Hamberger v Ramsey Food Packaging Pty Ltd

[2004] FCA 842

FEDERAL COURT OF AUSTRALIA

Hamberger v Ramsey Food Packaging Pty Ltd [2004] FCA 842

Workplace Relations Act1996 (Cth) s 298V

JONATHAN HAMBERGER v RAMSEY FOOD PACKAGING PTY LTD, RAMSEY FOOD PACKAGING NO. 2 PTY LTD, RAMSEY BUTCHERING SERVICES PTY LTD, RAMSEY FOOD SERVICES PTY LTD
Q 66 OF 2003

KIEFEL J
BRISBANE
23 JUNE 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q66 OF 2003

BETWEEN:	JONATHAN HAMBERGER APPLICANT
AND:	RAMSEY FOOD PACKAGING PTY LTD FIRST RESPONDENT
RAMSEY FOOD PACKAGING NO. 2 PTY LTD SECOND RESPONDENT
RAMSEY BUTCHERING SERVICES PTY LTD THIRD RESPONDENT
RAMSEY FOOD SERVICES PTY LTD FOURTH RESPONDENT

JUDGE:	KIEFEL J
DATE OF ORDER:	23 JUNE 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q66 OF 2003

BETWEEN:	JONATHAN HAMBERGER APPLICANT
AND:	RAMSEY FOOD PACKAGING PTY LTD FIRST RESPONDENT
RAMSEY FOOD PACKAGING NO. 2 PTY LTD SECOND RESPONDENT
RAMSEY BUTCHERING SERVICES PTY LTD THIRD RESPONDENT
RAMSEY FOOD SERVICES PTY LTD FOURTH RESPONDENT

JUDGE:	KIEFEL J
DATE:	23 JUNE 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The respondents bring an application to have a large number of the applicant’s affidavits, in whole rather than in part, taken off the Court file for the reason that they are said to be oppressive.  The power under O 14 r 8 of the Federal Court Rules is exercised sparingly by the Court for obvious reasons.  The Court will be reluctant, except in the clearest of cases, to deal with or strike out a party’s evidence at a mid-point in the proceedings.

2. There are three bases given for the application. The first is that the material in the affidavits is oppressive because there is a large amount of irrelevant evidence. The second is that some language is used improperly and only to add colour to the proceedings. The third is that the evidence regarding the reasons of the employer is premature by reason of s 298V of the Workplace Relations Act1996 (Cth).

3. The first ground is the respondents’ principal submission.  Its approach was to take me to parts of some of the affidavits to show that the material is irrelevant.  I accept that, in a given case, a large amount of irrelevant matter may lead to material being described as oppressive.  However, it would seem to me that irrelevant material has to be obvious to lead to a conclusion of oppression.  That is not established here. 

4. Most of the material I was taken to seemed to me to go to the history of employees complaining about their working conditions, or the background to their complaint and its aftermath.  It includes the fact that their conditions were subsequently changed.  And it is of relevance, it would seem to me, that these matters occurred in many cases prior to the termination of those employees.  I do not propose to discuss every objection I was taken to because the sample was said one way or the other to determine the outcome of this application.

5. In the material that I was taken to, there were also statements made or attributed to Mr Ramsey which may relate to the respondents’ conduct in terminating the employment or not re-employing the employees.  It would seem to me, therefore, tolerably arguable that the relevance of this material is as to the respondents’ reasons for the action, a matter directly in issue in the proceedings.  It is for the respondents to determine whether or not they wish to meet the evidence directly by their own evidence or whether they will take the option of objecting to it and not calling the evidence.  The objections to the evidence on the basis of relevance are, in my view, properly to be determined at the trial.

6. The second matter may be dealt with shortly.  If the statements attributed to a person are relevant, it would seem to me to add nothing to say that they add colour.  The applicant points out that most of the statements are in any event those of Mr Ramsey.

7. The third matter did give me some pause, although it is not often that respondents would complain about being given the applicant’s evidence relating to their state of mind before they give evidence. The respondents’ point is that there is a statutory presumption created by s 298V, and I infer that they therefore doubt the motives of the applicant in putting this material forward when he does not need to do so at this point. However, I do not accept that s 298V has the effect that the applicant is somehow prevented from putting evidence forward at this point, or that he is obliged to place reliance only upon the statutory presumption. It seems to me at least arguable that its own evidence as to the employer’s reasons may not only establish whether an offence is made out but may also be additionally relevant to penalty.

8. In any event, it is open to an applicant to meet the respondents’ case or explanation for conduct in advance.  It would not seem to me to be efficient to require an applicant to do so by way of reply, for the very reason that the respondents would no doubt wish to respond again to that material.  I do not think anyone could suggest that that would be a proper method of case management.

9. For these reasons, the application will be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            30 June 2004

Counsel for the Applicant:	G C Martin SC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	G Hatcher SC
Solicitor for the Respondents:	Hannigans
Date of Hearing:	23 June 2004
Date of Judgment:	23 June 2004