Lejmanoski v The University of Western Australia (No. 3)
[2016] FCCA 154
•3 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEJMANOSKI v THE UNIVERSITY OF WESTERN AUSTRALIA (NO. 3) | [2016] FCCA 154 |
| Catchwords: PRACTICE AND PROCEDURE – Application for adjournment – effect of proposed amended defence containing substantial admissions of liability – narrowing of disputed matters – whether referral for further mediation. INDUSTRIAL LAW – Adverse action claim – breach of contract claim. |
| Legislation: Fair Work Act 2009 (Cth), s.361 |
| AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Cann v Commonwealth Bank of Australia (No. 3) [2011] FMCA 303 Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; (2014) 88 ALJR 814; (2014) 312 ALR 356; (2014) 244 IR 425 Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 9 Myers v Myers [1969] WAR 19 |
| Applicant: | LENA LEJMANOSKI |
| Respondent: | THE UNIVERSITY OF WESTERN AUSTRALIA |
| File Number: | PEG 9 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 23 December 2015 |
| Date of Last Submission: | 23 December 2015 |
| Delivered at: | Perth |
| Delivered on: | 3 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Moran |
| Solicitors for the Applicant: | DLA Piper Australia |
| Counsel for the Respondent: | Mr R L Hooker |
| Solicitors for the Respondent: | Office of General Counsel, University of Western Australia |
ORDERS (made on 23 December 2015)
The applicant have leave to file and serve a third further amended statement of claim by 24 December 2015.
The respondent have leave to file and serve an amended defence by 15 January 2016.
There be a further directions hearing at 10.15am on 4 February 2016.
The parties are to confer prior to the further directions hearing as to appropriate orders.
Orders 5 to 12 of the Court’s orders of 5 August 2014 be set aside pending further order of the Court.
Written reasons for judgment be published electronically from Chambers at a later date.
Costs of today be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 9 of 2013
| LENA LEJMANOSKI |
Applicant
And
| THE UNIVERSITY OF WESTERN AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent, the University of Western Australia (“UWA”) applied, utilising an earlier liberty to apply in orders of the Court dated 5 August 2014 (“August 2014 Orders”), for the hearing of this matter listed on 4 and 5 February 2016 to be vacated. UWA’s application was heard on 23 December 2015, and was opposed by the applicant, Dr Lejmanoski. On 23 December 2015 the Court made the following orders:
1.The applicant have leave to file and serve a third further amended statement of claim by 24 December 2015.
2.The respondent have leave to file and serve an amended defence by 15 January 2016.
3.There be a further directions hearing at 10.15am on 4 February 2016.
4.The parties are to confer prior to the further directions hearing as to appropriate orders.
5.Orders 5 to 12 of the Court’s orders of 5 August 2014 be set aside pending further order of the Court.
6.Written reasons for judgment be published electronically from Chambers at a later date.
7.Costs of today be reserved.
The Court’s Reasons for Judgment referred to in order 6 above follow.
The August 2014 Orders
The August 2014 Orders made by the Court were as follows:
1.The directions hearing listed for 6 August 2014 be vacated.
2.The matter be referred to mediation before a Registrar of the Court on a date to be fixed by that Registrar but not before 25 August 2014.
3.In the event that the matter does not resolve at mediation, the parties must endeavour to agree the basis of discovery within 7 days of the Registrar of the Court indicating that mediation has been unsuccessful, with liberty to apply upon 24 hours' notice to the Court for orders in relation to discovery if such agreement cannot be reached.
4.The Applicant must file and serve affidavits in support of the Application within 30 days of the provision of discovery by the Respondent pursuant to order 3, or alternatively within 30 days of any determination by the Court that discovery will not be ordered.
5.The Respondent must file and serve any affidavits in opposition of the Application within 30 days after receiving the Applicant's affidavits.
6.The Applicant must file and serve any affidavits in reply within 15 days after receiving the Respondent's affidavit.
7.The Applicant must file and serve an outline of submissions and a list of authorities within 30 days after the date envisaged for the filing of the Applicants' affidavits in reply.
8.The Respondent must file and serve an outline of submissions and a list of authorities within 30 days after receiving the Applicant's outline of submissions and list of authorities.
9.Each party must give notice of any objections to the affidavits filed and of its intention to cross-examine a deponent not later than 15 days before the hearing.
10.Each party must provide the other party with copies of each document to be produced and relied upon by that party at the hearing not later than 15 days before the hearing.
11.The examination in chief of the respective witnesses be on affidavit except by leave of the Court.
12.The matter will be set down for a two-day hearing on dates to be fixed by the Court (but not before 30 days after the date fixed in paragraph 8 of this Order).
13.Liberty is reserved to the parties upon 24 hours' notice to the Court to apply to vary the terms of these directions.
14.Costs, if any, be reserved.
The August 2014 Orders were consent orders.
On 5 February 2015 the parties were advised that the matter had been listed for hearing for two days on 8 and 9 October 2015. That hearing date was later amended to 4 and 5 February 2016 due to the unavailability of a Judge to hear the matter in the Perth Registry in the period from September to December 2015.
It is plain from the terms of the August 2014 Orders, and the administrative listing of the matter for hearing by the Court, that both the parties and the Court anticipated that the parties would endeavour to agree the basis of discovery within seven days of a Registrar of this Court indicating that mediation had been unsuccessful (in the event that that was the case, which ultimately it was), with liberty to apply on 24 hours’ notice to the Court for orders in relation to discovery if agreement on discovery could not be reached.
Once agreement had been reached with respect to discovery (or, alternatively, the Court had determined that discovery would not be ordered: see order 4) the August 2014 Orders contemplated that there would then successively be:
a)30 days for the filing of Dr Lejmanoski affidavits;
b)30 days for the filing of UWA’s affidavits;
c)15 days for the filing of Dr Lejmanoski’s affidavits in reply;
d)30 days for the filing of Dr Lejmanoski’s submissions; and
e)30 days for the filing of UWA’s submissions,
with the hearing not to be fixed until at least 30 days after UWA’s submissions had been filed and served.
From the time that discovery was agreed, the process which the parties consented to in the August 2014 Orders was to take some 135 days, with a further 30 clear days prior to hearing. That is, in total, a period of slightly more than five months. From the time of filing of Dr Lejmanoski’s affidavits to the completion of the pre-hearing processes was to take some 105 days, or approximately three and a half months, with a further 30 clear days prior to hearing.
Processes following the August 2014 Orders
There were essentially three relevant processes which followed the August 2014 Orders, two arising from the 2014 August Orders, namely mediation and discovery, and the third being UWA’s proposed Amended Defence (“the Proposed Amended Defence”), which arose independently.
Mediation took place on 11 November 2014, 22 December 2014 and 4 February 2015, but was not successful in resolving the dispute between the parties. The Court record indicates that the Registrar terminated the mediation on 4 February 2015. The operative date from which the parties were to endeavour to agree the basis of discovery was therefore 5 February 2015, with that endeavour to occur within seven days, and with liberty to apply upon 24 hours’ notice if agreement as to the basis of discovery was unable to be reached (in accordance with order 3 of the August 2014 Orders). Thus, by 12 February 2015, the basis for discovery ought to have been agreed, or the matter referred back to the Court (or, possibly, abandoned, although that would be unlikely given the nature of the matter). Whilst a precise record of what did or did not occur is not before the Court, it is common ground that it was not until 13 November 2015 that the discovery provided by UWA was completed. Thus, a process which was envisaged would take seven days in order 3 of the August 2014 Orders, took more than nine months to complete. In the meantime, not one, but two hearing dates had been set, with the first dispensed with due to the unavailability of a Judge at the time set for hearing. Pursuant to order 4 of the August 2014 Orders the applicant, Dr Lejmanoski, then filed and served her affidavit in support of her application on 14 December 2014. It is relevant to note that Dr Lejmanoski took the full period of time (30 days) afforded by order 4 to file and serve that affidavit, notwithstanding:
a)the delay in reaching agreement concerning discovery; and
b)the imminent hearing date on 4 and 5 February 2016.
The Proposed Amended Defence
In correspondence sent from UWA’s solicitors to Dr Lejmanoski’s solicitors dated 9 April 2015 and 12 November 2015 respectively the solicitors for UWA attached a Proposed Amended Defence (hereafter “April 2015 Proposed Amended Defence” and “November 2015 Proposed Amended Defence”, being Exhibits 1 and 2 respectively in the adjournment hearing).
In terms of the Proposed Amended Defence it is convenient to deal with the November 2015 Proposed Amended Defence (which proposed only minor amendments to the April 2015 Proposed Amended Defence). In order to understand the November 2015 Proposed Amended Defence it is necessary to set out relevant paragraphs from the Second Further Amended Statement of Claim filed on 17 June 2014 and the November 2015 Proposed Amended Defence.
Paragraph 32 of the Second Further Amended Statement of Claim pleads a breach of a Deed of Settlement and Memorandum of Understanding (“Deed” and “MOU” respectively) alleged to have been entered into between Dr Lejmanoski and UWA on 11 November 2011. Paragraph 32 of the Second Further Amended Statement of Claim reads as follows:
32.In breach of the Deed of Settlement and of the MoU, the Respondent has:
(a)failed to properly consult the Applicant in relation to proposed changes to her duties as they existed after Semester 1, 2011: Clause 13 of the MOU
(b)failed to re-appoint the Applicant to a role commensurate with her seniority and types of duties she performed in the past: Clause 15.1 of the MOU
(c)failed to properly consider the Applicant for appointment to the role of final year coordinator under the new (2013) DMD curriculum: Clause 15.2 of the MOU and further or in the alternative
(d)involved inter alios Professor Smith in the consultation and appointment process relating to the rejection of the Applicant's preferred allocation referred to at paragraph 26 of this statement of claim, and the Applicant's ultimate allocation to the role described in paragraph 31 of this statement of claim.
Particulars of Breach of Deed and MoU in 32(d) above
(i) Professor Smith as Head of the School of Dentistry presided over the process of Organisation Change (as referred to in clause 42 of the UWA Academic Staff Agreement 2010) by which staff members were allocated to roles in the DMD.
(ii) All communications within the School of Dentistry in relation to the Organisation Change in relation to the DMD were made by emails sent by Professor Smith or under his authority.
(iii) Professor Smith convened the group consultation meetings with staff pursuant to the Organisational Change in relation to each staff member's allocated role in the DMD.
(iv) Professor Smith convened individual meetings with staff in relation to the Organisational Change by which each staff member was allocated functions in the DMD.
(v) Professor Smith was a member of the Curriculum Working Party (with Professor Ichim being its only other member) which developed the curriculum for the DMD.
(vi) Professor Smith was at all material times a member of both the Dental Curriculum Committee and the Dental School Executive, being the internal bodies which ratify changes to curricula in the School of Dentistry.
(vii) The email of 2 December 2011 by which the Applicant was notified that her request for an alternative allocation in the DMD was denied, and that the allocation of first year functions only in the DMD would stand, was sent by Mr Robin Ford to the Applicant with Professor Smith copied into the email; this email included an express reference to the fact that “we” (ie. The Respondent including Professor Smith) had considered the request but did not agree to it.
In response to paragraph 32 of the Second Further Amended Statement of Claim the November 2015 Proposed Amended Defence pleads as follows:
32.As to paragraph 32(a) of the Statement of Claim, the Respondent says that the Applicant has failed to plead that there has been any relevant change to her duties as enumerated in clause 10 of the MoU such that the duty to consult in clause 13 of the MoU was enlivened.
33.As to paragraph 32(b) of the Statement of Claim, the Respondent:
(a)admits that it failed to allocate the Applicant duties commensurate with “the type of duties she performed in the past”;
(b)notes that the Applicant seeks no specific relief in connection with the alleged breach of clause 15.1 of the MoU;
(c)notes that the Applicant failed to apply for the role described in paragraph 31(d) above; and
(d)otherwise does not admit the paragraph.
34.The Respondent admits paragraph 32(c) of the Statement of Claim. The Respondent undertakes – from the date of the filing of this Amended Defence – to do all things necessary in order to comply with its obligations under clause 15.2 of the MoU prior to trial.
35.As to paragraph 32(d) of the Statement of Claim, the Respondent:
(i)denies that the MoU imposed any restriction of Professor Smith's participation in any consultation or appointment process undertaken in relation to the allocation of duties within the contemplation of clause 15.1 of the MoU; and
(ii)denies that Professor Smith's participation in any relevant consultation or appointment process undertaken in relation to the allocation of duties within the contemplation of clause 15.1 of the MoU was a breach of the Deed of Settlement.
In paragraph 33 of the Second Further Amended Statement of Claim Dr Lejmanoski pleads that she has certain workplace rights. Paragraph 33 of the Second Further Amended Statement of Claim is as follows:
33.By reason of the matters pleaded in paragraphs 3, 4 and 21 of this statement of claim, the Applicant had inter alia the following workplace rights for the purposes of s 341 of the Fair Work Act 2009 (Cth) (FW Act).:
(i) Dispute settlement procedure under the UWA Academic Staff Agreement 2010, clauses 44-46 and its predecessor instrument clauses 45-47;
(ii) The Equal Opportunity Act 1984 (WA);
(iii) The Policies of the Respondent, as pleaded in paragraph 3 above, including in relation to sexual harassment and the Respondent's code of ethics;
(iv) The Deed and MoU which were the result of the dispute settlement procedures for the purposes of s 341(2)(j)(k) of the Fair Work Act 2009 (Cth) and the exercise of the Applicant's workplace right pursuant to the Equal Opportunity Act 1984 (WA);
(v) The UWA Academic Staff Agreement 2010 including inter alia clauses 44-46.
Paragraph 36 of the November 2015 Proposed Amended Defence pleads as follows in relation to paragraph 33 of the Second Further Amended Statement of Claim:
36. Without any concession as to the relevance of the enumerated workplace rights, and solely for the purposes of the present application, the Respondent admits each of the conclusions pleaded in paragraph 33 of the Statement of Claim.
In paragraph 34 of the Second Further Amended Statement of Claim Dr Lejmanoski pleads that she has exercised or proposed to exercise her workplace rights. Paragraph 34 of the Second Further Amended Statement of Claim is as follows:
34.By reason of the matters pleaded in paragraphs 10, 16 and 21 to 24 of this statement of claim, the Applicant exercised or alternatively proposed to exercise, her workplace rights for the purposes of s 341 of the FairWorkAct2009(Cth).
Particulars
(i)The Internal Sexual Harassment Complaint against the Respondent constituted an exercise by the Applicant of a “workplace right” for the purposes of section 341(1)(c)(ii) of the FW Act as it constituted a complaint by the Applicant in relation to her employment which the Applicant was able to make pursuant to the UWA Academic Staff Agreement 2010 which prohibits sexual harassment at clause 57.
(ii)Further or in the alternative, the WA EOC proceedings pleaded at paragraph 16 above constituted an exercise by the Applicant of a workplace right to make a complaint in relation to her employment for the purposes of section 341(1)(b) and section 341(1)(c) of the FW Act as the EO Act constitutes a “workplace law” for the purposes of the FW Act.
Paragraph 37 of the November 2015 Proposed Amended Defence pleads as follows in relation to paragraph 34 of the Second Further Amended Statement of Claim:
37.Save to deny that paragraph 24 of the Statement of Claim references any exercise or proposed exercise of a workplace right, the Respondent admits paragraph 34 of the Statement of Claim.
In paragraph 35 of the Second Further Amended Statement of Claim Dr Lejmanoski pleads that UWA altered her position of employment to her prejudice. Paragraph 35 of the Second Further Amended Statement of Claim is as follows:
35.By reason of the matters pleaded in paragraphs 25 to 34 of this statement of claim, the Respondent, including through the actions of Professor Smith, has altered the Applicant's position of employment to her prejudice.
Particulars
(i)The Respondent altered the Applicant's position of employment to her prejudice by failing to properly consult the Applicant in relation to proposed changes to her duties as they existed after Semester 1, 2011: Clause 13 of the MOU.
(ii) The assignment of the role of a First Year Unit Co-ordinator in the DMD on 22 November 2011 was made without seeking the Applicant's views or offering reasons.
(iii)The Applicant repeats paragraphs 25 to 29 above.
(iv)The Respondent altered the Applicant's position of employment to her prejudice by failing to re-appoint the Applicant to a role commensurate with her seniority and the types of duties she performed in the past: Clause 15.l of the MOU.
(v)The Applicant repeats paragraphs 25 to 29 above.
(vi)The Applicant has never before 2013 been required to perform duties at a firstyear level.
(vii)The Respondent altered the Applicant's position of employment to her prejudice by failing to properly consider the Applicant for appointment to the role of final year co-ordinator under the new (2013) DMD curriculum: Clause 15.2 of the MOU.
(viii)The Applicant repeats paragraphs 25-31 above.
Paragraph 38 of the November 2015 Proposed Amended Defence pleads as follows in relation to paragraph 35 of the Second Further Amended Statement of Claim:
38.Without prejudice to any applicable rights or interests of Professor Smith, the Respondent:
(a)admits that its failure to implement clause 15.1 (as admitted above) altered the position of the Applicant in her employment with the Respondent to her prejudice;
(b)says, with reference to clause 15.2, that any initial prejudice that may be established will be substantially removed and/or ameliorated upon the Respondent giving effect to the undertaking set out in paragraph 34 above; and
(c)otherwise does not admit paragraph 35 of the Statement of Claim.
In paragraph 36 of the Second Further Amended Statement of Claim Dr Lejmanoski pleads that UWA took adverse action against her because of her exercise of her workplace rights. Paragraph 36 of the Second Further Amended Statement of Claim is as follows:
36.By reason of the matters pleaded in paragraphs 25 to 35 of this statement of claim, the Respondent, including through the actions of Professor Smith, took adverse action against the Applicant because of the Applicant's exercise of her workplace rights.
Particulars
(i)The Applicant repeats the particulars set out above at paragraph 35.
(ii)The Applicant repeats paragraph 32(d) and the particulars of paragraph 32(d).
(iii)The Applicant repeats paragraphs 10-16.
Paragraph 39 of the November 2015 Proposed Amended Defence pleads as follows in relation to paragraph 36 of the Second Further Amended Statement of Claim:
39.The Respondent admits paragraph 36 of the Statement of Claim. The Respondent's admission of adverse action is however made:
(a)without prejudice to any applicable rights or interests of Professor Smith;
(b)for the purposes of the present application only;
(c)without prejudice to the right of the Respondent to lead evidence concerning the basis upon which the admission is made in any proceedings concerning the imposition of any penalties;
(d)without detracting from the Respondent 's pleaded response to the specific paragraphs referred to in the particulars to paragraph 36;
(e)without the Respondent admitting any particular alleged proscribed reason relied upon by the Applicant:
(f)without the Respondent admitting that the adverse action caused any particular outcome or consequence relied upon by the Applicant; and
(g)on the premise that the Respondent will in the prevailing circumstances not be in a position to lead evidence in an attempt to discharge the reverse onus of proof conferred by section 361, operating in the light of section 360, of the FW Act.
In paragraph 37 of the Second Further Amended Statement of Claim Dr Lejmanoski pleads that UWA threatened to engage in conduct constituting adverse action, namely threatening to injure her in her employment because of the exercise or proposed exercise of her workplace rights. Paragraph 37 of the Second Further Amended Statement of Claim is as follows:
37. Further or in the alternative, by reason of the matters pleaded in paragraphs 25 to 35 of this statement of claim, the Respondent threatened to engage in conduct that constitutes 'adverse action' within the meaning of section 342(1) item 1(b) of the FW Act in that the Respondent has threatened to injure the Applicant in her employment because of the exercise or proposed exercise of the Applicant’s workplace rights.
Particulars
(i) The Applicant repeats the particulars set out at paragraph 35 above.
(ii)The DMD will supersede the former Bachelor of Dental Science degree, which ceases to exist once the current cohort of Bachelor's degree students completes in 2015. The first-year duties allocated to the Applicant under the DMD (which she currently performs) not only determine her present level of seniority and responsibility but will determine her future career path, given that the DMD will supersede the former Bachelor's degree.
Clause 40 of the November 2015 Proposed Amended Defence pleads as follows in relation to paragraph 37 of the Second Further Amended Statement of Claim:
40.The Respondent denies paragraph 37 of the Statement of Claim.
In paragraph 38 of the Second Further Amended Statement of Claim Dr Lejmanoski pleads breach of an implied term of mutual trust and confidence in her contract of employment.
Paragraph 41 of the November 2015 Proposed Amended Defence denies:
a)any breach of a term of the contract of employment and
b)that the Statement of Claim pleads any tenable cause of action in breach of contract.
In light of the High Court’s judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; (2014) 88 ALJR 814; (2014) 312 ALR 356; (2014) 244 IR 425, this claim cannot succeed.
In paragraph 39 of the Second Further Amended Statement of Claim Dr Lejmanoski pleads that she has suffered injury, loss and damage. Paragraph 39 of the Second Further Amended Statement of Claim is as follows:
39.By reason of the breaches and contraventions pleaded, the Applicant has suffered injury, loss and damage.
Particulars of Injury, Loss and Damage
Further particulars of loss and damage will be provided prior to trial.
Paragraph 42 of the November 2015 Proposed Amended Defence pleads as follows in relation to paragraph 39 of the Second Further Amended Statement of Claim:
42.As to paragraph 39 of the Statement of Claim, the Respondent:
(a)does not admit that the Applicant has suffered any injury, loss or damage; and
(b)does not admit that any injury, loss or damage suffered by the Applicant was caused by the Respondent.
The relief claimed in the Second Further Amended Statement of Claim is as follows:
(i)Declarations pursuant to s 16 of the FederalCircuit Court ofAustraliaAct1999(Cth) or alternatively s 545(1) of the FairWorkAct2009(Cth) that the Respondent contravened inter alia section 340(1)(a)(i); section 340(1)(a)(ii); section 340(1)(a)(iii); section 340(1)(b) of the FairWork Act2009(Cth);
(ii)An order pursuant to section 545(2)(a) of the Fai r Work Act 2009 (Cth) granting an injunction to prevent, stop or remedy the effect of the contravention under (i) above;
(iii)Orders for Compensation for distress and humiliation pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth);
(iv)Penalties pursuant to s 546 of the Fair Work Act 2009 (Cth);
(v)Interest;
(vi)An order that the Applicant be appointed to the role of final year co-ordinator under the new (2013) DMD or like position; or further and alternatively that the Respondent properly consider the Applicant for the role of final year co-ordinator under the new (2013) DMD or like position; or such further or other relief as the court deems fit; and
(vii)Costs.
Paragraph 43 of the November 2015 Proposed Amended Defence pleads as follows in relation to the relief:
43. As to the relief claimed by the Applicant, the Respondent:
(i)denies that the Applicant is entitled to any relief in the nature of compensatory relief and/or orders in the nature of specific performance consequent upon a finding that the Respondent contravened section 340, or Part 3-1 otherwise, of the FW Act..
(ii)reiterates its undertaking to comply with clause 15.2 of the MoU in the terms pleaded in paragraph 34 above;
(iii)in any event denies that the Applicant is entitled to an order of the character sought in the first portion of paragraph (vi);
(iv)reiterates that the Applicant seeks no order for specific performance in relation to the alleged breach of clause 15.1 of the MoU; and
(v)denies that the Applicant is entitled to any order for costs.
The effect of the above pleadings in the context of the application now made by UWA is dealt with below.
Adjournment principles
Any application for adjournment of a hearing (which is effectively what is sought by UWA) must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), as prescribed by the objects of ss.3 and 42 the FCCA Act, and the objects of the FCC Rules: r.1.03, which provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
Further, the Court must take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at [2] per McKerracher J. Ultimately, whether an adjournment is granted is a matter involving the exercise of a wide discretion by the Court: Cann v Commonwealth Bank of Australia (No. 3) [2011] FMCA 303 at [9]-[11] per Lucev FM; Myers v Myers [1969] WAR 19 at 21 per Jackson J.
Consideration
In this case the question as to whether an adjournment ought to be granted involves a consideration of two arguably discrete issues, namely:
a)the effect of the delay in reaching agreement with respect to discovery, and the consequent timing of the filing of Dr Lejmanoski’s Affidavit on 14 December 2015; and
b)the possible impact on the litigation of the filing of an Amended Defence in terms of the November 2015 Proposed Amended Defence.
In relation to the delay in reaching agreement with respect to discovery, there is insufficient evidence before the Court, and in any event it is probably unnecessary, to determine why it was that that agreement took so long to reach. Suffice it to say that it is evident that it took far longer than the August 2014 Orders contemplated. Working backwards from the first listed day for hearing of this matter, namely 4 February 2016, the 165 day period for compliance with the August 2014 Orders commences on 24 August 2015. This meant that there was a more than six month period between the end of mediation, and the beginning of the compliance period. Notwithstanding that, it was a period of a further two and a half months before agreement was reached with respect to discovery on or about 12 or 13 October 2015.
At some point it must have become apparent to the parties, and in particular Dr Lejmanoski, that time was passing, and that it might be difficult, and then not possible, to comply with the terms of the August 2014 Orders.
The special liberty to apply in Order 3 of the August 2014 Orders with respect to discovery highlights the critical importance of discovery in this case (see also Order 4 of the August 2014 Orders which contemplated the possibility that in the event that the Court may have to determine a dispute concerning discovery that there may be no order as to discovery). Yet, notwithstanding that special liberty to apply with respect to discovery in the event of any failure to reach agreement on discovery within seven days of completion of mediation, there was no exercise of that special liberty to apply by Dr Lejmanoski, and no application in a case to amend the dates for compliance with the August 2014 Orders once compliance was no longer possible.
Dr Lejmanoski, and those advising her, must have been aware that the longer the discovery process took, and the later Dr Lejmanoski’s affidavits were filed, the less likely it was that it would be possible to comply with the August 2014 Orders, and the more likely it was that the hearing listed for 4 and 5 February 2016 might have to be vacated.
At no point did Dr Lejmanoski exercise either the special liberty to apply with respect to discovery, or the general liberty to apply in Order 13, of the August 2014 Orders, and thus took no proactive steps to deal with a foreseeable problem when:
a)the agreement on discovery was not forthcoming within seven days of the completion of mediation, and indeed was not reached until some eight months later; and
b)Dr Lejmanoski’s Affidavit was clearly not going to be filed within a time period which would allow for compliance with the remaining steps of the August 2014 Orders.
UWA’s solicitors also took no such steps, but, practically, where it was Dr Lejmanoski who wanted discovery from UWA, and where that impacted upon the filing of Dr Lejmanoski’s Affidavit, it was for Dr Lejmanoski to approach the Court to have the matter dealt with. It was quite the wrong approach to file Dr Lejmanoski’s Affidavit (having taken the full 30 days to do so), which runs to some 43 pages and 252 paragraphs, plus three annexures totalling 1022 pages, and then submit to the Court when the matter came on for a directions hearing as a consequence of UWA exercising the general liberty to apply, that the remaining steps to which the parties had consented in the August 2014 Orders, and which had allowed several months to be completed, should then be completed in seven weeks, in circumstances where:
a)the Christmas – New Year period was just commencing;
b)UWA had shut down for the Christmas – New Year period (a fact about which there was no dispute);
c)the legal profession and lawyers offices typically close down over the Christmas – New Year period (a fact again about which there was no dispute); and
d)as a consequence of (a), (b) and (c) above many of the lawyers, witnesses and personnel required to work on the matter on behalf of UWA would not be at work over the Christmas – New Year period.
There would therefore be practical difficulties, particularly in relation to the finalisation of affidavits by UWA during the Christmas – New Year period.
The Court also considers that it is simply unjust, in what is plainly relatively complex litigation, for the parties consent arrangements to be disturbed in such circumstances as are described above, and to require what the parties clearly envisage would take several months, to be done in under seven weeks, and in fact, probably less than that, bearing in mind the time of the year. In those circumstances, there was likely to be very real prejudice, particularly to UWA, by compression of the timetable in the manner suggested by Dr Lejmanoski.
It would not be appropriate to compress the timetable for compliance with the outstanding steps in the August 2014 Orders into a period of seven weeks over the Christmas – New Year period. To do so would not be to properly do justice between the parties.
It follows that on this basis alone, the Court is prepared to grant orders similar to those sought by UWA, the practical effect of which is to vacate the hearing dates on 4 and 5 February 2016.
The Court also notes that Dr Lejmanoski sought leave to file a Third Further Amended Statement of Claim, and to do so by 24 December 2015. Whilst the Court was told that the amendments were minor, the fact that the Statement of Claim was still not finalised at such a late stage, reinforces (albeit it in a small way) the necessity for the vacation of the hearing dates.
The Court has taken into account the prejudice to Dr Lejmanoski by reason of a further delay in the hearing of this matter, bearing in mind that the application was filed in January 2013, three years ago. In the context of the history of the litigation, however, much of the delay is a consequence of Dr Lejmanoski’s own actions, including:
a)the filing of an Amended Statement of Claim in May 2013;
b)the filing of a Further Amended Statement of Claim in July 2013;
c)the filing of a Second Further Amended Statement of Claim in June 2014, that is 18 months after the Application was filed;
d)the seeking of leave to file a Third Further Amended Statement of Claim on 24 December 2015 (albeit that the amendments are apparently minor); and
e)the significant delay in finalising discovery when the August 2014 Orders clearly contemplated that discovery was of critical importance, and provided for special liberty to apply within seven days of the completion of mediation by a Registrar, if agreement on discovery had not then been reached, and the failure to exercise the liberty to apply with respect to discovery in the August 2014 Orders.
In the Court’s view any prejudice to Dr Lejmanoski is, at least in significant part, of her own making, and, in any event, is outweighed by the prejudice which would be suffered by UWA if the timetable were to be compressed in the manner now suggested by Dr Lejmanoski.
In the above circumstances, and without needing to consider the issues arising from the November 2015 Proposed Amended Defence, the Court is prepared to vacate the hearing dates on 4 and 5 February 2016.
The effect of the November 2015 Proposed Amended Defence is significant in terms of the admissions contained therein, and the consequent reduction in the scope of the dispute between the parties. In particular, the Court notes that:
a)UWA admits that Dr Lejmanoski has the workplace rights under the Fair Work Act 2009 (Cth) (“FW Act”) pleaded at paragraph 33 of the Second Further Amended Statement of Claim;
b)UWA admits, subject to a minor caveat which is not of particular importance, that Dr Lejmanoski exercised or alternatively proposed to exercise her workplace rights as pleaded at paragraph 34 of the Second Further Amended Statement of Claim;
c)UWA admits that adverse action was taken against Dr Lejmanoski because of the exercise of her workplace rights as pleaded at paragraph 36 of the Second Further Amended Statement of Claim, subject to a number of qualifications, but notably, and importantly, that UWA cannot discharge the reverse onus of proof under s.361 of the FW Act, a qualification which largely renders the other qualifications redundant; and
d)a more limited admission made by UWA as to an alleged breach of the MOU and the alteration of Dr Lejmanoski’s position in employment, as pleaded at paragraphs 32 and 35 of the Second Further Amended Statement of Claim with respect to the failure to reappoint Dr Lejmanoski to a role commensurate with her seniority and the types of duties that she performed in the past, and the failure to properly consider Dr Lejmanoski for appointment to a role as final year coordinator under the new DMD Curriculum.
There remains significant areas of dispute, particularly with respect to:
a)paragraph 37 of the Second Further Amended Statement of Claim and the alleged threat to engage in conduct constituting adverse action;
b)paragraph 39 of the Second Further Amended Statement of Claim in relation to injury, loss or damage and the cause of any injury, loss or damage; and
c)in relation to the relief claimed.
In isolation, the November 2015 Proposed Amended Defence would not necessarily have been cause for the vacation of the 4 and 5 February 2016 hearing dates. However, taken in conjunction with effect of the delay in reaching agreement with respect to discovery, and the consequent timing of the filing of Dr Lejmanoski’s Affidavit on 14 December 2015, it is plain that the nature of the disputed matters has altered significantly, particularly as it relates to alleged adverse action in relation to workplace rights. The admissions which have been made raise the issue as to whether or not further mediation by a Registrar of this Court might assist the parties in overcoming the now significantly narrower extant disputes in this matter. The admissions may also have implications in relation to whether the usual position of liability and penalty hearings being separate ought to be abandoned, and whether the Court ought to hear the remaining liability, relief and penalty issues together.
The above considerations reinforce the view that the Court has reached that it is appropriate to grant orders as sought by UWA which would have the effect of vacating the hearing dates on 4 and 5 February 2016.
In the above circumstances, it is appropriate to set aside Orders 5 to 12 of the August 2014 Orders which provide for further steps to be taken prior to any hearing of the matter, and to by so doing effectively vacate the hearing dates on 4 and 5 February 2016.
The parties ought to confer with respect to appropriate orders prior to a further directions hearing on 4 February 2016.
Conclusions and orders
It was for the above reasons that the Court made the orders which it made on 23 December 2015.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 3 February 2016
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