Schafer v Brisbane City Council
[2024] QIRC 229
•17 September 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Schafer v Brisbane City Council [2024] QIRC 229 |
PARTIES: | Schafer, Justin (Applicant) v Brisbane City Council |
CASE NO: | TD/2023/102 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 17 September 2024 |
MEMBER: HEARD AT: HEARD ON: | Hartigan, DP Brisbane 13 September 2024 |
| ORDER: | 1. The application for leave for the witnesses, Mr McDonogh and Mr Grahvendy, to give evidence by video link is granted. |
| CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – application in existing proceedings for witnesses to give evidence by video link – where the witnesses have prior work commitments – where witnesses are not witnesses of credit – where Applicant not disadvantaged if witnesses do not appear in-person – where Commission has discretion to grant leave – where leave is granted for the witnesses to appear by video link. |
LEGISLATION: CASES: | Federal Court of Australia Act 1976 (Cth) s 47A Industrial Relations Act 2016 (Qld) ss 447(2)(b), 451 Practice Direction Number 8 of 2021 – Taking Evidence by Telephone or Video link Australian Securities and Investments Commission v Wilson (No 2) [2020] FCA 873 |
Reasons for Decision
Introduction
The substantive application in this matter is an application for reinstatement filed on behalf of Mr Justin Schafer. The substantial application is listed for a hearing on 18 and 19 September 2024.
The Respondent has applied for leave for two of its proposed witnesses, Mr Travis McDonogh and Mr Patrick Grahvendy, to give evidence by video link at the substantive hearing.
The Applicant objects to the application.
At the hearing of the application on Friday, 13 September 2024, I granted leave for Mr McDonogh and Mr Grahvendy to give evidence by video link at the hearing commencing on Wednesday, 18 September 2024. These are the reasons for that decision.
Relevant legislative provisions and Direction
The Respondent relies on ss 447(2)(b) and 451 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) in support of its application.
Section 447(2)(b) of the IR Act provides for the Commission’s functions as follows:
447 Commission's functions
…
(2) The commission must perform its function in a way that –
…
(b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
Section 451 of the IR Act provides for the general powers of the Commission as follows:
451 General powers
(1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2)Without limiting subsection (1) – the commission in the proceeding may:
(a)give directions about the hearing of a matter; or
(b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c)make an order it considers appropriate.
Additionally, Practice Direction 8[1] confirms, that a decision by a Member of the Commission to approve the taking of evidence, by telephone or by video link, is an exercise of discretion.
[1] Practice Direction Number 8 of 2021 – Taking evidence by telephone or video link.
Practice Direction 8 is set out in the following terms:
The purpose of this Practice Directions is to:
· to ensure that all parties are aware of the approach to the taking of evidence by telephone and/or video link in the ordinary case;
· to streamline the taking of evidence by these means;
· to avoid delay and disruption; and
· to maintain the decorum of the proceeding.
…
General
1 Evidence by telephone will only be taken from expert witnesses and on formal and uncontroversial matters. Telephone evidence will not be taken where credibility is in issue.
2 Evidence by telephone or video link may be given only at the discretion of the Member.
Several authorities in the federal jurisdiction have considered the application of s 47A(1) of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’). Section 47A(1) of the FCA Act provides that the court may, for the purpose of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.
In Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd[2] (‘Auken’), Stewart J relevantly distilled the following principles from several authorities as follows:
28. 'I respectfully agree with and adopt what was said by Flick J in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd, namely that in deciding whether or not to allow AVL evidence:
The overriding consideration must, however, forever remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties.
29. His Honour also said (at [11]) that the exercise of the discretion conferred by s 47A(1) of the Act must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of AVL.
30. I also respectfully agree with and adopt what was said by Jackson J in Australian Securities and Investments Commission v Wilson at [36] that the process of deliberation required in order to exercise the s 47A(1) discretion properly is accurately described as a balancing exercise.'
[citations omitted].
[2] [2020] FCA 1153; (2020) 147 ACSR 521.
I consider that the principles referred to in Auken are of assistance as guiding principles for the exercise of the discretion by the Commission in this matter.
Should the Commission exercise its discretion to permit Mr McDonogh and Mr Grahvendy to give evidence by video link?
This application is made on the basis that both Mr McDonogh and Mr Grahvendy work and reside outside of Brisbane. The Respondent contends that neither witness is an employee of the Respondent and that their participation in the proceedings “requires the allocation of their own personal time and is at the expense of their own personal circumstances.”[3]
[3] Application in Proceedings filed by the Respondent on 12 September 2024.
With respect to Mr McDonogh, he resides and works in Hervey Bay, Queensland, where he and his spouse operate a small cleaning business.
A number of the clients of Mr McDonogh are members of the National Disability Insurance Scheme (‘NDIS’) who require regular scheduled cleaning as part of their NDIS funding. It is said that it is critical that Mr McDonogh’s NDIS clients have consistent and reliable service. In this regard, the evidence is that Mr McDonogh has regular work scheduled on both 18 and 19 September 2024 and is unable to attend the hearing in Brisbane by reason of the existing bookings.
With respect to Mr Grahvendy, he resides and works near Cobar, New South Wales. He is engaged as an electronic technician at an underground mine. The work he performs includes monitoring and maintaining the automation and remote-control system for heavy earthmoving equipment. He is rostered to work a night shift during the hearing of the matter.
In addition to applying for leave to attend the hearing, it is said that any attendance in person would require Mr Grahvendy to fly from Cobar (or the nearest hub) to Brisbane, obtain accommodation, and then fly back to Cobar after giving his evidence.
However, if Mr Grahvendy were to give his evidence by video link he would be in a position where he could perform his night shifts (and hence work) without any disruption.
In response, the Applicant makes general submissions, in relation to both Mr McDonogh and Mr Grahvendy, that:
(a) the Applicant should have every opportunity to test that evidence of both critical witnesses;
(b) the Applicant intends to test the evidence of both critical witnesses as there is a contest about the evidence (notwithstanding that the evidence of both witnesses were not addressed in the Applicant’s reply evidence);
(c) there are issues of fact and of credit and that all of the proposed evidence to be taken by electronic means is centrally important to the case;
(d) the Respondent is not the cross-examining party and is in no position to make reliable submissions to the Commission about the likely length of cross-examination of the crucial witnesses and, in any event, the length of time required for cross-examination may vary depending on a range of factors such as the witnesses’ approach to giving evidence and the way other evidence has fallen in the proceeding;
(e) the Applicant would lose the forensic advantage of having the evidence of a critical witness conducted in the same or similar environment to other critical witnesses including the Applicant himself; and
(f) documents may be put to both critical witnesses and the Applicant would lose any forensic advantage if he was required to provide them ahead of time.
The Applicant contends that, at its heart, the application made by the Respondent is made because of matters of convenience.
In addition to the facts and circumstances referred to above, a further relevant consideration is the nature and the substance of the evidence to be given by each of the witnesses.
Whilst both parties contended that the witnesses are critical to the proceedings, there was limited submissions made as to why their presence in person was necessary.
The only witness to be called for and on behalf of the Applicant is himself.
The Applicant’s representative accepted that a large portion of the evidence to be given by Mr McDonogh is not in dispute. An area of potential controversy brought to my attention during the course of the hearing of the application was that the Applicant and Mr McDonogh shared different opinions with respect to how written policies of the Respondent operated in practice. I do not consider that the nature of that controversy as described at the hearing is such as to make it necessary, in terms of fairness, for Mr McDonogh to give his evidence in person.
Other than generally submitting that matters of credit may arise, the Applicant does not identify in any meaningful way that Mr McDonogh is a witness of credit. I am currently not satisfied that the Applicant has established that it will raise matters that will potentially go to Mr McDonogh’s credit which would necessitate him giving his evidence in person. I consider the nature and substance of the evidence proposed to be given by Mr McDonogh is a matter which weighs in favour of the exercise of the discretion to grant leave.
Mr Grahvendy’s evidence is, inter alia, that he conducted an inspection of a truck relevant to the proceedings and expresses an opinion in relation to the identification of defects on that truck. Mr Grahvendy is said to rely on his experiences and qualifications in expressing the opinion. The Applicant does not rely on the evidence of any other expert or technically qualified witness to provide an opinion that differs to that expressed by Mr Grahvendy. Whilst it is accepted that matters will be put to Mr Grahvendy during cross-examination that, in and of itself, does not itself make Mr Grahvendy a witness of credit. The Applicant has not currently established that Mr Grahvendy is a witness whose credit will be called into account. I consider the nature and substance of the evidence proposed to be given by Mr Grahvendy is a matter that weighs in favour of the exercise of the discretion to grant leave.
Further, the Applicant has not established on the material before me, that he will suffer prejudice, including a loss of forensic advantage, if the evidence of these witnesses is given by video link.
Further, the Applicant does not rely on any practical impediments that may arise if these witnesses were to give their evidence by video link. For instance, the Applicant did not submit that it intended to put a large number of written documents to the witnesses in cross-examination which might result in the cross-examination, if it were to be conducted by video link, being conducted in an inefficient manner.
I accept that the matters relied on by the Respondent in seeking leave are matters that relate to the personal circumstances of the witnesses, including for the convenience of lessening the impact on the witnesses giving evidence on their work commitments.
These personal circumstances must be weighed against the other circumstances of this matter. In determining this matter, I have taken into account the nature and substance of the proposed evidence, that the Applicant has not currently established that the witnesses are witnesses of credit, and that the Applicant has not raised any practical or other impediment to them giving evidence by video that would create a prejudice to the Applicant.
I have considered that these matters weigh in favour of the exercise of the discretion.
I grant leave for Mr McDonogh and Mr Grahvendy to give evidence by video link.
Order
For the foregoing reasons, I make the following order:
1. The application for leave for the witnesses, Mr McDonogh and Mr Grahvendy, to give evidence by video link is granted.
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