Kumar v NORTHROP GRUMMAN M5 Network Security Pty Ltd
[2020] FCCA 1545
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD | [2020] FCCA 1545 |
| Catchwords: INDUSTRIAL LAW – Application for summary dismissal – where applicant refuses to submit to cross examination – whether applicant’s affidavits admissible – where applicant’s affidavits are admissible – whether applicant’s affidavits should be admitted into evidence – where applicant’s affidavits not admitted into evidence – application summarily dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.135 Fair Work Act 2009 (Cth), ss.340, 345, 361 Federal Circuit Court of Australia Act 1999 (Cth), s.64 Federal Circuit Court Rules 2001 (Cth), rr.13.10, 15.29A Federal Court of Australia Act 1976 (Cth), s.47 |
| Cases cited: Browne v Dunn (1893) 6 R. 67, H.L |
| Applicant: | RAKESH KUMAR |
| Respondent: | NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD |
| File Number: | BRG 1069 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 5 June 2020 |
| Date of Last Submission: | 5 June 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 5 June 2020 |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondent: | Mr Easton |
| Solicitors for the Respondent: | HWL Ebsworth Lawyers |
ORDERS
The application filed on 18 October, 2018 is summarily dismissed pursuant to r.13.10(b) of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1069 of 2018
| RAKESH KUMAR |
Applicant
And
| NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD |
Respondent
REASONS FOR JUDGMENT
These proceedings have been fraught. They were commenced in 2018. In December, 2018 another judge of this court ordered that the applicant file and serve a statement of claim by a date in January, 2019 and made some other programming orders for the delivery of pleadings and another matter. The matter came before me on 1 April, 2019 and there was argument about the statement of claim that had been delivered. On 2 April, 2019 I delivered orders striking out the applicant’s statement of claim that had been filed on 19 December, 2018, but giving him leave to file and serve a properly articulated statement of claim by 26 April, 2019.
On 12 July, 2019 I made another order that permitted the applicant to file and serve a further statement of claim by 9 August, 2019. On 19 August, 2019 I made some orders dealing with the statement of claim that had been delivered on 5 August, 2019. I struck out his cause of action based on a contravention of s.345 of the Fair Work Act 2009 (Cth). I struck out his cause of action for a contravention of s.340 of the Fair Work Act. I provided for there to be an exchange of particulars.
The matter came before me on 4 October, 2019 next and on that occasion I ordered that the applicant file and serve any affidavits of himself or any witnesses upon which he intended to rely no later than 4:00pm on 29 November, 2019 and for the respondent to do the same by 4:00pm on 24 December, 2019. The matter was referred to mediation. The application has been to mediation, but it has not resolved and on 7 February this year I adjourned the application to 4 June, 2020 for hearing with an estimated time of two days.
I made some other directions about the parties filing objections to evidence or exchanging objections to evidence and filing some outlines. When the matter came before me yesterday we attempted to conduct the trial electronically, because since the matter was set down for hearing the COVID-19 pandemic has emerged, which effectively shutdown face-to-face hearings in this court for a time, but some hearings have been able to proceed electronically. I had hoped that this might be one of them, but because of some technical difficulty, the particulars of which are not relevant, the hearing was adjourned from yesterday to today.
Arrangements were made for the applicant to attend in person in court 1 here in Brisbane with me whilst the respondent, represented by counsel appeared from Sydney. That has been able to be achieved, not without some little difficulty, but nonetheless it has been able to be achieved and at about 12:15pm today I embarked on this trial. However, at the outset Mr Kumar wished to make it clear to me that he did not intend to be cross-examined by the other side, nor to cross-examine the other side’s witnesses.
He put it in terms of him not being able to be cross-examined or not being able to deal with being cross-examined intellectually, I think. They are my words, not his, but that was the effect of it. I will return to that soon.
I explained to Mr Kumar, hopefully clearly, about the trial process and how it works. I attempted to demonstrate that oral evidence and cross-examination is part and parcel of the trial process and is a part of affording both parties to the proceedings procedural fairness.
Notwithstanding that and despite my very clear attempts at having him consent and submit to cross-examination, he has refused to do so. He says that he will be cross-examined in writing, that is, questions can be furnished to him and he would furnish his answers in writing, but that is not the usual course.
At common law evidence was generally given orally. The practice in the Chancery Courts was that a party could elect for evidence to be given orally or by affidavit, but at common law oral evidence was the tradition and that remains the tradition in the courts of the Commonwealth of Australia.
Section 47 of the Federal Court of Australia Act 1976 (Cth), for example, provides for oral evidence, although it is regularly the case in that court that orders are made for the delivery of affidavits of evidence-in-chief or statements to stand as the evidence-in-chief of witnesses. But, the primary position is that evidence is given orally.
The position in this court is different. There is no section in the Federal Circuit Court of Australia Act 1999 (Cth) which is equivalent to s.47 of the Federal Court Act, or at least none that I have been able to identify in the time in which this argument has developed.
But there are some sections that bear on the issue at hand. The principal one is s.64 of the Federal Circuit Court of Australia Act. It provides
(1) Testimony in a proceeding in the Federal Circuit Court of Australia is to be given orally or by affidavit.
(2) However, the Federal Circuit Court of Australia or a Judge may:
(a) direct that particular testimony is to be given orally; or
(b) direct that particular testimony is to be given by affidavit.
Those two subsections (1) and (2) to which I have just referred have effect subject to any provision of any other Act and the Rules of Court and any other law of the Commonwealth.
Subsection 64(4) is important. It provides that if a person makes an affidavit and a party to a proceeding in the Federal Circuit Court of Australia adduces or proposes to adduce evidence by the affidavit then a party to the proceeding may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit. Subsection 64(4) has effect, again, subject to the Rules of Court. And s.64(6) of section 64 of the Act says that:
(6) If:
(a) a request under subsection (4) is given to a person who has made an affidavit; and
(b) the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;
the Federal Circuit Court of Australia is to give the matters in the affidavit such weight as the Federal Circuit Court of Australia thinks fit in the circumstances.
In the course of argument I was taken to r.15.29A of the Federal Circuit Court Rules 2001 (Cth). That rule provides:
The Court may:
(a) dispense with the attendance for cross-examination of a person making an affidavit; or
(b) direct that an affidavit be used without the person making the affidavit being cross-examined on the affidavit.
Those sections have been considered, as best as I can tell in the time available, in one decision namely DCT v John Barnes and DCT v Judith Barnes (No 2) (2008) FMCA 1229, a decision of Lucev FM, as his Honour then was. In that case an issue arose about the use of an affidavit where the deponent of the affidavit would not make themselves available for cross-examination. The relevant witness, the respondent in that case, had been served with a notice to attend a hearing of the application for cross-examination, but the respondent did not attend. The failure to attend was unexplained. The respondents relied on s.64(6) of the Act to argue that the affidavit was nonetheless admissible and ought to be admitted, notwithstanding that the maker of the affidavit was not available for cross-examination.
Judge Lucev considered the relevant statutory provisions in paragraphs 29 through 33 of his Honour’s judgment:
29.The relevant statutory provisions are as follows:
a) section 64(4), (5) and (6) of the FM Act which provides as follows:
“(4) If:
(a) a person makes an affidavit; and
(b) a party to a proceeding in the Federal Magistrates Court adduces, or proposes to adduce, evidence by the affidavit;
a party to the proceeding may request the person to appear as a witness to be cross examined with respect to the matters in the affidavit.
(5) Subsection (4) has effect subject to the Rules of Court.
(6) If:
(a) a request under subsection (4) is given to a person who has made an affidavit; and
(b) the person does not appear as a witness to be cross examined with respect to the matters in the affidavit;
the Federal Magistrates Court is to give the matters in the affidavit such weight as the Federal Magistrates Court thinks fit in the circumstances.”
b) rule 15.29A of the Federal Magistrates Court Rules 2001 (Cth) which provides as follows:
“The Court may:
(a) dispense with the attendance for cross-examination of a person making an affidavit; or
(b) direct that an affidavit be used without the person making the affidavit being cross-examined on the affidavit.”
30.The Court has not dispensed with the attendance for cross-examination of the respondents. Further, there has been no direction that the affidavits be used without the respondents being cross-examined on the affidavits.
31.In Mudge v Hudson the Federal Court was dealing with an appeal in a bankruptcy proceeding where this Court had refused to admit an affidavit (which went to service) into evidence where the deponent was not present and a telephone link had not been arranged. Both at first instance and on appeal reference was made to a submission that the relevant affidavit ought to be allowed into evidence and given such weight as the Court saw fit, that submission referring to ss.42 and 64 of the FM Act. However, neither in this Court nor in the Federal Court was that submission considered in any detail, or arguably at all, and there is no rationale binding on this Court arising from Mudge.
32.The general approach to any conflict between an Act and any rules of a court is that the Act prevails, save where the Parliament has expressly provided that the rules of court prevail. In this case, s.64(4) of the FM Act is expressly, by s64(5) of the FM Act, made subject to the FMC Rules, and, therefore, subject to r.15.29A of the FMC Rules. Thus, where a request for cross-examination is made, and the person attends in accordance with that request for cross-examination, the Court may direct that that person’s affidavit be used without the person making the affidavit being cross-examined. The ability to do so might be necessary where a person has been requested to attend unnecessarily, where, for example, there is no dispute about any of the contents of the affidavit and the person concerned is not able to give any other relevant evidence, or where it is apparent that the person is only being called to inconvenience them, or where the cross-examination might be wholly scandalous or embarrassing. Section 64(6) is however not subject to r.15.29A, expressly or impliedly, and s.64(6) of the FM Act deals specifically with circumstances where the request for cross-examination under s.64(4) of the FM Act has been made and the person does not attend.
33.In those circumstances, which are the circumstances here, the proper construction of the words “the Federal Magistrates Court is to give the matter in the affidavit such weight as the Federal Magistrates Court thinks fit in the circumstances” where a request to cross-examine has been given but the person has not appeared to be cross-examined, and in particular the use of the word “is”, appears to make it mandatory for the Court to admit the affidavit, whilst the use of the words “thinks fit” give the Court a discretion as to what weight is given to the matters in the affidavit. That may vary from no weight at all to the full weight that the affidavit may bear.
His Honour concluded at paragraph 34 that the affidavits of the respondents were admissible. He reached that conclusion by reference to s.64(6) of the Act and the requirement on the Court to give the affidavit such weight as the court thought fit in the circumstances. His Honour then considered that against some other authorities in paragraphs 35, 36 and 37 of his reasons. In 38 he concluded this (footnotes omitted):
In circumstances where:
a) the respondents have been requested to attend for cross-examination;
b) the respondents have not attended;
c) no efforts have been made by the respondents to attend by video link or telephone link in circumstances where the ability to do so will usually be afforded to remote witnesses by this Court;
d) there were matters upon which the respondents might have been cross-examined;
e) ordinarily the respondents failure to attend for cross-examination would mean that the affidavits would not be admissible in evidence (subject to any relevant Court rules; and
f) the respondents conduct has been such (both in relation to attendance for cross-examination, and generally) as to preclude any indulgences being granted to them, or any prejudice being suffered by the applicant on account of that conduct,
the Court is of the view that no weight ought to be given to the respondents’ affidavits. This view will not preclude weight being given to either of the affidavits if there are future proceedings, if either of the respondents submit to cross-examination in any such proceedings.
So, in DCT v Barnes the Court dealt with the question there as one of weight under s.64(6). That position, as demonstrated by Judge Lucev, is quite different in the Federal Court, where the evidence under s.47 of the Federal Court of Australia Act is inadmissible. It is not inadmissible here. It is just a question of weight.
This is a case where cross-examination is necessary. I wondered about whether cross-examination would be useful at all given the pleadings, as they presently exist. The statement of claim filed on 5 August, 2019 and the defence filed soon after that on 3 October, 2019 make it clear that there are many matters that are admitted and the exchange of emails and the like between the parties is admitted on the defence. But I accept the submissions of counsel for the respondent that it will nonetheless be necessary to put those emails in context.
This is a claim for adverse action. The applicant needs to establish that he exercised or purported to exercise a workplace right for there to be the engagement of the reverse onus set out in s.361 of the Fair Work Act. Whether he made such a complaint or inquiry about his employment, which seems to be the basis for his suggestion that he had exercised a workplace right, is in contention between the parties. It will fall to be determined according to the construction that might be put on the emails upon which the applicant relies in the context in which they were sent.
I accept the submissions for the respondent that there is some purpose to be achieved by cross-examination and the respondent ought to be entitled to put its case to the applicant in cross-examination.
There is no direction that has been made in this case for evidence-in-chief to be given by way of affidavit. Sometimes in cases like this an express direction is made, but the way in which the parties seem to have approached the case is that the evidence-in-chief of each of the relevant witnesses will be constituted by their affidavits. That seems to be the approach of the applicant, because he says all of the evidence is before the Court in the affidavits. The respondent has not unreasonably at all approached the case on the basis that evidence-in-chief is on affidavit and the relevant witnesses will be or should be available for cross-examination if one or other of the parties requires it. There is nothing remarkable about any of that. The only thing that is missing is a direction about trial by affidavit.
But if the omission of such a direction is seen as critical then position becomes even plainer. The evidence in the case is to be given orally. That is, a person would take their place in the witness box, swear an oath or affirmation, give their evidence and then be subjected in the usual way to cross-examination, something which Mr Kumar tells me he is not prepared to do.
So the conclusion I have reached following all of that is that the affidavits upon which Mr Kumar relies are admissible. They have not yet been admitted into evidence and I have, it seems to me, a discretion to refuse them. Leaving aside the matters to which I have already referred that arise under the Federal Circuit Court of Australia Act and the Rules, there is also the general discretion to limit the use of evidence provide in s.135 of the Evidence Act 1995 (Cth):
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
I have not heard either party on the applicability of s.135 of the Evidence Act, and I propose to invite the parties to address me on that now.
RECORDED : NOT TRANSCRIBED
As I indicated earlier, there has been no direction for the trial of these proceedings to be conducted on affidavit, although one might quickly infer that that was what was likely to happen. Ordinarily a witness who is to give evidence would take their place in the witness box, be sworn in and in evidence-in-chief identify their affidavits as their evidence-in-chief and they would then become part of the evidence in the case.
But until that happens, the affidavits are not part of the evidence in the case, until they are either adopted by the witness in the witness box or there is a direction that they stand as the evidence-in-chief without the deponent going into the witness box. None of that has happened here and so at the moment the applicant has no evidence before the court. He has told me on numerous occasions now that he is a self-represented litigant, who is not a lawyer and who is at a disadvantage.
That has always been the case in these proceedings, since he commenced them in 2018 and it must have been apparent to him before now that these proceedings might involve some complexity that he does not understand. He has had ample opportunity to take legal advice about a whole range of matters concerning these proceedings.
He has also told me most recently in the submissions that he made when I invited him to make submissions about s.135 of the Evidence Act that he is not refusing to be cross-examined. However, my view is that he is refusing to be cross-examined. What he said to me was that, because the other side are lawyers, they can manipulate his words and that they will make him look bad if he is cross-examined. He wants the opportunity to be able to consider the questions that they wish to ask, because he might not be able to recall the answers immediately. These were events that occurred two years ago. He is concerned that he is at a disadvantage because they are lawyers and he is not and they will manipulate his words and contrive to misrepresent what it is that he says.
These matters, in my view, amount to a refusal to be cross-examined, a refusal to enter the witness box, take an oath or an affirmation and submit his evidence to scrutiny. At a hearing witnesses usually are cross-examined, unless their evidence is not in dispute. One need go no further than Browne v Dunn (1893) 6 R. 67, H.L for authority for that proposition.
So the question that taxes me now is whether I ought to admit the evidence of the applicant set out in the affidavits that have been earlier listed by him and me when the trial was to proceed. I have the ability to refuse to admit the evidence, notwithstanding s.64(6) of the Federal Circuit Court of Australia Act if I am of the view that the probative value of that evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondent or misleading or confusing or cause or result in an undue waste of time.
Some of the affidavits, as counsel has submitted, in fact, all of the affidavits, as counsel has submitted, consist of a mixture of evidence, submission, opinion, conclusion and speculation. Some of it qualifies as evidence, some of it does not. In a case where a party is self-represented it is often the case that the court receives affidavits in such form, but applies a discerning eye to the affidavit and treats those parts, which deserve to be treated as something other than evidence as that.
Having said all of those things, I am satisfied that I ought to refuse to admit the evidence consisting of the affidavits upon which the applicant wishes to rely because they have no probative value. They will not have any probative value because he refuses to be cross-examined on them. It may well be that parts of them are uncontentious, but it is not immediately plain to me which parts will be uncontentious and which parts will not.
He says in argument that the case relies upon emails which come from the respondent’s own system, but, as I have accepted from counsel for the respondent, it is not just the emails that are important, but the context in which they were sent and the meetings which preceded them and came after them. To admit the evidence in circumstances where the applicant, who is available to be cross-examined, but refuses to do so, would be unjust, in my view, and there is a very real danger that the evidence might be unfairly prejudicial to the respondent if it’s admitted.
The unfair prejudice arises in that the evidence is available to be acted upon by the court and, as counsel indicated, if some findings are made, it will be or may be difficult to tell which parts of the evidence are being accepted and which parts are not. But given the inability of the respondents to cross-examine the applicant on his evidence and given the way in which these proceedings have developed, it would be very difficult indeed to envisage that any weight at all would be given to the evidence in those affidavits without cross-examination. If they have no probative value, then admitting them into evidence at all is likely to result in an undue waste of time, because admitting them into evidence will then ultimately require the hearing of submissions based upon that evidence, which, in my view, is likely to attract no weight at all. That would be a pointless exercise.
So for all of those reasons I am satisfied that I should refuse to admit the evidence upon which the applicant relies in this case insofar as it consists of the affidavits filed by him in these proceedings on 15 February, 2019, 24 April, 2019, 9 July, 2019, 19 November, 2019 and 7 January, 2020.
RECORDED : NOT TRANSCRIBED
The application will be summarily dismissed under r.13.10 of the Federal Circuit Court Rules because the applicant has no reasonable prospect of successfully prosecuting his application now, given that there is no evidence before the Court and this is the final hearing of the proceeding. To put it another way, the respondent has no case to answer. The applicant’s case is that he made a complaint or inquiry in respect of his employment; that as a result of that complaint or inquiry the respondent took adverse action against him in breach of the provisions that proscribe that conduct in the Fair Work Act and he is entitled to compensation. He says that he is also entitled to some payments that were not made to him when his employment was terminated. His case, as revealed in his statement of claim, seemed to be based on a number of emails, which he contends constitute the complaints or inquiries that he made to his employer, but in the course of argument he confirmed with me that it is also the things that he said in the course of some meetings that are set out in paragraph 4 of his statement of claim that also constitute the complaints and inquiries that he bases his cause of action on.
That underscores the basis upon which I refuse to admit his affidavits of evidence-in-chief. He would not submit to cross-examination on his evidence and so the respondents would be denied the opportunity to challenge his evidence and put their case to him of what occurred in those meetings. In the absence of any evidence about the emails, notwithstanding that on the pleadings the sending of the emails is admitted, and evidence about what occurred at the meetings to put those emails into context, I am satisfied that the applicant does not prove and cannot prove the circumstances upon which he relies to demonstrate that the reverse onus in s.361 of the Fair Work Act is engaged.
That means that there is no obligation on the employer to demonstrate that the adverse action that they took against Mr Kumar, terminating his employment, was not taken for a proscribed reason. In the absence of any evidence from the applicant, he cannot succeed, in my view, and his application should be dismissed. I so dismiss it.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Associate:
Date: 6 July, 2020
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