Reynolds v Minister for Health and Anor (No.3)
[2010] FMCA 954
•7 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REYNOLDS v MINISTER FOR HEALTH & ANOR (No.3) | [2010] FMCA 954 |
| HUMAN RIGHTS – Alleged unlawful disability discrimination. PRACTICE AND PROCEDURE – Application for adjournment until matter filed in Western Australian Industrial Relations Commission heard – not appropriate in the circumstances to grant adjournment – associated jurisdiction to hear matters – case management – decision of Western Australian Industrial Relations Commission not binding on Federal Magistrates Court. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Constitution (Cth), ss.72, 109 Evidence Act 1995 (Cth) Fair Work Act 2009 (Cth), ss.26-30 Federal Magistrates Act 1999 (Cth), ss.14, 15, 18 Federal Magistrates Court Rules 2001 (Cth) Industrial Relations Act 1979 (WA) ss.26(1)(a) and (b), 44(9) and (12)(a) |
| Australian Transport Officers’ Federation v State Public Services Federation (1980) 50 FLR 438 Fazio v Centrelink [2008] FMCA 594 Goodall v Nationwide News Pty Ltd [2007] FMCA 218 National Union of Workers and Others v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 Patrick v Wadoon Pty Ltd (No.2) [2007] FMCA 1766 Reynolds v The Minister for Health & Anor [2010] FMCA 843 Skipworth v State of Western Australia (No. 2) (2008) 218 FLR 16; [2008] FMCA 554 Welsh v Allblend Holdings [2010] FMCA 281 |
| Applicant: | BRUCE WILLIAM REYNOLDS |
| First Respondent: | MINISTER FOR HEALTH |
| Second Respondent: | ROSLYN ELMES |
| File Number: | PEG 56 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 7 December 2010 |
| Date of Last Submission: | 7 December 2010 |
| Delivered at: | Perth |
| Delivered on: | 7 December 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms S. Kavanagh |
| Solicitors for the Respondents: | State Solicitor's Office |
ORDERS
The application in a case filed by the applicant on 1 December 2010 be dismissed.
The applicant pay the respondents’ costs in the sum of $2,345 by 7 January 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 56 of 2010
| BRUCE WILLIAM REYNOLDS |
Applicant
And
| MINISTER FOR HEALTH |
First Respondent
| ROSLYN ELMES |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons revised and edited from the transcript)
By an application is a case dated 29 November 2010 the applicant, Mr Reynolds, has sought orders as follows:
(1)That the whole of this matter be adjourned sine die until Matter Number PSAC 35/2010 filed in the Western Australian Industrial Relations Commission[1] on the 26th day of November 2010 has been heard and determined.
(2)That no order or direction for a mediation conference be made until Matter Number PSAC 35/2010 filed in the Western Australian Industrial Relations Commission on the 26th of November 2010 has been heard and determined.
[1] “WAIRC”.
The application is supported by an affidavit of Paul Anthony King, affirmed on 29 November 2010.[2] In the course of the hearing this morning paragraphs 7, 8, 14, 15, 17, and 19, and that part of paragraph 16 from the words “nor was it” through to “has never been tested” and, it follows, the relevant annexures to those paragraphs were struck out.
[2] “Mr King’s Affidavit”.
Mr King relevantly deposed as follows in his affidavit:
2. On the 26th of November 2010 by way of e-filing a Form 1 Notice of Application (General) was filed on behalf of the applicant Mr Bruce Reynolds in the WAIRC and the respondent named in that application is the Director General of Health as a delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals and Health Services Act 1927 for the Metropolitan Health Services Board formerly comprising the Metropolitan Health Services Board.
3.The Form 1 Notice of Application (General) makes application to the Public Service Arbitrator for a conference/orders pursuant to section 44 of the Industrial Relations Act 1979 (WA) in regard to the substandard performance allegation made against Mr Bruce William Reynolds by his then direct line Manager Ms Roslyn Elmes (“Elmes”) Executive Director Public Health & Ambulatory Care North Metropolitan Area Heath [sic] Service ‘NMAHS’)
…
6.A document titled The Applicants Particulars of Claim was further filed in the WAIRC on the 26th of November 2010. This document is not tendered in this affidavit as it sets out the full particulars of Mr Reynolds application in the WAIRC and the respondent in that matter is different to the respondent currently in the Federal Magistrates Court of Australia matter
…
9.On the 9th of October 2008 Elmes commenced a substandard performance management process pursuant to the NMAHS Substandard Performance Policy and the NMAHS Guidelines for Management of Substandard Performance Issues
10.The NMAHS Substandard Performance Policy as it was then states that Substandard Performance constitutes a breach of the contract of employment and may result in termination of employment.
11.Attached hereto and marked as “Annexure C” is a copy of the NMAHS Substandard Performance Policy
12.Section 8 of the NMAHS Guidelines for Management of Substandard Performance Issues reads; Once substandard performance has been identified it is essential to act promptly. Any delay may be construed as condoning the substandard performance and can result in the Health Service being unable to enforce the contract of employment
13.Attached and marked as “Annexure D” is a copy of Section 8 of the NMAHS Guidelines for Management of Substandard Performance Issues
…
16.The substandard performance allegation has never been heard by the employer
…
18.Mr Reynolds has repeatedly had this office contact the Director General of Health Western Australia office in an attempt to resolve the substandard performance allegation however the response has always been in the negative.[3]
[3] Mr King’s Affidavit, paras.2, 3, 6, 9-13, 16 and 18.
In response to the application in a case the respondents have indicated that they oppose the orders that are sought and that the grounds of opposition are as follows:
1.The orders sought are contrary to applicable principles of case management.
2.The Applicant would not be prejudiced by the refusal of the grant of the orders sought.
3.The Respondents would be prejudiced by the granting of the orders sought.
Mr Reynolds asserts that various allegations of substandard performance raised in the Australian Human Rights Commission[4] complaint process, which preceded the filing of the substantive application in this Court, were raised by way of the respondents’ response to the applicant’s statement of material facts in the AHRC complaint process. It is said in this application in a case that these are unproven allegations and therefore ought to be dealt with by the WAIRC, constituted by the Public Service Arbitrator, in the s.44 application referred to in the application in a case, which application was filed on 26 November 2010. The submission, with respect, misses two points:
a)that the so-called unproven allegations are actually responses to claims made in the complaint process before the AHRC by Mr Reynolds, and claims to which the respondents were therefore entitled to respond and similarly might be entitled to respond in these proceedings. In any event, characterising them as unproven allegations puts them in the same category as the claims themselves, which at this stage are no more than unproven allegations; and
b)that the allegations with respect to substandard performance might properly form part of any defence to any points of claim filed in these proceedings.
[4] “AHRC”.
For reasons which are not explained, other than to say that the respondents are different in the WAIRC proceedings and this Court, the particulars of claim before the WAIRC are not in evidence before this Court. It is therefore not possible for this Court to determine what is or is not before the WAIRC as a matter of fact. The vague and general assertions about allegations of substandard performance in the applicant’s submissions and those parts of Mr King’s Affidavit which have not been struck out, do not assist the Court in determining what the application before the WAIRC actually says or actually relates to. The mere fact that in response to a claim of disability discrimination by Mr Reynolds, the respondents in this Court have raised or may raise alleged substandard performance by Mr Reynolds as a defence, is wholly unexceptional and is no basis for an adjournment of proceedings in this Court.
In paragraph 9 of Mr Reynolds’ submissions it is said, as follows:
9.The applicant submits that it is not for the Federal Magistrates Court of Australia to hear and make a determination on the substandard performance issue. The applicant submits that the WAIRC is the correct jurisdiction to hear and make order(s) and a determination on the substandard performance issue.
Such a submission might be correct if the substandard performance issues were the only issues in dispute between the applicant and the respondents in these proceedings. However, as the Court observed in Reynolds v The Minister for Health & Anor:
23. The Court observes that:
a) as it has said above;
…
ii) The industrial relations issues (redundancy and performance) whilst related, are subsidiary to the primary issues (disability and discrimination) and the secondary issues (victimisation and harassment);
This Court is a Chapter III Court, established under s.72 of the Constitution. It is a federal court. It has jurisdiction in this matter by reason of an application made under s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth),[6] in which the applicant alleges disability discrimination. The performance issues are related to the disability discrimination issues, as indicated above, and in more detail generally, in Reynolds (No.1).
[6] “AHRC Act”.
Having jurisdiction in relation to the federal disability discrimination claims, the Court also has jurisdiction to hear and determine associated matters whether federal or not arising from the same factual matrix as the alleged disability discrimination.[7] Indeed, it is the evident policy of the FM Act that all matters in controversy associated with a federal matter within the Court’s jurisdiction should be dealt with as a single matter and determined completely and finally by this Court.[8] This is such a matter.
[7] See Skipworth v State of Western Australia & Ors (No 2) (2008) 218 FLR 16; [2008] FMCA 554 at para.37 per Lucev FM; Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281 at paras.13-20 per Lucev FM; Federal Magistrates Act 1999 (Cth), s.18 (“FM Act”).
[8] FM Act, s.14.
The approach posited by Mr Reynolds is the antithesis of that that ought to be adopted by this Court, and is contrary to the intent of s.14 of the FM Act. This Court has jurisdiction to hear the entire matter and if performance issues are raised within the same factual matrix those matters are within jurisdiction and to be determined by this Court. That means that the performance issues, which are alternatively characterised by Mr Reynolds as the industrial relation issues, will “not be left as unfounded allegations” and will be “dealt with appropriately” by the Court as part of the hearing of the substantive application. The applicant’s submissions on jurisdiction therefore afford no reason to adjourn the matter sine die or otherwise.
From the evidence before the Court in paragraph 2 of Mr King’s Affidavit, and the application in the substantive matter before the Court, and confirmed by the applicant in the hearing this morning, it is evident that the respondents in the substantive application, that is, the Minister for Health and Ms Elmes, are not the same as the respondent to the WAIRC application which appears to name the Director-General of Health as the respondent. That is not a reason to adjourn the matter in this Court, as claimed by the applicant. If anything, because there is no commonality of respondents, it is a reason to adopt the usual course with respect to the substantive application of programming that application through to a hearing; something which ordinarily would have been done six or seven months ago, shortly after the application was lodged. To do otherwise is to delay the administration of justice for the respondents by reference to a matter to which they are not parties. That is unfair to the respondents, especially in circumstances where this application has been on foot since April 2010 and the Court notes that the prior AHRC proceedings were on foot long before that. There has not been in this Court the usual first directions hearing by reason of the various applications in a case made by the applicant which have substantially delayed what ought to have been the usual progress of this matter.
In paragraph 12 of the submissions by Mr Reynolds it is said:
12.The applicant submits that if substandard performance is not immediately addressed then any delay maybe [sic] construed as condoning the substandard performance…
There is more than a shade of irony in that submission, given that the performance issues were raised by the respondents in 2008. They have been in issue since then and have been challenged in various ways by the applicant, including by the making of the substantive application.[9]
[9] See Reynolds (No. 1) at para.11(n), (o), (r) and (u)(ii) and also paras.23(a)(ii) and 63(b) per Lucev FM.
There was nothing on the evidence to preclude the present application to the WAIRC being made at any time in the last two years. The fact that it is now made so late in the piece, more than seven months after the substantive application, and after an application for a non-lawyer, Mr King, to appear for the applicant has been refused, smacks somewhat of forum shopping to allow Mr King to appear in a forum, the WAIRC, in which he arguably has a right to appear. In any event, the lateness of the WAIRC application provides no proper ground to adjourn these proceedings. Furthermore, if there was substance in the point made by the applicant, that if substandard performance is not immediately addressed then any delay may be construed as condoning the substandard performance, is a point which would operate in the applicant's favour in the substantive proceedings in the resolution of the performance issues. Therefore, to grant an adjournment would prejudice Mr Reynolds by denying him the opportunity in this Court to deal with the performance issue in a context which, if his submissions are correct, ought to favour him.
The applicant also submits that it would be in the public interest to allow the WAIRC, in the form of the Public Service Arbitrator, to deal with the issue of performance and that it would assist this Court in the determination of the disability discrimination issue and that any determination from the Public Service Arbitrator would be binding on this Court. That submission is wrong for several reasons:
a)the performance issues are related to the disability discrimination claim, the subject of a substantive application before this Court;
b)this Court can deal with the entire issue for reasons that it has already set out;
c)the WAIRC’s dealing with the matter of performance would be in isolation from the issues related to it and which are raised by the substantive application presently before the Court;
d)any determination by the WAIRC would not be binding because any finding which relates to the performance issue relates to a different respondent to the respondents to these proceedings;
e)the WAIRC’s findings are those of an arbitral, non-judicial tribunal, determined without recourse to rules of evidence and without regard to legal technicalities or form,[10] whereas any judgment of this Court will be determined in the exercise of the judicial power of the Commonwealth and with evidence adduced in accordance with the provisions of the FM Act, the Federal Magistrates Court Rules 2001 (Cth) and the Evidence Act 1995 (Cth). Therefore, it is likely that any judgment of this Court would be determined on a different evidentiary basis as well as having different respondents before it when the matter is determined in this Court; and
f)the decision of the State Industrial Tribunal, that is the WAIRC, constituted by the Public Service Arbitrator, exercising power in a manner described and for the reasons set out in the description above would not be binding on this Court exercising the judicial power of the Commonwealth.
[10] Industrial Relations Act 1979 (WA), s.26(1)(a) and (b) (“IR Act”).
The Court adopts the observations made in Australian Transport Officers’ Federation v State Public Services Federation[11] by a Full Court of the Industrial Division, as it then was, of the Federal Court of Australia in relation to whether or not the Federal Court was estopped from dealing with a matter which had been the subject of a determination by the then Commonwealth Conciliation and Arbitration Commission. Although those reasons relate to matters between the Federal Court and the Commonwealth Conciliation and Arbitration Commission, they apply equally as a matter of principle to any issue with respect to this federal court, that is, the Federal Magistrates Court being estopped by a determination of a State Industrial Tribunal, in this case the WAIRC, exercising arbitral power, which it is not, for the reasons set out in ATOF and Pacific Dunlop Tyres.
[11] (1981) 50 FLR 438 at 444-447 per J.B. Sweeney, Evatt and Northrop JJ (“ATOF”); adopted and followed in National Union of Workers and Others v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 at 428 per Heerey J (“Pacific Dunlop Tyres”).
Furthermore, in any event, this Court exercising federal powers would, in the exercise of those federal powers, make orders and determinations which would prevail over any inconsistent order or determination of the WAIRC.[12] That is not to say that if any determination of the WAIRC were to be made that relevant parts of it would not be the subject of proper regard by this Court. In those circumstances, it is not in the public interest to adjourn this matter pending any determination by the WAIRC, constituted by the Public Service Arbitrator.
[12] Constitution, s.109
In terms of case management, the Court substantially agrees with what has been submitted by the respondents in relation to the determination of an application for adjournment. The Court must have regard to case management considerations and the potential prejudice to both sides in the granting or rejection of an application for adjournment.[13] The Court is intended to operate in the following manner:
[13] Patrick v Wadoon Pty Ltd (No.2) [2007] FMCA 1766 at para.16 per Lucev FM (“Patrick”); Fazio v Centrelink [2008] FMCA 594 at para.5 per Lucev FM (“Fazio”).
24.Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a)as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.[14]
[14] Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at para.21 per Lucev FM; cited in Fazio at para.4 per Lucev FM.
It is therefore apparent that to adjourn a matter which has already been on foot in this Court for seven months, in circumstances where the delay which has already occurred, has occurred at the instance of the applicant, would not be in accordance with the ordinary principles of case management adopted by this Court.
In terms of prejudice, the applicant has not demonstrated any prejudice if the application for adjournment is refused, and as the Court has observed, there may, in fact, be prejudice to him if the application for adjournment were to be upheld. Furthermore, there is prejudice to the respondents, not only by reason of the delay of which the Court has spoken, but also because these events relate to matters of some detail which are now becoming increasingly old in time, relating to events in 2007, 2008 and 2009, as revealed by the complaint in the AHRC. As time goes by, witnesses’ memories fade and their recollection becomes increasingly unreliable, and it is therefore preferable that the Court get those witnesses in front of it and have the facts determined before their recollections fade further. That is in the interests of justice and the administration of justice.[15]
[15] Patrick at paras.26-27 per Lucev FM: “The detail is lost, and the devil disappears with that loss of detail”.
With respect to the issue of case management and the proceedings under the IR Act, the matter is, according to Mr Reynolds, to be the subject of a s.44 compulsory conference under the IR Act, on 10 December 2010. The Court observes that that is a conference only, and that there is no hearing of the matter presently scheduled because the hearing of a matter requires that the matter be referred for hearing and determination in the event that it does not settle at conference. If a matter is referred for hearing and determination out of a compulsory conference in the WAIRC, the outcome is binding only on the parties to that conference.[16] Therefore, any outcome of the s.44 conference would not be binding on the respondents to these proceedings. That is another reason why, in the exercise of proper case management principles, this Court ought to get on with the hearing of this matter.
[16] IR Act, s.44(9) and (12)(a).
The Court notes, as it did during the course of the proceedings, that no issue has been raised as to the jurisdiction of the WAIRC to hear Mr Reynolds’ application,[17] and that there has been no application to restrain Mr Reynolds from proceeding with the WAIRC proceedings, pending the outcome of these proceedings.[18]
[17] Fair Work Act 2009 (Cth), ss.26-30.
[18] FM Act, s.15.
In conclusion, therefore, the Court determines that there is no basis for an adjournment of these proceedings: none has been established today. It therefore follows that the application in the case seeking adjournment of the proceedings ought to be dismissed and there will be an order accordingly. The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 16 December 2010
[5] [2010] FMCA 843 at para.23(a)(ii) per Lucev FM (“Reynolds (No.1)”).
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