James v Hawker Geological Services Pty Ltd - [2013] FMCA 96

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAMES v HAWKER GEOLOGICAL SERVICES PTY LTD

[2013] FMCA 96

INDUSTRIAL LAW – Alleged contravention of general protection.

EVIDENCE – Nature of affidavits.

PRACTICE AND PROCEDURE – Objections to affidavit evidence.

Fair Work Act 2009 (Cth), ss. 340, 341
Evidence Act 1995 (Cth), Parts 3.1 and 3.2, s.131
Federal Magistrates Court Rules2001 (Cth), r.42
Mines Safety and Inspection Regulations 1995 (WA)

Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 86 ALJR 1044; [2012] HCA 32
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Clampett & Anor v Attorney-General of the Commonwealth (2009) 181 FCR 473; [2009] FCAFC 151
Singh v Official Trustee in Bankruptcy & Anor [2013] FMCA 57

Applicant:

MADELEINE JAMES

Respondent:

HAWKER GEOLOGICAL SERVICES PTY LTD

File Number:

PEG 139 of 2012

Judgment of:

Lucev FM

Hearing date:

15 February 2013

Date of Last Submission:

15 February 2013

Delivered at:

Perth

Delivered on:

15 February 2013

REPRESENTATION

For the Applicant

In person

Counsel for the Respondent

Mr T Chin

Solicitors for the Respondent

Lawton Lawyers

ORDERS

In relation to the applicant’s affidavit sworn 11 December 2012:
(a)paragraphs 3, 5, 6, 7, 8, 9 and 11; and
(b)Annexures MJ1 And MJ3,
be struck out.
In relation to the applicant’s affidavit affirmed 30 October 2012:
(a)the page prior to Annexure A be struck out;
(b)Annexure A be removed and be treated as having been filed as the affidavit of Andrew Paul McKenzie Miller sworn 17 October 2012, and filed on 1 November 2012; and
(c)Annexures B, C, E and F be struck out.
In relation to the affidavit of Andrew Hawker sworn 29 November 2012 paragraphs 23, 25, 26, 27, 28, 30 and 31 be struck out.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 139 of 2012

MADELEINE JAMES

Applicant

And

HAWKER GEOLOGICAL SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore reasons)

Substantive application

The substantive application[1] in this matter alleges contravention of a general protection provision under the Fair Work Act 2009 (Cth).[2] Specifically, Part G of the Claim Form asserts that the applicant, Ms James, was dismissed because she made inquiries into the practices and policies of the respondent, Hawker Geological Services Pty Ltd[3] that affected the safety of herself and her co-workers. Ms James queries Hawker’s compliance with certain inspections and mining regulations, especially with respect to the wellbeing of her co-workers. Ms James asserts that adverse action was taken against her by Hawker by way of a dismissal because she had a workplace right to make those inquiries pursuant to s.340 of the FW Act.
[1] “Substantive Application”.
[2] “FW Act”.
[3] “Hawker”.

Affidavits

Affidavits have been filed in accordance with directions of the Court and objections have been taken, initially by Hawker to Ms James’ affidavits, and latterly by Ms James to one of Hawker’s affidavits. At the request of Hawker, these matters have been dealt with on a preliminary basis…

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: [2013] FMCA 96
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court of Australia considered a case between Madeleine James and Hawker Geological Services Pty Ltd, where the applicant alleged that she was dismissed for inquiring about the respondent’s safety practices and compliance with mining regulations. The court dealt with objections to affidavits filed by both parties. The applicant objected to certain paragraphs of an affidavit filed by the respondent, while the respondent objected to several paragraphs and annexures of the applicant’s affidavits, as well as some paragraphs in the respondent's own affidavit.

The court ruled that many of the objected paragraphs and annexures contained argumentative submissions, hearsay, irrelevant or unsubstantiated material, and did not comply with the rules of evidence. Consequently, the court ordered that several paragraphs and annexures be struck out from the affidavits of both parties. The court also directed that one of the annexures, which was an affidavit in itself, be treated as a separate affidavit and filed accordingly. The court emphasised that affidavits should contain relevant, non-hearsay evidence and should not be used for making submissions or engaging in speculation.

Ultimately, the court made orders striking out the specified paragraphs and annexures, and directing the separate filing of one annexure as an affidavit. These orders were made to ensure that the evidence presented in the proceedings was relevant, admissible, and in compliance with the rules of evidence and court procedures.

Orders