Walker v Fedex Express Australia Pty Ltd

Case [2024] FCA 1095


FEDERAL COURT OF AUSTRALIA

Walker v Fedex Express Australia Pty Ltd [2024] FCA 1095

Appeal from: Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160
File number(s): VID 179 of 2023
Judgment of: COLLIER J
Date of judgment: 19 September 2024
Catchwords:  PRACTICE AND PROCEDURE – application for leave to appeal – appeal of interlocutory decision of primary Judge to dismiss proceedings – failure to prosecute with due diligence – matter abandoned – applicant walked out of court – opportunity to provide written submissions objecting to summary dismissal provided by case management orders of primary Judge – discretionary decision of primary Judge – principle in House v The King – whether procedural unfairness in dismissal decision – litigant in person – whether email “suspending” matter constituted application for stay of proceedings – whether duty to inform applicant of potential to appeal or apply for stay enlivened – accusation of bias – earlier refusal of primary Judge to recuse herself for alleged bias – principle that judges should not abdicate judicial function by recusal at simple request of party – whether procedural unfairness because dismissal application determined on papers
Legislation:

Corporations Act 2001 (Cth)

Fair Work Act 2009 (Cth) ss 340, 342

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 192(4)

Federal Court of Australia Act 1976 (Cth) ss 24(1), 24(1A), 24(1AA)

National Anti-Corruption Commission Act 2022 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Work Health and Safety Act2011 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) rr 13.04, 13.05, 13.06

Occupational Health and Safety Act 2004 (Vic)

Wage Theft Act 2020 (Vic)

Cases cited:

Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337

House v The King (1936) 55 CLR 499

International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49

Johnson v Johnson (2000) 201 CLR 488

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

MacPherson v R (1981) 147 CLR 512

Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147

South Australia v Totani [2010] HCA 39

Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479

Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45

Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79

Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission [2022] FCAFC 161

Cubillo v Commonwealth of Australia [2001] FCA 1213

Finch v The Heat Group (No 3) [2017] FCA 64

Frigger v Trenfield (No 14) [2023] FCA 307

Continue reading Walker v Fedex Express Australia Pty Ltd

Sign in free to access the full text

Details
AGLC
Walker v Fedex Express Australia Pty Ltd [2024] FCA 1095
Case
[2024] FCA 1095
Decision Date

CaseChat Overview and Summary

In the matter of Walker v Fedex Express Australia Pty Ltd, the applicant, Mr Walker, sought to appeal against the decision of the primary Judge, who dismissed his proceedings for failure to prosecute with due diligence. The dismissal was based on Mr Walker walking out of the courtroom during the hearing. The court was required to decide whether the dismissal decision was procedurally unfair and whether there was any obligation on the part of the primary Judge to inform Mr Walker of the potential to appeal or apply for a stay of proceedings. The court also needed to consider whether the email sent by Mr Walker, which was interpreted as a suspension of the matter, constituted an application for a stay of proceedings.

The court found that the primary Judge's decision to dismiss the proceedings was not procedurally unfair. The court noted that Mr Walker had ample opportunity to provide written submissions objecting to the summary dismissal and that the dismissal application was determined on the papers. The court further found that the email sent by Mr Walker did not constitute an application for a stay of proceedings, and therefore, there was no duty on the part of the primary Judge to inform Mr Walker of the potential to appeal or apply for a stay. The court held that the principle in House v The King applied, which states that judges should not abdicate their judicial function by recusal at the simple request of a party. The court also noted that there was no reasonable apprehension of bias on the part of the primary Judge, as she had previously refused to recuse herself for alleged bias.

The court dismissed the Amended Notice of Appeal filed by Mr Walker on 2 October 2023. The court held that the primary Judge's decision to dismiss the proceedings was not procedurally unfair and that there was no obligation on the part of the primary Judge to inform Mr Walker of the potential to appeal or apply for a stay of proceedings. The court further found that the email sent by Mr Walker did not constitute an application for a stay of proceedings. The court held that the dismissal decision was made on the basis of the respondent's submissions, and Mr Walker did not make any submissions, which did not suggest bias or any denial of procedural fairness.

Orders

Orders of the court

1. The Amended Notice of Appeal filed on 2 October 2023 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Before turning to these applications it is convenient to summarise relevant background facts.BACKGROUND On 25 February 2021 Mr Walker filed an originating application in the FCFCOA referable to the termination of his employment by the respondent (originating application). In the originating application Mr Walker alleged the following contraventions of the Fair Work Act 2009 (Cth) (Fair Work Act):(1)I was terminated 9 months after calling out my supervisor’s bullying behaviour.(2)I have had further bullying, reprisal and adverse action taken against me.(3)I suffered an adjustment disorder with anxiety.(4)I tried to take my own life on two occasions because of the bullying and adverse action.… Mr Walker named six managers and human resources employees of the respondent whom he alleged were involved in bullying, reprisal, coercion and adverse conduct. Examination of the file in the FCFCOA indicates that there was significant activity by the parties in the conduct of the proceedings, including the filing of subpoenas by Mr Walker requiring the attendance of witnesses at the ultimate hearing, affidavits filed by both Mr Walker and on behalf of the respondent, and outlines of submissions. On 19 January 2023 the parties returned before the primary Judge for case management. The primary Judge noted that the substantive hearing was listed for 5 days commencing 30 January 2023, with a significant number of witnesses to be called. Her Honour relevantly observed:HER HONOUR: All right. Very good. Now, the reason that the matter was called on this afternoon and I think it’s responsive to issues raised by both the applicant and the respondent is that we want to really bed down to the fullest extent possible the way in which this hearing is going to be conducted the week after next. There are a number of issues to work through. And I want us to be in a position at the end of this case management, which is what I’m going to call it, to have some clarity around a number of those issues, including the identity of the witnesses, the projections around the amount of time that things are going to take and to put some clear parameters about what this case will involve.(transcript FCFCOA 19 January 2023 p 2 ll 17-25) A trial plan was presented at the case management hearing to her Honour by the respondent. The filing of a summary dismissal application referable to part of the Amended Statement of Claim was also foreshadowed by the respondent. Mr Walker also had filed a document entitled “Further Extensions of Statutory Provisions and Pleadings Combined”, referring to other statutory provisions on which he sought to rely, including the Wage Theft Act 2020 (Vic), Occupational Health and Safety Act 2004 (Vic), National Anti-Corruption Commission Act 2022 (Cth), the Work Health and Safety Act2011 (Cth) and the Safety Rehabilitation and Compensation Act 1988 (Cth). This document was brought to the primary Judge’s attention by Counsel for the respondent. Her Honour observed:HER HONOUR: No, I agree, and I hadn’t looked at this document until now. It was filed outside of the – well, it appears by only one day, but it was filed outside of the orders that were made. It does concern me, and the issue of the parameters of the application is one that is vital because, as you say, Mr McDougall ..... of fairness both for the respondent but also for the applicant, but it also means that if we don’t have that clarity, the case will very quickly blow out, and it won’t be finished this year. So, Mr Walker, I do need to make it quite plain to you that, as far as I’m concerned, and as far as the respondent is concerned and as far as the respondent has prepared its case and its response, the claims that I will be concerned about and which I will make decisions about are those which are set out in your amended statement of claim. So to the extent that any submission or document reports to go outside of those matters, and they are not matters that I can be concerned with, but it also has consequences in terms of decision-making for you when you’re preparing to run the trial on your own behalf about the questions that you ask of witnesses and about the submissions that you make. And so from the point of view of making sure that everybody is clear about what the case is about, I think it will be necessary – and I will hear from you in a moment, but it will be necessary for me to, effectively, order this document. The second of the submissions is not a document that you can rely on in the proceeding, and you need to be aware of that from this point going forward so that, as I say in the preparation of your case, this is not a document, and the matters that the documents refers to are not matters that you seek to bring into the application. So I will hear from you on that issue, but you’ve had the benefit of my thoughts about that, and I say that now, from the point of view of having conducted a number of matters, including adverse action matters where parties have sought to bring in new claims at the time of the trial and it has serious negative consequences for everybody involved. So it’s a matter that I’m pretty concerned about getting right from the outset, that everybody is clear about what the case is concerned about. So if you wanted to address me about this, in particular, the second set of submissions that you’ve filed, I would like to hear from you, please. MR WALKER: You’re talking to me, yes, your Honour? HER HONOUR: Yes. Yes. Thank you, Mr Walker.(transcript FCFCOA 19 January 2023 pp 9-10)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Following that exchange and those submissions, the primary Judge adjourned the hearing for approximately 90 minutes. On returning to Court her Honour dismissed the 25 January 2023 application (recusal decision). Her Honour gave oral reasons for the dismissal and revised those reasons in Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56. Her Honour then said:HER HONOUR: For filing on 25 January 2023 is dismissed. Those are the orders I make in relation to that application. What that means, Mr Walker, is that I am the judge that will be hearing your application under the Fair Work Act. Now, this morning you said to me that you also pressed an application more generally that you be granted an adjournment; is that an application that you continue to press?MR WALKER: Yes, your Honour.HER HONOUR: All right. Now, I invited submissions about that this morning, but I will give you the opportunity now. Is there anything more that you wanted to say about that? As I had apprehended your submissions this morning, it was a concern about, in particular, the provision to you of the court book in circumstances which you said were quite late and denied you the opportunity to properly review the material that was contained in it. Was there anything beyond those submissions that you wanted to rely on as a basis for an adjournment in this case?(transcript FCFCOA 30 January 2023 p 7 ll 18-32) Mr Walker responded as follows:MR WALKER: Yes, your Honour. My understanding of the pretrial hearing was meant to be to allocate certain days for witnesses to attend and as with including myself, there will be a total of 22 witness. We would be pushing extremely for time to fit that in this week and at such late notice to tell the witnesses, and that’s basically it.(transcript FCFCOA 30 January 2023 p 7 ll 34-38) Mr McDougall for the respondent then submitted:MR McDOUGAL: Yes, your Honour. I’m inclined from my instructor, it does appear that the court book, the hard copy court book was not delivered to the applicant until late on Wednesday afternoon, so that is regrettable and I apologise for that. I will say this: when one looks at the index to the court book, what one sees is that it begins with the pleadings, which all parties have – both parties have had throughout, then the affidavits of the applicant and his witnesses, Dr Crompton and Steven ..... followed by the affidavits of the respondent’s witnesses. Again, both parties have had those since they were filed and served in the proceedings, both parties have had those for quite a long time, the last of those, I think, was dated 13 May 2022.So it’s not as if there’s anything new there. What were new documents, documents which appear numbered in the court – in the index to the court book at 121, a letter of appointment dated 5 January 2007. Further letter of appointment dated 20 April 2008, a job description, a payroll report. Other documents there are documents related to when this proceeding commenced as required with an application to the Fair Work Commission, so documents that were in the Fair Work Commission and again which both parties have had. Then there are the parties’ submissions, again, they were exchanged in earlier January – 12 January for the applicant’s submissions and 13 January for the respondents. The lists of authorities, again, 12 and 13 January, and those were the documents that were in the court book that was delivered late.The respondent has produced a new court book that has two further bundles of documents attached to it, one is certificates of capacity and the other is returning to work plans. I might apologise, perhaps, not at the right time to make the apology, but I asked my instructor to file, particularly, well add, in particular, the certificates of capacity and then realised that they were already exhibited to the second affidavit of Mr David Barrett, which was already in the court book, that’s at documents numbers 91 and 92, the second affidavit of David Barrett and ..... to that had the – already had the certificates of capacity. However, I had asked for those to be provided in part from a sense that they may be sought as a matter of fairness or information for the court. So although, yes, the court book was delivered late and that is regrettable, there was very little that could be said to be new material, it was almost all material which both parties have had in their possession since at least May of 2022.(transcript FCFCOA 30 January 2023 pp 7-8)

Ratio Decidendi

Legal Principle Established

In respect of the appellant’s further written submissions, the respondent orally submitted: ·The bulk of the documents in the appeal book were filed documents. Many were opposed by the respondent for relevance and that opposition was maintained. ·What is relevant to the appeal proceedings is whether there was bias on the part of the primary Judge or a reasonable apprehension of bias. Also relevant is whether there was actual bias, failure to provide procedural fairness in relation to the adjournment, and other issues. ·Under s 342 of the Fair Work Act the dismissal of an employee by an employer is an adverse action. It is not the admission of a crime or any wrongdoing. ·There was no communication between the Counsel for the respondent and the Court in the 20 minutes in which the audio link was frozen on the case management hearing of 19 January 2023. Delays of that nature due to technical difficulties are not out of the ordinary in the conduct of Court. The primary Judge addressed the issue of the delay at the time and stated that the link was frozen for 20 minutes and nothing occurred during that time. This should be adequate factual response to the appellant’s concerns. There is nothing in the transcript of the facts that gives rise to any reasonable apprehension of any untoward communication having occurred during the 20-minute delay. ·There is nothing extraordinary in a concern about the ability to get through a large number of witnesses within the set hearing time. ·The respondent provided a trial plan as it was requested by the court. The appellant did not agree to the trial plan and the court was informed of this fact. The appellant has conceded that he did not read the trial plan as proposed by the respondent. ·A word count of comments of a party and the Judge at a hearing is not determinative of fairness or failure to hear a party. A fair reading of the transcript of the case management hearing of 19 January 2023 shows that the appellant spoke, was asked questions, and was given the opportunity to express his concerns and raise issues. ·Mr Walker has not satisfactorily explained how a reasonable apprehension of bias on the part of the primary Judge can be identified from her Honour’s reasons for refusing to recuse herself or grant an adjournment. The fact that the appellant was unhappy or dissatisfied with those decisions does not mean that the primary Judge was biased against him.·The “Further Extensions of Statutory Provisions and Pleadings Combined” document was not relevant as it referred to many issues and pieces of legislation which were not matters in the proceeding nor were they enlivened by the amended statement of claim of the appellant, and thus were not matters before the primary Judge. The decision to exclude that document as irrelevant and likely to be productive of a waste of time was appropriate, and not indicative of any actual or apprehended bias. ·The 7 February email may have informed the primary Judge that there was a complaint against her, but that does not give rise to a reasonable apprehension of bias, nor does the application for recusal. ·The ordinary understanding of the reasonable layman for the purpose of the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337 at [7] (Ebner) must include an understanding that judges have a certain level of robustness and they are not to be taken as becoming biased or prejudiced against a party merely because there is some level of dispute between the Judge and that party. ·Counsel often appears before a judiciary where there is a relationship of friendship, but it must be understood that that would not preclude a judge from hearing a matter and would not raise a reasonable lay person’s apprehension of bias. ·Many judges in Victoria, both at the federal and state level, were barristers before being appointed to the bench and necessarily would have relationships with members of the bar. There would not be any reasonable apprehension of bias simply because of that fact. ·Counsel for a party is an officer of the court and is representing, but not of, a party. Counsel has a certain independence of mind from the position of the party they represent. Therefore any relationship between the Judge and the counsel for a party could not reasonably be regarded as a basis for an apprehension of bias. ·The 7 February email does not go beyond an assertion that a complaint has been made. It does not in any sense enliven an obligation on the part of the court to give any information to the appellant. ·There is no right of appeal against a bare decision not to recuse: Stone v Moore [2015] SASC 46; 122 SASR 54; Bezer v Bassan [2017] NSWCA 333; Barakat v Goritsas [2012] NSWCA 8 as a response to Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427. This right to seek leave to appeal from an interlocutory decision being a refusal to recuse is distinguished from any other interlocutory decision. ·Section 24(1AA) of the Federal Court Act specifically excludes a decision to adjourn or not to adjourn from the appellate jurisdiction of the Federal Court. ·There were no appeal rights to be contemplated so the only question is whether the order of the court made 1 February 2023 was indeed an order of the court and the 7 February email does not give rise to a need for the primary Judge to address that question. ·The appellant was not denied procedural fairness. He was heard at case management hearing of 19 January 2023 and on the interlocutory applications on 30 January 2023. There is nothing that gives rise to any reason to think that the appellant was excluded or precluded from being heard or from addressing the court on the issues that were of concern to him.·The primary Judge attempted to engage with the appellant after the adjournment application was refused, it is not a matter of the Court refusing to hear the appellant, it was the appellant who rejected his opportunity to be heard and was not heard because he walked out of the courtroom. There is no basis upon which a reasonable lay person would apprehend bias. ·The appellant complained of unfairness as he did not know when his subpoenaed witnesses would appear, but by virtue of his failure to provide an outline to the Court of what the witnesses were to say, per an order of the primary Judge, those witnesses were not to appear. ·The dismissal decision was made on the basis of the respondent’s submissions. The appellant did not make any submissions. This does not suggest bias or any denial of procedural fairness. CONSIDERATION