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

1. 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.

2. 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.

3. 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

1. 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

1. 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 as the hearing of the matter is still someway off, being listed for 15 April 2013.

2. It is important to bear in mind at the outset that an affidavit is a sworn or affirmed statement of evidence, and under the provisions of the Evidence Act 1995 (Cth)[4] it should contain evidence which is relevant and not hearsay, subject to the various exceptions in the Evidence Act.[5] An affidavit is not a place to make a submission or engage in speculation. The Court bears in mind the nature of these workplace matters and, in particular, that what is required to be proven in the proceedings has been the subject of comment recently in Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor,[6] which essentially picks up on what was said by the High Court in earlier cases on similar legislation, especially in General Motors Holden Pty Ltd v Bowling,[7] to which Counsel for Hawker referred.

   [4] “Evidence Act”

   [5] Evidence Act, Parts 3.1 and 3.2.

   [6] (2012) 86 ALJR 1044; [2012] HCA 32.

   [7] (1976) 12 ALR 605.

Objections to Ms James’ December 2012 Affidavit

1. Paragraph 3 of Ms James’ Affidavit, sworn 11 December 2012,[8] is objected to insofar as it asks the Court to dismiss the affidavits of Joshua Duffy, Dylan James Cooney and Adam Moss filed by Hawker. Hawker submits that paragraph 3 is inadmissible because it is argumentative and Ms James is making a submission and not stating a fact. Ms James responded that the affidavits of Duffy, Cooney and Moss are inadmissible because they were filed one day out of the time ordered by this Court. It appears to be, on the evidence before the Court, that the affidavits were served one day out of time, but they were filed within time, and, indeed early. Ms James confirmed that her approach with respect to this issue was pedantic, and she was not able to identify any prejudice arising from service of the affidavits one day late by reference to a hearing still some months off.

   [8] “Ms James’ December 2012 Affidavit”.

2. There was also some reference to the fact that the affidavits of Duffy, Cooney and Moss contained hearsay material, but that was not the subject of the written submissions, and none of that alleged hearsay material has been specifically identified in what is presently before the Court. In the circumstances, paragraph 3 is no more than an argumentative submission and ought to be struck out.

3. In paragraph 5 of Ms James’ December 2012 Affidavit, Ms James asserts that there is no clear identification of persons by name and surname by the deponents of affidavits filed for Hawker, and  it is argued that that ought to make those parts of those affidavits inadmissible. Hawker submits that paragraph 5 is inadmissible on the basis that it is argumentative and that Ms James is making a submission, and not stating fact. The Court notes that whilst it is true that paragraph 5 is phrased in terms of an argument, it does seek to identify a fact. It is not, however, a fact that is necessary to be dealt with at this stage, rather, it is a matter which in any event can be taken up at hearing in either cross-examination or submissions to either clear up the confusion or leave the confusion which Ms James says exists and make submissions accordingly as Ms James sees fit. For present purposes, paragraph 5 is argumentative and will be struck out on that basis.

4. Paragraph 6 of Ms James’ December 2012 Affidavit relates to Hawker’s alleged failure to lodge an objection for requested documents not supplied for viewing, and a copy of the subpoena as ordered by the Registrar. That is not a matter which is proper in this form for an affidavit and Hawker takes objection on the basis that it is inadmissible, unnecessary and irrelevant, and that a submission is being made. The Court will content itself with simply saying that paragraph 6 contains no evidence of any factual material which is relevant to the disposition of the Substantive Application, and that if there is an issue with respect to compliance with the subpoena, that ought to have been taken up separately with the Registrar issuing the subpoena, or it might be taken up, if it is relevant to any issue in the proceedings, at trial.

5. For present purposes, paragraph 6 is, in the Court’s view, inadmissible as it is not relevant to an issue in the proceedings. Alternatively, it is argumentative. It will be struck out.

6. Paragraph 7 says this:

   MAGISTRATES’ COURT GENERAL CIVIL PROCEDURE RULES 2010 – SECT 42.12

   and then in a separate line:

   42.12 Failure to comply with a subpoena – contempt of court.

   That clearly is not a reference to any rules applicable to this Court which operates pursuant to the Federal Magistrates Court Rules2001 (Cth),[9] and in respect of which r.42 relates to judicial review proceedings and administrative appeals, and not contempt of court. In any event, paragraph 7 is devoid of factual substance: it does not refer to any factual material at all. If there is an issue with contempt of court in relation to anything that may have occurred in these proceedings, then that is a matter which should be the subject of a properly formulated charge, and a separate application, or an Application in a Case, so that it can be dealt with in accordance with the principles set out by the Full Court of the Federal Court in Clampett & Anor v Attorney-General of the Commonwealth,[10] followed by this Court recently in Singh v Official Trustee in Bankruptcy & Anor[11]. Suffice to say that paragraph 7 being devoid of any factual substance is embarrassing and inadmissible, and will be struck out.

   [9] “FMC Rules”.

   [10] (2009) 181 FCR 473; [2009] FCAFC 151.

   [11] [2013] FMCA 57.

7. Paragraph 8 simply says:

   Affidavit reply to Andrew Hawker’s affidavit 03.12.2012, A pages 1 to 5, B paragraphs 1 to 12, reply to paragraphs of Mr Hawker.

   Hawker objects to paragraph 8 on the basis that it is inadmissible as being unnecessary, irrelevant, scandalous, and argumentative or in impermissible form. Hawker goes on to point out that the pages and paragraphs referred to in paragraph 8 do not form part of Ms James’ December 2012 Affidavit or the annexures, and that Ms James is making submissions, not stating the facts. In the Court’s view paragraph 8 contains no discernible factual substance, is vague and embarrassing, and it makes no sense at all. It is not comprehensible, and it does not state facts which are relevant to the Substantive Application. On that basis, paragraph 8 is inadmissible and ought to be struck out.

8. Objection is then taken by Hawker to paragraph 9 of Ms James’ December 2012 Affidavit which simply states:

   Annexure MJ1, account from Earth Australia Pty Ltd.

   MJ1 appears to be a tax invoice from Earth Australia Contracting Pty Ltd.[12] The objection is on the basis that the material is irrelevant or inadmissible, and it is not stated in the affidavit how the material is relevant or what it relates to. In her submissions, Ms James indicates that the Tax Invoice is in fact a copy of a document subpoenaed from Hawker, and she says that it shows that the statement made by Mr Hawker in paragraph 11 of his affidavit, which is as follows:

   The applicant was allocated the task of clearing of the land, and due to her inexperience, she did it incorrectly, costing the respondent a great deal of time and money to redo the clearing –

   was scandalous. Ms James says that the Tax Invoice shows there was no extra cost or evidence of re-clearing.

   [12] “Tax Invoice”

9. In the absence of any evidence as to what the Tax Invoice actually relates to, as in the nature of the work, how it was carried out and so forth, it is not apparent from the Tax Invoice that there was no extra cost or evidence of re-clearing. Ultimately, the Tax Invoice does not assist in that regard. Furthermore, the Tax Invoice simply does not relate to the factual content which Ms James asserts in her submissions on the objections. The Court notes there is, in Ms James’ December 2012 Affidavit material, an absence of evidence to do with the questions of cost or re-clearing, and in those circumstances, the Tax Invoice does not relate to any factual content of Ms James’ December 2012 Affidavit. Furthermore, it is not apparent what, if any, involvement Ms James had in the preparation of the content of the Tax Invoice. Certainly none is deposed to, and on that basis, the Tax Invoice is wholly hearsay, it being someone else’s document entirely. Having regard to all those factors, it seems that paragraph 9 ought to be struck out, and likewise, Annexure MJ1 ought to be struck out. The Tax Invoice having been subpoenaed, if there is any relevance to be ascertained from it, it ought to have been the subject of evidence from the creator of the Tax Invoice. Alternatively, if that person is unwilling to file, or was unwilling to file, an affidavit, there is nothing to preclude Ms James from subpoenaing that person and subpoenaing any relevant documents, to advance the proposition that she now puts in her objections, or, alternatively, to her cross-examining any or all of Hawker’s witnesses with respect to the Tax Invoice at hearing.

10. Paragraph 11 of Ms James’ December 2012 Affidavit, together with Annexure MJ3, is objected to by Hawker on the basis that it is irrelevant, inadmissible, and is related to an irrelevant subjective belief, and Hawker further notes that the letter is neither signed nor dated. Paragraph 11 says:

    Annexure MJ3: Letter from Mr A.B. Sprigg Loader Operator Earth Australia Pty Ltd.

    Ms James, rather than dealing directly with the nature of the objection, submits that she seeks to have the letter, which deals with:

    a)the way in which Ms James did her work;

    b)that the loader operator, Mr A.B Sprigg, was happy with her progress; and

    c)that it was not unusual to do the sorts of tasks which are referred to there,

    admitted, as it is contrary to Mr Hawker’s Affidavit sworn 29 November 2012[13] at paragraph 11.

    [13] “Mr Hawker’s Affidavit”.

11. Annexure MJ3 is entirely hearsay. Furthermore, it is a document which, on its face, is unsigned and unsourced. Apart from apparently being a loader operator, there is no indication of who Mr A.B Sprigg is and who he actually works for, and other than what is in the document, no real indication of how it was that he came to deal with this particular matter. Once again, if evidence in relation to performance and the carriage of certain tasks is in issue in these proceedings, then that evidence ought to be the subject of affidavits filed in these proceedings in accordance with the Court’s orders. Alternatively, if a prospective witness is not willing to do that, then they ought be subpoenaed to give the evidence that that applicant thinks that they might give which might assist her. In the circumstances, the document being entirely hearsay and also, in the Court’s view, not being signed and not being properly subject of any identification, paragraph 11 and Annexure MJ3 will be struck out.

Objections to Ms James’ October 2012 Affidavit

1. With respect to the affidavit of Ms James affirmed 30 October 2012[14], Hawker objects to Annexures A, B, C, E and F, on the basis that they are irrelevant and inadmissible.

   [14] “Ms James October 2012 Affidavit”.

2. The respondent submits that the page before Annexure A is not part of the Affidavit or the Annexure, and that it also contains submissions. Hawker submits that Annexures A, B, C, E and F are not related to the issues in contention, and it is not stated how the material is relevant or what its factual basis is and that it is the subject of an irrelevant subjective belief.

3. Looking firstly at the page before Annexure A, it appears to be some kind of index with comment, in relation to the Annexures that follow, and in those circumstances, it is not of any assistance to the Court. It is certainly not in proper form, although in some instances that would not matter so much, but here it simply does not assist, in any event. So the page prior to Annexure A will be struck out.

4. Annexure A is an affidavit signed by Andrew Paul McKenzie Miller and sworn on 17 October 2012,[15] consisting of one line asserting that Ms James acted in a professional, respectful and dedicated manner, while under difficult circumstances, to optimise achievement of the stated objectives for the exploration target drilling field work at the Cork Tree Well mineral lease. If Ms James intended to rely upon Mr Miller’s Affidavit, it ought to have been filed separately in these proceedings and not annexed to Ms James’ October 2012 Affidavit. Be that as it may, Ms James asserts that Mr Miller’s Affidavit is relevant in relation to the evidence given by Mr Hawker as to her performance and conduct. In the circumstances, the Court, whilst expressing some concern about the probative value of a one line statement without amplification, by a person who is described as a mine surveyor, but who does not indicate how it is that he knew what it was that Ms James was doing, or how it was that he was involved in her work, Mr Miller’s Affidavit is, it would seem, relevant to issues raised in Mr Hawker’s Affidavit. The Court, therefore, takes the view that Mr Miller’s Affidavit is relevant, although possibly of marginal relevance, given what the Court has just said. The Court will direct and order that Mr Miller’s Affidavit be removed from Ms James’ October 2012 Affidavit and treated as having been filed separately on behalf of Ms James.

   [15] “Mr Miller’s Affidavit”.

5. With respect to Annexure B, it is simply a letter from a geologist (Mr Ion) with a company, who makes certain assertions about what Ms James was doing in March 2012. Annexure B:

   a)is not in the form of an affidavit;

   b)is not sworn or affirmed;

   c)does not indicate how it is that it is related to these proceedings; and

   d)is perhaps nothing more than an ordinary job reference.

   In the circumstances, the Court takes the view that it is not in proper form, that it is irrelevant, and that it ought not appear as part of Ms James’ October 2012 Affidavit. Annexure B will be struck out. Once again, if it was intended that Mr Ion give evidence about Ms James’ work performance, that ought to have been put properly into an affidavit, or if Mr Ion was not willing to file an affidavit, he can still be subpoenaed as a witness in these proceedings.

6. Annexure C is a letter from a clinical counsellor[16] who appears to have a counselling business in the Perth metropolitan area. The Counsellor’s Letter is dated 15 October 2012, which is approximately six months after Ms James’ termination of employment with Hawker. If the Counsellor’s Letter is intended to be in some way indicative of matters related to any compensation which is sought, then it is not of assistance, because if it is intended to be expert evidence, then, once again, it should be in proper affidavit form, and in a form which has proper regard to the Federal Court guidelines on expert evidence, which it does not. In any event, the content of the Counsellor’s Letter says nothing in relation to anything associated, or which might be associated with, Ms James’ conduct, or the conduct of Hawker, while Ms James was employed by Hawker. The Counsellor’s Letter is nothing more than a general indication of her attendance, her attitude, and her appearance before the Counsellor, and what services are being provided by the Counsellor, and that permission has been given to the Counsellor to disclose information. None of this relates in any way, directly or indirectly, to the substance of the Substantive Application. Annexure C will, therefore, be struck out.

   [16] “Counsellor’s Letter”.

7. Annexure D was the subject of some submissions by Ms James, but it was not the subject of any objection by the Hawker.

8. Annexure E appears to be terms of settlement arising out of mediation before a Registrar of this Court. As such, it is material to which the Court cannot have regard because of the provisions s.131 of the Evidence Act relating to the non-admission of material arising out of, or in relation to settlements and settlement negotiations. Annexure E will, therefore, be struck out.

9. Annexure F is simply a cut and paste of various mine safety inspection regulations from the Mines Safety and Inspections Regulations 1995 (WA), and as such, are simply laws to which the Court can be referred to if necessary during the course of proceedings. They are not properly part of any affidavit. Annexure F will also be struck out.

Objections to Mr Hawker’s Affidavit

1. In relation to Ms James’ objections to Mr Hawker’s Affidavit, Ms James asserts that the material therein is scandalous, vexatious and oppressive. Ms James goes on to take issue with certain matters as to when Mr Hawker was on site, and the fact that Mr Hawker’s Affidavit contains no formal written complaints to management or dates from co-workers to support the statements made by Mr Hawker in his affidavit. Ms James then sets out ss.340 and 341 of the FW Act, and certain contentions in relation thereto, which do not directly relate to the content of Mr Hawker’s Affidavit.

1. Having read Mr Hawker’s Affidavit, and as was indicated in an exchange with Counsel for Hawker, paragraphs 3 to 22 are unexceptional. They are matters of fact within the knowledge of Mr Hawker, either directly or for the reasons set out in the affidavit. The Court does not propose to strike out paragraphs up to paragraph 22.

2. Paragraphs 23, 26, 27, 28, 30 and 31 fall into a different bracket. Each of those paragraphs makes some assertion as to the relevance or otherwise of Annexures A, B, C, E and F of Ms James’ October 2012 Affidavit, which the Court has just dealt with, but also then makes an assertion that the Substantive Application is wholly without merit and pleads that the Substantive Application be dismissed. The last two are simply inappropriate in an affidavit, so paragraphs 30 and 31 will be struck out of Mr Hawker’s Affidavit, as will paragraphs 23, 26, 27 and 28, as each of those is a submission.

3. That leaves paragraphs 24 and 25 of Mr Hawker’s Affidavit, which appear to relate to matters of fact in relation to what it was that Ms James was doing on site in relation to, firstly, Andrew Miller, and the Court has ordered that Mr Miller’s Affidavit be filed in these proceedings, and secondly, as to Annexure B of Ms James’ October 2012 Affidavit. Annexure B has been struck out, and therefore paragraph 25 is unnecessary, and it necessarily follows that in addition to the other paragraphs which have been struck out of Mr Hawker’s Affidavit, that paragraph 25 ought to be struck out on the basis that paragraph 11 and Annexure B of Ms James’ October 2012 Affidavit have been struck out. Paragraph 24 is relevant and will not be struck out.

4. It remains to say that the objection based on the assertion that Mr Hawker’s Affidavit is scandalous, vexation or oppressive is simply unfounded. Mr Hawker’s Affidavit is, save for those matters that have been struck out, in regular form and relates to matters relevant to these proceedings, as indeed the Court has found. There is nothing scandalous, vexatious or oppressive about Mr Hawker’s Affidavit in the sense referred to ordinarily under the Court’s rules.

5. For the reasons the Court has indicated, there will be orders in terms as indicated by the Court during the course of these ex tempore reasons striking out the various paragraphs and annexures of the affidavits as referred to, and also directing that Mr Miller’s Affidavit be filed separately. The latter will be done administratively by the Court.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  21 February 2013