Southern Migrant and Refugee Centre Inc v Shum (No 2)
[2021] FCA 1005
•23 August 2021
FEDERAL COURT OF AUSTRALIA
Southern Migrant and Refugee Centre Inc v Shum (No 2) [2021] FCA 1005
File number: VID 127 of 2020 Judgment of: SNADEN J Date of judgment: 23 August 2021 Catchwords: PRACTICE AND PROCEDURE – application for the court to receive further evidence on appeal – proposed further evidence not of the kind to which r 36.57 of the Federal Court Rules 2011 (Cth) pertains – application in respect of contents of appeal book – content of appeal book settled by registrar and the subject of previous unsuccessful application – applications dismissed Legislation Fair Work Act 2009 (Cth) s 570
Federal Court Rules 2011 (Cth) r 36Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 13 Date of hearing: 23 August 2021 Counsel for the Appellants/Cross Respondents: Mr N Harrington Solicitor for the Appellants/Cross Respondents: Lander & Rogers Counsel for the Respondent/Cross Appellant: The respondent/cross appellant appeared in person ORDERS
VID 127 of 2020 BETWEEN: SOUTHERN MIGRANT AND REFUGEE CENTRE INC
First Appellant
BRIAN OATES
Second Appellant
TRAVIS HEENEY
Third Appellant
AND: LAI SHUM
Respondent
AND: BETWEEN: LAI SHUM
Cross Appellant
AND: SOUTHERN MIGRANT AND REFUGEE CENTRE INC
First Cross Respondent
BRIAN OATES
Second Cross Respondent
TRAVIS HEENEY (and others named in the Schedule)
Third Cross Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
23 AUGUST 2021
THE COURT ORDERS THAT:
1.The respondent’s interlocutory application dated 28 July 2021 be dismissed.
2.The respondent’s interlocutory application dated 31 July 2021 be dismissed.
3.The costs of and relating to the interlocutory applications referred to in orders 1 and 2 be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The present matter—comprising of both an appeal and a cross-appeal—is scheduled for hearing in two weeks’ time, on 6 and 7 September 2021. The respondent and cross appellant moves the court for interlocutory relief on two fronts. The first—advanced by an interlocutory application dated 28 July 2021—concerns her desire to lead what she describes as fresh evidence at the hearing of the appeal and cross-appeal. The second—advanced by an interlocutory application dated 31 July 2021—concerns the content of the appeal book. Both applications are supported by affidavits sworn by the respondent and cross-appellant. Both applications are opposed.
The applications came before the court on the morning of 23 August 2021. At the conclusion of the hearing, the court made orders dismissing both and reserving costs. I undertook to provide brief written reasons for doing so.
I shall deal first with the application concerning the content of the appeal book.
The appeal book index was the subject of disagreement as between the parties. Accordingly, it was referred to a registrar of the court, who settled it in accordance with r 36.52 of the Federal Court Rules 2011 (Cth). That occurred in November 2020. On 29 November 2020, the respondent and cross-appellant filed an interlocutory application to revisit the content of the appeal book. On 2 December 2020 (following a hearing that took place the previous day), I made orders dismissing that application.
It is not apparent why the respondent has waited until approximately six weeks prior to the hearing of the matter to re-agitate for the attention of the court what she now seeks to raise. Regardless (and respectfully), I am not minded to indulge her complaints. The settling of the contents of the appeal book is an administrative matter. It has occurred. If there are documents that are not contained in the appeal book to which Ms Shum feels that she needs to take the court during the hearing of the matter, she can do so in the manner that was foreshadowed when I dealt with her earlier application nearly nine months ago. During the hearing that transpired on that occasion (1 December 2020), when the court first considered Ms Shum’s concerns about the content of the appeal book, the following exchange took place:
HIS HONOUR: …given that the content of the appeal book has been settled by a registrar and that typically, that is where the content of the appeal book stops, what I will invite you to do is, if you wish to make some submissions at the appeal, in which you want to refer to the content of documents that are not in the appeal book, you can come along armed on the day with those documents and just hand them up to me as you see fit. …[G]iven that it’s already been dealt with by a registrar of this court, it’s just not something that I’m minded to spend time on now. You can just bring along whatever additional material you think you need to put before the court and subject to objection, you can seek to do so.
MS SHUM: Your Honour, I find the process extremely unfair for my part.
HIS HONOUR: Well, it’s not an unfair process, Ms Shum. That’s – I’m sorry that you feel that it’s unfair, but you’re wrong; it’s not unfair. It’s a normal, everyday, unremarkable process. I understand that it might be a bit difficult for you to follow as a self-represented litigant but it’s not unfair.
MS SHUM: Okay. I accept your Honour’s comment, however those – considering those affidavits as well as the subpoena documents were presented in the court book in the lower court hearing, I find it – I find that I didn’t have a say in presenting my case. So what was the point of defending a case? Because they were already as evidence in the court book.
HIS HONOUR: The fact that they were evidence, that they were presented to the court below doesn’t mean that they’re relevant necessarily to the appeal. Now, if you think that they’re relevant to the appeal as I say, you’ll have an opportunity to put them to me at the appeal hearing. Just bring them along with you to the hearing and if there’s some thing – some submission that you want to make that requires you or that can only be made if you provide an additional document, then subject to objection you can seek to provide additional documentation. I’m just not going to get drawn into a long debate about a very simple administrative matter like the content of an appeal book. That’s just not an efficient use of the court’s time.
There is no need to revisit that position, save to observe (as Ms Shum acknowledged) that the court will expect Ms Shum to give notice to her opponents of any documents that she intends to try and put before the court consistently with that suggestion. The respondent’s interlocutory application dated 31 July 2021 was, on that basis, dismissed.
I turn, then, to Ms Shum’s application to lead fresh evidence at the appeal. None of the material that Ms Shum seeks to put before the court at the hearing of the appeal and cross appeal can properly be described as “fresh evidence” of the kind to which r 36.57 of the Rules pertains. All of it falls into at least one of three categories.
First—and this applies to the bulk of what Ms Shum seeks to put before the court—much of the material upon which Ms Shum seeks to rely is material that she had available to her at the trial (or that she could, with reasonable diligence, have obtained). It is not new evidence. There is no proper basis upon which it might now be received, for the first time, in the appeal or cross-appeal.
Second, Ms Shum wishes to put before the court emails that she has exchanged with certain people after the judgment below was pronounced. Those exchanges, she says, should inform the court’s assessment on certain facts found by the court below. Again, the material that Ms Shum wishes to bring to the court’s attention is not new evidence. It was open to Ms Shum to lead before the court below precisely what she wishes to lead now.
Third, Ms Shum wishes to put before the court material that has no obvious bearing upon any of the issues that the court might have to decide. In that category are website extracts, both of which appear to post-date the decision of the court below, regarding the roles of Mr Brian Oates and Mr Travis Heeney, respectively the second and third appellants.
The court has a discretion to admit fresh evidence on appeal. That does not, however, mean that parties are, on appeal, given a fresh opportunity to improve upon the case that they advanced at first instance. The receipt of new evidence is, for obvious reasons, confined to very particular circumstances. None of the material that Ms Shum wishes to advance as fresh evidence under r 36.57 of the rules is material that might properly be received as such and the discretion at play ought not to be exercised in the manner for which she moves. The respondent’s interlocutory application dated 28 July 2021 was, on that basis, dismissed.
The appellants and cross-respondents ask for orders that Ms Shum pay their costs of and pertaining to the two interlocutory applications. They submit that those applications were brought unreasonably, such that the prohibition upon the making of a costs order for which s 570 of the Fair Work Act 2009 (Cth) provides does not apply.
I do not accept that either of the applications was brought unreasonably. Although none of the contentions that Ms Shum advanced have been accepted, it does not follow that they were all hopeless to the point of unreasonable. Whether the court’s discretion to entertain fresh evidence is invoked will invariably turn on questions of impression and degree, about which reasonable minds might differ. Likewise, the content of the appeal book is a matter of some importance, particularly to a self-represented litigant (to whom the issue is likely to loom more significantly as a potential area for legitimate conflict). Ms Shum’s contentions about the content of the appeal book, although not worthy of the time that the efficient running of the court should warrant, were nonetheless not hopeless to the point of unreasonable. In the circumstances, the safest course is simply to reserve the question of costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 23 August 2021
SCHEDULE OF PARTIES
VID 127 of 2020 Fourth Cross Respondent
DESPINA HARALAMBOPOULOS
Fifth Cross Respondent
CHAMPA WATTEGAMAGE
Sixth Cross Respondent
AMAN BINDRA
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