Kelly Walker v Dr Marc a Russo Pty Ltd T/A Hunter Pain Clinic

[2019] FWC 5108

[2019] FWC 5108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Kelly Walker
v
Dr Marc A Russo Pty Ltd T/A Hunter Pain Clinic; Dr Marc Russo; Ms Kay Gray
(C2019/4453)

VICE PRESIDENT HATCHER MELBOURNE, 23 JULY 2019

Appeal by Ms Kelly Walker against various interlocutory decisions of Deputy President Sams in matter AB2018/160.

Introduction and background

[1] Ms Kelly Walker has lodged an appeal, for which permission to appeal is required, against a number of interlocutory decisions made by Deputy President Sams in connection with the hearing of Ms Walker’s application for an order to stop bullying arising from her employment with Hunter Pain Clinic lodged on 16 March 2018. The decisions the subject of Ms Walker’s amended notice of appeal are as follows:

(1) A “decision” to issue a notice of listing in the matter on 23 May 2019 listing the matter for hearing on 25 and 26 July 2019 in Newcastle (first NOL).

(2) A “decision” to issue a notice of listing in the matter on 5 June 2019 listing the matter for hearing on 22 and 23 July 2019 in Newcastle (second NOL). The second NOL cancelled the listing of hearing dates in the first NOL.

(3) A decision issued by the Deputy President on 2 July 2019 1 (first decision) not to issue an order for production directed to the respondents.

(4) A decision issued by the Deputy President on 18 July 2019 2 (second decision) to reject the tender by Ms Walker of a covert recording made by her of a conversation with two other individuals, one of whom (Dr Russo) is one of the persons against whom an anti-bullying order is sought, which occurred on 27 March 2018.

[2] The amended application seeks a stay of all four of the above decisions pending the hearing and determination of the appeal. This decision concerns the stay application.

[3] Some explanation of the context in which the above decisions were issued is necessary. After previously having been dealt with by other members of the Commission, Ms Walker’s anti-bullying application was allocated to the Deputy President. On 1 April 2019 the Deputy President made directions for the filing of witness statements, documentary materials and outlines of submissions by the parties, and set the matter down for hearing on 21 and 22 May 2019. It appears to have been envisaged that the hearing would be completed on these two days.

[4] At the hearing, Ms Walker proceeded on 39 discrete allegations of bullying, one of which related to what occurred at the meeting of 27 March 2018. Ms Walker closed her evidentiary case at about 10.38am on 22 May 2019, and the respondents commenced calling their witnesses. The transcript of the hearing on 22 May 2019 discloses that in the course of cross-examining one of the respondents’ witnesses, Ms Harris, the advocate for Ms Walker, Mr James, asked her a number of questions concerning what transpired at the meeting on 27 March 2018. In doing so he disclosed that Ms Walker had covertly recorded this meeting, and that he had a transcript of the recording which he sought to place into evidence. 3 There was a lengthy discussion about this between Mr James, Ms Dowling and the Deputy President concerning the failure of Ms Walker to seek to place this evidence before the Commission at an earlier stage and the potential unlawfulness of the recording.4 Eventually, after the Deputy President stood the witness down for the day, Mr James proposed that the matter be dealt with by way of written submissions so that it could be determined prior to the resumption of the hearing on a future date to be set. Eventually, it was agreed that there would be a program of submissions concerning the admission of the recording/transcript finishing on 8 July 2019, when Ms Walker would file her reply submissions, and then the hearing would resume on 25 and 26 July 2019. It was confirmed that Ms Harris would be available to complete her evidence on 25 July 2019.5 The first NOL was issued to give effect to this.

[5] On 30 May 2019 the respondents’ lawyer sent an email stating that Dr Russo, a respondent, would be unable to give evidence as planned on 25 July 2019 as he had been called to give evidence in the Supreme Court, and he would be then be overseas from 26 July 2019, as would Ms Harris. It was in response to this that the Deputy President issued the second NOL moving forward the hearing dates to 22 and 23 July 2019. This course did not meet with any objection from Ms Walker.

[6] On 25 June 2019 Ms Walker applied for orders for production against a number of persons and entities. These included orders for production directed to MCAA Australia Pty Ltd (MCAA) and the respondents. These applications were said by Ms Walker to have arisen out of her “late” discovery that the respondents had engaged MCAA to conduct a forensic examination of her workplace computer to determine whether Ms Walker had been dealing improperly with confidential information belonging to the respondents. Ms Walker contended that this constituted a contravention of the Workplace Surveillance Act 2005 (NSW) and the grant of the orders was necessary to establish that the respondents had engaged in unlawful conduct towards her. The first decision dealt with these applications. Relevantly, the Deputy President determined that he was prepared to order that MCAA produce the report it prepared arising from its forensic examination, while noting that the computer and any confidential information on it was the property of the respondents and that the conduct complained of did not relate to Ms Walker’s allegations of bullying. The Deputy President was not otherwise prepared to order MCAA to produce other documents pertaining to the forensic examination, nor was he prepared to require the respondents to produce any documents of this nature. 6

[7] The second decision concerned the admission of the recording/transcript of the meeting of 27 March 2018. It may be noted that the submissions filed by Ms Walker in accordance with the program agreed on 22 May 2019 referred throughout to “recordings” in the plural without specifying let alone applying for the admission of any other recording other than that of the meeting on 27 March 2018. In the second decision the Deputy President determined that he would not admit the recording of the 27 March 2018 meeting. In so concluding, the Deputy President identified that s 590(1) of the Fair Work Act 2009 (FW Act) empowered the Commission to inform itself in such manner as it considered appropriate, and characterised this power as involving the exercise of a discretion. In his exercise of the consideration, the Deputy President took into account the potential unlawfulness of the recording, the lateness of the application to admit the recording, the capacity of the Commission to make conclusions concerning what transpired at the meeting on the basis of witness evidence only, and the case management issues which might arise if the application were granted including the fact that Ms Walker appeared to be in possession of further covert recordings which might be “drip fed” into the proceedings at a later stage. 7

[8] Ms Walker filed her appeal (which in its initial form only sought to appeal the second decision) at 7.00pm on Friday 19 July 2019, after earlier having advised the Deputy President of her intention to appeal. She sought an adjournment of the hearing before the Deputy President during the afternoon of 19 July 2019 but this was refused. The hearing resumed yesterday morning in accordance with the second NOL, but the matter was adjourned by the Deputy President at about midday as an indulgence to Ms Walker to allow her to prepare for the stay hearing. Ms Walker used that opportunity to file the amended appeal notice which I have earlier described. The hearing before the Deputy President is programmed to resume at 10.00am today (23 July 2019). The consensus of the parties at the hearing of the stay application before me was that the hearing of the evidence is not likely to finish today and that further hearing dates would need to be listed.

[9] Ms Walker submitted that a stay should be granted with respect to each decision the subject of the appeal because, in summary and to the extent relevant to the stay application:

•  the first NOL and the second NOL did not give Ms Walker sufficient time to deal with the outcome determined in the second decision, and thus prejudiced her;

•  the first decision deprived Ms Walker of the opportunity to obtain documents necessary to establish that the respondents had contravened the Workplace Surveillance Act in commissioning a forensic examination of her work computer, and allowed the respondents to cover this up;

•  in respect of the second decision, the recording of the meeting of 27 March 2018 would demonstrate the “absolute truth” of what occurred, and the decision protected the respondents’ wrongdoing and allowed systematic bullying to continue; and

•  Ms Walker would be prejudiced by having to proceed with the cross-examination of the respondents’ witness without the benefit of the recording.

Consideration

[10] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 8 Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[11] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity properly to peruse the case materials. 9

[12] The application of the above principles is subject to the applicant for a stay demonstrating at the outset there is an operative decision with ongoing effect that is capable of being stayed. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal. 10

[13] I am not persuaded that a stay order should be issued. Neither the first decision nor the second decision has given rise to any operative, ongoing order that is capable of being stayed. Staying the first decision would not result in the order for production being issued against the respondents, and staying the second decision would not result in the admission of the covert recording. There is nothing to be stayed, and no practical result would ensue. Moreover it is apparent to me that Ms Walker’s main purpose in seeking the stay order is to prevent the hearing from proceeding later today. However the power to stay a decision under s 606 of the FW Act is not a power to stay proceedings following a decision of an interlocutory nature. 11

[14] The appeal and stay application with respect to the “decisions” to issue the first NOL and the second NOL seem to be an attempt to surmount this difficulty, in that it is assumed that a stay of a notice of listing for a hearing would operate to prevent the listed hearing from proceeding. Even if this assumption is correct, which is not beyond doubt, the appeal against the first NOL and the second NOL is not reasonably arguable. With respect to the first NOL, the hearing dates were agreed to by Ms Walker and were then in any case vacated. The decision to issue the second NOL was an interlocutory procedural one issued in response to an emergent issue of witness availability caused by events outside the control of the Commission and the respondents, and Ms Walker made no objection to it at the time. Both the first and second NOLs were issued well before the second decision was issued, so it is difficult to see how they could become retroactively erroneous as a result of the date of publication of the second decision. In neither case do I consider, based on a preliminary consideration of the merits, that there is a reasonable prospect of Ms Walker obtaining permission to appeal.

[15] I would also observe that the appeals against the first decision and the second decision are weak. Both constitute interlocutory procedural decisions, which would not usually attract the grant of permission to appeal. In relation to the first decision, it is not in dispute and the MCAA report would make clear that the respondents arranged for a forensic examination of Ms Walker’s computer without her knowledge at the time, so it is not apparent what further production of documents is necessary to advance Ms Walker’s contention that such an examination constituted a contravention of the Workplace Surveillance Act (assuming this is an issue of any relevance in the first place). In respect of the second decision, the appeal does not appear to involve any contention that the Deputy President erred in the exercise of his discretion pursuant to s 590(1), but rather appears to amount to a plea for a different result. Further, the events of the meeting of 27 March 2018 do not seem to be central to the case. Only one of the 39 allegations of bullying related to that meeting, and Ms Walker’s own evidence about the meeting does not contain any identifiable allegation of bullying conduct by any of the respondents. To the extent that Ms Walker has covert recordings of other relevant meeting and events, it remains open to her to apply to have them admitted into evidence.

[16] Notwithstanding this, I would not be prepared to find that the appeal against the first decision or the second decision is not arguable and without some prospects of success. However I consider that, if it was available to me to grant a stay against the first decision or the second decision, the balance of convenience would weigh against the grant of a stay. As Ms Walker pointed out, her application has now been on foot for over 16 months. It is part-heard. I consider that the more convenient course would be for the hearing to complete and for a decision to be issued. If Ms Walker is aggrieved at the final decision, she may then lodge an appeal in which it will be open to her to challenge any interlocutory rulings made in the matter which affected the final result. 12 All issues may then conveniently be dealt with in a single appeal. Conversely, the grant of a stay would serve no practical result for the reasons earlier explained. It would not stop the hearing from proceeding, and it would not operate to reverse the rulings which the Deputy President has made.

[17] In summary, I am not satisfied that the appeal against the first NOL and the second NOL is arguable with some prospects of success. In respect of the appeal against the first decision and the second decision, I am not satisfied that there is any order with an operative and ongoing effect which is capable of being stayed, and the balance of convenience does not favour the grant of a stay. Accordingly I dismiss Ms Walker’s stay application.

VICE PRESIDENT

Appearances:

D James on behalf of Ms Walker

C Dowling, solicitor, on behalf of the respondents

Hearing details:

2019.

Melbourne:

22 July.

Printed by authority of the Commonwealth Government Printer

<PR710594>

 1   [2019] FWC 4557

 2   [2019] FWC 4862

 3   Transcript 22 May 2019, PNs 2331-2338

 4   Transcript 22 May 2019, PNs 2339-2389

 5   Transcript 22 May 2019, PNs 2390-2419

 6   [2019] FWC 4557 at [19]-[22], [31]

 7   [2019] FWC 4862 at [54]-[67]

 8   [2000] AIRC 785, Print S2639

 9  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 10   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11]; Bahonko v Sterjov [2007] FCA 1717 at [50]

 11   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11]

 12   Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478; United Firefighters' Union of Australia v Country Fire Authority[2013] FWCFB 8165 at [19]