FEDERAL COURT OF AUSTRALIA
Newton v Australian Postal Corporation [2018] FCA 2007
File number: VID 876 of 2017 Judge: BROMBERG J Date of judgment: 7 December 2018 Catchwords: PRACTICE AND PROCEDURE – trial of proceeding seeking, amongst other things, various remedies under the Fair Work Act 2009 (Cth) (“FW Act”) against four respondents – where at close of case by the applicant a no case to answer submission (“no case submission”) is made by some but not all of the respondents – whether a respondent that has tendered a documentary exhibit retains a capacity to make a no case submission – whether in the exercise of the Court’s discretion, the Court should permit a no case submission to be made – principles related to whether a no case submission should be entertained when made by some but not all respondents – no case submission not entertained Legislation: Fair Work Act 2009 (Cth), ss 348 and 355 Cases cited: J Corp Pty Ltd v BLF (No 2) (1992) 38 FCR 458
James v ANZ Banking Group Limited (1986) 64 ALR 347
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No. 4) [2011] FCA 618
Menzies v Australian Iron and Steel Ltd (1952) 52 SR (NSW) 62
Rasomen v Shell Company of Australia (1997) 75 FCR 216
Date of hearing: 6 December 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 50 Counsel for the Applicant: Mr P Rozen SC Solicitor for the Applicant: Kennedys Law Counsel for the First and Second Respondents: Ms R Doyle SC with Mr M Follett Solicitor for the First and Second Respondents: Allens Counsel for the Third Respondent: Ms C Howell with Mr T Borgeest Solicitor for the Third Respondent: Slater & Gordon Counsel for the Fourth Respondent: Mr J Pearce Solicitor for the Fourth Respondent: Carroll & O’Dea Lawyers
REASONS FOR JUDGMENT
VID 876 of 2017 BETWEEN: MICHAEL NEWTON
Applicant
AND: AUSTRALIAN POSTAL CORPORATION
First Respondent
AHMED FAHOUR
Second Respondent
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA (and another named in the Schedule)
Third Respondent
BROMBERG J:
In this proceeding, the applicant (“Mr Newton”) seeks various remedies under the Fair Work Act 2009 (Cth) (“FW Act”) against four respondents. There is also a contractual claim against the first respondent (“Australia Post”), but for present purposes it is not necessary to further refer to that claim.
Relevantly to the issues I need to decide, Mr Newton alleges that the third respondent (the “Union”) and fourth respondent (“Mr Metcher”) contravened ss 348 and 355 of the FW Act and that the second respondent (“Mr Fahour”)…
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Details
- Case
- [2018] FCA 2007
- Decision Date
CaseChat Overview and Summary
In the case of Newton v Australian Postal Corporation, the dispute involved allegations of coercion under the Fair Work Act 2009 (Cth) against four respondents, including the Union and Mr Metcher. The applicant, Mr Newton, sought various remedies related to a telephone conversation between Mr Metcher and Mr Fahour, where it was alleged that Mr Metcher coerced or intended to coerce Mr Fahour to engage in conduct that contravened sections 348 and 355 of the FW Act. The primary issues before the court were whether a respondent who had tendered a documentary exhibit retains the capacity to make a no case to answer submission and whether, in the exercise of the court’s discretion, a no case submission should be permitted when made by some but not all respondents.
The court examined the principles governing the admissibility of a no case submission, particularly in cases where not all respondents make such a submission. The court found that the principles relevant to the determination of a no case submission are well-established: the submission should only be entertained if it is in the interests of justice. In this case, the court considered whether permitting the submission would be just and fair given that only some of the respondents had made the submission. The court concluded that allowing the submission would be unfair and not in the interests of justice, as it would potentially prejudice the applicant’s case against the other respondents. Accordingly, the court decided not to entertain the no case submission.
The court’s reasoning focused on the procedural fairness and the potential prejudice to the applicant’s case. Given that the no case submission was made by some but not all respondents, permitting it could lead to an uneven playing field, potentially disadvantaging the applicant. The court held that the no case submission was not entertained, and the case proceeded to trial against all respondents.
The court examined the principles governing the admissibility of a no case submission, particularly in cases where not all respondents make such a submission. The court found that the principles relevant to the determination of a no case submission are well-established: the submission should only be entertained if it is in the interests of justice. In this case, the court considered whether permitting the submission would be just and fair given that only some of the respondents had made the submission. The court concluded that allowing the submission would be unfair and not in the interests of justice, as it would potentially prejudice the applicant’s case against the other respondents. Accordingly, the court decided not to entertain the no case submission.
The court’s reasoning focused on the procedural fairness and the potential prejudice to the applicant’s case. Given that the no case submission was made by some but not all respondents, permitting it could lead to an uneven playing field, potentially disadvantaging the applicant. The court held that the no case submission was not entertained, and the case proceeded to trial against all respondents.
Orders
Orders of the court
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Background
Background to the litigation
As a matter of procedure I determined to deal with the Threshold Issue and the Second Issue first, and although I have heard short submission from the Union and Mr Metcher on the substance of their no case submission, I did not hear the applicant on the Third Issue. Accordingly, these reasons deal only with the Threshold Issue and the Second Issue. RELEVANT BACKGROUND MATTERS AND LEGISLATION At all relevant times, Mr Newton was an employee of Australia Post and Mr Fahour its Chief Executive Officer. Mr Metcher was the Branch Secretary of the New South Wales Branch of the Union. Broadly speaking, the allegations made against the Union and Mr Metcher relate to a telephone conversation that took place on 5 February 2016 between Mr Metcher and Mr Fahour where it is alleged that Mr Metcher coerced or intended to coerce Mr Fahour and Australia Post to engage in certain conduct including removing Mr Newton from the position he then held, thereby contravening ss 348 and 355 of the FW Act. Mr Newton’s case against the Union relies on the alleged conduct of Mr Metcher. Section 348 of the FW Act provides:CoercionA person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. The meaning of “engage in industrial activity” as it appears in s 348 is defined in s 347 of the FW Act. Relevantly, s 347 provides:Meaning of industrial activityA person engages in industrial activity if the person:…(b) does, or does not:…(iv) comply with a lawful request made by, or requirement of, an industrial association; or…(e) complies with an unlawful request made by, or requirement of, an industrial association; or… Section 355 of the FW Act provides:Coercion--allocation of duties etc. to particular personA person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:(a) employ, or not employ, a particular person; or(b) engage, or not engage, a particular independent contractor; or(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.Note: This section is a civil remedy provision (see Part 4-1). In relation to Mr Newton’s claim under s 348 of the FW Act, Mr Newton alleges that the relevant industrial activity for the purposes of s 347(b)(iv) and (e) took place during the 5 February 2016 telephone conversation when Mr Metcher requested that Mr Fahour:(1)cancel Project Dove (a project Mr Newton had been working on, designed to change the way in which Australia Post dealt with those of its employees receiving workers’ compensation); and(2)remove Mr Newton from his position as National Compensation Manager with Australia Post. It is further alleged that Mr Metcher threated that, unless Mr Fahour complied with his requests, Mr Metcher would leak Australia Post documents about Project Dove to the media and to politicians, arrange protest rallies about Project Dove, take Australia Post “to the cleaners”, take serious industrial action and take legal action. These threats are alleged to constitute the threatened “action” to which s 348 refers.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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