Tan v Commonwealth of Australia (Department of Defence)
[2025] FedCFamC2G 439
•26 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tan v Commonwealth of Australia (Department of Defence) [2025] FedCFamC2G 439
File number(s): PEG 2 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 26 March 2025 Catchwords: INDUSTRIAL LAW – Commonwealth public service employment – Defence – Navy – contracting – various contraventions alleged - request for flexible working arrangement – unauthorised absences from work – refusal of request to take paid annual leave – failure to pay notice or payment in lieu of notice of three weeks pay – failure to pay base rate of pay – various adverse actions alleged – coercion and undue pressure in relation to request for flexible working arrangements – coercion in relation to written notice of annual leave – coercion in relation to taking of annual leave – termination of employment – refusal to allow work from home – denial of request to start work later – manner of supervision – allocation of less meaningful tasks – exclusion from training activities – issuance of various instruction letters – referral of conduct to Directorate of Conduct and Performance – performance assessment outcome
PRACTICE AND PROCEDURE – Application for an extension of time to file an affidavit – extension of time – factors for consideration – where short extension of time not objected to – whether sufficient explanation for delay – no prejudice in short extension of time – whether affidavit assists with merit of application
PRACTICE AND PROCEDURE – Application for witness to give evidence by video link – delay in making application – whether disruption to duties of witness – where witness a carer for family member – whether evidence of need for and extent of care – case management considerations – length and complexity of evidence of witness – where lengthy cross-examination likely – costs of giving evidence in person
PRACTICE AND PROCEDURE – Application for access to audio recordings of first three days of substantive hearing
Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Building and Construction Industry Improvement Act 2005 (Cth)
Fair Work Act 2009 (Cth) Pt 2-2, Pt 3-1, Pt 3-2, Divs 3, 4, and 5, ss 44, 50, 65, 88, 99, 107, 117, 190, 323, 340, 341, 342, 343, 344, 351, 360, 361, 385, 545, 546, 547, 550, 722, 723, 772,
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 201, 204
Public Service Act 1999 (Cth) ss 9, 13
Work Health and Safety Act 2011 (Cth) s 28
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04
Fair Work Bill 2008 (Cth)
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301; (2021) 310 IR 71; (2021) 393 ALR 629
Auken Animal Husbandry Proprietary Limited v 3RD Solutions Investments Proprietary Limited [2020] FCA 1153
Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444
Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15
Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578; (2004) 22 ACLC 1125
Australian Securities and Investments Commission v Wilson [2020] FCA 873
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647
Cai v Tiy Loy & Co Ltd [2015] FCCA 715
Capic v Ford Motor Company of Australia Ltd [2020] FCA 486; Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504
Catherine Purcell v Rock N Road Bitumen Pty Ltd [2017] FWC 486
Childs v Metropolitan Transport Trust [1981] FCA 229; (1981 29 AILR 24
Choy v Queensland University of Technology [2020] FCCA 3481
Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492 Construction, Forestry, Mining and Energy Union v Coal And Allied Operations [1999] FCA 1531; (1999) 140 IR 31; (1999) 47 AILR 4-200
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046
Fair Work Ombudsman v Anastasio [2023] FedCFamC2G 827
Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; (2000) 106 FCR 16; (2000) 106 IR 158
General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605
Gibbens v Commonwealth [2018] FWC 4150
Heugh v Central Petroleum Limited [2014] WASC 311
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jarmain v Linfox Armaguard Pty Ltd [2018] FWC 3255
John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 165 ALR 67; (1999) 94 IR 244; (1999) 47 AILR 4-239
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114; (2002) 114 IR 20
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139; (2013) 65 AILR 101-914
National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; (2001) 183 ALR 475; (2001) 106 IR 373
Newman v East Yarra Friendly Society Pty Ltd Trading As My Chemist Pharmacy [2011] FCA 1262
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1; (1998) 72 ALJR 873; (1998) 79 IR 339; (1998) 153 ALR 643
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (2012) 64 AILR 101-563
Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34; (2022) 315 IR 1; 402 ALR 1
Rojas v Esselte Australia Pty Ltd (No. 2) [2008] FCA 1585; (2008) 177 IR 306
Rooney v AGL Energy (No 2) [2020] FCA 942
Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322
Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119; (2009) 190 IR 82
Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308; (2010) 197 IR 202; (2010) 269 ALR 49
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (2019) 290 IR 414
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285
Division: Division 2 General Federal Law Number of paragraphs: 418 Date of last submission/s: 13 April 2023 Date of hearing: 25 March, 7, 8, 9 and 10 June and 18 July 2022; 24-25 January and 13 April 2023 Place: Perth Applicant: In person Counsel for the First, Second and Third Respondents: Ms F Stanton Counsel for the First, Second and Third Respondents: Minter Ellison Lawyers ORDERS
PEG 2 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YENNY TAN
Applicant
AND: COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE)
First Respondent
RUSSELL ROSAM
Second Respondent
MELINDA MARTINELLI
Third Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
26 MARCH 2025
THE COURT:
1.As to liability, declares that the First Respondent contravened ss 117(2) and 44(1) of the Fair Work Act 2009 (Cth) by terminating Ms Tan’s employment with the First Respondent on 29 October 2020 without providing her with a total of three weeks’ notice or payment in lieu of three weeks’ notice, but otherwise orders that the application filed 4 January 2021, as amended by an amended application filed 15 April 2021, be dismissed.
2.The Applicant and the First Respondent are to confer within 28 days with respect to penalty and a penalty hearing.
3.The matter otherwise be adjourned to a directions hearing at 10.00am on 6 June 2025.
4.Costs, if any, reserved, pending determination of any penalty.
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 LUCEV
INTRODUCTION
Primary application
The primary application before the Court is an application filed by the applicant, Ms Yenny (also known as “Anne”) Tan (“Ms Tan”) on 4 January 2021, seeking orders for compensation, pecuniary penalties and damages in relation to alleged contraventions of the Fair Work Act 2009 (Cth) (“FW Act”), by:
(a)the first respondent, the Commonwealth of Australia as represented by the Department of Defence (“Defence”);
(b)the second respondent, Mr Russell Victor Rosam (“Mr Rosam”); and
(c)the third respondent, Ms Melinda Lee Martinelli (“Ms Martinelli”).
The alleged contraventions and orders sought in the primary application in respect of each of the respondents are set out at [100] below.
The primary application is opposed by Defence, Rosam and Martinelli (collectively “the Respondents”).
Interlocutory applications
There were four interlocutory matters heard in relation to:
(a)an extension of time for Ms Tan to file a trial affidavit, heard on 25 March 2022 (“Extension of Time Application”);
(b)a request for a witness for Defence to give evidence by video link, heard on 7 June 2022 (“Witness Video Link Application”);
(c)access by Ms Tan to audio recordings of hearings heard on 18 July 2022 (“Audio Recordings Application”); and
(d)Ms Tan’s application to file a supplementary affidavit heard on 24 January 2023 (“Supplementary Affidavit Application”);
The Court made orders in relation to each of the interlocutory applications at the respective hearings and indicated to the parties at the conclusion of the respective hearings that reasons for judgment in each of those matters would be provided to the parties in the Reasons for Judgment provided following the hearing of the primary application.
The interlocutory applications are dealt with at [12]-[98] below.
GENERAL ORGANISATION DETAILS
The Royal Australian Navy (“Navy”) operates a fleet of ships identified as ANZAC Class Frigates. A directorate for the sustainment and maintenance of those ships - the ANZAC Systems Program Office (“ANZAC SPO”), sits within the Major Surface Ships Branch of the Maritime System Division of the Capability Acquisition and Sustainment Group of Defence
The ANZAC SPO has a governance and assurance role in respect of contracts relating to engineering, maintenance, logistics and sustainment. The ANZAC SPO includes a Commercial and Governance Team, which is responsible for contract management, risk and quality, security, governance and planning. Within that team there is a Contracting Team, which is the team relevant to these proceedings.
Employees supplying contract management functions to the ANZAC SPO were at relevant times covered by the Defence Enterprise Agreement 2017-2020 (“DEA”). Annex C of the DEA sets out classifications applicable to those employees, including Australian Public Service (“APS”) levels 1 – 6 and Executive Levels (“EL”) 1, 2, 2.1 and 2.2.
PERSONS INVOLVED
It is convenient at the outset to set out the names and positions of the primary persons involved in the events the subject of these proceedings, as follows:
(a)Ms Tan, who is the applicant and who was employed by Defence as a procurement manager;
(b)Mr Rosam, who is the second respondent and is employed by Defence as a Contract Manager on the Contracting team of ANZAC SPO;
(c)Ms Martinelli, who is the third respondent and is employed by Defence as a Commercial Director of the ANZAC SPO and is responsible for management of the Commercial and Governance Team;
(d)Ms Alison Chrispin (“Ms Chrispin”), who is employed by Defence as a Contract Management Officer;
(e)Mr Wai Chun (“Jason”) Leung (“Mr Leung”) who is employed by Defence as a Senior Contracting Officer;
(f)Ms Vicky Barbuto (“Ms Barbuto”) who is employed by Defence as Director of its Conduct and Performance Unit;
(g)Ms Charlotte Jane Harvey (“Ms Harvey”) who is employed by Defence as Security & Facilities Manager, ANZAC SPO;
(h)Ms Lisa Curtin (“Ms Curtin”), a Contract Management Officer on the ANZAC SPO Contracting team; and
(i)Ms Debbie Ainge (“Ms Ainge”), the HRSTeam Leader (WA)
MATERIALS BEFORE THE COURT
The Court has before it the materials including the following:
(a)the affidavit of Ms Tan sworn 28 March 2022 (“ Tan Affidavit”) ;
(b)the affidavit of Mr Leung affirmed 26 April 2022 (“Leung Affidavit”);
(c)the affidavit of Ms Chrispin affirmed 26 April 2022 (“Chrispin Affidavit”);
(d)the affidavit of Ms Barbuto affirmed 26 April 2022 (“Barbuto Affidavit”);
(e)the affidavit of Mr Rosam affirmed 26 April 2022 (“Rosam Affidavit”);
(f)the affidavit of Ms Martinelli affirmed 26 April 2022 (“Martinell Affidavit”);
(g)the affidavit of Ms Tan in response to the Leung Affidavit, sworn 10 May 2022 (“Tan-Leung Response Affidavit”);
(h)the affidavit of Ms Tan in response to the Chrispin Affidavit, sworn 10 May 2022 (“Tan-Chrispin Response Affidavit”);
(i)the affidavit of Ms Tan in response to the Barbuto Affidavit, sworn 10 May 2022 (“Tan-Barbuto Response Affidavit”);
(j)the affidavit of Ms Tan in response to the Rosam Affidavit, sworn 10 May 2022 (“Tan-Rosam Response Affidavit”);
(k)the affidavit of Ms Tan in response to the Martinelli Affidavit, sworn 10 May 2022 (“Tan-Martinelli Response Affidavit”);
(l)the transcripts of the interlocutory and final hearing on 25 March, 7, 8, 9 and 10 June and 18 July 2022, and 24-25 January and 13 April 2023; and
(m)exhibits tendered at hearing.
EXTENSION OF TIME APPLICATION
Background
Ms Tan filed an Application in a Proceeding (“Extension of Time Application”) and an affidavit (“Tan Extension of Time Affidavit”) on 23 March 2022, seeking orders as follows:
Under Paragraph 1b of the Order dated 29 October 2021, the Applicant file and serve any affidavits upon which she intends to rely at trial, be extended for the filing of her Affidavits.
Order 1(b) of consent orders made by the Court on 29 October 2021 (“October 2021 Orders”) provided that:
1(b).On or before 24 December 2021, the applicant file and serve any affidavits upon which she intends to rely at trial;
Following the making of the October 2021 Orders there were a further four consent orders made by the presiding Judge, extending the time for Ms Tan to file affidavits she intended to rely upon at trial.
On 4 February 2022 consent orders were made (“February 2022 Orders”) relevantly providing as follows:
Paragraph 2 of the Order dated 29 November 2021 (the applicant file and serve any affidavits upon which she intends to rely at trial) be extended to 11 February 2022.
On 15 February 2022, three days out of time pursuant to the February 2022 Orders, Ms Tan attempted to file an affidavit with the Court. That affidavit was not accepted for filing on the basis that it was submitted out of time.
On 21 February 2022 Ms Tan filed an Application in a Proceeding and an accompanying affidavit, seeking an extension of time to file the affidavit (“Original Extension of Time Application”). On 23 February 2022 Ms Tan filed an amended Original Extension of Time Application which corrected an error in the name of the respondents.
On 10 March 2022 Ms Tan provided a letter to the Perth Registry informing the Court that she wished to “reject [the] affidavit submitted 15 February 2022” and that she wished to file an affidavit “superseding it”.
On 11 March 2022 consent orders were made (“March 2022 Orders”) relevantly providing that:
Paragraph 2 of the Order dated 29 November 2021 (the applicant file and serve any affidavits upon which she intends to rely at trial) be extended to 14 March 2022.
…
8.The applicant’s amended application in a case filed on 23 February 2022 be withdrawn.
On 15 March 2022 Ms Tan sought to file by hand an unsworn affidavit at the Perth Registry. This affidavit was not accepted for filing on the basis that it was unsworn and submitted out of time pursuant to the March 2022 Orders.
On 23 March 2022 Ms Tan filed the Extension of Time Application with the Tan Extension of Time Affidavit.
On 25 March 2022 the Court heard the Extension of Time Application, and made an order extending the time for Ms Tan to file her trial affidavit to 28 March 2022.
Evidence
The Tan Extension of Time Affidavit provides that:
10.The Respondents appeared not interested in obtaining my Affidavit and have deliberately caused delay by not agreeing to the filing of my Affidavit quickly upon receipt of the notification from the Associate of His Honour Judge Lucev [sic] through … Mr Rob Humphreys …
11. On 15 February 2022, I wrote to Mr Rob Humphreys … suggesting that 3 days should be sufficient to allow time for the Perth Registry to file my Affidavit and I believe this was reasonable subject to the Registry staff’s workload.
14.On Wednesday 16 February 2022, I emailed a copy of proposed Minute of Consent Orders, to Ms Smith and copies to Mr Humphreys. The proposed Minute was only to extend the deadline to Monday 21 February 2022 (an estimate date if my proposed Minute was agreed by all parties) whilst taking into consideration the Perth Registry Office’s workload, it may take up to 2-3 business days to process the filing of my Affidavit. ….
15.There would have been minimum impact on the programming orders if the Respondents had agreed to my proposed Minute upon receipt of the notification from the Associates. The Respondents would already have in their possession, a copy of my Affidavit on or before 21 February 2022.
…
38.On Monday 14 March 2022 at around 4.00 pm, I phoned the Call Centre … stating that I was not able to get a JP to witness my Affidavit. They told me that I did not need a JP for the Affidavit. I then said “I didn’t know that, nobody told me that we don’t need a JP now for the signing of Affidavits. I will go straight to the Perth Registry Office to drop off the files.” They told me that you can’t go there because the office is closed. I said, “It’s only 4.00 o’clock, it can’t be closed.” They then told me that most staff are now working from home and the office is closed. They suggested that I send the documents by email. I told them, I can’t because the files are too large to send by email and my computer has been hacked several times. ….
…
41.Due to circumstances beyond my control, my Affidavit had been sitting at the Perth Registry Office since 15 February 2022 until 10 March 2022 when I rejected it as I intended to file my affidavit superseding it.
42.The Respondents took a month to finally agree to the consent orders on Friday 11 March 2022, but only allowed me until Monday 14 March 2022, for the filing of my Affidavit. They kept changing the proposed minute multiple times right up to the last minute on Friday 11 Mach 2022 and the direction hearing scheduled on Monday 14 March 2022, was vacated. They had applied undue pressure on me to agree to the Consent Order that disadvantaged me. Since I had made amendments to my Affidavit, I had to get a JP to witness it again. The Respondents could have very easily agreed to the extension just for the filing of my Affidavit when I emailed the proposed Minute on 16 February 2022 and they would have a copy of my Affidavit weeks’ ago, without impacting on the programming orders.
43. To minimise my economic loss, I have a temporary job and could only work on this case after hours and during weekends.
Ms Tan’s submissions
Ms Tan submitted that:
(a)all she wanted was for her affidavit to be filed, that she kept getting knocked back by Defence in allowing her to file her affidavit;
(b)she knew she had made a couple of mistakes and she is new in this matter but she has learnt along the way and tried to do as much as she can;
(c)she would be able to file the affidavit on Monday, being Monday 28 March 2022; and
(d)she had previously advised Mr Humphreys and Ms Stamp, the lawyers for Defence, that she would need two weeks, at least, to respond, the reason being she has to minimise her economic loss and now that she has a temporary job so she can only work on the affidavit after hours in the late evening and during the weekend and she was asking for reasonable time to respond, at least two weeks.
Defence submissions
Defence submitted that:
(a)it had no difficulty with Ms Tan submitting her affidavit on Monday 28 March 2022 but it noted that a sworn copy of the affidavit, based on Ms Tan’s affidavit appeared to be with the Court already. It was not sure if this was the affidavit Ms Tan was referring to, but otherwise it had no objection to an extension of time to Monday 28 March 2022;
(b)in response to the suggestion that the Extension of Time Application be adjourned sine die, the proposed timetable only provided Defence, Ms Martinelli and Mr Rosam with a week to consider Ms Tan’s submission and to file responsive submissions and that this was a fairly short period of time; and
(c)the Tan Extension of Time Affidavit was quite large in size and as a consequence orders clarifying how the service of the Tan Extension of Time Affidavit was to be affected were appropriate.
Consideration
The factors the Court generally takes into account in determining whether to grant an extension of time to a party are well established, but not closed and can be summarised as follows:
(a)the extent of the delay;
(b)the explanation for the delay; and
(c)any prejudice that may be suffered by parties other than the applicant for extension; and
(d)whether there is a sufficiently arguable case on the primary application,
see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley”); Tu’tuta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573 at [13] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
In this case the extent of the delay was not considerable, albeit that there had been several earlier extensions of time afforded to Ms Tan for the filing of affidavits. The delay was, at least in not insignificant part, explainable by Ms Tan’s status as a self-represented litigant and inexperience in the conduct of litigation, particularly where, as here, the litigation had become relatively large and complex, which resulted in her having misconceptions as to who was responsible for the acceptance and filing of affidavits and for some of the process issues (eg the witnessing of signatures) associated therewith. In the circumstances there is, albeit barely, a sufficient explanation for the delay.
An extension of time to 28 March 2022 for Ms Tan to file the affidavit did not meet with objection from the Respondents, but beyond that date they, rightly in the Court’s view, asserted prejudice arising from the tightness of the various filing dates for further affidavits and submissions. That tightness was in large part a consequence of Ms Tan’s earlier failures to file her affidavit or affidavits in compliance with the Court’s earlier orders. That said it is evident that the Respondents do not assert prejudice if Ms Tan is granted a very brief extension of time to Monday 28 March 2022.
In relation to the merit of the primary application it suffices to observe that the affidavit to be filed may assist Ms Tan in the argument she seeks to put before the Court on the primary application.
In all the above circumstances the Court is satisfied that it is appropriate to extend time for the filing of Ms Tan’s trial affidavit to 28 March 2022.
WITNESS VIDEOLINK APPLICATION
Background
Defence’s Witness Videolink Evidence Application was supported by an affidavit of Mr Robin Humphreys (“Humphreys Affidavit”) (a lawyer with Defence’s solicitors) affirmed on 2 June 2022, and sought leave to adduce evidence from Ms Barbuto, by video link.
The Witness Videolink Application was heard on 7 June 2022. Ms Tan opposed the Witness Video Link Application.
On 7 June 2022 the Court ordered that the Witness Videolink Application be dismissed.
Evidence
The Humphreys Affidavit provides that:
…
4. Ms Barbuto lives and works in Melbourne, Victoria.
5.Ms Barbuto is the Director Conduct and Performance, a senior role within the First Respondent’s organisation. The time involved in her travelling to Perth to give evidence at hearing would cause a disruption to her duties and consequently the First Respondent’s operations. The flight and accommodation expenses would also represent a cost to the First Respondent.
6.In addition, Ms Barbuto has significant caring responsibilities for her elderly mother. She shares these responsibilities with her sister who does the day shifts and Ms Barbuto takes over from 6:00pm onwards, when she finishes her work. Ms Barbuto’s mother needs significant caring assistance due to mobility issues.
7.The hearing schedule is not yet finalised. It is likely Ms Barbuto will not be required to give evidence until the third day of hearing, being Friday 10 June. However out of caution, I have suggested to the First Respondent she be available from at least lunch-time on the second day, Thursday, 9 June.
8.If required to attend Perth during these times, it will mean Ms Barbuto is likely required to stay overnight for at least one night. This will mean she is unable to care for her mother on that night/s, which will cause significant disruption for Ms Barbuto and her mother.
…
18.In view of the advances in video-conferencing in recent years and the increasing adoption by the Court of this technology in hearing, I do not consider Ms Barbuto appearing by video will cause Ms Tan any prejudice or the Court any inconvenience.
…
Ms Tan’s Affidavit sworn 5 June 2022 in opposite to the Witness Videolink Application provides as follows:
…
13.All senior employees in the public service including the First Respondent, are aware that potential travel is part of their work requirement, as the representative of their agency.
14. A senior officer of as the Director of Conduct and Performance Unit based in Victoria, Ms Barbuto has been employed by the First Respondent for 32 years. She would very likely had already travelled a few times, for business or training during her employment with the First Respondent, and this trip to Perth for the hearing, should be no different.
15. Since February 2020, Ms Barbuto had been aware that the referral received from the Second Respondent is based in Western Australia.
16. On 26 April 2022, Ms Barbuto filed her Affidavit as one of the Respondents’ witnesses, and as a senior officer of the First Respondent, she would have already been aware of the potential travel to Perth.
17. In her Affidavit filed on 26 April 2022, Ms Barbuto stated that she was the sole decision maker in terminating my employment …
18. Ms Barbuto has a very long time to prepare for her potential travel to Perth, in anticipation of her giving evidence in person.
19. On 30 May 2020, Mr Humphreys advised that Ms Barbuto occupies a senior role based in Melbourne and travelling to Perth to give evidence would cause her significant disruption and represent significant cost to the First Respondent …
20.I am unable to comprehend how travelling to Perth for one to three days to give evidence in person, could cause significant disruption to Ms Barbuto’s duties compared to the major consequences of her decision on the misconduct sanction that she imposed upon me.
21.I do not believe the estimated cost of $2,000 for return flight air fare and accommodation for Ms Barbuto’s giving evidence in person, is a significant cost or concern to the First Respondent …
25. While I deeply regret the health issues with her mother as with many others in a similar situation who are still able to manage their family commitments effectively, and I too, have elderly parent. Ms Barbuto would only be in Perth for a maximum of three days and with her senior role with the First Respondent, she would have financial capacity to arrange short term support for her mother …
26.Based on the above, it is my preference for Ms Barbuto to give evidence in person, in the Federal Circuit Court in Perth, rather than through the screen via a video link.
Defence’s submissions
Defence submitted that:
(a)s 204 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCA Act”) permits the Court to allow Ms Barbuto to appear by videolink, and places some conditions on the use of videolinks and the Respondents submit that those condition are met;
(b)Ms Barbuto has access to appropriate technology to allow her to appear by videolink and she had recently appeared as a witness in a Fair Work Commission hearing and had no technical difficulties and understands the requirements of appearing by video;
(c)there were impracticalities in Ms Barbuto travelling to Perth, both in relation to caring requirements for her elderly mother and the fact that being out of Melbourne and in Perth for one to two nights most likely would cause significant disruption to or cost to Defence;
(d)Ms Tan was arguing that Ms Barbuto ought to be able to fund outside care for her mother due to the seniority of her role with Defence and consequential remuneration in that role and that she “wants to look Ms Barbuto in the eye given she is the person who made the ultimate decision to terminate her employment”;
(e)none of the objections raised by Ms Tan are a basis to refuse permission for Ms Barbuto to appear given the inconvenience in cost and, most importantly the advances in video technology in recent years and the prevalence of them at Court hearing meant there would be no prejudice to Ms Tan by Ms Barbuto appearing by video and no inconvenience to the Court;
(f)the Witness Videolink Application was late and it had “overlooked” conferring with Ms Tan prior to the week before it filed the Witness Videolink Application;
(g)Defence had addressed Ms Barbuto about the issue of flying to Perth in its meetings with her the week prior to filing Defence’s Application but that it did not occur prior to then and that was a “downfall on the part of [Defence’s]… instructing solicitors” and that the question of Ms Barbuto’s attendance in Perth was not addressed in the preparation of the Barbuto Affidavit or prior to then; and
(h)Ms Barbuto had “expressed a preference to not travel to Perth because of the disruption to her duties and the additional aspect regarding her caring requirements”.
Ms Tan’s submissions
Ms Tan submitted that:
(a)senior bureaucrats are expected to travel on some occasions for conference or training;
(b)Defence has a “DREAMS token” that allows employees to work remotely and she could not see why Ms Barbuto could not continue her duties in Perth when she was not in Court;
(c)Ms Barbuto’s mother’s health issues were only brought up by Defence when Ms Tan objected to the Witness Videolink Application, but it was Ms Barbuto’s work issues brought up first, then her mother’s health issues;
(d)Ms Barbuto could access a health care provider, and that Ms Barbuto has some financial capacity to afford a short-term carer for her mother; and
(e)Ms Barbuto was the sole decision maker in Ms Tan’s termination of employment and Ms Tan would like to meet her in person for Ms Barbuto to see who Ms Tan is.
Consideration
Legislation
Section 201(1) of the FCFCA Act provides that:
The Federal Circuit Court and Family Court of Australia (Division 2) or a judge may for the purposes of any proceeding direct or allow testimony to be given by video link or audio link.
Section 204(1) and (2) of the FCFCA Act also set out conditions precedent for the use of videolinks going to the basis upon which and the nature of the videolink to be used by the person in a remote place. Section 204(1) and (2) of the FCFCA Act provides as follows:
Video link
(1)The Federal Circuit and Family Court of Australia (Division 2) or a Judge must not exercise the power conferred by subsection 201(1), 202(1) or 203(1) in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link:
(a)the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of the video link;
(b)the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;
(c)such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;
(d) such other conditions (if any) as are imposed by the Court or the Judge.
(2)The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:
(a) the form of the video link; and
(b) the equipment, or class of equipment, used to establish the link; and
(c) the layout of cameras; and
(d) the standard of transmission; and
(e) the speed of transmission; and
(f) the quality of communication.
Section 201(1) of the FCFCA Act imports a discretion as to whether the Court directs or allows the giving of evidence by video link, a discretion exercisable by reference to the provisions in s 190 of the FCFCA Act and r 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) and subject, as the Court has already indicated, to the provisions of s 204(1) and (2) of the FCFCA Act.
The determination on whether Ms Barbuto ought to be able to give evidence by videolink at the final hearing depends upon a number of factors set out below.
Timing
The Court notes that the Witness Videolink Evidence Application was not raised until nine days before the final hearing was due to commence.
The lack of notice on the part of Defence in making appropriate arrangements to advise the Court and Ms Tan of Ms Barbuto’s “expressed … preference to not travel to Perth” are a factor for consideration in the Court’s determination of whether Ms Barbuto ought to be able to give evidence by videolink. The originating application in this matter was filed in January 2021 and Ms Barbuto’s affidavit was filed on 26 April 2022. On 16 September 2021 the matter was listed for final hearing on 7, 8, 9 and 10 June 2022. A notice of listing with the final hearing dates was sent to the parties from the Chambers of the presiding Judge (“Chambers”) on 16 September 2021.
The Court notes that the request to give evidence by video link was made late in the piece by Defence with only one working day before the final hearing, given Monday 6 June 2022 was a public holiday for the WA Day celebration and following a period of COVID-19 lockdown in Western Australia, and in circumstances where it would appear to be conceded by Counsel for Defence that Defence and Ms Barbuto were aware in advance that it was likely that she would be required to give evidence at the hearing and for this purpose, she would need to fly to Perth.
It suffices to observe that the Witness Video Link Application was filed very late, and that is a factor weighing against its being granted by the Court.
Job
Ms Barbuto’s role as the Director, Conduct and Performance, at Defence, is a senior role. There was no explanation, in either the Humphreys Affidavit nor in Defence’s submissions, as to why Ms Barbuto could not work remotely for the day she was required to be in Perth to give evidence at the final hearing. There was also no specific evidence put forward by the Defence as to how having to come to Perth would cause “disruptions” to Ms Barbuto’s duties with Defence.
There was no specificity to the claims that Ms Barbuto’s travel to Perth would disrupt her duties and the lack of detail in Ms Barbuto’s claims as well as the failure by Defence to point to any adverse impact on or inhibiting of Ms Barbuto’s ability to carry out her duties while in Perth for the duration of one day weighs against granting the Witness Videolink Application.
Ms Barbuto’s role as a carer
Ms Barbuto’s role as a carer for her elderly mother was not raised by Defence when it initially raised the issue of Ms Barbuto giving evidence by videolink. This evidence was adduced later in the Humphreys Affidavit and then referred to at the hearing of the Witness Video Link Application. The failure to raise the issue of Ms Barbuto’s role as a carer much earlier leads the Court to infer that it was not a matter of such concern to Ms Barbuto, or perhaps Defence’s solicitors, as to have been raised by them in their correspondence with Ms Tan, at some earlier stage.
The Humphreys Affidavit does not contain any evidence from a medical or allied health practitioner pertaining to Ms Barbuto’s mother’s medical condition, age, the extent of any mobility disability, or specifically what care and the extent of the care that Ms Barbuto’s mother requires. There is evidence that Ms Barbuto shares the caring responsibilities with her sister.
There is no evidence indicating how Ms Barbuto’s absence as a carer for one day would inconvenience Ms Barbuto’s mother or prevent her from being cared for by Ms Barbuto’s sister, or a professional overnight carer or nurse (and no evidence as to why the latter could not be engaged for a day to provide any necessary care).
Case management considerations
There have been, on the decided cases, differing approaches adopted to the giving of evidence via video link and it can be said that there is generally a line of cases in favour of the use of audio or visual evidence, and those cases which take a more cautious approach. Those cases have been analysed in Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578; (2004) 22 ACLC 1125 (“Rich”) at [17] and [18] per Austin J, and referred to and analysed in a number of subsequent cases. Those differing approaches can still be seen in recent cases in the Federal Court in determining whether or not video link evidence ought to be given, particularly during the COVID-19 lockdowns. Without detailing the approach in each of the cases the Court has had regard to all of, and will refer to some of, the following cases: Auken Animal Husbandry Proprietary Limited v 3RD Solutions Investments Proprietary Limited [2020] FCA 1153 (“Auken”); Australian Securities and Investments Commission v Wilson [2020] FCA 873 (“Wilson”); Capic v Ford Motor Co of Australia Limited [2020] FCA 486; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504; and Rooney v AGL Energy (No 2) [2020] FCA 942 (“Rooney”).
The reasons for the exercise of the Court’s discretion must be made out, and made out by the party seeking the favourable exercise of that discretion, here, by Defence: Wilson at [6] per Jackson J, and that is an assessment which is made in each case depending upon the particular circumstances of the case: Wilson at [24] per Jackson J.
There are a number of factors for consideration as outlined in Rich, including the nature of the evidence, the assessment of credit, management of documents in cross-examination, technological difficulties, and the length of cross-examination, to which might be added, and the nature of the case.
This is a case where the alleged contravention may give rise to a civil penalty, and that is a factor to be considered in conjunction with questions of cross-examination and assessment of credit: Wilson at [17] per Jackson J.
The length of cross-examination is also a factor to be considered, as is the nature of the material in this case is detailed. The Court notes that there is a very large bundle of documents comprising the Barbuto Affidavit, some 725 pages. It is evident that the chains of correspondence and the multiple emails exchanged may require detail and concentrated attention to follow, in order to ensure that the chronology of the events is accurate and information is not misrepresented or presented out of order to the Court. It is also to be borne in mind that Ms Barbuto was the decision maker in relation to the decision to terminate Ms Tan’s employment with Defence. Her evidence will therefore be critical to the Court’s assessment as to whether the presumption in s 361(1) of the FW Act has been rebutted.
Any examination of Ms Barbuto’s 725 page affidavit when Ms Barbuto is not in Court, is not able to be assisted necessarily by Counsel, the Associates or the Judge in a direct manner when - as is so often the case, the witness requires assistance to find a particular page or a particular detail, or, again, as often happens, the Court Book pages appear to be missing or out of order - has the potential both to effect the smooth running of the hearing, to prolong it and to make the witness, to the witness’s disadvantage, appear clumsy.
It must also be borne in mind that Ms Tan, as a self-represented litigant, may not be as used , as Counsel, to the use of technology in the Courts, as a videolink cross-examination may disadvantage her in this respect.
Cross-examination for Ms Barbuto is therefore likely, the Court suspects, to be detailed and lengthy, and in those circumstances, the Court takes the view that a video link between the Court and Ms Barbuto in Melbourne, is likely to render on balance the process of adducing evidence unsatisfactory.
Though this submission was not raised by Ms Tan, it is worth considering also that there is much also to be said for whether giving evidence by video link would inhibit the forensic benefit derived from cross-examination in person: Rooney at [18] per Snaden J. That, of course, is something which may affect the assessment of credit. This is not a case in which the evidence is sufficiently brief and straightforward to be able to effectively tick off on a video link appearance, but is one where the matter is contentious, requires cross-examination on documents, the meaning and content of which is contested between the parties, and is a matter in respect of which credit will likely be in issue, and one in which, therefore, the Court is of the view that a video link is not appropriate.
It remains the case in the Court’s view that the attendance of witnesses to give evidence in person is the primary and desirable means by which evidence is to be given. There are, obviously, exceptions to that, but evidence in person remains the norm and the video link provisions in the FCFCA Act are not intended to make video link evidence the norm. There are particular circumstances in the recent past of the COVID-19 crisis, which does not particularly touch this matter, other than on the periphery, which means in certain circumstances video link evidence may become the norm for a time. But where, as here, it appears that the basis for the application revolves, in part, around a claim, not made out the Court notes, by Ms Barbuto of disruption to her work duties and to her responsibility as a carer then it amounts to no more than a means to avoid the Courtroom, and if acceded to too readily, is in danger of becoming regarded as a means by which a majority of people could avoid the Courtroom with all of the forensic benefits that accrue in a Courtroom in a witness facing the litigants and the Court: Rooney at [18] per Snaden J and Wilson at [27]-[28] per Jackson J.
Costs
In relation to costs no specific information as to the cost of Ms Barbuto flying to and being accommodated in Perth was put before the Court, save for a bundle of Qantas flight times and costs between Melbourne and Perth for the relevant week. The screenshots indicate a maximum cost slightly in excess of $1,600 for Ms Barbuto’s flights. In the circumstances, that cost is miniscule.
Conclusion
In conclusion, the Court finds that in all the above circumstances Defence has not made out a case for Ms Barbuto to be granted leave to give videolink evidence. It follows that the Witness Videolink Application is to be dismissed.
AUDIO RECORDINGS APPLICATION
Background
A directions hearing was held on 18 July 2022 following issues raised by the parties relating to transcripts, at which the Audio Recordings Application was made by Ms Tan for the audio recordings of the transcript of the hearing on 8, 9 and 10 June 2022. Defence opposed the Audio Recordings Application.
Ms Tan emailed the Perth Registry (“Registry”) of the Court on 24 June 2022 as follows:
Dear Registry
Attached please find the form requesting access to the transcripts for the Hearing on 08-10 June 2022.
…
Attached to Ms Tan’s email was a “Federal Circuit Court - Family and Federal Division How to order an audio recording” form (“Auscript form”) completed by Ms Tan.
The Registry responded to Ms Tan’s email as follows:
…
Please be advised as follows:
Copyright in all transcripts belongs to the Commonwealth of Australia and, subject to the Federal Court Rules and any order or direction of the Court, transcripts cannot be shared between parties or distributed to any other recipients, they are not covered by access requests.
The transcript in a proceeding from the Court’s authorised transcript provider, Auscript you may apply for an order of the Court for leave to inspect the transcript in the Registry.
Further information can be found on the FCA website: Access to transcript (fedcourt.gov.au) [hyperlink removed]
…
On 7 July 2022 Ms Tan emailed the Registry as follows:
…
Can you please confirm that I need to file an Application in a proceeding with supporting affidavit, to seek the court’s approval to inspect the audio recording for the Hearings on 08, 09 and 10 June 2022.
…
On 13 July 2022 Ms Tan emailed the Registry as follows:
…
Please advise how I can seek the Court’s approval to access the audio recording for the hearings 08 to 20 June 2022. I need to send the attached form together with the Court’s approval to Auscript.
…
Attached to Ms Tan’s email was the Auscript form.
On 13 July 2022 the Chambers of the presiding Judge (“Chambers”) received an email from the Auscript Quality Team attaching a reissued copy of the transcript of proceedings of the part heard hearing on 9 June 2022.
On 14 July 2022 the Registry emailed the parties as follows:
…
I refer to the below email received by the registry. This matter has been brought to the attention of chambers and is before His Honour.
You will receive an email from chambers regarding the listing of this matter.
…
On 14 July 2022 Chambers emailed the parties to advise as follows:
…
Parties, I write regarding the recent request made by Ms Tan on … for audio recordings of the hearing held on 8-10 June 2022 (see attached request forms) and Ms Tan’s further email to Registry on 13 July 2022 seeking advice on how to obtain the Court’s approval in order to be granted access to the audio recordings (see attached email chain with Ms Tan’s request and Registry’s response).
His Honour Judge Lucev has determined that this is a matter to be addressed at a Directions hearing.
NOTICE OF LISTING
Please note that the above matter has been listed before the Court as follows:
Before: JUDGE LUCEV
LISTING: Directions
DATE: 18 July 2022 at 9.00am
PLACE:Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, PERTH WA 6000
…
I note that there has been a reissued copy of the transcript of Day 2 of the hearing, which was provided to Chambers on 12 July 2022 by Auscript. Would the Parties confirm by way of written response that this reissued transcript has been received by them from Auscript.
…
Later on 14 July 2022 Ms Tan confirmed by way of email as follows:
…
I can confirm that I have received the reissued transcript of Day 2 of the hearing.
…
Following no response from the Respondents Chambers emailed the Parties on 15 July 2022 as follows:
…
Ms Tan, thank you for confirming you have received the reissued copy of the Day 2 transcript. Mr Humphries and Ms Stamp, please find attached a copy of the reissued Day 2 transcript.
Please confirm by way of reply that the Respondent has received the copy Chambers has attached to this email.
…
Later on 15 July 2022 the Respondents emailed Chambers as follows:
…
We refer to your emails below and the directions hearing listed for 18 July 2022.
Thank you for providing the reissued transcript for day 2 of the hearing.
In relation to the subject the forthcoming directions hearing, there appear to be numerous communications between Ms Tan and the court the respondents have not been copied to. We would be grateful if you could provide copies of all correspondence in advance of the directions hearing.
…
Further on 15 July 2022 Chambers emailed the Parties as follows:
…
Mr Humphreys, I refer to your email today of 10.41am enquiring as to the provision of all communication between Ms Tan and Perth Registry regarding transcripts and audio recordings. Please find attached two email correspondence between Ms Tan and Perth Registry. The Parties will note that the document named 20220714_PEG2_2021 - Request to access audio recording was already provided to the Parties in my email of Thursday 14 July 2022 at 1.28pm advising Parties of the Directions hearing listing.
Mr Humphreys, I trust this meets the Respondent’s request
I also note that Ms Tan has both called Chambers today at 11.34am and emailed at 11.39am to advise that she had “purchased the transcript directly from Auscript, not through the [C]ourt”.
The Directions hearing remains listed for 9.00am on Monday 18 July 2022.
…
Attached to this email from Chambers was the email from Ms Tan to the Registry dated 7 July 2022 and the email from Ms Tan to the Registry dated 13 July 2022.
Prior to the directions hearing on 18 July 2022 Auscript provided to the Court a revised transcript of the three days of hearing on 8, 9 and 10 June 2022.
Directions Hearing
At the directions hearing on 18 July 2022 Ms Tan made the Audio Recordings Application orally. The Respondents opposed the Audio Recordings Application.
Ms Tan’s submissions
Ms Tan submitted that:
(a)the Audio Recordings Application was made on the basis there were discrepancies in the transcript;
(b)Auscript had been through the transcript again and had corrected some but not all of the discrepancies;
(c)in the transcript for the second day of the hearing (9 June 2022), at a point during her cross-examination when Ms Stanton asked Ms Tan a question regarding an email from Mr Rosam, she had given evidence that “They are all the same task. It’s micromanagement” and that this had not been recorded in the transcript and that this evidence should have appeared at line 35 on page 96 of the transcript of the third day of the hearing (10 June 2022);
(d)she knew that this was what she had said because this is what she had said in response to Ms Stanton’s question;
(e)in the transcript for the second day of the hearing, on page 104 at line 30 during the cross-examination of Ms Tan regarding Ms Chrispin’s assignment to APS6 higher duties in Ms Chrispin’s role with Defence, Ms Tan had given evidence that “You’ve just mentioned processes but not procurement or contract management”;
(f)she knew that this was what she had said because following her cross-examination she had gone back and started writing as much as she could remember on what she had said;
(g)there were further discrepancies on pages 146 and 149 of the transcript where she asked Ms Chrispin some questions about Ms Chrispin’s experience in procurement and that this was not in the transcript;
(h)she had also attended the Registry to go through the transcript for the third day of the hearing and there was some further discrepancies;
(i)she had not yet received the transcript for the first day of the hearing on 8 June 2022;
(j)the discrepancies were based on her recollection of what was said when she went back home and wrote down what she thought was said during the course of the hearing; and
(k)the transcript for the third day of the final hearing had failed to capture portions of her evidence, and she was confident as to which portions of speech which were not captured by the transcript of the third day of the final hearing because following her cross-examination, she wrote down as much as she could of what she remembered of the exchange in the cross-examination.
Defence’s submissions
Defence submitted that:
(a)it had not purchased the transcript so it could not shed any light on any of the submissions;
(b)it would object to the transcript being provided to Ms Tan or the audio of the transcript being provided to Ms Tan for “fear of what might happen to it”; and
(c)putting the audio recording into Ms Tan’s hands was opposed by it.
Consideration
It is not in dispute that Auscript reviewed the transcript of the hearing from 8, 9 and 10 June 2022 and produced revised transcripts for those days. Significantly, nothing in the revised transcripts (just like the original transcripts) indicates that the phrases allegedly omitted from the transcript/s were ever said.
On day two of the substantive hearing (9 June 2022) Ms Tan was cross-examined (her second day of cross-examination) for over two hours and twenty minutes (from 10.03 am to 12.24 pm). Thereafter, from 12.34 pm to 12.54 pm Ms Tan cross-examined an interposed witness. After the lunch adjournment, from 2.10 pm to 2.24 pm and (following another adjournment) from 2.57 pm to 3.35pm, Ms Tan self re-examined. From 3.48 pm until 5.30 pm Ms Tan cross-examined Ms Chrispin.
On day three of the substantive hearing (10 June 2022) Ms Tan cross-examined:
(a)Ms Barbuto from 9.48 am to 11.19 am and from 11.34 am to 11.48am;
(b)Mr Leung from 11.51 am to 1.05 pm; and
(c)Ms Martinelli from 2.23 pm to 2.59 pm and from 3.18 pm to 5.28 pm.
The transcript of these two days covers 185 pages (from pp 87 to 272).
To assert as Ms Tan does that she went home after each of these days and wrote down what was said by her in her own evidence and by a witness she cross-examined and that it is more accurate than the Auscript revised transcript, which was reviewed and revised but never contained any error of the type alleged, is nothing more than fantastic.
The Court has also checked its bench book notes from the days concerned and it is not apparent therefrom that the phrases alleged by Ms Tan to have been said, and omitted from the transcript, were ever said.
Even if the phrases alleged by Ms Tan to have been said were said, it is not apparent that they are at all material to the issues to be determined by the Court. At best they would constitute minor errors in relation to matters which are either not relevant or not sufficiently relevant to issues to be determined by the Court in these proceedings.
In the above circumstances there is no basis to warrant providing Ms Tan with a copy of the requested audio recordings.
Supplementary Affidavit Application
Background
At the commencement of the resumed hearing on 24 January 2023 Ms Tan sought leave to file a so-called Supplementary Affidavit. The Supplementary Affidavit runs to more than 800 pages, including annexures. The Respondents had not been provided with a copy of the Supplementary Affidavit prior to leave being sought to tender it at the resumed hearing on 24 January 2023. The Court adjourned to allow the Respondents to peruse the Supplementary Affidavit: Transcript, p 276, and the Court subsequently heard from the parties as to whether leave ought to be granted to file the Supplementary Affidavit: transcript, pp 276-287.
Ms Tan’s submissions
Ms Tan’s submissions about the Supplementary Affidavit were as follows:
(a)the Supplementary Affidavit was in addition to her Affidavit in Reply filed on 10 May 2022;
(b)she sought to file the Supplementary Affidavit comprising more than 800 pages, including annexures;
(c)“not many” of the annexures were otherwise already in evidence;
(d)some of the annexures were attached to submissions she filed in on 30 May 2022, after she had filed her Affidavit in Reply;
(e)a lot of the annexures concerned “wage theft” and some comprised missing emails relating to attempts to restore missing files from her time at Defence;
(f)in July 2022 she had sought the consent of the Respondents to file the Supplementary Affidavit but they had not consented;
(g)the Supplementary Affidavit contained her “analysis” of, and submissions in relation to, certain subpoenaed documents;
(h)she had attached her medical records relating to an old knee injury to try to establish that what Ms Chrispin had said in an affidavit filed in April 2022 about Ms Tan crossing her legs, and upon which issue Ms Chrispin had already been cross-examined by Ms Tan, was not true;
Respondents’ submissions
The Respondents’ submissions about the Supplementary Affidavit were as follows:
(a)the Supplementary Affidavit had been sworn on 20 January 2023, and not provided to the Respondents until after the re-commencement of the hearing on 24 January 2023, without notice and without the annexures;
(b)the submissions concerning the subpoenaed documents, which included network access and building access logs, are mainly irrelevant to any matters in issue, and meaningless without expert information technology evidence;
(c)category 5 of the subpoenaed documents related to documents concerning allegations made by Ms Tan that certain documents had been tampered with, and in relation to which an investigation had been conducted by Defence in which it had been found that there was no evidence of tampering, and Ms Tan, a person without information technology qualifications, now sought to give evidence or make submissions that something improper had happened in relation to the documents;
(d)these proceedings are not about whether there is some impropriety in Defence concerning these documents, but in any event Ms Tan has the documents and had already put those documents relating to the alleged tampering into evidence, and there was no need to go behind the findings of the Defence investigation;
(e)in relation to certain alleged workplace statements, the affidavit and documents were a mix of hearsay, submissions, and unnecessary work examples, and were not probative of any relevant issue, but if they were they could be put to Mr Rosam by Ms Tan in cross-examination;
(f)to the extent that medical documents were intended to prove Ms Chrispin’s demonstration of demeanour to be wrong it would be necessary to call the doctors concerned;
(g)issues as to whether Defence had acted as model litigant did not go anywhere, but in any event the proceedings had been supervised by the Court, and much of what was put was historical and misrepresented, and not relevant to any matter in issue in the proceedings;
(h)Ms Tan had not brought copies of the relevant documents to be put to any witnesses;
(i)they did not consent to the tendering of the Supplementary Affidavit or any new material contained therein; and
(j)they opposed, and could not accommodate, the recalling of any witnesses.
Consideration
At [77] of the Form 2 it is alleged that on 7 May 2020 Ms Tan made a complaint concerning alleged bullying behaviour by Mr Rosam in an email to Defence Payroll. The email is in the following terms:
Good morning
The attached PA 052 is an evidence of continual bullying behaviour from Mr Russ Rosam. I have never agreed or authorised Mr Rosam to send this PA 052 and all previous PA 052s on my behalf, and therefore must not be processed. The ongoing bully behaviour is not acceptable in any Workplace and his unacceptable behaviour must be stopped!
Please not hesitate to contact me if you have any questions. Thanks
Anne.
Mr Rosam was copied into the email and replied as follows:
Anne,
The SVIC PAC4 team are not in a position to be able to respond to you. They are merely processing the documentation provided to them in accordance with their requirements.
The forms are issued in accordance with Defence policy to which you have been advised on each occurrence of your absence. There is no requirement for you to sign these forms for them to be processed. If you wish to raise your complaint I encourage you to contact Human Resources or the Employee Assistance Program (1300 687 327).
Please note that I have been in contact with the SVIC team and have confirmed that the forms are to be processed in accordance with defence policy.
Please see me if you would like to discuss this further or receive further clarification. Regards.
There is no reference to a complaint made on 20 May 2020 in Form 2, but there is reference to a complaint made by Ms Tan on 12 May 2020 to the Director of the ANZAC SPO, Mr Gary Watson. By that email, Ms Tan contended that there was “ongoing unacceptable behaviour in the contract section, including discrimination and nepotism”. Ms Tan complained about the issuing of instruction letters to her and sought Mr Watson’s approval to work from home.
Both of the 7 and 12 May 2020 Complaints as pleaded were made to the Department’s Directorate of Conduct and Performance after the April 2020 Referral and therefore could not constitute the reason for the Referrals, but in any event the Referrals themselves make plain the reasons for the Referrals.
Whilst the Referrals themselves make plain the reasons for the Referrals, it is important to note that in submitting the April 2020 Referral, in a document headed “Additional Comments” Mr Rosam expressly set out the reasons for making the referrals, and made reference to Ms Tan’s:
(a)refusal to accept that she was accountable to her supervisor;
(b)behaviour in ignoring set deadlines;
(c)behaviour in ignoring requests for updates; and
(d)saying, when approached about the deadlines or updates that she “will get the job done in her own way and in her own time”.
The April 2020 Referral summarises that the essential reasons for the Referrals related to Ms Tan’s persistent poor behaviour and poor performance, and her misconduct in refusing to accept directions from, and accountability to, her supervisors, all of which hampered the proper and efficient functioning of the Contracting team. In making the Referrals Mr Rosam was concerned with these matters, and they constituted the reasons for the Referrals, and there is no reason to doubt his evidence in this regard (and in this respect any onus under s 361(1) of the FW Act is discharged). The Complaints were not the reasons for the Referrals, and there is no evidentiary basis for a finding that the Complaints were reason for the referrals.
The 3 October 2019 Complaint and the 11 October 2019 Complaint were complaints unrelated to the subject matter of the Referrals. They were not a reason for the Referrals.
The Referrals set out the reasons the Referrals, none of which are prohibited reasons.
It follows that there was therefore no contravention of s 340(1) of the FW Act in relation to the Referrals.
The adverse PFAD outcome (alleged Tenth Adverse Action)
At [102A] of the Form 2 Ms Tan alleges that an adverse Performance Assessment PFAD form (‘PFAD Form”) was entered or made because she had made the 3 October 2019 Complaint, the 11 October 2019 Complaint, the 7 May 2020 Complaint and the 20 May 2020 Complaint.
The relevant factual matrix is as follows:
(a)on 24 August 2020 Mr Rosam sent an email to Ms Tan attaching Ms Tan’s PFAD Form with Mr Rosam’s comments completed;
(b)Ms Tan:
(i)gave herself a performance rating of “Superior” which was the second highest rating under the highest rating being “fully effective”;
(ii)commented that she was “fully effective as a professional member of the Commercial CoE”; and
(iii)set out her qualifications, experience and proficiencies in using the relevant software; and
(c)Mr Rosam gave Ms Tan a rating of “partially effective” (the second lowest of the available 5 rating) and his comments on the form included the following:
Ms Tan’s behaviour is such that she is unable to be assigned tasks expected of her level. She has poor interaction with others, a disregard the process, a disregard for deadlines, and a disregard for her supervisors. This behaviour has become progressively worse over the reporting period. Whilst Ms Tan is under investigation she has been place under my direct supervision to limit the impact on the team and to provide a consistent work environment for Ms Tan. The range and complexity of tasks assigned to her have been restricted. This limits the amount of tasks that require reallocation to complete rework or have missed deadlines
Defence accepted that adverse ratings and adverse comments made on formal reviews of performance might constitute adverse action.
In this case it is plain from the content and context that Mr Rosam’s comments were not motivated by any of the Complaints made as alleged by Ms Tan at [102A] of the Form 2. The concerns expressed by Mr Rosam in the PFAD Form are borne out by the evidence, including that of Mr Rosam, Mr Leung and Ms Chrispin. The evidence plainly supports the comments made by Mr Rosam in the PFAD Form that Ms Tan’s misconduct and progressively worsening behaviour was the only reason why Mr Rosam completed the PFAD form as he did. The evidence is sufficient to discharge the onus under s 361(1) of the FW Act.
It follows that there was therefore no contravention of s 340(1) of the FW Act in relation to the PFAD Form.
Involvement of Mr Rosam in Defence’s alleged contraventions
Ms Tan seeks a declaration that Mr Rosam was involved in certain alleged contraventions of the FW Act by Defence: see [100(b)] above, and is therefore taken to have contravened each respective provision pursuant to s 550(1) of the FW Act. The contraventions alleged were not made out, and therefore Mr Rosam has no liability pursuant to s 550(1) of the FW Act. Further, there is no evidence that Mr Rosam was involved in the only contravention found by the Court, namely the contravention of ss 117(2) and 44(1) of the FW Act by Defence.
Advising, inciting or encouraging Defence to take action
Ms Tan seeks a declaration that Mr Rosam, pursuant to s 362(1) of the FW Act, contravened s 340(1) and/or s 351(1) of the FW Act in respect of advising, inciting or encouraging Defence to undertake a disciplinary investigation and/or dismiss Ms Tan from her employment. This claim fails because nothing Mr Rosam did by way of advocating any action against Ms Tan constituted a contravention of Pt 3-1 of the FW Act.
Involvement of Ms Martinelli in defence’s alleged contraventions
Ms Tan seeks a declaration that Ms Martinelli was involved in certain alleged contraventions of the FW Act by Defence: see [100(d)] above and is therefore taken to have contravened each respective provision pursuant to s 550(1) of the FW Act. The contraventions alleged were not made out, and therefore Ms Martinelli has no liability pursuant to s 550(1) of the FW Act. Further, there is no evidence that Ms Martinelli was involved in the only contravention found by the Court, namely the contravention of ss 117(2) and 44(1) of the FW Act by Defence.
CONCLUSION AND ORDERS
In conclusion the Court:
(a)as to liability, declares that Defence contravened ss 117(2) and 44(1) of the FW Act by terminating Ms Tan’s employment with Defence on 29 October 2020 without providing her with a total of three weeks’ notice or payment in lieu of three weeks’ notice, but otherwise orders that the application filed 4 January 2021, as amended by an amended application filed 15 April 2021, be dismissed;
(b)further orders that:
(i)Ms Tan and Defence are to confer within 28 days with respect to penalty and a penalty hearing (and in this regard the parties should seek to reach agreement on penalty: Fair Work Ombudsman v Anastasio [2023] FedCFamC2G 827 at [1] per Judge Lucev);
(ii)the matter otherwise be adjourned to a directions hearing at 10.00 am on 6 June 2025; and
(iii)costs, if any, be reserved, pending determination of any penalty.
I certify that the preceding four hundred and eighteen (418) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 26 March 2025
13
8