Ramus v Continence Foundation of Australia Limited

[2014] VSC 477

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No.  S CI 03559 of 2013

ANNE RAMUS	Appellant
v
CONTINENCE FOUNDATION OF AUSTRALIA LIMITED (A.C.N. 007 325 313)	Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATES OF HEARING:	1 and 2 May 2014
DATE OF JUDGMENT:	25 September 2014
CASE MAY BE CITED AS:	Ramus v Continence Foundation of Australia Limited
MEDIUM NEUTRAL CITATION:	[2014] VSC 477

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MAGISTRATES’ COURT – Appeal – Employment contract –  No grounds for apprehended bias – No excessive interruption by Magistrate – No erroneous misstatement of test for repudiation of employment contract – No erroneous misstatement of test for redundancy of position – Conclusion open on the evidence – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Southall SC with Ms G Jardine	McDonald Murholme
For the Respondent	Mr M Champion	CCI Lawyers

HER HONOUR:

The appeal

1. The appellant, Ms Ramus, sued her former employer, the respondent (‘the CFA’), in the Magistrates’ Court, claiming damages for the alleged repudiation of her employment and a redundancy payment under s 119(1)(a) of the Fair Work Act 2009 (Cth). She also sought payment of a penalty under that act.

1. Ms Ramus’ claim was dismissed on 12 June 2013.  The learned Magistrate gave reasons for his decision (‘the reasons’).[1] Ms Ramus now appeals from that decision under s 109 of the Magistrates’ Court Act1989. 

   [1]Ramus v Continence Foundation of Australia (Unreported, Melbourne Magistrates’ Court, Magistrate Ginnane, 12 June 2013).

Grounds of appeal

1. The further amended grounds of appeal filed in the course of the hearing before me were stated as follows:

(1)The Magistrate erred in law by failing to accord the rules of natural justice, alternatively by creating an apprehension of perceived bias, in –

(a)conducting himself in an interventionist manner on an excessive number of occasions during the proceedings; and/or

(b)interrupting the orderly presentation of the Appellant’s evidence and case.

(2)     The learned Magistrate erred in law –

(a)       at paragraph 41 of his Reasons;

(b)       at paragraph 50 of his Reasons;

in applying an incorrect test for the repudiation of the Appellant’s contract of employment with the Respondent.

(3)     The learned Magistrate erred in law –

(a)       at paragraph 41 of his Reasons;

(b)       at paragraph 50 of his Reasons;

in applying an incorrect test for redundancy of the Appellant’s position with the Respondent.

(4)The findings of the learned Magistrate at paragraph 50 of his Reasons that –

(a)the Appellant could not establish a repudiation of her employment contract with the Respondent;

(b)the Appellant’s position with the Respondent was rendered redundant,

were findings not reasonably open on the evidence.

1. Ground 3(a) was not pressed.

1. It was common ground that the Court should address at the outset the issue of whether the Magistrate conducted himself so as to create the perception that he was biased against Ms Ramus or so as to breach the rules of natural justice.[2] 

   [2]See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 611 [117] (Kirby and Crennan JJ); AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236, 241 [18] (Warren CJ, Hansen JA and Almond AJA).

1. I will first refer to the facts as they were found by the learned Magistrate.

Factual findings

1. His Honour found that Ms Ramus started work with the CFA on a casual basis on 4 March 1998 and full time in July of that year.  Her role was that of a ‘Projects Officer’ or ‘Health Writer’, as she is referred to at various times.

1. Her duties were to:

(a)edit and write for the CFA’s quarterly magazine, ‘Bridge’;

(b)write articles under the CFA’s National Articles Program;

(c)build relationships with magazine and journal editors;

(d)liaison with the corporate sector and assist with their sales materials; and

(e)assist with additional printed material.

1. Mr Barry Cahill was the CFA’s Chief Executive Officer from 2002.

1. On 22 August 2011, the CFA appointed Ms Alison McClelland as its Marketing and Communications Manager and Ms Rowan Cockerell as Deputy Chief Executive Officer.  Ms Ramus was to report to Ms McClelland who, in turn, would report to Ms Cockerell.

1. On 29 August 2011, Ms Ramus started six weeks of annual leave. 

1. Shortly after that, on 2 September 2011, a CFA steering committee for the Bridge magazine met.  It decided that a review of the magazine, focusing on its purpose, target audience, content and publication, was timely and that it would be appropriate to consider inviting clinicians to contribute relevant research.

1. On 3 October 2011, Ms Ramus returned to work after her six-week break.

1. On 24 October 2011, she and Ms McClelland discussed changes to the magazine, including:

(a)adopting a two-column format;

(b)soliciting material from external sources, including clinicians;

(c)‘untheming’ each edition;

(d)reducing Ms Ramus’ responsibility for sourcing advertising for the magazine; and

(e)extending the magazine’s size from eight to 12 pages.

1. On the same day, Ms Ramus emailed Ms McClelland, copying in Mr Cahill and Ms Cockerell.  In the email, she thanked Ms McClelland for the meeting to discuss the magazine’s future.  She confirmed that Ms McClelland would draft a ‘Carer of the Year’ page and provide a ‘personal story’.  She also confirmed that Ms McClelland would delete the magazine pages to be replaced by this material.  Ms Ramus asked what the proposal was as to which issue of Bridge would contain Ms McClelland’s overview of the speakers and topics discussed at the national conference on incontinence.

1. The learned Magistrate rejected Ms Ramus’ evidence that, at that meeting, Ms McClelland referred to the magazine’s contents as ‘rubbish’ and then or at another time told Ms Ramus that it was no concern of hers that the summer edition was running late for the printer.

1. After the 24 October 2011 meeting and email, Ms Ramus involved herself in the production of the summer edition.  The learned Magistrate found that the magazine ‘remained within [her] ken and control’.  Having compared the content of the summer edition as drafted by Ms Ramus and the content after changes by Ms McClelland, he found ‘a significant conformity between the two’.[3]

   [3]Reasons [21].

1. The Magistrate rejected Ms Ramus’ evidence that she had had no work to do after 24 October 2011 and found that she had not told the CFA that she had had no work.[4] 

   [4]Ibid [45].

1. His Honour concluded that she was still needed as the editor and writer for the next edition and that she remained responsible for national publications.  The defining features of her position had not been taken away.  She had, however, ‘for all practical purposes downed tools and stopped work’.[5] 

   [5]Ibid.

1. On 15 November 2011, Ms Ramus and Mr Cahill had a meeting and Mr Cahill made a contemporaneous note as a record of what occurred.[6]  At the meeting, Ms Ramus expressed her concerns for her position as editor of the magazine and about her working relationship with Ms McClelland.  She claimed that her role had been made redundant and that she had had nothing to do over the previous three weeks.  She asked not to be identified in the next edition of Bridge as editor.  She stated that she expected a severance package to be paid by the CFA.  She tendered her resignation. 

   [6]The note was exhibited in the Magistrates’ Court proceeding.

1. Mr Cahill had previously been unaware of her concerns.  He said that there had been no discussion or plan to make her position redundant.  He implored her to reconsider her resignation.  He told her that he believed matters could be resolved. 

1. On 21 November 2011, Ms Ramus commenced paid personal leave and never returned to work with the CFA.  There were meetings and correspondence between her and the CFA.  She continued to assert that her duties had been taken away by Ms McClelland and to seek to have work she regarded as her own returned or to have clarification of the role she would hold.

1. On 1 February 2012, Ms Cockerell, the Deputy Chief Executive Officer, wrote that she looked forward to Ms Ramus’ return to continue her role as ‘Project Officer and Editor of Bridge’.  She said that Mr Cahill and Ms McClelland fully supported her return and that the CFA would consider ‘any mechanisms’ she might require to return to work. 

1. In further correspondence, Ms Ramus’ solicitors continued to maintain that her tasks had been redistributed and her position had been made redundant requiring payment of a redundancy package.  The CFA persisted in maintaining that there had been no redundancy, that there was no pending dismissal for redundancy and that Ms Ramus should return to work.  Ultimately, when she failed to do so, the CFA wrote to her on 23 February 2012, enclosing a final pay slip.

The Magistrate’s conclusions

1. The learned Magistrate noted that ‘redundancy’ was not a term of art and was to be understood in the context in which it appeared.[7]  A job became redundant when the employer no longer wished to have it done by anyone.[8]  Given the way she put her case, Ms Ramus had the burden of proving that the CFA had repudiated her contract by redistributing to Ms McClelland the collection of functions, duties and responsibilities which made up her job or role.[9]  

   [7]Reasons [34], citing Dibb v Commissioner of Taxation (2004) 136 FCR 388, 403 (Spender, Dowsett and Allsop JJ).

   [8]Ibid, citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Co-Operative Ltd (1977) 44 SAIR 1202.

   [9]Ibid, citing Jones v Department of Energy and Minerals (1995) 60 IR 304, 308 (Ryan J).

1. The Magistrate concluded that she had not satisfied that burden.  Her title and core responsibilities as the editor and writer of Bridge, ‘the defining features of her position’, remained and her role continued.  It had not been made redundant, by being redistributed or appropriated by Ms McClelland in the approximately 17 days during which they worked together before Ms Ramus’ annual leave.  Neither the changes to the magazine discussed with Ms McClelland nor the latter’s limited involvement in the summer edition amounted to reallocation or redistribution of the role constituting repudiation of her contract.[10] 

   [10]Reasons [35].

1. The CFA had maintained throughout that Ms Ramus’ position continued and that it wanted her to return to perform the work it required to be done.  In the circumstances, the conditions she placed upon her return to work, which included the taking back from Ms McClelland functions that had not been taken away from Ms Ramus in the first place, were ‘misconceived’.[11]

   [11]Ibid [46].

1. The question was as to whether there had been a significant change in the performance of duties ‘material to her position’.  Sometimes, the question was as to the degree of change and whether the position continued to exist in name only.  The analysis did not involve an arithmetical exercise based upon the time Ms Ramus had spent performing particular tasks, but rather a determination as to whether the ‘significant integers’ of her position had been removed, reformulated or redistributed, changing what was left of her position into something different.[12]

   [12]Ibid [39].

1. His Honour concluded that the effect of Ms Ramus’ evidence was that her writing and editing responsibilities were ‘sacrosanct’ and that she was the ultimate arbiter of the magazine’s content with the result that any interference was impermissible and a repudiation of her contract.[13]  He considered her case to be misconceived.  Although she had operated relatively independently, the CFA, as publisher, had the power to make changes to the magazine.  The issue was as to whether those changes affecting Ms Ramus’ functions and duties as Health Writer were such as to evince the CFA’s intent not to be bound by her contract of employment, amounting to repudiation and rendering her employment redundant.[14]  Having answered the question he had posed for himself in the negative, he dismissed the claim.

   [13]Ibid [40].

   [14]Ibid [41].

1. I will now turn to the grounds of appeal.

Ground 1 – Bias – Excessive interruption

1. Ms Ramus submits that the Magistrate erred in law by failing to accord the rules of natural justice or created an apprehension of perceived bias in ‘conducting himself in an interventionist manner on an excessive number of occasions during the proceedings; and/or interrupting the orderly presentation of the Appellant’s evidence and case.’

1. There was no argument as to the applicable principles.  The Court was referred to a number of authorities.[15]

   [15]See for example Johnson v Johnson (2001) 201 CLR 488; Concrete Pty Ltd v. Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Galea v Galea (1990) 19 NSWLR 263; Jones v National Coal Board [1957] 2 QB 55.

1. In Jones v National Coal Board[16] Denning LJ said:

The judge’s part … is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.  If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.  Lord Chancellor Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.’[17]

[16][1957] 2 QB 55 (‘Jones’).

[17]Ibid 64.

1. In Galea v Galea,[18] having cited that passage from Jones, Kirby A-CJ summarised the effect of the authorities, stating the relevant principles in this way:

   [18](1990) 19 NSWLR 263 (‘Galea’).

1.The test to be applied is whether the excessive judicial questioning or perjorative (sic) comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA).

2.A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.

3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”:  see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited.

4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions.  It is important to draw  a distinction between intervention which suggests  that an opinion has been  finally reached which could not be altered by further evidence or argument  and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654.

5.It is also relevant to consider the point at which the judicial interventions complained of occur.  A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned.  By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).

6.The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change.  But there is no unchanging formulation of them.  Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional.  In part, this change is a response to the growth of litigation and the greater pressure of court lists.  In part, it reflects an increase in specialisation of the judiciary and in the legal profession.  In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify.  In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.[19]

[19]Ibid 281-2 (Meagher JA agreeing).

1. Situations in which excessive judicial questioning could give rise to a miscarriage of justice were summarised by Kourakis CJ (with whom Vanstone and Anderson JJ relevantly agreed) in the recent case of R v T, WA,[20]  as those where:

   [20](2013) 118 SASR 382.

(i)the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);

(ii)      the questioning gives an appearance of bias (the bias ground); and

(iii) the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).[21]

[21]Ibid 391 [37]-[38], citing Lockwood v Police (2010) 107 SASR 237, [16] (Vanstone J).

1. When deciding whether judicial intervention is excessive and might have caused injustice, the characteristics of the ordinary practice of modern litigation as described by the High Court referred in Johnson v Johnson[22] must, nevertheless, not be forgotten:[23]

   At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.  In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”.  Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment.  Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.  On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.[24]

   [22](2001) 201 CLR 488.

   [23]See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 610 [111]-[112] (Kirby and Crennan JJ).

   [24](2001) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (citations omitted).

   Submissions

1. Counsel for Ms Ramus took the Court through numerous passages of the transcript of the Magistrates’ Court hearing in support of the argument that the Magistrate’s interventions gave rise to a reasonable apprehension that he was biased in favour of the CFA, and or that his Honour interrupted the flow of counsel’s questioning to an excessive degree to the disadvantage of Ms Ramus.  They submit that there was an egregious departure from the judicial role as the Magistrate’s questions were in the nature of cross-examination rather than for the purposes of clarification or assistance.  They also cite humorous responses as demonstrations of unwarranted light-heartedness.

Waiver

1. Counsel for the CFA argues that Ms Ramus waived any right to take either point on appeal, having failed to raise the issue of bias before the Magistrate and had.  Before dealing with this submission, I will turn first to the issue as to whether the interruptions were such as to cause a miscarriage of justice for the differing reasons argued by counsel for Ms Ramus.

The passages relied upon

1. In a passage of the transcript of the hearing in the Magistrates’ Court[25] upon which counsel for Ms Ramus appear to have relied (at least initially), the learned Magistrate clarified the meaning of an acronym and asked Ms Ramus an appropriate question about the content of an email:

HIS HONOUR:  Just before you answer that could you – there’s a reference in the email at p.2 in the penultimate paragraph to the “BBC steering committee”, what was the BBC steering committee?

---The BBC steering committee is the government – it’s comprised of, or was, CFA representatives and representatives from government who oversaw Continence Foundation’s project for the government.

And you seem to be there expressing a view, perhaps informed, or a tentative view - that, I don’t know - but you seem to be there expressing a view that the criticisms at their fundamental level that were being brought to your attention by Ms McClelland had their genesis in some criticisms that you believed existed within the BBC steering committee, is that - - - ?

---Yes, Your Honour.  I was trying to understand why she was so savage.  And there had been, mentioned to me by Mr Cahill, a person on the BBC committee that had expressed the view that Bridge should be more about the work of the Continence Foundation and less about bladder and bowel management, which of course was not in the creative brief.  And, while I disagreed with that, I had to take it on but I was putting the criticism “Perhaps this is why.”  It was just trying to get to the - - -

Yes.  No, no, thank you?

--- root cause.[26]

[25]Transcript of Proceedings, Ramus v Continence Foundation of Australia (Melbourne Magistrates’ Court, Magistrate Ginnane, 12 June 2013), (‘Magistrates’ Court transcript’).

[26]Ibid 54-55.

1. Counsel conceded that the Magistrate made only a minimal number of interruptions at the outset. 

1. Counsel for Ms Ramus went on to refer to an attempt at levity by his Honour when he commented upon a response by her as follows:

So to that extent your work was never done?

---And I always said yes to a media opportunity, I never knocked one back.

Yes, and - - -

HIS HONOUR:  And nor did Mr Rudd perhaps, yes?---They’re so valuable, yeah.[27]

[27]Ibid 114

1. Senior counsel conceded that no great reliance was placed upon the comment but stated that it was as an example of interjection to be ‘aggregated’ with later interruptions.[28]

   [28]Transcript of proceedings, Ramus v Continence Foundation of Australia (Supreme Court of Victoria, S CI 3559 of 2013, Williams J, 1-2 May 2014)  32 (‘Appeal transcript’).

1. Then counsel for Ms Ramus criticised the Magistrate for ‘taking over’ her cross-examination in relation to the contents of her 24 October letter recording her conversation with Ms McClelland.  Ms Ramus’ cross-examination was recorded in some 97 pages of transcript.[29]  This is the impugned passage:

MR CHAMPION:   But you didn’t like her management style?  You thought she spoke unfairly to you?

---I was not accustomed to that management style certainly.

HIS HONOUR:  Well, now, you say in the letter at least that she told you that she wanted a two column format?

---Yes.

And that was what she was, what, directing you to do, or telling you she wanted done?  How was that, for example, conveyed to you?

---That was saying “That’s how it should be.”  She also said, for example, that she wanted an article on the front page instead of a photo and the masthead.  She wanted the front page being totally an article, which I thought was odd, and told her so.

And then there’s a reference to, for example, on the second page of your email, I think you use the expression “I’m cringing at the thought of soliciting material for Bridge as you propose”?

---Yes.

What did that entail, that she spoke to you about?

---Yes, she said that the articles would all be supplied by clinical people in order to improve the imprimatur, perhaps, of the magazine.  I completely disagreed saying I had solicited articles in past instances directly from health professionals and what had resulted was not a brief two paragraph in consumer level language, but a treatise on the topic that I had to edit down and change so much that the health professional was not amused that I had edited so severely.

All right?

-----That was one of the issues with soliciting material; you solicit the material, you have to cut it down or change the language and then you have to attribute it to the health professional, so there’s an issue then - - -

Before I hand you back to Mr Champion let me ask you this; from your perspective, if you take out the character of how you interpreted or say the meeting occurred, from her perspective, the way you took the message that she conveyed to you?

---Yes.

Putting that aside, do you say that it was within her scope of authority to implement these changes?  If not then, perhaps you might have it through a broader process, a longer process of consultation, but do you say these things she was entitled to ultimately determine should be altered in relation to Bridges, or the Bridge magazine, if she so determined to do?  So what I’m trying to do is separate out - - - ?

---Yeah, take the emotion out.

Separate out what I clearly gather from you was the manner in which the message was delivered was, from your perspective, highly unacceptable?

---Yes.

That’s as I have interpreted your evidence?

---Yes.  Yes.

Putting that to one side, putting aside the manner in which the message was delivered, what do you say about the message itself; was it within her scope of authority to direct or determine that’s the way Bridge should go?

---If she - she is my boss she has the final say, I guess.  But my role was writing and editing.

Yes?

---So if she’s my boss certainly there is a case to be made for her overriding all my opinion.  The issue to me was, apart from her criticism and how it was delivered, the criticism she had was based on really no knowledge of the issues.  I referred her to the creative brief and what Bridge was and how it was set up and how to - - -

All right.  Thank you, that’s sufficient.  I need to remember I’m the determinator, not the questioner.  I just wanted to separate out because it does strike me in your evidence that at least initially, having presumably no great knowledge of her before she came into the organisation, that perhaps unlike other communication managers you’d worked with before she was, to use an expression, perhaps a little in your face too early on and you didn’t take perhaps too kindly to that.  Is there an element of that, do you think?

---There - there could be.

Yes?

---But my basic criticism of what happened - - -

Yes?

--- - - - was that it wasn’t informed opinion.

I see.  All right, thank you?

---Yes.

Yes, Mr Champion. [30]

[30]          Magistrates’ Court transcript 123-126.

1. Counsel for Ms Ramus argued that the Magistrate  acknowledged that his questions indicated that he had strayed too far into the interrogative, as opposed to the judicial function.

1. Counsel next stated that his Honour’s summary of Ms Ramus’ evidence in the following exchange was ‘not serious’ but was ‘indicative of interference’:

MR CHAMPION: This is all the stuff of editorship is it not, Ms Ramus?

---It wasn’t the choice as editor that I had made for Bridge because I didn’t think it was appropriate or fitting to have clinical, a clinical writing piece.  It was too high level for a consumer magazine.

HIS HONOUR:  So you were bringing to bear your own sense of judgment in regard to the wisdom of doing that, is that as I understand it?

---That was part of my role as editor.

1. Counsel for Ms Ramus argued that the question next put by his Honour should be regarded as another unwarranted interference and as a continuation of his cross-examination, rather than the provision of an opportunity for Ms Ramus to put her case:

MR CHAMPION:  No one said that to you but you inferred it on the basis of these conversations?

---No one - - -

And that she’d contacted some contacts that you’d previously contacted?

---Yes.

HIS HONOUR:  You say more than that don’t you?  You say that in respect of those inquiries that came through to you in the period that we’re discussing for the provision of articles from the Continence Foundation to be placed in external publications, the leads that came through during that period of time, two or three of them in number, they were in each instance taken up by Ms McClelland otherwise they would have been by you, is that what you say?

---Yes, Your Honour.[31]

[31]Ibid 167.

1. Counsel criticised this further questioning on the basis that it was in the nature of cross-examination and that his Honour had not said that he had not understood the evidence or that there were further matters he wanted elaborated:[32]

   [32]Appeal transcript 38.

MR CHAMPION:  So things are not good but it’s fixable in your mind whenever this conversation happens?

---If somebody from senior management had stepped in it would have been fixable, which was - - -

HIS HONOUR:  As far as you were concerned the only organ of the organisation that could have fixed it was Mr Cahill, is that what you - - -?

---Or Mrs Cockerell.

Or Mrs Cockerell?

---Yes.

That was your view?

---Yes.  And I was deliberately not confrontational because least said soonest mended, why create bad blood and make it more difficult to resolve in the final analysis?  But I felt it was a piece that I was not in a position to broker.

Yes, Mr Champion.[33]

[33]Magistrates’ Court transcript 173.

1. Further unnecessary interruption was said to have occurred in this questioning by his Honour:

MR CHAMPION:  I just want to be clear.  Mr Cahill, as I understand it, will come to court and he’ll give evidence that he said words something like this, OK, “You need to trust me.  There’s no suggestion your job’s at risk.  You need to trust.”  And he was calling in your long working history together when he said that?

---Yes.  The issue was that my job was already gone.  It wasn’t at risk, it was gone.

Perhaps I ought to be clear.  We ought to focus on what he said.  Do you agree that he said words, “You need to trust me.  There’s no suggestion your job’s at risk.”

HIS HONOUR:  Can I just intrude for a minute.  Really what Mr Champion is, as I understand it, getting at at the moment is not for you at this stage to comment upon perhaps your interpretation of what he was saying or rather perhaps what he didn’t say, but rather to comment on whether or not you have a recall of these things that are going to be said that he said having been said.  Do you follow that?  Mr Champion is merely asking do you recall that this was said by Mr Cahill?

---No, I don’t recall those words but I’m also saying that he could well have said something like that.

Yes, I see?

---I can’t say that I do or don’t recall them.

I understand?

---Yeah.[34]

[34]Ibid 178-179.

1. Whilst counsel for Ms Ramus agreed that the Magistrate’s questioning in this passage might be regarded as being for the purpose of clarification, it was said to be an egregious interruption as Ms Ramus had not indicated that she had had trouble understanding Mr Champion’s question.  The Magistrate’s use of the word ‘intrude’ was submitted to be telling as to his Honour’s view that he was intervening unnecessarily.

1. Two more questions were described as ‘stark’ examples of unwarranted interference by the Magistrate designed to produce certain answers.[35]  Mr Champion had asked whether the outcome of Ms Ramus’ meeting with Mr Cahill before the Continence Conference was to the effect that the conversation about her position would continue after it.  After Ms Ramus had responded that she did not obtain a clear indication that he would ‘broker’ the resumption of her duties as editor or writer, the Magistrate intervened as follows:

   [35]Appeal transcript 42.  

HIS HONOUR:  Do you accept that Mr Cahill put to you that the matter would be taken up again after conference?

---Yes, I think he may have said something along those lines but - - -

MR CHAMPION:  There were more - I’m sorry?

---Yeah.  But the issue was and I put it baldly to him, “Are you going to solve this problem?”  And he said, “We’ll talk about it.”  But he never gave any indication that I would get my job back, which is what I was wanting him to say.

So from your perspective the situation was fixable but not fixed at the end of this meeting?

---I still hoped that it could be fixed.

Fixable but not fixed?

---The fact that it hadn’t been fixed until now, until that point, made me think that it’s not going to be fixed because they’ve had every opportunity to address the issue and it hasn’t been addressed.

HIS HONOUR:  But you were of the view that as a matter of reality it could be fixed so you placed not a great deal of prospect in that occurring given where you were at that time?

---Yes, Your Honour.[36]

[36]Magistrates’ Court transcript 180.

1. Counsel then described as ‘unwarranted’ these questions asked by his Honour:

MR CHAMPION:  So the statement that your role available is not sufficient as you saw?

---I didn’t think it was sufficient so that’s when I asked the follow up question, “If my job is not available what other work, what other job would you have in mind for me?”

HIS HONOUR:  When you engaged with her by saying in response words to the effect that she is in my role, when you say to me my role is still available, you were saying, well, no, Alison is effectively doing my role?

---M’mm.

What if anything did Mrs Cockerell say to you in response to that?

---She would say, “Your role is still available.”  But clearly it wasn’t.

So there was no drilling down in the discussion about those elements of the role that you were saying that had been taken over by Ms McClelland?

---Not that I remember, Your Honour.

Thank you.[37]

[37]Ibid 188.

1. Counsel for Ms Ramus said that the Magistrate’s question could be seen to be providing assistance to Mr Champion’s case.  These were issues critical to his Honour’s conclusions and were obtained by his own cross-examination.

1. The same was said of the following questioning during Ms Ramus’ cross-examination about Ms Cockerell’s 1 February 2012 letter to her:

HIS HONOUR:  Do you have that letter in front of you?

---Yes, I do.

Plainly there on your evidence there is a signal difference between what you say was the situation that prevailed in the past, which was that you wrote all content?

---Yes.

The proposal here in the third bullet point in that paragraph is that it is being proposed that you will have responsibility for writing of some content?

---Yes, Your Honour.

On the evidence I have before me there’s a debate about that.  In regard to the other elements of those three bullet points that Mr Champion took you to, including the last one up to the point about the writing situation?

---Yes.

Does that not identify elements that you had always performed in the role and, if not, how was the expression of those matters different?

---The role that I had had apart from the writing, not all editors write all the content.

No.  Put writing aside for a moment.  I understand there’s a controversy, a significant controversy about Ms McClelland taking over authorship and writing and the like.  Put that to one side?

---OK.

There may be well more to it than this but just concentrating on those three bullet points?

---That’s the top three.

Work collaboratively, et cetera?

---Yes.

Have senior management approve, et cetera?

---Yes.

Pull together and compile the content of the magazine including soliciting of advertising and external contributors.  Do you dispute that those were elements of the role that you performed before Ms McClelland came on board?

---Yes, I do. …

In what manner and to what extent, I’d be assisted if you could - - -?

---Pull together and compile the content of the magazine certainly, but when it says including soliciting of advertising, yes, there was always controversy within management about whether they should have advertising or not.  That’s woolly but clearly if I could solicit advertising I would.

As you had in the past?

---As I had in the past.  The soliciting from external contributors was not what I did and for a variety of good reasons and I was not prepared to concede that writing of some content so - - -

I don’t want to get into writing.  I want to deal with things other than writing?

---Yeah, so - - -

That’s the last bullet point.  What about the first two, working collaboratively?

---Working collaboratively, of course.

Yes, and have senior management approve the final version?
---Yes, totally right.

So the matters that I’ve identified, and only from that document, nothing else at this stage, I’m only asking you about that?

---Yes.

That you had debate about, is the soliciting of advertising from external contributors and the issue of writing of course?

---Yeah.

Yes, thank you, that helps.  Yes, Mr Champion.[38]

[38]Ibid 194-5.

1. Counsel for Ms Ramus argued that this ‘cross-examination’ by the Magistrate elicited answers that could only be used for the defence.  This passage is also cited as an example of the Magistrate putting something ‘quite assertively’ and asking questions for the assistance of the Magistrate rather than Ms Ramus. 

1. The next impugned passage is this:

MR CHAMPION:  That’s your view.  Might there not be other views which are equally legitimate, that for a consumer magazine to have the imprimatur of a credentialed person enhances the product?

---That is not my view.

HIS HONOUR:  If you have a difficulty with that view surely you either live with it or you don’t.  Why do you say you have responsibility to determine that matter?  Surely that’s a management decision, not that of an editor.  How do you say it was an editor’s?

---Because of the editorial complications that rode with that.[39]

[39]Ibid 196-7.

1. Counsel for Ms Ramus said that the Magistrate here asks four questions, not giving Ms Ramus an opportunity to answer the first three.  This question was described as ‘overly assertive and interfering’.

1. Counsel for Ms Ramus went on to refer to the following passage:

HIS HONOUR:  In Exhibit P6, your letter of 24 October to Ms McClelland that went to Mr Cahill and Mrs Cockerell, you wrote - and I won’t read it all.  This is about cringing at soliciting material for Bridge as you propose.  You give your reasons why you think it’s bad?

---Yes.

You conclude, “I have to say I don’t really see why inviting articles would be necessary or a good thing actually in a publication like Bridge, but up to you of course.”  So as at 24 October although you contested the wisdom, prudence or any other issues or any other matters you care to attribute to that which was being proposed, you understood at 24 October it was being proposed and you at least in that letter say, as I read it, these are my views why it oughtn’t be done but at the end of the day of course it’s up to you?

---Yes, I did say that.

You seem to be suggesting to me now that it was up to you to decide as editor.  I’m a bit confused?

---Yes.  The whole issue as far as I can see it was to do with imposing conditions or ways of doing Bridge that had not been subject to a proper review, evaluation, workshop, however.  Saying one person’s opinion, and especially a person new to the organisation, is certainly not something that I could sanction but - - -

No.  I suppose my concern, and when I say concern I only mean in the sense of wanting to do absolute fairness to understand your case fully.  If an author, if someone proposes something to you such as was proposed in that interchange that I took you to and you then respond in saying look, I disagree with it, I think it’s wrong for all the reasons I’m here giving but at the end of the day it’s up to you.  If then subsequently somebody having received that then presents you with a proposal as to what your functions will include and it includes as one element that which you previously disagreed with but had said to the person, well, it’s effectively up to you, it might be thought that they took you at your word, that it was up to them?

---Yes.

What do you say to that?

---At the time I said I have no problem with a review of Bridge including a review of things that I was told were going to change.

So your answer to me is, or your evidence rather I should say is that your comment that at the end of the day it’s up to you was - perhaps I do it a disservice - not a concluded view, it was a view that you understood and hoped and believed would be fleshed out in a later and fuller review, is that right?

---Yes, Your Honour, yes.

I understand, thank you.  Yes, Mr Champion.[40]

[40]Ibid 197-9.

1. They argued that, despite what the Magistrate says about wishing to be fair, in fact, he was unfair, because Ms Ramus answered his questions affirmatively and the questioning amounted to assertive or contentious cross-examination where his Honour was trying to ‘bottle her down’.

1. Counsel for Ms Ramus also pointed to questions asked in respect of Ms Ramus’ answers under re-examination that she had not been performing tasks between 24 October 2010 and 15 November 2010:

HIS HONOUR:  Just in regard to those matters to which you have invariably said no.  It may not be a simple answer.  Why not?  Am I correct in thinking they were tasks that would normally have fallen within your position description?

--- Yes.  Yes, they would have.

You were not aware in respect of a whole number of them, and I’ll have to look through a lot of this material more finely of course, but I don’t recall in respect of any discussions you had with Ms McClelland that any of these particular elements were sought to be taken away from you?

---No.

So what was happening?

---Because she was doing the writing and liaison with external people about articles for example, because I had lost control of that it was not up to me for instance to record the contacts with external people or - - -

Why not?

---She did not include me in that.

Was your view that if they’ve taken that away from me I won’t do anything else?

---Well, I didn‘t, I didn‘t have any work to do associated with it because the person that had, is doing the liaison and the writing would be the person who was entering that information on the database.

Yes, thank you, Ms Jardine.[41]

[41]Ibid 206-207.

1. Counsel argued that this was an unwarranted intrusion and particularly important as it was during re-examination and after cross-examination.  The continuing questioning later in the course of re-examination went further than clarification and was adversarial cross-examination, going to the core of the issues:

HIS HONOUR:  Ms Jardine, can you give me an example of any instant, that any article that you’d written or proposed for publication - - -

MS JARDINE:  I’m Ms Jardine.

HIS HONOUR:  That part of the collaborative process was otherwise taken out or other writing that other staff had proposed or any other article they proposed got in, or is it the case that there was collaboration in name only and what you wrote went in and no one else got in edgewise?

---No, very much the reverse.  Because I was not a clinician, I had a broad understanding of the issues built up after 12 years, but I was not a clinician.  So it was totally reasonable if not totally needed that I interacted with clinicians.

What about other CFA staff members, did they leave it all to you or did they ever actively say - - -?

---No.

Listen, wouldn’t it be a good idea if we wrote something along this line?

---Sometimes that came up and I’d think what a good idea.  The consumer reps on the editorial panel often fed me back, yes, that’s good to mention that but what about that, and if I considered that appropriate I would certainly take that on board.

Thank you.  Yes, Ms Jardine.

1. Counsel next cited the Magistrate’s interruption of Ms Cockerell’s examination-in-chief:

MR CHAMPION:  I just wanted to ask you this.  In your email of the 21st you said, “Hi Anne, well done.  Can I ask this edition has information sourced from a clinical perspective?  We need evidence based info particularly on this subject.”  Why did you say that?

---These sort of consumer information needs to be evidence based and that might be a conversation or a statement but it needs to be actually sourced from clinical expertise.  We need to be able to provide it.  I believe it’s part of what we do and we’re responsible when we’re delivering in a government body that we’re able to actually source statements of information when we print it out to the consumers.

HIS HONOUR:  Can I intrude and ask you this.  At that stage in relation to that which you were writing about had you formed a view that this was not something that had been done to date or it might have been and because you were relatively recent yourself you didn’t know?  I’m just not quite sure?

---At this point in time this was written asking a question.

So it was inquisitive in nature?

---Correct.

1. They conceded that this enquiry was for purposes of clarification, but argued that the Magistrate’s use of the word ‘intrude’ showed his Honour’s  consciousness that he was interrupting  the otherwise ‘steady flow of evidence-in-chief.’  Although the interruption was to the CFA’s case, it would nevertheless demonstrate bias on the part of the Magistrate against Ms Ramus to an objective observer.

1. Submitting that the usual practice was to wait for re-examination to finish before asking questions themselves, counsel claimed that the following further questioning by his Honour during Ms Cockerell’s examination in chief was also an unnecessary interruption of the free flow:

MR CHAMPION:   So how did you set it up, that meeting?

---I rang her and asked her if she’d be able to have a meeting and followed it up with a letter that was sent to her inviting her to the meeting and to bring a support person if she chose.

HIS HONOUR:  Was the decision to convene that meeting, or the decision from your perspective to hold the meeting, was that your determination alone or did you have discussions with any other senior managers prior to that decision being taken?

---I had a discussion with Barry Cahill.

Did you?

---Yes.  An informal conversation with him and stated that this is what I felt would be the next step, that I felt that we needed to have a face to face conversation with Anne Ramus to perhaps just get more clarification in what the issues were and to try and find a way of resolving it with the intent that Anne Ramus would be able to return.

What was your understanding at that point in time as to what Mr Cahill knew about the matter by way of a back story?

---Barry Cahill had had - the last conversation that anyone had face to face with Anne Ramus on 15 November so - - -

It was against that backdrop was it?

---It was against that backdrop, yes.

Yes.  Thanks, Mr Champion.

1. They levelled the same criticism at the following questioning, submitting that the evidence his Honour adduced from Ms Cockerell could only be of assistance to the CFA:

HIS HONOUR:  Tell me if you can what was the foundation for you being able to - I mean, presumably you were concerned about Ms Ramus?

---M’mm.

What was the factual information you had to hand, either for a person you’d spoken with before the meeting or inquiries you’d made to be able to say to Ms Ramus that her role had not been made redundant.  What did you know at the time of the meeting about the extent to which, if at all, certain functional aspects of the position that she had previously performed had been taken over if you like, taken over by Ms McClelland, to enable you to say to her, look, you’re concerned but the fact of the matter is your role hasn’t become redundant.  Was that just a statement of intent or was it based on you having made your own inquiries about that before you went to the meeting?
---Initial insight into the problem that Anne was unhappy happened after 15 November.  I had no idea until that time that there were any issues and therefore I have had verbal conversations with the CEO to sort of, you know, we understood when we got back from the conference immediately after that day that Anne wasn’t returning and I guess that what I was doing was following Barry Cahill’s conversations with Anne via email and I was basically starting to investigate how I can possibly resolve it.  I took it upon - my role I discussed with Barry Cahill, it was my responsibility to try and resolve this.  I took on that role.

I assume, and perhaps I oughtn’t and you’ll correct me if I’m wrong, presumably you would have had a significant conversation with Ms McClelland before you attended the meeting on the 27th?

---Yes, I did.

Thank you.  Yes, Mr Champion.[42]

[42]Ibid 230-1.

1. Counsel for Ms Ramus then criticised his Honour’s subsequent interruption of Ms Cockerell’s evidence in chief, on the same basis:

HIS HONOUR:  Again, so that I’m in a position to know the evidence when counsel address me on certain matters in due course, I would take it from that to mean that two things at least.  Yes, she did, Ms Ramus that is, did raise with you the question perhaps not verbatim but the gist of it being will I get my job back?  And I think you acknowledged that she did say something along those lines or to that effect.  You’ve also said you responded to her to the effect yes, you will.  Is that fair?

---Yes.  The job she would be returning to was the job she had.

That suggests to me that you, either from an advocate’s point of view or indeed having yourself formed the view, that Ms McClelland had intruded upon certain key areas of work that Ms Ramus had been previously performing.  Is that fair?

---No.

Then why would you say to her yes, you will have your job back, if you had the view that Ms McClelland had not intruded on any element of it?

---That’s probably my interpretation of the actual question.  The word back is probably the issue at hand.  My view was that the job had never been taken from Anne and that the role that she perceived was the special projects officer managing National Articles Program and the editor of Bridge was the role that she would be returning to, but it had never been taken away from her in the first place.

I see.  So you would have it to be that it would have been a more accurate statement of your view at the time had you said not that you will get your job back but, well, of course you can come back, you’ve never lost your job.  Is that - - -?

---Correct.

I see.  Yes, Mr Champion.[43]

[43]Ibid 234-5.

1. Counsel for Ms Ramus relied on each of these three passages as examples of the learned Magistrate’s eliciting of evidence that could only be seen as assisting the defence.

1. During Ms Jardine’s cross-examination of Ms Cockerell, the learned Magistrate later asked these questions which are also criticised by counsel for Ms Ramus:

HIS HONOUR:  There’s a signal difference is there in this regard; that the quarterly publications have a commencement and a conclusion in terms of date?

---Correct.

There’s an arc between the time between which each has to be done, and I think earlier there was some evidence about timeframes for delivering material to graphic designers, mailing it out to members.  So there’s a beginning, there’s a middle and there’s an end for each publication.  Whereas I presume, as I have understood it, the National Articles Program, it doesn’t stop, it keeps rolling along like Old Man River.  So you might conclude an edition but your obligation in relation to national publications continues?

---Correct.

That’s one elemental difference isn’t it?

---Correct.

Yes.  Yes, Ms Jardine.[44]

[44]Ibid 270-1.

1. The Magistrate’s first question was said to be pejorative or argumentative commentary and the whole passage is relied upon as amounting to cross-examination which could only give rise to an answer favourable to the defence.

1. Counsel for Ms Ramus referred to what they characterised as further extensive cross-examination of Ms Cockerell by the Magistrate:

HIS HONOUR:  Ms Cockerell, I’d like to know, you were responsible as I understand it for - you’re the communications manager, correct?

---I’m responsible for my communications manager, yes.

You had a significant role in ensuring no doubt that Bridge got out?

---Correct.

MR CHAMPION:  Your Honour, I’m just concerned that the evidence is that Ms Cockerell is the deputy CEO.

HIS HONOUR:  Deputy CEO, thank you.  You’ve got an employee who presumably you knew had been there since virtually day one?

---Yes.

She leaves the workplace?

---M’mm.

Do you say you have no recollection of Mr Cahill or Ms McClelland giving you any substantive detail of either of them being aware of any matters that led up to Ms Ramus taking the decision that she did, and do you say that you made no explicit inquiries yourself of Ms McClelland?

---Up until the 15th - - -

No, after the 15th?

---After the 15th.  At that time I did say that I had conversations with Alison and Barry around - - -

I know but I have no idea what was said in those conversations because you’re unable it seems to give any detail as to what was discussed.  You have a senior employee leave effectively in circumstances where she has plainly, rightly or wrongly, taken a view that the role that she had is being usurped by Ms McClelland.  Did you make any inquiries as to the substance of those matters or not?

---Yes, I had conversations with both of them.

What were they?

---I probably used the content of the email that Anne said as a basis for some of the issues identified by Anne actually more relevant than was originally understood.  I certainly at the time that I received that email felt, on the 24th, that Anne, yes, had some issues or concerns that she was going to sort out, that the - - -

Move away from there.  Do you say that you went to the meeting with Mr Cahill?

---Yes.

And you had a copy of Ms Ramus’s email and, if so, did you discuss any elements of it and, if so, what did Mr Cahill say?  Did you do something similar with Ms McClelland?  I don’t know, I’m trying to find out what actually went on, not in generalities, in specifics.  Can you assist me?

---At the time of the conference - - -

Nothing happened before the conference, is that what you’re saying?

---Well, the 15th was the eve of the conference.

I asked you a question, did anything occur before the conference?

---No.

Right.  What happened after the conference?

---I understand there was some - Barry Cahill tried to contact Anne and to have a conversation.

Your conversation with Mr Cahill, when did that occur, before conference or after conference?

---He spoke to me on the 15th and let me know of the meeting with Anne that day.

And what did he say to you?

---He said that Anne had come in and told him that she was very unhappy, she felt that Alison McClelland had taken away her job and that she thought she’d been made redundant and that there was a strategy to move her out. 

So Mr Cahill was saying to you at least that those were the matters he understood were at issue?

---Yes.

Did you respond in any meaningful way to any of those matters or did you not think you had sufficient information to engage him on those issues?

---When he told me about what happened on the 15th he also advised me that the conversation he had had with Anne was that she’d actually understood this was a difficult time and that it was as busy time and she understood that he was under pressure and that he had left the meeting in such a way that he felt he had allayed her concerns and that she was prepared to discuss it the following week and that it would be taken up at that time.

Did he suggest for example that you should approach Ms McClelland and speak to her?

---Specifically around that meeting, there’s probably an intention that I should but it was not you must speak to Alison right now.  The issue was that he thought he’d alleviated the situation to talk to Anne the following week.

When did you speak with Ms McClelland about these very issues, if at all?

---I was able to have some discussions in between times at the conference when I had moments but I was basically busy.  I mean, Alison certainly and I probably had informal chats at the conference but they were very brief because I had things I had to do, but in the event that Anne was still there and we thought there was an opportunity to talk about the grievances and discuss the issues I thought we’d been given a couple of days to at least take a step back, look at the issues and perhaps approach it when we got back on the Monday.

Did you at any stage have a meaningful conversation with Ms McClelland about the complaints that Mr Cahill had expressed to you that he was aware of?

---The conversation I would have - I had with Alison McClelland, my concern was that Alison - that Anne Ramus had not done any work for three weeks and that would include such things as the Bridge and the National Articles Program and I didn’t believe that was possible, and so the intent was to find out why wasn’t Anne doing work prior to that time and understand why she felt it had been taken off her.

So you had such a conversation?

---Yes.

What did Ms McClelland tell you?

---Ms McClelland told me that she was actually writing - made sense of that email and Ms McClelland was doing two articles from the conference on the Carer of the Year and a talk on the conference and that she was under the impression that Anne was following through on her National Articles Program and editoring (sic) of the Bridge.

Yes, Ms Jardine, back to you.[45]

[45]Ibid 300-3.

1. This questioning was relied upon by counsel for Ms Ramus as going to important issues, and they said that the answers given by Ms Cockerell favoured the CFA.  Senior counsel for Ms Ramus made this submission:

His Honour by the cross-examination or by the leading questions was providing … the defence witnesses with an opportunity to elucidate the answers and the evidence that they want to elucidate for the favour of their case.[46]

[46]Appeal transcript 61.

1. Counsel for Ms Ramus submitted that the Magistrate had provided Ms Cockerell, an intelligent woman, with the opportunity to give a different and better answer, in favour of the defendant, to a question asked by Ms Jardine and answered previously.  They also argued that the Magistrate made an unwarranted interference which cut off cross-examination when he told counsel for Ms Ramus to ‘move on’ after she had told the witness to listen to her questions.[47]

   [47]Magistrates’ Court transcript 304.

1. Again, counsel for Ms Ramus said that the Magistrate took an opportunity to adduce evidence favourable to the defence case in this questioning:

HIS HONOUR:  Did you raise with her or say to her, “You know, Barry has said to me that Anne believes that there’s a strategy in place to render her redundant or to take her job away”?

---To that effect.  I mean, I would - - -

Did you confront her about that matter, Ms McClelland?

---Did I - I did tell Alison McClelland that conversation with Barry had indicated that Anne thought there was a strategy to move her out, yes.

What did she say?

---She was not part of any strategy and she had no understanding of any strategy, she said no.

All right, thank you.[48]

[48]Ibid 306.

1. Counsel for Ms Ramus finally referred to the following passage, describing the questions asked by his Honour as ‘self-serving’ and arguing that they allowed the witness to comment:

HIS HONOUR:  The answer is, Ms Jardine, to the extent that she is aware of a degree of satisfaction in that regard it’s limited to the limited emails that have been produced in evidence.  That’s the extent of it.

MS JARDINE: All right, it has to be.  (To witness) In relation to the National Articles Program you have no other information either do you?

---Other than the emails that I saw, yeah.

So you don’t know either do you?

---There’s no other hard evidence.  I don’t - I can’t manage phone calls on conversations.

So coming back to this meeting.  When Anne said to you - - -

HIS HONOUR:  Before you go to those minutes could you tell me this, Ms Cockerell.  In terms of your efforts to try and resolve the matter did you at any stage, any stage, form an opinion that there would need to be any changes made on the part of Ms McClelland in order to facilitate Ms Ramus feeling comfortable that she retained her role?  Do you understand my question?

---Yes, I understand the question.

Did you at any stage form such a view or come to such a conclusion?

---No.  I felt that Alison McClelland was managing as a manager and had the effect as a manager what she had done to date.

So in perhaps inelegant and incomplete terms is it the thrust of your evidence that it was for Ms Ramus to - she could come to the realisation that the position that she’d always had was still there and there was nothing that was required on your part or anybody else’s part in terms of the management team to have Ms McClelland adapt or do something differently?

---I feel that Ms McClelland carried out her role as her manager, however I obviously became aware that - the two personalities.  There was a misunderstanding and perceived ideas and I felt my role in this was to assist in - because I don’t believe either of them really - both of them were carrying out their roles and were meant to be doing it appropriately and I both believed they could work together.  I think there hadn’t been enough time for that relationship to really truly develop.  They only worked together for 17 days together so I feel like perhaps the events and the circumstances evolved out of perhaps not a lot of time getting to know each other and maybe assisting them to move forward would be my best - - -

And perhaps there had been a degree of abruptness on the part of Ms McClelland perhaps, having just come into the position and dealing with someone who had occupied the editor’s role from effectively year one, that there may have been a sense that Ms McClelland had acted abruptly or perhaps not entirely diplomatically in some respects.  Is that a view you formed?

---Look, it’s a view based on Anne Ramus’s comments that she felt that way.  I have to assume that there might be that feeling.

So if the feelings were expressed in that manner there may be some factual basis for it?

---And I hadn’t been part of any conversations to view that so I couldn’t substantiate it in any way.

Thank you.  Yes, Ms Jardine.[49]

[49]Ibid 320-1.

1. Taken together, all the passages cited were said to create a real danger that the trial before the Magistrate was unfair.  The earlier ones were said to be only minor interventions that added to an overall impression of unfairness.  The later passages were, however, cited as indications that the Magistrate had closed his mind to further persuasion and had moved into counsel’s shoes and into the perils of self-persuasion.  His interjections were said to have been detrimental to Ms Ramus’ case, as he put propositions which favoured the CFA. 

1. Counsel for Ms Ramus acknowledged the effect of the Civil Procedure Act 2010 and increased judicial willingness in modern litigation to take greater control of proceedings. They submitted, nonetheless, that there was no indication that such considerations motivated his Honour, given that the case went for five days before him.  

1. Counsel argued that the trial, seen as a whole, was unfair as a result of judicial questioning and should be set aside under the first principle in Galea.  His Honour had, they contended, closed his mind to further persuasion.

1. Counsel for CFA responded that there was no miscarriage of justice.  According to him, the learned Magistrate did not travel beyond the parameters of the judicial role or conduct himself in such a way as to give rise to an apprehension of bias.  When his interruptions were compared to the language used and the number of interventions made by the trial judge in Galea, those of the Magistrate were mild and courteous, and his Honour had scrupulously maintained his neutrality.

1. In written and oral submissions, counsel for the CFA argued that none of the transcript passages relied on by Ms Ramus indicated bias, disruption of counsel’s case, or questioning in the nature of cross-examination.  The Magistrate sought to clarify the evidence given by the witnesses and made proper inquiries to assist his understanding.  Counsel pointed out that, between the passages relied on, there are substantial parts of the transcript which show that the Magistrate did not intervene at all. 

1. In respect of the apprehension of bias more generally, counsel for the CFA submitted that the requisite apprehension is one that the judge will not decide the case impartially, as opposed to an apprehension that the judge will decide the case adversely to a given party.[50]  Counsel for the CFA argued that, when the transcript was considered fairly and as a whole, the Magistrate’s demeanour and the way in which he addressed the witnesses was even-handed.  He questioned witnesses on both sides. 

   [50]AJH Lawyers Pty Ltd v Careri [2011] VSCA 425, [21] (Warren CJ, Hansen JA and Almond AJA), citing Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).

Conclusion

1. In my view, there is no substance to the argument that his Honour’s involvement would have given rise to a perception of bias or constituted excessive interruption in the circumstances. 

1. I agree with counsel for the CFA that his Honour was courteous, polite and respectful.  Notwithstanding the humorous comment to which counsel for Ms Ramus referred, his interventions were not inappropriate, being generally  for the purposes of clarification, obtaining more relevantly detailed evidence or giving the witness the opportunity to respond to his own concerns about inconsistencies and other matters.

1. The transcript shows a consistent and even-handed approach throughout.  His Honour made rulings on objections and the like against and in favour of each party. 

1. Ground 1 is not made out

Ground 2 – incorrect test for repudiation

1. Ms Ramus argued that the learned Magistrate erred in law by misstating the test or by applying an incorrect test to determine whether the CFA had repudiated Ms Ramus’ contract of employment.

1. During her final address to the Magistrate, counsel for Ms Ramus had stated that her primary position was that the contract of employment had been repudiated by the CFA effectively taking away her job and leaving her with nothing to do for three weeks after 24 October 2011.  She was, therefore, entitled to damages calculated with reference to what would have been a reasonable period of notice of termination.[51] Alternatively, the ‘profound’ changes in her employment had amounted to a repudiation[52] or had made her job a different one and therefore redundant, with resulting entitlements.  Counsel referred to the concept of termination at the initiative of an employer under the Workplace Relations Act 1996 (Cth), citing Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (No 2).[53]  She also cited Quinn v Jack Chia (Australia) Pty Ltd[54] where Ashley J held in relation to an employment contract that a ‘profound’ change in responsibilities might amount to a repudiation.

   [51]Magistrates’ Court Transcript, 527.

   [52]Ibid 531.

   [53](1995) 62 IR 200.

   [54](1992) 1 VR 567.

1. In the appeal, both parties referred to Whittaker v Unisys Australia Pty Ltd[55] where Ross J cited the following analysis by the High Court of the term ‘repudiation’ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd:[56]

[repudiation] may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract.  This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations.  It may be termed renunciation.  The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.[57]

[55][2010] VSC 9.

[56](2007) 241 ALR 88 (‘Koompahtoo’).

[57]Ibid 100 [44] (Gleeson CJ, Gummow, Heydon and Crennan JJ).

1. The parties also each referred to Madgwick J’s decision in what counsel for Ms Ramus submitted had been a similar fact situation in Westen v Union des Assurances de Paris.[58]  The employer in that case was held to have fundamentally breached and repudiated the plaintiff’s employment contract by changing the nature of the position he was offered, even though its title was retained.[59]  

   [58](1996) 88 IR 259 (‘Westen’).

   [59]Ibid 261 (Madgwick J).

1. Counsel for Ms Ramus cited this passage from the judgment in Westen, as a statement of the test for repudiation of an employment contract:

Serious, non-consensual intrusions upon the status or responsibilities, as well as the remuneration, attaching to a job may well be held to amount to a repudiation of the contract of employment, and their actuality will not be denied merely by the retention of the job’s title.[60]

[60]Ibid, quoting Macken, McCarry and Sappideen, The Law of Employment (3^rd ed, Law Book Company, 1990), 188.

1. Counsel submitted that the Magistrate failed to apply that test and misstated the applicable test in paragraphs [41] and [50] of the reasons.

1. Counsel for the CFA rejected this argument.

Discussion and conclusion

1. I note at the outset that counsel for the CFA had submitted in his final address to the Magistrate that there had been no decrease in Ms Ramus’ salary or effect on her status or rank and she had not argued to the contrary.

1. As I have already said,[61] the learned Magistrate noted the way Ms Ramus put her case and the burden of proof she bore of establishing that the CFA had redistributed her role to Ms McClelland and had thereby repudiated her employment contract. [62] He concluded that no changes had yet been made to Bridge on 24 October 2011.  He then rejected Ms Ramus’ contention that the then mooted changes to her job, by way of redistribution of her functions to Ms McClelland, would effectively have taken her job away or at least have made it redundant.

   [61]At [25] above.

   [62]Reasons [33].

1. The Magistrate concluded that Ms Ramus’ title and core responsibilities as editor of the magazine remained and her role continued.  Neither Ms McClelland’s limited involvement in the preparation of the summer edition of Bridge nor the proposed changes to the magazine showed that the CFA intended not to be bound by her employment contract and constituted a repudiation of it.[63]

   [63]See Koompahtoo (2007) 241 ALR 88, 100-1 [43]-[49] (Gleeson CJ, Gummow, Heydon and Crennan JJ).

1. Paragraphs [41] and [50] upon which Ms Ramus relies in relation to this ground were in this form:

41.In my judgement the plaintiff’s case is misconceived.  The defendant was the publisher of the Bridge Magazine and as publisher it was free to determine the ultimate direction of the material produced under the stewardship of the plaintiff as editor.  There is no question but that the function of editor was very important.  The evidence revealed that the plaintiff had for many years been permitted to put her own stamp on the magazine and largely as she deemed fit and without much if any real intrusion.  Save for the editorial page that contained a message from the CEO and therefore was invariably assessed by him for any perceived “political” sensitivities the plaintiff was very substantially left to run her own show.  However it lay within the prerogative of the defendant as publisher to make changes to the magazine.  The question for me is whether any change adopted by it materially impacted on the functional duties performed by the plaintiff in the position of Health Writer such as to evince an intention on the part of the defendant to no longer be bound by the agreement for the plaintiff to be employed in the position of Health Writer and thus on acceptance by her of any repudiation to render the employment redundant.

50.The plaintiff responded to the involvement of Ms McClelland in a way that was peremptory.  In my view the plaintiff cannot establish that because of the attribution to herself of the two features pertaining to the Summer edition of the Bridge taken together with the statement attributed by her to Ms McClelland that this is no longer your responsibility (which in any event I am not persuaded was uttered) that there was a repudiation.  Moreover I am not satisfied that the alleged conduct or the mooted changes to format and content and the envisaged reduction in the writing component of the position rendered her position redundant.  (Emphasis added.)

1. Counsel for Ms Ramus cite in particular the emphasised passages from those two paragraphs.  There is no substance to their criticism.  The Magistrate stated the relevant applicable principles.  The fact that the court in Westen came to a different conclusion on the facts of that case does not demonstrate error on his Honour’s part. 

1. Ms Ramus argued that her employment contract had been repudiated and or that she or her job had been made redundant on the basis of alleged facts which she failed to establish.  Her case failed as a result.

1. Ground two is not made out.  

Ground 3 – incorrect test for redundancy

1. As I understood their oral submissions, counsel for Ms Ramus claimed that at paragraph [50] of the reasons the Magistrate erred in law by failing to restate and apply the test for redundancy previously correctly stated at paragraph [34].

1. I do not agree. 

1. At paragraph 34, his Honour said this:

34.The noun “redundancy” is not a term of art and it should be understood and interpreted in “the context in which it appears”: Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 403. In Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308, Ryan J referring to R v Industrial Commission of South Australia; Ex parte Adelaide Milk Co-Operative Ltd (1977) 44 SAIR 1202, cited the following definition of redundancy,: “a job becomes redundant when an employer no longer desires to have it performed by anyone.”  His Honour went on to state that a “job” so described refers to a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee.

1. The learned Magistrate  concluded  that Ms Ramus’ job as editor was not taken from her by reason of the proposed changes to the format and content of Bridge or by any consequential reduction in her written contribution to the magazine. 

1. His Honour not only found that her job as the editor of Bridge and writer of National Articles remained to be performed, but he also concluded that the CFA desired that she be the one to perform it.  He determined that Ms Ramus’ position had not been made redundant as a result of any of the changes which were proposed or made to the magazine.  This was not a situation in which what remained of her job after those changes was something ‘new and strange’.[64]

   [64]Reasons [49]. See Cresswell v Board of Inland Revenue [1984] 2 All ER 713, 721 (Walton J).

1. Ground three should fail.

Ground 4 – no evidence

1. Ms Ramus’ final ground of appeal is that the Magistrate’s findings that there had been no repudiation of the employment contract and that her position had not been rendered redundant were not open on the evidence.

1. Counsel for Ms Ramus submitted that, having found as a matter of fact that the editorship of the magazine had been taken by Ms McClelland, and having heard ‘uncontradicted’ evidence from Ms Ramus that editing the magazine comprised about 80 per cent of her time at work, it was not open to the Magistrate to find that her position had not been made redundant and her contract of employment had not been repudiated.[65] 

   [65]Counsel cited Gamboni v Bendigo and Adelaide Bank Ltd. [2013] VSCA 92 where the Court of Appeal held that a position had been made redundant where the major portion of an employee’s duties had been removed.

1. This argument appears to have been based upon a misreading of paragraph [45] of the reasons where his Honour referred to Ms Ramus’ contention that her editorial role had been taken away.  He went on in the next two paragraphs to make eminently clear that he did not accept that this had occurred.

1. Insofar as counsel for Ms Ramus otherwise made a challenge to the Magistrate’s findings on the ground that they were not open on the evidence, I reject it

1. Cavanough J considered the question to be asked in appeals under s 109 of the Magistrates’ Court Act on the ‘no evidence’ ground in State of Victoria v Subramanian.[66] His Honour held that the question was that stated by Stephen J in Spurling v Development Underwriting (Vic) Pty Ltd[67] and approved by the Court of Appeal in Cehner v Borg[68] as to whether there was evidence upon which a reasonable Magistrate might come to the conclusion reached.[69]

   [66](2008) 19 VR 335 (‘Subramanian’).

   [67][1973] VR 1 (‘Spurling’).

   [68][2003] VSCA 72, [17], [30] (Batt, Chernov and Eames JJ).

   [69]Subramanian (2008) 19 VR 335, 347-8 [32]; see Spurling [1973] VR 1, 11 (Stephen J).

1. Cavanough J observed that it is ‘rarely easy’ to establish that a decision of the lower court was not open.[70]

   [70]Ibid 348 [34].

1. In my view, there was ample evidence before his Honour on which he might as a reasonable person have been satisfied that Ms Ramus’ employment contract had not been repudiated, and that her position had not been made redundant.  That evidence included the following:

(a)    Ms Cockerell’s evidence that:

(i)      there was no strategy within CFA to redistribute Ms Ramus’ role to Ms McClelland or anyone else;[71]

[71]Magistrates’ Court transcript, 219.

(ii)      Ms Ramus’ job had not been taken away from her;[72] and

[72]Ibid 233.

(iii)      as far as she knew, between 24 October and 15 November 2011 Ms Ramus had continued to edit Bridge;[73]

[73]Ibid 291; 307.

(b)   Ms McClelland’s evidence that:

(i)      there were no changes to Ms Ramus’ role discussed in September 2011;[74]

[74]Ibid 361-2.

(ii)      she had not told Ms Ramus not to do any work on Bridge unless she instructed her to do so;[75]

[75]Ibid 413.

(iii)      she had not told Ms Ramus that Bridge was no longer her concern;[76]

[76]Ibid 405.

(iv)      she had had no expectation of writing content for Bridge after the summer edition and it was not her role to do so;[77]

[77]Ibid 383.

(v)      she had done no work in relation to the National Articles Program between 24 October and 15 November 2011;[78]

[78]Ibid 385.

(vi)      her expectation, as at 24 October 2011, that Ms Ramus would continue to work on the National Articles Program and to edit the work that she had done for the Bridge summer edition;[79] and

[79]Ibid 383.

(vii)      the new editor of Bridge occupied the position Ms Ramus had previously filled;[80]

[80]Ibid 416.

(c)       the 3 November 2011 email from Ms Ramus to Mr Cahill and Ms Trezise, attaching a draft letter seeking feedback of Bridge magazine from consumer representatives, in which she refers to herself as ‘Bridge Editor and writer’;

(d)      the 4 November 2011 email from Ms Ramus to Mr Cahill and Ms Trezise, attaching a draft letter to be sent to clinicians invited to participate in the review of Bridge magazine, in which she refers to herself as ‘the Bridge editor and writer’;

(e)       the 15 November 2011 email from Mr Cahill to Ms Correa, recording the details of his meeting with Ms Ramus that morning, including that he had ‘advised Anne that there had been no discussions on her future with the CFA outside her current role and responsibilities’;

(f)       Ms Cockerell’s 1 February 2012 letter to Ms Ramus which relevantly states:

[I]n my capacity of Deputy CEO and with senior management (Board) support, I can confirm to you, that the redundancy of your role as Project Officer and Editor of the Bridge Magazine has never been discussed or considered. ...

As we have established, one of your main concerns is that you believe your responsibility of editing and writing for the Bridge has been “taken away” from you.  I am writing to advise you that this responsibility still lies within your role. 

…I am looking forward to your returning to the workplace to continue performing your project officer and Editor of the Bridge role.

(g)      Ms Cockerell’s 21 February 2012 letter to Ms Ramus,  which states, ‘As I have verified to you, your position is not redundant and dismissal for a genuine redundancy is not pending’; and

(h)      The advertisements for ‘Special Projects Officer – Media and Publications’ placed by CFA on Seek.com and COMjobs on 19 March 2012.

1. Ground 4 must fail.

Conclusion

1. The appeal should be dismissed.