Palfreyman v Alfred Health
[2023] FedCFamC2G 1241
•22 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Palfreyman v Alfred Health [2023] FedCFamC2G 1241
File number(s): MLG 2955 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 22 May 2023 Catchwords: INDUSTRIAL LAW – ex tempore ruling – application made on eve of trial - whether leave should be granted for respondent to file further affidavit material – consideration of the Federal Circuit and Family Court of Australia’s case management principles – whether there would be non-compensable loss if application is granted - application dismissed Legislation: Fair Work Act 2009 (Cth), s 50
Federal Circuit and Family Court of Australia (Division 2) (General FederalLaw) Rules 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 22 May 2023 Date of hearing: 22 May 2023 Place: Melbourne Counsel for the Applicant: Mr I Latham Solicitor for the Applicant: JPM Law Counsel for the Respondent: Mr M Rinaldi Solicitor for the Respondent: DLA Piper ORDERS
MLG 2955 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STACEY PALFREYMAN
Applicant
AND: ALFRED HEALTH
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
22 MAY 2023
THE COURT ORDERS THAT:
1.The respondent’s application filed on 19 May 2023 for leave to file further affidavits be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)
JUDGE SYMONS:
IN SUMMARY
By application filed on 19 May 2023, the respondent seeks the leave of the Court to rely on the affidavits of Craig Till, Danielle Bolster and Ross Longhurst. The application is supported by an affidavit of Ms Elizabeth Cole affirmed on the same date. Ms Cole is a lawyer acting for the respondent in this proceeding. Uncontroversially, the affidavit records aspects of the procedural background to the proceeding, which includes that the respondent filed three affidavits on 21 and 23 December 2022.
On 15 February 2023, the respondent filed an affidavit of Ms Bolster affirmed on 25 January 2023 and an affidavit of Mr Longhurst affirmed on 23 January 2023. These affidavits were removed from the court file on 24 February 2023 because they have been filed out of time and without leave. The affidavit of Mr Till was filed on 6 February 2023, but it was not accepted for filing for the same reasons. I note that in correspondence sent by my chambers to the respondent’s lawyer on 24 February 2023 notifying it of the fate of these three affidavits the respondent was invited at that time to approach chambers to make an application for leave for the late filing of these affidavits.
The respondent’s application for leave
No such application was made until, as I noted at the outset, this Friday. No explanation is provided in the affidavit of Ms Cole for the failure of the respondent to do so. It is said instead that in circumstances where the applicant has been made aware of the respondent’s desire to rely on the three affidavits the subject of the application since 15 February 2023, that leave of the Court should be granted. In submissions to the Court this morning, Mr Rinaldi characterised his client’s application as a “housekeeping” matter which could be dealt with expeditiously at the outset of the hearing.
He noted that the deponents of the three affidavits were all mentioned in the applicant’s affidavit, and it was appropriate that the Court be seized of their evidence so that it had a complete picture of relevant circumstances and events. Mr Latham, on behalf of the applicant, strongly resisted the characterisation of the application as one involving housekeeping. While he acknowledged that his client had been in possession of the three affidavits since around 15 February 2023, he submitted that this did not have the automatic result that the applicant was in a position to meet the respondent’s expanded case.
Mr Latham foreshadowed that work would need to be done in critically evaluating the affidavit material, considering whether, and then preparing if necessary, reply affidavit material and considering whether to and then potentially issuing subpoenas. He could not be confident that this work could be done within the time allocated this week or indeed within the first half of next week. Mr Latham also emphasised that this was a matter where non-compensable loss was likely to accrue. Mr Latham noted, and I accept, that the applicant’s case is one that involves psychological injury and impact and that it is readily conceivable that a delay to the hearing of the application would cause stress to the applicant.
Further, as far as the content of the affidavit material was concerned, Mr Latham characterised this as not desperately central to the respondent’s case in circumstances where the respondent has identified Mr McCall-White as the decision-maker.
Mr Latham maintained his submission after Mr Rinaldi had provided further explanation as to the significance of the three witnesses, and in doing so identified Ms Bolster as the person who would provide evidence of the role performed by the applicant; Mr Longhurst, who would provide evidence about the role that was advertised for and the termination of the applicant’s employment, and evidence about the meetings that took place with the applicant and Mr Olden; and Mr Till, who would provide evidence concerning remarks attributed to him in November 2018, a time which I note proceeded the termination by approximately three years.
Consideration of the leave application
I have reflected carefully on the respondent’s application, but I am ultimately not persuaded that it would be in the interests of the administration of justice to extend time to allow the filing of and reliance upon the affidavits of Ms Bolster, Mr Longhurst and Mr Till. The application for leave should have been made some time ago when it became apparent to the respondent that the affidavits had not been accepted for filing. Since at least 24 February 2023, the applicant has, as she was entitled to, prepared her case on the basis that she was responding to the three affidavits filed by the respondent in December 2022.
It is of no great moment that the applicant has been in possession of the three affidavits since that time, and neither is it significant that the respondent, on 18 May 2023, offered to pay the costs thrown away in exchange for the applicant’s consent for leave to file the affidavits. While the three affidavits may not be lengthy, they have the real potential to draw out a hearing that has been set down for trial since 16 June 2022 and which has been in the Court since November 2021. The pre-trial timetable was generous and could readily have accommodated an application for leave without putting in jeopardy other procedural steps.
However, no such application was made formally until the eleventh hour. Case management principles in this case loom large. In particular, I am cognisant of the need to give effect to the overarching purpose of this Court’s rules to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Accepting that the applicant would need to take the steps identified by her counsel if the affidavits were admitted and that there are difficulties of counsel availability next week, it seems inevitable that the trial will be put off until at least next year, if the application was granted.
Self-evidently, such a course would seriously undermine the case management principles of this Court. It also raises the very real prospect that non-compensable loss would flow to the applicant, quite apart from the type of loss to the Court and to litigants generally that cases such as Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 require that I take into account in considering an application of this kind. Further, I am not persuaded the affidavit material the respondent seeks to rely upon is sufficiently important to tip the balance in favour of its late admission.
Neither deponent – or neither of the three deponents - was held out as a decision-maker and no deponent is identified as critical to the respondent’s defence to the allegations of breach of s 50 of the Fair Work Act 2009 (Cth).
CONCLUSION
In conclusion, the profound delay, the lateness of the application, which in my opinion is not sufficiently explained, the prejudice this would cause to the applicant and to the administration of this Court’s finite resources and the need to maintain public confidence in the judicial system all tell against the granting of the application, and it is for those reasons refused.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 10 October 2024
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