent having made those complaints and inquiries.
The draft notice of appeal does not challenge the findings that Mr Haley exercised workplace rights, and that he claimed that LOA summarily dismissed him from his employment because he had exercised those rights. This engaged s 361(1) of the FW Act, which means that it was for LOA to prove that it summarily dismissed Mr Haley for a reason or reasons other than, or for reasons that did not include as a substantial factor, Mr Haley’s having exercised workplace rights.
LOA sought to discharge the burden s 361(1) of the FW Act placed on it by relying, and relying only, on the evidence Mr Chatwin gave that he, and he alone, was the person who decided on behalf of LOA to summarily dismiss Mr Haley; and that Mr Chatwin so decided for the reasons he gave in his affidavits. I found I was not satisfied that Mr Chatwin or that he alone, decided that LOA should summarily dismiss Mr Haley from his employment. I also found that, to the extent Mr Chatwin did play any role in LOA’s decision to summarily dismiss Mr Haley from his employment, I was not satisfied that Mr Chatwin’s mind was the only mind relevant to determining the reasons for which LOA decided to summarily dismiss Mr Haley from his employment. Given these findings, s 361(1) of the FW Act applied to presume that LOA summarily dismissed Mr Haley because he had exercised his workplace rights.
Other matters
LOA submits that many “of the Court’s findings turned upon whether certain inferences were available to be drawn, and should properly be drawn, from the evidence”. LOA does not, however, identify any of these findings, or the inferences LOA submits were drawn that would be challenged on appeal, or how these findings or inferences relate to the ultimate findings I made that LOA did not discharge the burden of proving it was justified in summarily dismissing Mr Haley from his employment, and that LOA did not discharge the burden of proving that it terminated Mr Haley’s employment for the reasons Mr Chatwin in his first affidavit says LOA terminated Mr Haley from his employment.
LOA says that in the appeal it will contend that the effect of the approximately 17-month delay between Mr Chatwin giving evidence in the proceeding and the delivery of the primary judgment was to deny to LOA a fair hearing in respect of the Court’s decision to reject Mr Chatwin’s evidence. LOA does not, however, articulate how the delay denied LOA a fair hearing; and there is nothing further to say about this other than refer to the following passage from the judgment of the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd:[50]
Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] UKPC 17; [2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.
[50] Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189, at [69]. See also Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20, at [115]-[123]
Conclusion
Given the matters I have identified above, I am not in a position to assess whether, and therefore I am not satisfied that, the draft notice of appeal reveals LOA has reasonable prospects of success.
BALANCE OF CONVENIENCE
LOA submits that unless a stay is granted it will potentially incur costs it would otherwise not incur if it were to obtain leave to appeal and succeed on the appeal; and, given s 570 of the FW Act, it is unlikely that it will be able to recover those costs from Mr Haley. There is evidence from Mr Davis that those costs would be around $100,000. LOA further submits that Mr Haley will not suffer any prejudice. LOA also submits that granting a stay “will prevent the Court’s time and resources (which would otherwise be available to other litigants) being used to hear and determine issues concerning damages, compensation and penalties which, if LOA is successful on appeal, may not be necessary to decide”.
Mr Haley, on the other hand, submits as follows:
(a)LOA has poor prospects of success on appeal. LOA has failed to indicate how, with no new evidence, it will persuade the appellate court that Mr Chatwin was the sole decision maker, given the abundance of evidence recorded in the earlier reasons which shows otherwise.[51]
(b)LOA has the capacity to bear costs of $100,000.
(c)Mr Haley will suffer prejudice if the stay is granted, because it will delay Mr Haley proceeding with his claim for compensation; and it will prolong the suffering he has already incurred following LOA’s summary dismissal of him.
[51] Applicant’s Submissions in Opposition to the Respondent’s Application for a Stay, [14]
LOA’s submissions overlook two matters. The first is that I made no order for splitting liability from damages. I decided to deal with the question of liability in response to a request counsel for LOA made after all the evidence, including evidence relevant to damages and compensation, had concluded. The transcript records the following (emphasis added):[52]
MR JEDRZEJCZYK: ‑ ‑ ‑ we just noted at there [sic] end of our closing outline of submissions – and I didn’t mean to take your Honour by surprise in this way at all, but if you just note it there that we are operating on the understanding that your Honour may first determine questions of liability – for want of a better term – before then coming to any questions of loss, damage or ‑ ‑ ‑
HIS HONOUR: All right. If I get that far. That’s in both, I think that makes – I will explain it to Mr Haley, I mean, that almost goes without saying.
MR JEDRZEJCZYK: Thank you. Yes. Thank you, your Honour.
HIS HONOUR: So, Mr Haley, it’s almost inevitable, at least with fair work matters where you deal with issues of liability and then with damages – or penalty. What’s being suggested now is – is this right – and I think it might be a benefit to everyone, even on the contract cases, all I do is make findings of liability. And to the extent that there’s any liability, then I will make directions about damages – about having submissions about damages. Is that what you’re asking, Mr Jedrzejczyk?
MR JEDRZEJCZYK: Yes, your Honour.
HIS HONOUR: Mr Haley, are you content for me to approach it that way?
MR HALEY: Yes, your Honour.
[52] T562.5
My intention, which the transcript shows the parties shared, was that I would deliver judgment on liability and, if Mr Haley were to succeed on any of his claims, I would hear submissions – not receive additional evidence – about damages and compensation. Given that Mr Haley has filed his submissions on damages and compensation, the only outstanding steps in relation to the determination of the question of compensation and damages are for LOA to prepare written submissions, and for the parties to supplement their written submissions with oral submissions. There would be no occasion for LOA or Mr Haley to file evidence on damages. In those circumstances, I am not satisfied that LOA would need (reasonably) to incur anywhere near $100,000 to prepare its submissions on damages and compensation and make oral submissions.
Second, LOA does not take into account the possibility that if it is granted leave to appeal on liability, but it fails in its appeal, LOA will appeal any order for compensation or damages I might subsequently make. That would mean that there would be two appeals, rather than the one appeal if I were to determine all issues of damages and compensation and, indeed, penalty.
There are therefore three states of affairs in relation to which I must assess the balance of convenience.
(a)A stay is not granted, LOA is granted leave to appeal, and it succeeds on its appeal. There will be a net benefit in that it will be unnecessary for LOA to file and make submissions on damages and compensation; and it will be unnecessary to have a hearing on damages, compensation, and pecuniary penalties.
(b)A stay is granted, but LOA is not granted leave to appeal. There will be a detriment in the form of delay in the determination of the question of compensation and damages, and penalty.
(c)A stay is granted, LOA is granted leave to appeal, but LOA does not succeed on the appeal. There will be a detriment in the form of delay in the determination of compensation and damages, and penalty; and the possibility of a further appeal from any determination of compensation and damages, and penalties.
Even if I were to assume that LOA has reasonable prospects of succeeding on the grounds of appeal stated in the draft notice of appeal, I would be satisfied that the balance of convenience leans in favour of not granting the stay. Given, however, that I have found it is not possible to assess from the draft notice of appeal whether LOA has reasonable grounds of succeeding in its appeal, the balance of convenience clearly favours my refusing to stay the orders I made on 8 April 2024.
DISPOSITION
I propose to dismiss LOA’s application for a stay. I also propose to stand over the balance of LOA’s application in a proceeding to the next directions hearing, which is currently listed at 4:15 pm (AEST) on 28 May 2024.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 14 May 2024
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