Srikantha v Commonwealth Superannuation Corporation
[2021] FCA 291
•26 March 2021
FEDERAL COURT OF AUSTRALIA
Srikantha v Commonwealth Superannuation Corporation [2021] FCA 291
File numbers: VID 139 of 2021
VID 361 of 2019Judgment of: SNADEN J Date of judgment: 26 March 2021 Catchwords: PRACTICE AND PROCEDURE – consolidation of proceedings – where proceeding recently transferred from Supreme Court of Victoria related to existing proceeding in this court – applications relate to (amongst other things) the termination of the applicant’s employment – whether it is in the interests of justice that the matters be heard together – whether two proceedings raise common issues – whether consolidation of two proceedings would prejudice the respondents – proceedings to be heard together Legislation: Fair Work Act 2009 (Cth)
Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) – s 5
Public Service Act 1999 (Cth)
Superannuation Act 1990 (Cth)
Federal Court Rules 2011 (Cth) – r 30.11
Cases cited: Srikantha v Commonwealth of Australia [2020] FCA 373 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Date of hearing: 25 March 2021 Counsel for the Applicant: Mr P. Willis SC Solicitor for the Applicant: Draddy Legal Counsel for the Respondent in VID 139 of 2021: Ms E. Bennett Solicitor for the Respondent in VID 139 of 2021: Allens Linklaters Counsel for the Respondent in VID 361 of 2019: Ms R. Davern Solicitor for the Respondent in VID 361 of 2019: Ashurst ORDERS
VID 139 of 2021 BETWEEN: ANTHONY SRIKANTHA
Applicant
AND: COMMONWEALTH SUPERANNUATION CORPORATION
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
26 MARCH 2021
THE COURT ORDERS THAT:
1.Pursuant to rule 30.11 of the Federal Court Rules 2011 (Cth), the trial of the matter be heard together with the trial of the matter in proceeding VID 361 of 2019.
2.Evidence received at that trial be received in both matters.
3.The matter be listed for trial to commence at 10:15am on Wednesday, 6 October 2021, on an estimate of ten days.
4.The matter be listed for a case management conference to take place at 9:30am on Wednesday, 14 April 2021.
5.The costs of and pertaining to the case management hearing of 25 March 2021 be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 361 of 2019 BETWEEN: ANTHONY SRIKANTHA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
26 MARCH 2021
THE COURT ORDERS THAT:
1.The trial scheduled to commence on 7 June 2021 be vacated.
2.Pursuant to rule 30.11 of the Federal Court Rules 2011 (Cth), the trial of the matter be heard together with the trial of the matter in proceeding VID 139 of 2021.
3.Evidence received at that trial be received in both matters.
4.The matter be listed for trial to commence at 10:15am on Wednesday, 6 October 2021, on an estimate of ten days.
5.The matter be listed for a case management conference to take place at 9:30am on Wednesday, 14 April 2021.
6.The costs of and pertaining to the case management hearing of 25 March 2021 be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
This proceeding was originally commenced in the Supreme Court of Victoria. It was transferred to this court by orders made by that one on 18 March 2021 pursuant to s 5(1)(b) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic). The applicant charges the respondent (hereafter, the “CSC”) with having contravened various duties that it is said to have owed under the Superannuation Act 1990 (Cth) as trustee of the Commonwealth Public Service Superannuation Scheme. Those contraventions relate to the applicant’s former employment by the Commonwealth—and, at least to a degree, to circumstances that existed at the time that that employment was terminated in April 2013. Specifically, the applicant alleges that he was, at that time, entitled to certain payments on account of his physical or mental incapacity for work.
Separately, the applicant has sued his former employer, the Commonwealth of Australia, in connection with that same termination. By way of brief summary, the applicant alleges by that proceeding (matter VID 361 of 2019—hereafter, the “Existing FCA Proceeding”) that the Commonwealth, by terminating his employment in the way that he alleges it did, acted in contravention of duties imposed upon it by the Superannuation Act 1990 (Cth) and the Public Service Act 1999 (Cth). Of some relevance presently, the applicant alleges that he was dismissed on account of his physical or mental incapacity for work.
The transfer of this proceeding (hereafter, the “New FCA Proceeding”) from the Victorian Supreme Court occurred on the application of the applicant (then, of course, the plaintiff). It followed from an unsuccessful attempt made last year by the applicant in the Existing FCA Proceeding to have that matter transferred to the Victorian Supreme Court: Srikantha v Commonwealth of Australia [2020] FCA 373 (Snaden J). That application failed, in large part because of what was then foreshadowed to be the applicant’s reliance in the Existing FCA Proceeding upon various provisions of the Fair Work Act 2009 (Cth) and because the applicable cross-vesting legislation did not authorise the transfer of proceedings to the Victorian Supreme Court of matters that arose under that Act.
That failure notwithstanding, I expressed at the time some sympathy for the contention that the applicant advanced in support of transferring the Existing FCA Proceeding to the Supreme Court, namely that “…the two proceedings should, in the interests of justice, be heard together”. I noted that the two matters “…agitate related claims”, that “…their disposition would appear to require consideration of common evidence” and that the “…loss that the applicant seeks to recover is, by his own admission, common to both proceedings”: Srikantha v Commonwealth of Australia [2020] FCA 373, [33] (Snaden J).
Having failed to have his Existing FCA Proceeding transferred to the Supreme Court, the applicant sought instead to have what was then his Supreme Court proceeding transferred to this court. That application succeeded and the Supreme Court provided written reasons for so deciding. I have been provided with a copy of those reasons but they appear yet to have been published (and, therefore, I am unable to record a citation for them). It is apparent from those reasons that the court (Efthim AsJ) accepted that the proceeding before it should be transferred to this court because there were issues common to both it and the Existing FCA Proceeding. In short, the Supreme Court appears to have drawn a conclusion similar to the one that I drew.
Now that both matters are within the one court, the applicant seeks orders that they be heard together. Although not coming as a surprise, the timing of that application is unfortunate. On Monday, 22 March 2021—before the New FCA Proceeding made its way to this court—I made a series of case management orders in the Existing FCA Proceeding, by which the parties to that proceeding are to take various steps leading up to a three-day trial presently scheduled to commence on 7 June 2021. Those orders were made in the knowledge that, once its transfer to this court was complete, the applicant would make an application to have the two matters heard together. I indicated at that time that that application would need to be made and heard quickly—in part so as not to risk undue interference with the orders that were made on that day (which, amongst other things, required the timely preparation of the applicant’s evidence) and in part in light of the fact that I am scheduled to commence a period of leave commencing on Friday, 26 March 2021.
On Tuesday, 23 March 2021, the New FCA Proceeding was initiated in this court and allocated to my docket. Immediately, it was listed for a case management hearing to take place in the afternoon of Thursday, 25 March 2021. My chambers advised the parties of my intention to deal at that hearing with the application that had been foreshadowed in the Existing FCA Proceeding two days earlier. To that end, all three parties were invited to and did attend the hearing on Thursday, 25 March 2021.
The applicant (who, of course, is also the applicant in the Existing FCA Proceeding) seeks orders under rule 30.11(d) of the Federal Court Rules 2011 (Cth) that the two matters be heard together and that evidence in each be evidence in the other. That application is made on the same basis as that which animated both his unsuccessful attempt to have the Existing FCA Proceeding transferred to the Supreme Court of Victoria and his more recent, successful attempt at having his Supreme Court matter transferred to this court. He maintains that the two proceedings raise common issues that ought to be heard at the same time.
The respondent in each of the two proceedings (I will refer to them collectively as the respondents) oppose any consolidation of the two matters. That opposition is put on three fronts. First, they maintain that the two matters, in fact, do not involve (or potentially involve) common questions of law or fact; but, in truth, involve very different factual and legal propositions arising over almost (though not quite) entirely distinct periods of time. Second, they maintain that consolidation of the two proceedings would visit prejudice upon them: in the case of the CSC, that prejudice is said to manifest in a requirement that it endure lengthy portions of a consolidated trial that have no bearing on the matters alleged against it; and in the case of the Commonwealth, it is said to manifest in an equivalent way and also in the vacation of its existing trial (with all the attendant impacts normally associated with such a course). Third, the respondents submit that the current state of the litigation—in which, now eight years after his causes of action (or some of them) accrued, the applicant finds himself waging battle on two fronts and doing so, at least in respect of this matter, in default of a suite of timetabling orders—is of the applicant’s own making, the adverse consequences of which ought not be theirs to bear.
I confess some sympathy for the respondents’ contentions. The applicant’s decision to commence not only separate proceedings but proceedings in separate jurisdictions is one not easily comprehended. That decision and the trajectory that the two matters have since taken over a substantial period of time were not of either respondent’s making. Both have, it would seem, sought to defend the proceeding brought against them in an orthodox way. Both are, appropriately enough, concerned to ensure that the matters are prosecuted with due haste and both express concern that that might be jeopardised by the applicant’s recent course correction.
My sympathies are amplified by two matters. First, as has been alluded to, the applicant—then the plaintiff in the proceedings in the Victorian Supreme Court—was and remains in default of various programming orders made by that court. Those orders were made with a view to the matter proceeding to a lengthy 7- to 10-day hearing that was scheduled to commence in July 2021. The applicant’s non-compliance with them has not been adequately explained, at least not to my satisfaction.
Second, consolidation of the two matters will inevitably result in a trial longer than would be necessary for either one of the respondents. That would, plainly enough, subject each of the respondents to the prospect of incurring greater costs than they would otherwise incur.
Notwithstanding those realities, I am of the view that the two proceedings should be heard together. I take that view consistently with the observations that I made in the applicant’s unsuccessful attempt to transfer the Existing FCA Proceeding to the Victorian Supreme Court and with the conclusions that, more recently, led that court to transfer what is now the present proceeding. I accept that there are questions of fact common to both matters. Both will require (or, at the very least, potentially require) the consideration of expert evidence concerning the state of the applicant’s physical or mental capacity for work at or around the time that he was dismissed from his employment with the Commonwealth (a matter that, on both sets of pleadings, is live). Both will potentially require the consideration of expert evidence concerning the loss that the applicant has sustained on account of the manner in which he claims to have been treated (and, in that respect, it should be recalled that he claims the same loss in both cases). Plainly enough, the applicant himself will need to give evidence in both proceedings as well; and the prospect that what he says won’t overlap seems, at best, remote. Overall, I consider that the interests of justice would be best served by the two matters being heard together and I will make orders, in both matters, reflecting that conclusion.
The immediate consequence of that conclusion is that the trial currently scheduled in the Existing FCA Proceeding will be vacated. The orders that were made by way of case management in that proceeding will not be, at least not in the absence of agreement. It is my expectation that the parties will confer as to case management orders that should be made in this proceeding and as to any amendment to the orders made on Monday, 22 March 2021 in the Existing FCA Proceeding. Both matters will be listed for further case management on Wednesday, 14 April 2021. If agreement on appropriate orders is reached before then, that hearing may not need to occur. Although it should hardly need to be said, it is my expectation that, in the absence of agreement, the existing directions made in the Existing FCA Proceeding will be complied with.
Helpfully, the parties were able to identify alternative periods of mutual availability for a rescheduled trial, the earliest of which the court can accommodate. In addition to making an order under rule 30.11 and vacating the trail date in the Existing FCA Proceeding, I will also order that the trial in both matters be listed for hearing at 10:15 am on Wednesday, 6 October 2021, on an estimate of 10 days. There seems to be some possibility that they will not require that full duration but I will reserve that time in any event.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Sated: 26 March 2021
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