Health Services Union v Jackson - [2014] FCA 1215

FEDERAL COURT OF AUSTRALIA
Health Services Union v Jackson [2014] FCA 1215

Citation: Health Services Union v Jackson [2014] FCA 1215

Parties:
HEALTH SERVICES UNION v KATHERINE JACKSON

ROBERT ELLIOTT v HEALTH SERVICES UNION

File numbers: VID 1042 of 2013
NSD 1501 of 2013

Judge: TRACEY J

Date of judgment: 5 November 2014

Catchwords: INDUSTRIAL LAW – application to adjourn hearing – where respondent unable to give instructions – where evidence of medical practitioner suppressed pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth)

Legislation: Fair Work Act 2009 (Cth) s 90
Federal Court of Australia Act 1976 (Cth) s 37AG
Long Service Leave Act 1992 (Vic)

Date of hearing: 5 November 2014

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 27

Counsel for the Applicant/Cross Claimant: Mr M Irving

Solicitor for the Applicant/Cross Claimant: Holding Redlich

Counsel for the Respondent/Third Cross Respondent: Mr D Pritchard SC

Solicitor for the Respondent/Third Cross Respondent: Beazley Singleton

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1042 of 2013

BETWEEN:
HEALTH SERVICES UNION
Applicant

AND:
KATHERINE JACKSON
Respondent

BETWEEN:
KATHERINE JACKSON
Cross Claimant

AND:
HEALTH SERVICES UNION
Cross Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

5 NOVEMBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The trial, fixed to commence on 1 December 2014, be adjourned to a date to be fixed.

2.The respondent be relieved of the obligation to comply with any directions with which she is yet to comply until a date to be fixed.

3.The respondent’s interlocutory application dated 13 October 2014 otherwise be dismissed.

4.The further hearing of the applicant’s interlocutory application dated 29 September 2014 be adjourned to a date to be fixed.

5.The proceedings be listed for mention on 6 February 2015 at 9:30 am.

6.Pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the oral evidence of Associate Professor Irwin Pakula, given on 5 November 2014, not be published.

7.Annexure B to the affidavit of Associate Professor Irwin Pakula filed herein on 29 October 2014 be placed in a sealed envelope marked “Confidential – not to be opened without leave of a judge” and be restricted from publication to any person other than the legal advisers to the applicant.

8.On or before 20 January 2015 the respondent’s solicitor file and serve medical evidence relating to the capacity of the respondent to give instructions relating to the conduct of the proceeding and the impact of so doing on her health.

9.Liberty to apply.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1501 of 2013

BETWEEN:
ROBERT ELLIOTT
Applicant

AND:
HEALTH SERVICES UNION
Respondent

BETWEEN:
HEALTH SERVICES UNION
Cross Claimant

AND:
MICHAEL WILLIAMSON
Cross Respondent

AND KATHERINE JACKSON
Third Cross Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

5 NOVEMBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The trial, fixed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 1215
Decision Date: 5 November 2014

CaseChat Overview and Summary

The Health Services Union lodged an application seeking an adjournment of the hearing and other interlocutory relief in the Federal Court. The respondent was unable to give instructions due to health issues. The court was required to decide on the application for an adjournment and whether the evidence of a medical practitioner should be suppressed under section 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth).

The court considered the application for an adjournment in light of the respondent’s health issues and her inability to give instructions. It also examined the need to suppress certain evidence due to its confidential nature. The court found that the evidence in question contained sensitive health information and that publishing it would be inappropriate. The court thus decided to adjourn the hearing and suppress the evidence to protect the respondent's health privacy. The court also ordered the respondent to provide medical evidence regarding her capacity to give instructions by a specified date.

The final orders included an adjournment of the hearing, a relief for the respondent from certain obligations, a dismissal of the interlocutory application, an adjournment of the further hearing, a mention of the proceedings, suppression of the evidence, and a requirement for the respondent to provide medical evidence. The court granted liberty to apply for further orders if necessary.

Orders

Orders of the court

1. The trial, fixed to commence on 1 December 2014, be adjourned to a date to be fixed.

2. The respondent be relieved of the obligation to comply with any directions with which she is yet to comply until a date to be fixed.

3. The respondent’s interlocutory application dated 13 October 2014 otherwise be dismissed.

4. The further hearing of the applicant’s interlocutory application dated 29 September 2014 be adjourned to a date to be fixed.

5. The proceedings be listed for mention on 6 February 2015 at 9:30 am.

6. Pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the oral evidence of Associate Professor Irwin Pakula, given on 5 November 2014, not be published.

7. Annexure B to the affidavit of Associate Professor Irwin Pakula filed herein on 29 October 2014 be placed in a sealed envelope marked “Confidential – not to be opened without leave of a judge” and be restricted from publication to any person other than the legal advisers to the applicant.

8. On or before 20 January 2015 the respondent’s solicitor file and serve medical evidence relating to the capacity of the respondent to give instructions relating to the conduct of the proceeding and the impact of so doing on her health.

9. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The trial, fixed to commence on 1 December 2014, be adjourned to a date to be fixed.

2. The third cross respondent be relieved of the obligation to comply with any directions with which she is yet to comply until a date to be fixed.

3. The third cross respondent’s interlocutory application dated 13 October 2014 otherwise be dismissed.

4. The further hearing of the respondent’s interlocutory application dated 29 September 2014 be adjourned to a date to be fixed.

5. The proceedings be listed for mention on 6 February 2015 at 9:30 am.

6. Pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the oral evidence of Associate Professor Irwin Pakula, given on 5 November 2014, not be published.

8. On or before 20 January 2015 the third cross respondent’s solicitor file and serve medical evidence relating to the capacity of that respondent to give instructions relating to the conduct of the proceeding and the impact of so doing on her health.

9. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Health Services Union v Jackson [2014] FCA 1215
Parties:	HEALTH SERVICES UNION v KATHERINE JACKSON ROBERT ELLIOTT v HEALTH SERVICES UNION
File numbers:	VID 1042 of 2013 NSD 1501 of 2013
Judge:	TRACEY J
Date of judgment:	5 November 2014
Catchwords:	INDUSTRIAL LAW – application to adjourn hearing – where respondent unable to give instructions – where evidence of medical practitioner suppressed pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth)
Legislation:	Fair Work Act 2009 (Cth) s 90 Federal Court of Australia Act 1976 (Cth) s 37AG Long Service Leave Act 1992 (Vic)
Date of hearing:	5 November 2014
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Applicant/Cross Claimant:	Mr M Irving
Solicitor for the Applicant/Cross Claimant:	Holding Redlich
Counsel for the Respondent/Third Cross Respondent:	Mr D Pritchard SC
Solicitor for the Respondent/Third Cross Respondent:	Beazley Singleton

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1042 of 2013

BETWEEN:	HEALTH SERVICES UNION Applicant
AND:	KATHERINE JACKSON Respondent
BETWEEN:	KATHERINE JACKSON Cross Claimant
AND:	HEALTH SERVICES UNION Cross Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	5 NOVEMBER 2014
WHERE MADE:	MELBOURNE

BETWEEN:	ROBERT ELLIOTT Applicant
AND:	HEALTH SERVICES UNION Respondent
BETWEEN:	HEALTH SERVICES UNION Cross Claimant
AND:	MICHAEL WILLIAMSON Cross Respondent
AND	KATHERINE JACKSON Third Cross Respondent