Lejmanoski v The University of Western Australia (No 4)
[2016] FCCA 269
•15 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEJMANOSKI v THE UNIVERSITY OF WESTERN AUSTRALIA (NO. 4) | [2016] FCCA 269 |
| Catchwords: PRACTICE AND PROCEDURE – Listing of liability and penalty hearing – whether separate hearings. |
| INDUSTRIAL LAW – Adverse action claim – breach of contract claim. |
| Legislation: Fair Work Act 2009 (Cth), s.545 |
| Kelly v Fitzpatrick[2007] FCA 1080; (2007) 166 IR 14 Lejmanoski v The University of Western Australia (No. 3) [2016] FCCA 154 Mason v Harrington Corporation Pty Ltd[2007] FMCA 7 Olsen v Sterling Crown [2008] FMCA 1392; (2008) 177 IR 337 Trade Practices Commission v Madad Pty Ltd (1979) 40 FLR 453 |
| Applicant: | LENA LEJMANOSKI |
| Respondent: | THE UNIVERSITY OF WESTERN AUSTRALIA |
| File Number: | PEG 9 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 11 February 2016 |
| Date of Last Submission: | 11 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 15 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Kenzie QC |
| Solicitors for the Applicant: | DLA Piper Australia |
| Counsel for the Respondent: | Mr R L Hooker |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS (made on 11 February 2016)
The respondent file and serve any affidavits in opposition to the application by 17 March 2016.
The applicant file and serve any affidavits in reply by 7 April 2016.
The respondent file and serve an outline of submissions and a list of authorities by 14 April 2016.
The applicant file and serve an outline of submissions and a list of authorities by 21 April 2016.
Each party must give notice of any objections to the affidavits filed and of its intention to cross-examine a deponent not later than 10 days before the hearing.
With the exception of those documents annexed to any affidavit filed pursuant to any relevant Order, 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 10 days before the hearing.
The witnesses’ affidavits stand as their evidence-in-chief, except by the leave of the Court.
The matter be set down for a two day hearing on liability only at 10.15am on 10 and 11 May 2016.
Liberty is reserved to the parties upon 24 hours' notice to the Court to apply to vary the terms of these directions.
Costs, if any, of today be reserved.
Reasons for Judgment to be published from Chambers electronically on 15 February 2016.
| 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 dispute between the parties is and has been intense in these proceedings, although in recent times there have been significant admissions of liability by the respondent, the University of Western Australia (“UWA”) in an Amended Defence filed on 16 January 2016.
The Court is presently asked to make directions for future programming, but the parties are in dispute as to:
a)the dates and timing of the various programming matters;
b)whether liability and penalty ought to be determined separately, or be the subject of a single hearing; and
c)the length of any hearing or hearings.
The Court is cognisant of the length of time that this matter has been in the Court’s lists. The Court does have two days in May 2016 – albeit not in a Fair Work week– into which it can list the matter. Otherwise there are not two days available in this Court in this Registry to hear the matter until at least February 2017. Therefore, whether it be a liability only or a liability and penalty hearing, one or both of the available days in May 2016 will be utilised for a hearing in order to expedite the resolution, in whole or part, of the matter.
Generally liability is determined separate from penalty in civil proceedings in federal courts: Trade Practices Commission v Madad Pty Ltd (1979) 40 FLR 453 (“Madad”); Olsen v Sterling Crown [2008] FMCA 1392; (2008) 177 IR 337 (and cases there cited). But not always: Madad cites an exception where, for example, the facts are agreed: Madad at 455 per Keely J. There may also be some small or smaller cases, or some cases where the area of dispute has been so reduced, which make it convenient to deal with penalty and liability together in the one hearing.
The Court notes the well-known, but not exhaustive list of factors derived from Mason v Harrington Corporation Pty Ltd[2007] FMCA 7, approved by the Federal Court in Kelly v Fitzpatrick[2007] FCA 1080; (2007) 166 IR 14, and regularly applied in this Court in the determination of penalties in proceedings under the Fair Work Act 2009 (Cth) (“FW Act”).
The penalty factors include a number of matters in respect of which the Court anticipates there is likely to be significant dispute, and opposing interpretations of evidence and events, and contrary contentions from each party. Those factors include:
a)the nature and circumstances of the contravening conduct;
b)in particular, the consequences of the contravening conduct upon Dr Lejmanoski; and
c)UWA’s contrition for the matters for which it is found liable (bearing in mind that there are already significant admissions of liability).
As to whether liability or a liability and penalty hearing ought to be ordered the Court notes:
a)the significant admissions of liability contained in UWA’s Amended Defence;
b)the significant body of documentary evidence in the applicant’s, Dr Lejmanoski’s, affidavit filed on 14 December 2015, the documents running to some 1,022 pages; and
c)that there is not yet any evidence which has been put on by UWA.
As the Court identified in Lejmanoski v The University of Western Australia (No. 3) [2016] FCCA 154 (“Lejmanoski (No. 3)”), and as Senior Counsel for Dr Lejmanoski identified at the directions hearing, there remain significant areas of dispute, including:
a)an alleged threat by UWA to engage in conduct constituting adverse action;
b)issues of injury, loss or damage and the cause of any injury, loss or damage;
c)an alleged breach of the Memorandum of Understanding (“MOU”) entered into between Dr Lejmanoski and UWA on 11 November 2011;
d)whether there has been consultation as required by the MOU; and
e)as to relief. In this regard, as identified by Counsel for UWA, difficult issues also arise in respect of the relief sought by way of a particular appointment, or a role commensurate to that particular appointment, notwithstanding the availability of that particular relief statutorily under s.545 of the FW Act. This particular relief issue also intertwines with another issue as to the consequences of the contravening conduct upon Dr Lejmanoski, and in that regard although there have been significant admissions of liability there has not been a final determination of liability, and it is possible that liability finally determined will be wider than that now admitted, in which case there may be need for further consideration of the consequences of the contravening conduct upon Dr Lejmanoski.
Given the history of the matter thus far, and the nature of the issues which remain for determination, the Court is of the view that there are likely to be significant factual matters which it will be required to determine, before making a final determination as to liability, let alone relief and penalty.
Therefore, notwithstanding the significant admissions of liability, it is:
a)difficult for the Court to obtain a true sense of the remaining factual issues in dispute, and of the factual issues which might be relevant to penalty; and
b)there remain significant issues for determination in relation to liability, relief and penalty.
There is therefore a real danger, in the Court’s view, that the factual matrix of liability and penalty will be confused in a case such as this. As the Federal Court observed in Madad at 455 per Keely J:
I do not consider that it is satisfactory that counsel for either party should have to decide whilst opposing counsel is addressing the court whether to object to assertions in that address as to the facts.
Penalty, particularly in a case involving senior professionals in a faculty of the State’s senior university, ought to be a matter for reflection and proper consideration once liability has been determined. As the Federal Court further observed in Madad at 455 per Keely J:
A properly informed decision as to whether those assertions are accurate might well require counsel to have discussions with officers of the plaintiff or the defendant (as the case may be) or with officers of one or more companies affected by the alleged contraventions.
The Court notes that the nature of the finding of liability might also require some consideration by UWA as to contrition. Given the nature of the matter any evidence as to UWA’s contrition will necessarily have to be given by a senior faculty member or senior member of the University Chancellery, or both. In the circumstances, the Court considers it unrealistic that a person of such seniority within UWA be required to give important evidence about contrition, effectively at the same time as liability (or part thereof) is still being determined by the Court. Without a final determination of liability, and bearing in mind the complexity of the issues which arise, both in relation to matters in respect of which liability has already been admitted, and those in which it has not been admitted, the interests of the administration of justice would not be assisted by evidence of contrition without the final position with respect to liability having been finally determined. Further, UWA may need to consider any further remedial steps that might be taken to lessen the consequences of the contravening conduct, and, as with liability, properly considered evidence as to remedial steps, if any, to be taken in this matter, cannot be given until UWA knows the extent of its liability. For UWA to have to deal with liability (insofar as it is not presently admitted) and penalty at the same time, and to be denied the possible opportunity to consider its position in respect of contrition (including any steps taken to remedy or mitigate the effects of the contravening conduct), in light of the Court’s findings and comments on liability, would in the Court’s view be unfair and not in the interests of justice.
The Court is cognisant of the time that this intensely fought matter has been in the Court’s lists, however, a penalty hearing would not ordinarily take more than half a day, and even if it takes a day, there are always circumstances where slots in the Court’s two weeks of migration hearings each month open up as a result of applications being conceded by the Minister, or discontinued by an applicant, prior to hearing, and into which any penalty hearing in this matter could be squeezed. With a liability hearing in May 2016, that would mean that the matter could finally be disposed of before the end of 2016.
Therefore, in the circumstances, the Court will determine liability separate from penalty.
As to the length of the liability hearing, the Court has already noted the significant documentary evidence annexed to Dr Lejmanoski’s Affidavit, and that the evidence from UWA has not yet been filed. In those circumstances, it is very difficult to confidently conclude that the liability hearing might only take one day, and in the circumstances of this case, which has already been on foot for more than three years, a proper and prudent approach to case management, including the necessity to ensure that the liability hearing finishes in May 2016, necessitates listing a two day hearing. The Court will therefore list the liability hearing for two days in May 2016 to ensure that it is completed in the two days in May 2016.
The time for the various programming steps will be adjusted accordingly, and orders made accordingly.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 15 February 2016
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