Timming v ROBERTSON

[2020] FCCA 2561

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIMMING v ROBERTSON & ORS [2020] FCCA 2561

Catchwords:
PRACTICE AND PROCEDURE – suppression application refused – applicant to pay respondent’s costs of suppression application

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth)

Applicant: ANDREW TIMMING

First Respondent: PETER ROBERTSON

Second Respondent: NIGEL WAUGH

Third Respondent: UNIVERSITY OF WESTERN AUSTRALIA

File Number: PEG 244 of 2020

Judgment of: Judge Street

Hearing date: 10 September 2020

Date of Last Submission: 10 September 2020

Delivered at: Sydney

Delivered on: 10 September 2020

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Ms A Toohey Clayton Utz

ORDERS – Amended under slip rule 17.05(2)(e)

(1)The application for a suppression order is dismissed.

(2)The applicant pay the respondents’ costs of the suppression order application under s 570 of the Fair Work Act 2009 (Cth) fixed in the amount of $3,737.00 within 28 days.

(3)The applicant file and serve a statement of claim that properly articulates only the material facts in support of the alleged causes of action and properly particularises the relevant basis for the alleged knowing assistance/involvement by the first and or second respondents and properly particularises any alleged loss or damage on or before 1 October 2020.

(4)Leave is granted to the applicant, if the applicant so chooses, to discontinue the proceedings in respect of the first respondent and the second respondent without any adverse costs consequence on or before 1 October 2020.

(5)The respondents file and serve either an application in a case striking out the

(6)pleading and or for summary dismissal or a defence on or before 22 October 2020.

(7)Any application in a case filed and served will be made returnable at 2:15pm AEDT (11:15am AWST) on 6 November 2020 by video and or audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth) and the matter will otherwise be heard in respect of directions for the further conduct of the proceedings.

(8)The parties have liberty to provide written submission in support of or opposing any application in a case if filed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 244 of 2020

ANDREW TIMMING

Applicant

And

PETER ROBERTSON

First Respondent

NIGEL WAUGH

Second Respondent

UNIVERSITY OF WESTERN AUSTRALIA

Third Respondent

REASONS FOR JUDGMENT

JUDGE STREET

1. These proceedings were commenced on 13 August 2020 under the Fair Work Act 2009 (Cth) (“the Fair Work Act”) by a Mr Andrew R. Timming, seeking to allege contraventions of the Fair Work in relation to section 340 and section 351 of the Act, naming two former colleagues at the University of Western Australia as the first and second respondents in respect of the alleged contraventions, and not identifying in the pleading any proper basis for a knowing involvement by those individuals in respect of the alleged contraventions.

2. The application alleged that Mr Timming was a professor. It is apparent from his own application that he resigned his post as an associate professor of human resources in the business school of the third respondent on 19 December 2019. Mr Timming’s own application identifies that that resignation identified a date, being 1 July 2020, and identifies the resignation was accepted. Mr Timming, subsequently in his application, seeks to agitate whether or not he did intend to resign and seeks to advance allegations in relation to his mental health, and asserting that he has a disability. 

3. The disability he asserts is one of anxiety disorder, being a mental disability. No evidence in support of the mental disability has been identified by Mr Timming in his affidavit in support of the application for a suppression order under part 6A of the Act. Section 13(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”) identifies a most important principle in relation to the hearing of matters in an open court. The openness of justice is a material part of the accountability, not just of the exercise of judicial power by the Courts, but in relation to the rule of law being seen to be done and being maintained, and maintaining public confidence in the exercise of the law.

4. Suppression orders and non-publication orders are exceptions which must be properly justified. The power to make a suppression order in the present case is found in section 88F of the Act. Section 88G specifies that before such an order be made, one of the four criteria in respect of grounds must be made out. Mr Timming seeks to advance an assertion that he makes out under sections 88(a) and (c). His affidavit in support adopted the most unusual and unacceptable approach of asserting that unless he obtains his suppression order, he would not pursue his proceedings.

5. Mr Timming then reasoned that because he could not pursue his proceedings, he would be denied a fair trial. There are obvious flaws in that proposition by Mr Timming. The Court is not satisfied that it is necessary to prevent prejudice to the proper administration of justice to make any suppression order in the present case, where Mr Timming is seeking to pursue serious allegations of contraventions of the Fair Work Act against both former colleagues as well as his former employer.

6. Nor does the Court accept that there is any basis for Mr Timming to advance the assertion that the order is necessary to protect the safety of Mr Timming. It is Mr Timming who seeks to pursue a claim relating to contravention of the Fair Work Act. He is entitled to do so subject to it being a case that is a proper case and meets the Court’s rules in terms of proper pleadings. The application he is currently applying falls well short of that standard. It must also be the case if there is a real and genuine dispute that it is capable of being determined being by the court. That will require in the present case a proper pleading.

7. There is no proper basis for the suppression order that was sought by Mr Timming, nor was it proper for Mr Timming to have endeavoured to control and manipulate the outcome by asserting that he would not pursue his proceedings unless he was granted a suppression order.  That is an improper course for a person to take. Mr Timming, in that regard, both maintained it in his written submissions and his oral submissions and swore to that effect in his affidavit. 

8. Suffice to say that this is not a case where any application for a suppression order should have been made, and it is an application in respect of which the application had no reasonable prospect of success, and the respondents have unreasonably been put to the incurring of costs in respect of an application that had no prospect of success, and accordingly, that Mr Timming’s unreasonable conduct has caused the other party to incur costs within the meaning of section 570 of the Fair Work Act.

9. Notwithstanding the ordinary order in respect of the fair work proceedings, the Court is satisfied that the pursuit of this application by the applicant was entirely unreasonable and has unnecessarily put the respondents to costs they should not have had to incur by seeking a suppression order that had no merit and no proper basis.  Further, it was an application that was improper given the nature of the evidence adduced by Mr Timming, seeking to dictate the outcome and/or control the process by asserting that he would not pursue the proceedings unless he was granted his suppression order. 

10. That was not a proper course for Mr Timming to take. The Court is satisfied that the powers under section 570 of the Fair Work Act are enlivened. The Court is also satisfied this is an appropriate matter in which to make a costs order for the costs that have been unnecessarily incurred, and that those costs should be payable and forthwith and fixed in the amount of $3,737.00 to be paid within 28 days. Accordingly, the Court makes the following orders.

    I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

    Associate: 

    Date: 23 April 2024