Shum v Southern Migrant and Refugee Centre Inc (No 2)
[2023] FedCFamC2G 1006
•24 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shum v Southern Migrant and Refugee Centre Inc (No 2) [2023] FedCFamC2G 1006
File number: MLG 995 of 2022 Judgment of: JUDGE FORBES Date of judgment: 24 October 2023 Catchwords: PRACTICE AND PROCEDURE – Application by respondents for leave to reopen – where application to reopen limited to tender of potentially relevant document – where parties’ evidentiary cases closed but final addresses not commenced and judgment not yet reserved – complex matter being reheard on remittal after previous lengthy trial and appeal – where applicant will be afforded opportunity to cross-examine on further evidence including as to provenance of document – principles relevant to discretion to allow reopening – interests of justice and finality of litigation considered – leave granted Legislation: Fair Work Act 2009 (Cth) s 361
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 191
Cases cited: Monash Health v Singh [2023] FCAFC 166
Self Care CorporationPty Ltd v Green Forrest International Pty Ltd (No. 8) [2021] FCCA 1668
Shum v Southern Migrant and Refugee Centre Inc [2023] FedCFamC2G 615
SpotlightPty Ltd (ACN 005 180 861) vNCONAustralia Ltd (ARBN 099 019 851) [2012] VSCA 232
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 24 October 2023 Place: Melbourne Applicant: In person Counsel for the Respondents: Mr Harrington Solicitor for the Respondents: Landers & 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:
24 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Respondents be granted leave to reopen their evidentiary case further to the oral application made on 24 October 2023.
2.By no later than 5.00pm on 27 October 2023, the Respondents shall file and serve any affidavit as to the provenance of the document entitled “Southern Migrant and Refugee Centre Staff Delegation of Authority” and any further affidavit evidence by the Second Respondent of his knowledge of that document at the time of his engagement as interim managing director.
3.The matter be listed on 13 November 2023 at 10.15am for the purpose of the Applicant being able to cross examine the deponents of any of the affidavits filed by the Respondents.
4.The matter be listed for the hearing of Final Closing Submissions on 1 December 2023 at 10.15am, on the terms previously proposed in the Orders of His Honour Judge Forbes made on 23 June 2023.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE FORBES
INTRODUCTION
This proceeding was listed before me on 24 October 2023 for the hearing of final oral submissions in a complex general protections case in which the applicant, Ms Shum, seeks relief against the Southern Migrant and Refugee Centre Inc (SMRC) and two persons, Mr Oates and Mr Heeney, in relation to their involvement in alleged contraventions of the Fair Work Act 2009 (Cth) (the FW Act).
At the commencement of the hearing today, counsel for the respondents made an application to reopen their evidentiary case. The essence of the application, as I was informed by Mr Harrington, is that it would involve the tendering of what was described as a business record and adducing limited evidence from the third respondent Mr Heeney as to his knowledge of that document at the time he performed the role of interim managing director of SMRC. The document in issue is headed ‘Southern Migrant and Refugee Centre Staff Delegation of Authority’. The document does not bear any identification as to its author or the date on which it was produced, but Mr Harrington has informed the Court that it is a document that has been obtained from his client and that it is a business record that has been in existence for some time.
The application has been supported by a written rejoinder to the applicant’s written reply submissions, and various grounds have been set out to support the application, which I address below.
The application to reopen the case is opposed by the applicant, Ms Shum.
CONTEXTUAL BACKGROUND
It is to be recalled that these proceeding commenced by way of an application made by Ms Shum against the respondents (and others) in 2017. To give some context to the current application it is useful to restate the background as set it out in an earlier published ruling in Shum v Southern Migrant and Refugee Centre Inc [2023] FedCFamC2G 615. At [2]-[10] I observed:
[2]This matter is being heard on remittal following orders made by Justice Snaden in the Federal Court of Australia on 4 May 2022.
[3]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.
[4]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.
[5]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.
[6]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.
[7]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.
[8]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.
[9]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.
[10]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.
APPLICATION TO REOPEN
The application made by the respondents is advanced on a number of bases.
The principal basis is that the respondents assert that have been taken by surprise by an argument in Ms Shum’s reply submissions by which she contends that Mr Heeney could not have been the sole decision maker in relation to her redundancy. At paragraph [50] of the applicant’s closing reply submissions, Ms Shum directs attention to provisions of the organisation’s constitution, which goes to the issue of powers held by the board to appoint and remove staff, to delegate powers and the like. In her reply submission Ms Shum squarely contends there was no evidence before the Court of the board having delegated its power to remove staff to Mr Heeney, and on that basis Ms Shum says Mr Heeney cannot have been the sole decision maker in relation to her redundancy.
The respondents have filed, as I have mentioned, a submission in the form of a rejoinder to the applicant’s reply. In that rejoinder the respondents say that this issue of “non-delegation” has never formally been raised, or, at least, has not previously been raised by the applicant with the level of particularity necessary to put the respondents squarely on notice there was an issue it had to meet in this proceeding. The respondents contend that what it describes as the “no-delegation contention” was not an argument that was run at the first trial. Nor was it squarely advanced in the applicant’s points of contention or an earlier scoping document. It was not something raised by the applicant in her written opening submissions.
The respondents properly concede that the issue of delegation of powers was the subject of cross-examination at trial, albeit after I overruled an objection by the respondents to its relevance.
In seeking to advance their application to reopen the evidentiary case, the respondents make a number of points. First, they say that this matter has not yet advanced to the point of me having reserved my decision. They submit that the last active step in this case was the closure of the respondents’ evidentiary case and that I have not yet heard final argument from either party.
It is also submitted that the question of Mr Heeney’s role as a decision maker (or not) is a critical issue in the case, and with that I must agree. This case has been premised from the outset on the assertion by the respondents that Mr Heeney was the sole decision maker in relation to the decision to dismiss Ms Shum. Ms Shum does not accept that and her hypothesis is that the board, or Mr Oates, made the decision in concert with Mr Heeney in some way, but certainly that Mr Heeney was not the sole decision maker. So the question of Mr Heeney and his decision in relation to Ms Shum could not be more squarely relevant.
It is also submitted on behalf of the respondents that any reopening to receive further evidence would be confined. The object of the reopening would be to tender the document, and to adduce limited evidence from Mr Heeney as to his knowledge of that document at the relevant time. Mr Harrington concedes, as he must, that, if there to be such reopening, Ms Shum must be afforded the opportunity to cross-examine on the evidence adduced.
The matter in relation to delegation by the board to Mr Heeney was unquestionably ventilated during the course of the trial. Ms Shum sought to cross-examine each of the board members as to the delegation of power to Mr Heeney. I will not go to all the answers, but the answers given by the various board members is captured in the rejoinder document, which has been filed by Mr Harrington. It is fair to say that the evidence from the board members ranges from, “cannot remember”, “cannot recall”, to Mr Oates expressing the view that it is the CEO’s job to hire and fire, and Ms Tan expressing the view that Mr Heeney had the power to restructure. Mr Wahab gave evidence that the board had delegated responsibilities to Mr Heeney, because it delegated to every CEO. So that was the state of the evidence, and it is uncertain, and goes both ways.
However, what Ms Shum did not do was to put squarely to Mr Heeney that he had not been delegated power by the board, either verbally or by any written instrument. There is, accordingly, no evidence from Mr Heeney – who is not merely a witness, but is also a party to these proceedings – as to whether the board had delegated to him in any way, shape, or form the power to do what he says he did.
CONSIDERATION
Now, before going on, I need to make some brief observations about these proceedings, which as I have said are long-running and complex. They are remittal proceedings in which there are no formal pleadings. In the course of extensive case management, the Court has done the best it can to ensure that all the issues are identified and to ensure the evidence is focussed around relevant factual and legal issues.
The boundaries of the case have always been a little vague, as they inevitably are whenever there are no pleadings. Nonetheless, the case to be met by the respondents is one that needs to be spelled out with a degree of particularity, having regard to the consequences for a respondent if the Court were to make findings of contraventions of the Act. These are civil penalty proceedings, and a long line of cases – including the recent decision I was taken to in Monash Health v Singh [2023] FCAFC 166 – reinforces the requirement for a respondent to be put squarely on notice as to the case it must meet. There is, in effect, a reverse onus of proof in these proceedings by reason of s 361 of the FW Act. In discharging that reverse onus, the respondent is entitled to know the hypothesis it must disprove.
Everything that has been done in this case has been done with the objective of ensuring that the applicant has every opportunity to articulate her case, and for the respondents to have the equivalent opportunity to respond.
There are a number of relevant principles which must be taken into account by the Court when considering whether to exercise its discretion to allow a party to reopen. Mr Harrington directed me to the Supreme Court of New South Wales decision in Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, and the Victorian Court of Appeal decision in SpotlightPty Ltd (ACN 005 180 861) vNCONAustralia Ltd (ARBN 099 019 851) [2012] VSCA 232.
The principles have been laid down in a decision of this court recently in Self Care CorporationPty Ltd v Green Forrest International Pty Ltd (No. 8) [2021] FCCA 1668, a decision of Judge Baird.
First, the authorities make plain that the power to reopen is discretionary. Secondly, the overriding principle is that the Court must consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. Thirdly, while there are four recognised classes where leave to reopen may be given, those classes are not closed. Next, in taking into account the interests of justice I should have regard to the nature of the proceeding, the significance of the further evidence, the timeliness of production of the evidence and any explanation for delay, the prejudice to the other party, and the public interest.
In terms of the evidence itself, I must turn my mind to the importance of the issue on which the further evidence is sought to be adduced, the degree of relevance and probative value of that further evidence, its potential to waste time, whether the further evidence is so material that the interests of justice require its admission and the probably that the additional evidence will affect the result.
I have taken all of those principals and matters into account, and I have also taken into account the overarching purpose of civil litigation in this Court, which is articulated at section 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Ultimately, the exercise of the discretion to allow an application to reopen depends essentially upon the trial judge’s view as to whether the interests of justice are served better by granting than refusing the application[1]. As that as my guide, I have decided that I will allow the respondents to reopen its case in the manner proposed, which I want to emphasise is to be limited.
[1] Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 476
I have taken into account, the potential prejudice to Ms Shum. I accept the difficulty that this imposes upon a self-represented litigant, and the frustration that must come with an application of this kind being made at the eleventh hour. But, having regard to the background of this case, where it has been, the amount of time and effort everybody has put into it, I am motivated to ensure that all relevant material is before the Court before I have to determine this case.
There are two or three central issues which go to the determination of this case, which were articulated by Snaden J when he remitted the case to me. One of those is: “Who made the decision?”.
I have not made up my mind in relation to that question, and there is significant evidence pulling in both directions. But it seems to me that the piece of evidence that the respondents wish to put before the Court, whilst not answering the question, may be probative and go potentially to the result. So, for that reason, I propose to allow the respondents to reopen.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 24 October 2023
7
2