Shum v Southern Migrant and Refugee Centre Inc
[2023] FedCFamC2G 615
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shum v Southern Migrant and Refugee Centre Inc [2023] FedCFamC2G 615
File number: MLG 995 of 2022 Judgment of: JUDGE FORBES Date of judgment: 17 July 2023 Catchwords: PRACTICE AND PROCEDURE – dispute over contents of tender bundle following close of evidentiary cases – procedural ruling Legislation: Fair Work Act 2009 (Cth), s 117, 340, 550
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190, 191, 192
Cases cited: Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214
Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 22-26 May 2023, 22-23 June 2023 Place: Melbourne Solicitor for the Applicant: In Person Counsel for the Respondents: Mr Harrington Solicitor for the Respondents: Lander & Rogers ORDERS
MLG 995 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAI SHUM
Applicant
AND: SOUTHERN MIGRANT AND REFUGEE CENTRE INC
First Respondent
TRAVIS SCOTT HEENEY
Second Respondent
BRIAN HERBERT OATES
Third Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
17 July 2023
THE COURT ORDERS THAT:
1.Within seven days of the date of these orders, the Respondents shall file and serve a final tender bundle index (including court book references), together with a copy of any relevant document referred to in the index which is not already included in the court book.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
This short judgment concerns a dispute which arose, at the completion of the parties’ evidentiary cases, as to what relevant documents should be included in what the Court had anticipated would be an agreed “tender bundle”. Regrettably, the parties have not been able to agree, thereby necessitating this ruling.
This matter is being heard on remittal following orders made by Justice Snaden in the Federal Court of Australia on 4 May 2022.
The matter before the Court as presently constituted has a long and complex history. The proceedings have involved multiple parties and an array of alleged contraventions of the Fair Work Act 2009 (Cth) (‘the FW Act’). The respondents have been legally represented by solicitors and counsel and the applicant has represented herself throughout.
The first instance proceeding was heard in the (then) Federal Circuit Court of Australia over eight days during 2019 and judgment was given in February 2020. A significant body of evidence was received by the Court in the form of affidavits, documents and oral testimony. The applicant was largely successful at first instance for the reasons published in Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214.
The respondents appealed and the applicant cross-appealed. The appeal itself appears to have been a considerable exercise, conducted over two days by Justice Snaden during 2021. The appellants were substantially successful and the cross-appeal was allowed in part. For the reasons published at Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481, the orders of the primary judge were set aside and His Honour ordered the new trial be remitted to this Court, on the following issues:
(a)whether Southern Migrant and Refugee Centre Inc (SMRC) terminated its employment of Ms Shum in contravention of s 340(1) of the FW Act;
(b)if it did, whether either of Mr Brian Oates or Mr Travis Heeney was (or both of them were), for the purposes of s 550 of the FW Act, involved in that contravention such that he or they might be taken also to have engaged in or committed it;
(c)to the extent that any such contraventions are established, what, if any, relief should be granted in consequence; and
(d)what, if any, relief should be granted in consequence of SMRC having dismissed Ms Shum contrary to the requirements of s 117(2) of the FW Act.
By reason of the confined scope of the remittal questions and the need to ensure evidence on the retrial is similarly and relevantly confined, the retrial has been actively case managed. This has been challenging but necessary.
Suffice to say, prior to the commencement of the retrial the matter was subject to numerous contested directions hearings necessitating carefully-framed orders regarding the filing of contentions, affidavits and submissions. Each of the parties has sought to rely on the whole of or parts of affidavits from the earlier proceedings and additional new evidence and documents have also been filed. Prior to the retrial the Court engaged in a lengthy and time‑consuming process of ruling upon hundreds of contested evidentiary objections.
Proceedings in this Court are to be conducted at all times in a manner which is consistent with the overarching purpose of civil practice and procedure as outlined in ss 190-192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The overarching purpose requires the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That objective is best served by ensuring the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload, the disposal of proceedings in a timely manner and, importantly, the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Section 191 expressly requires parties to a civil proceeding before the Court to conduct the proceeding in a way that is consistent with that overarching purpose. That obligation applies to both parties in the proceedings whether legally represented or not.
Without expressing any view about the merit or otherwise of the parties’ respective cases, it might be said that the amount of time, cost and judicial resources applied to case management in this matter is disproportionate, when measured against matters of a similar type which routinely proceed in this Court. Whilst this matter has its fair share of unusual features, its progress through the Court has been slowed and weighed down by arguments about procedural matters.
The most recent of those emerged out of the recent seven-day hearing. As often occurs as trials unfold, various documents which were not annexed to admissible affidavits and/or were not included in the filed court book were produced, referred to by witnesses or put to witnesses in cross-examination. Some of those documents were formally tendered, others were not. The Court informed the parties that they should work to prepare a “tender bundle” of such documents which could be admitted into evidence by consent. I had in mind that this would be a relatively simple and straightforward process.
It became clear by the end of the hearing that the parties had been unable to agree on what documents could be tendered by consent. To that end the Court gave a detailed explanation of what it expected of the parties and I set down a process to resolve what I had been led to believe would be a few points of disagreement. Indeed on the final day of evidence the applicant informed the Court that she might have no documents for the tender bundle.
I made the following orders on 23 June 2023:
(1)Within seven days of the date of these Orders, the Applicant is to serve on the Respondents’ solicitors (with a copy to the chambers of Judge Forbes) a proposed tender bundle in table form which identifies:
(a)the documents she says should be tendered into evidence;
(b)where those documents are to be found (by court book reference where possible); and
(c)the basis upon which she says the documents should be tendered into evidence.
(2)Within seven days of receiving the Applicant’s proposed tender bundle, the Respondents shall serve on the Applicant (with a copy to the chambers of Judge Forbes) a document in table form which identifies:
(a)which of the documents in the Applicant’s proposed tender bundle are to be admitted into evidence by consent;
(b)which of the documents in the Applicant’s proposed tender bundle are opposed and the basis for the objection; and
(c)any other documents, not on the Applicant’s list, which the Respondents contend should be admitted into evidence and the basis for doing so.
(3)Within 3 business days after receiving the Respondents’ table referred to in Order 2, the Applicant shall serve (with a copy to the chambers of Judge Forbes) any objection to the documents proposed to be tendered by the Respondents (see Order 2(c) above) and the basis for the objection.
(4)For the purposes of the above orders, the parties should assume that the following documents have been received into evidence and need not form part of a party’s proposed tender bundle:
(a)Affidavits which have been affirmed during trial, including each of the documents annexed or exhibited to those affidavits, but excluding those paragraphs and documents which have been ruled by the Court to be inadmissible;
(b)Documents which have been formally tendered and marked as exhibits during trial; and
(c)Documents contained in the “Board Minutes” folder.
(5)After receiving the tables referred to in Orders 1 to 3 above, the Court will rule on any outstanding tender bundle objections and will inform the parties accordingly.
Order 4 of those Orders reinforced the explanation which was given to the parties at the conclusion of the final day of trial.
On 1 July 2023 the applicant filed a 22 page list of documents together with nearly 300 pages of documents which she proposed as her tender bundle. On 7 July 2023 the respondents filed a comprehensive 63 page response together with a short list of seven additional documents (principally business records) which they sought to be included in the bundle. On 12 July 2023 the applicant filed a response in which she objected to each of the seven additional documents proposed by the respondents.
I have had regard to the filed lists and the explanations given by the parties which set out the bases for admission of the documents or objection, as the case may be. I have also had regard to the evidence and cross-examination over five days of trial, including objections raised and ruled upon as necessary, in setting the parameters for what is and what is not likely to be probative on the remitted issues.
Applicant’s proposed tender list
It is unnecessary and in my view unreasonable to require the Court to provide a separate ruling in respect of the dozens of documents which had been included in the applicant’s list.
Suffice to say, the list of documents compiled by the applicant can be divided into the following categories:
(a)documents which have already been received into evidence as an annexure to an affidavit which has been read into evidence;
(b)documents which have been ruled as inadmissible by reason of earlier evidentiary rulings;
(c)documents which were put to witnesses during the course of cross‑examination; and
(d)a miscellany of other documents which do not fall into the above categories, but which the applicant contends are relevant to aspects of her case.
Any documents in the applicant’s list which the respondent does not oppose should be included on the final tender list. Nothing more needs to be said about those documents.
Documents on the applicant’s list which have been identified in the respondent’s response as falling into category (a) should not form part of any tender bundle. In other words, any documents identified by the applicant which have already been received into evidence, need not be tendered again.
Similarly, subject to my comments at (c) below, documents which have been ruled as inadmissible or have been referred to in paragraphs of affidavits which have been ruled inadmissible, should not be included in the list. The Court has already done the best it can utilising its limited time and resources to rule on admissibility questions. Those rulings have not been challenged, they set the parameters for the proceeding and they should be observed. Accordingly, where the respondents’ response identifies a document which has directly or indirectly been ruled as inadmissible, those documents should not be permitted to be tendered.
As to category (c), for the sake of expediency, I am prepared to accept into evidence any documents which the applicant says were shown or put to a witness during cross-examination. The documents which fall into this category, according to the applicant’s list, are those described as A19, A21, LS1-3 (email 9 March 2017) and LS1-4 (reply submission).
I note that in respect of some of these category (c) documents the respondent says that they have previously been ruled as inadmissible. Nonetheless, the parties can address the relevance and probative weight of those documents in their final written or oral submissions if they wish.
There are other documents which may or may not fall into the above categories which I will permit as part of the tender bundle. Using the respondent’s numbering these are:
·113 (LS1-4) email from Despina Haralambopoulos. This is a business record of the respondents and I consider it relevant to the broader narrative regarding the applicant’s exercise of workplace rights. The weight, if any, to be given to this document can be addressed in submissions.
·129 – 131 (LS1-6) These documents appear to be publicly available official records which may be objectively probative of the financial state of the respondent’s organisation in the period up to and in the year after the termination of the applicant. Again, submissions can be made about the weight to be given to this evidence in the context of the evidence as a whole.
Save for the above matters, I otherwise accept the bases of the objections raised by the respondents in their document filed on 7 July 2023.
Respondent’s proposed additional documents
As to the seven documents on the respondent’s list I am prepared to receive those into evidence as business records of the respondent. However, I note the applicant’s objection on the basis that those documents were only produced after six years and were not produced until the second last day of trial. Whilst they are received into evidence the applicant may of course make any submissions she wishes about the relevance of the documents, the weight to be given to them and any inferences she says should be drawn from the timing and circumstances of their production by the respondents.
Disposition
Having regard to the above, I direct the solicitors for the respondent to prepare and to provide Ms Shum and my chambers:
(a)an index for the tender bundle (including court book references); and
(b)a copy of the relevant documents where they are not included in the court book.
That index and documents should be served on Ms Shum and a copy sent to my chambers within seven days.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 17 July 2023
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