White v Westfield Vet Hospital
[2018] FCCA 3833
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITE v WESTFIELD VET HOSPITAL & ORS | [2018] FCCA 3833 |
| Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Fair Work Division – alleged contravention of s.340 of the Fair Work Act 2009 – application in a case seeking preliminary hearing on a separate question (i.e. “was the applicant dismissed from employment?”) prior to substantive hearing – relevant principles – nature of the hearing – whether agreed facts – whether potential for overlap of evidence from witnesses – application for preliminary hearing on a separate question dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 386, 550 Federal Circuit Court Act 1999 (Cth), s.3 Federal Circuit Court Rules 2001 (Cth), r.17 Federal Magistrates Court Rules 2001 (Cth), r.17.01, 17.02, 17.03 |
| Cases cited: Anderson v Wilson [2000] FCA 394 |
| Applicant: | JAMES WHITE |
| First Respondent: | WESTFIELD VET HOSPITAL PTY LTD T/AS CHAMPION LAKE VET CENTRE |
| Second Respondent: | LESLEY SHERRY |
| Third Respondent: | COLIN SHERRY |
| Fourth Respondent: | MATTHEW SHERRY |
| File Number: | PEG 332 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 26 September 2018 |
| Date of Last Submission: | 26 September 2018 |
| Delivered at: | Perth |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Fardella |
| Solicitors for the Applicant: | MKI Legal |
| Counsel for the Respondents: | Mr J. Raftos |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The respondents’ application in a case is dismissed.
The matter stand over for directions at a time and date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 332 of 2017
| JAMES WHITE |
Applicant
And
| WESTFIELD VET HOSPITAL PTY LTD T/AS CHAMPION LAKE VET CENTRE |
First Respondent
| LESLEY SHERRY |
Second Respondent
| COLIN SHERRY |
Third Respondent
| MATTHEW SHERRY |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, James White (the “applicant”), has made an application (the “substantive application”) in this Court’s Fair Work Division. He alleges that he was terminated by the first respondent, Westfield Vet Hospital Pty Ltd T/A Champion Lake Vet Centre (the “first respondent”) in contravention of s.340 of the Fair Work Act 2009 (Cth) (the “FW Act”).
The applicant also claims that Lesley Sherry (the “second respondent), Colin Sherry (the “third respondent”) and Matthew Sherry (the “fourth respondent”) are liable pursuant to s.550 of the FW Act because they were involved in the first respondent’s alleged contravention of s.340 of the FW Act.
The respondents have now filed an application in a case (dated 25 October 2017) seeking, relevantly, an order (pursuant to r.17 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”)) that there be a preliminary hearing on a separate question prior to the substantive hearing. The separate question is phrased as “was the applicant dismissed from employment?” (the “separate question”).
Issue before the Court
The Court is asked to determine whether on the facts of this case, it should, prior to hearing the substantive question, conduct a preliminary enquiry on the separate question of whether the applicant was dismissed.
Synopsis
For the reasons that follow, the Court is not satisfied that determination of the proposed separate questions is appropriate.
Principles Relevant to Preliminary Hearing on a Separate Question
In Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207 (Devonshire), Federal Magistrate Lucev (as he was then) outlined the approach to applications for preliminary hearings pursuant to rules 17.01-17.03 of the Federal Magistrate Court Rules 2001 (Cth) (FMC Rules) as follows. His Honour explained:
24. Rules 17.01-17.03 of the FMC Rules provide as follows:
17.01 Definition
In this Part:
question includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.
17.02 Order for decision
The Court may make an order for the decision by the Court of a question separately from another question at any time in a proceeding.
17.03 Separate question
A separate question must:
(a) set out the question or questions to be decided; and
(b) be divided into paragraphs numbered consecutively.
25. Order 29 r.1 of the former Federal Court Rules defined “question” in very similar terms to r.17.01 of the FMC Rules. Order 29 r.2 of the former Federal Court Rules provided as follows:
The Court may make orders for:
a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
b) the statement of a case and the question for decision.
(See now r.30.01 of the Federal Court Rules 2011 (Cth)).
26. Given:
a) that rule 17.02 of the FMC Rules and the definition of “question” in r.17.01 of the FMC Rules are very similar to O.29 r.2 and the definition of “question” in O.29. r.1 of the former Federal Court Rules;
b) that because this Court is bound by decisions of the Federal Court, and because the Federal Court is a court superior to this Court in the hierarchy of Australian federal courts: Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ; and
c) further and alternatively to (b), having regard to the necessity for judicial comity between federal courts: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at para.38 per Weinberg, Jacobson and Lander JJ; See v Granich & Associates [2008] FMCA 27 at paras.16-18 per Lucev FM.
this Court ought to adopt the approach of the Federal Court in relation to O.29 r.2 of the former Federal Court Rules when considering applications under r.17.02 of the FMC Rules, subject to what is said below concerning the effect of ss.3, 14 and 42 of the Federal Magistrates Act, 1999 (Cth) (“FM Act”) and r.1.03 of the FMC Rules.
Lucev FM also noted in Devonshire that:
33.In addition to the general principles consideration must be given to the objects and purposes provisions of ss.3 and 42 of the FM Act and r.1.03 of the FMC Rules.
34. In Goodall v Nationwide News [2007] FMCA 218 at para.21 per Lucev FM the Court summarised the operation of ss.3 and 42 of the FM Act and r.1.03 of the FMC Rules as follows:
Read together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.
Citing Devonshire, Counsel for both the respondents and the applicant have argued that the Court should adopt the Federal Court’s approach in relation to Order 29 Rule 2 of the former Federal Court Rules. Given that the FMC Rules and the sections of the Federal Magistrates Court Act 1999 (Cth) referred to by Lucev FM in Magellan have been replicated in the FCC Rules and the Federal Circuit Court Act 1999 (Cth) (“FCC Act”), the Court agrees and adopts that approach.
The Respondents, having filed an application in a case prior to the hearing of the substantive matter, bear the onus of demonstrating that there should be a preliminary hearing on the separate question: State of Western Australia v Galati [2017] FCA 236 per Gilmore J at [10].
In some circumstances preliminary determination of a particular issue may facilitate the just, efficient and economical resolution of proceedings, consistent with the objects of the FCC Act (see s.3 of the FCC Act and also r.1.03 of the FCC Rules).
Relevantly, use of this procedure may be appropriate where determination of the issue or issues identified in a separate question will dispose of the action or contribute to the saving of time and cost by substantially narrowing the scope of issues to be decided: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 (Reading Australia) at [8].
In general, however, it is preferable that all issues of fact and law in a proceeding be determined at one time. It will normally be both convenient and appropriate for that course to be adopted: Reading Australia per Branson J at [7]; Prescott Securities Limited v Gobbett (No 2) [2017] FCA 81 (Prescott Securities Limited) at [13].
It is accepted that caution is to be exercised when a proceeding requires the determination of a separate question and care must be taken to avoid the determination of issues not “ripe” for separate and preliminary determination: Reading at [8]; Devonshire per Judge Lucev at [27]; CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 606.
The Court must be mindful of whether the preliminary hearing will give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of the trial. In Rainsford v State of Victoria & Anor [2005] FCAFC 163 (Rainsford), the Full Court of the Federal Court stated (at [37]) that in a court exercising federal jurisdiction, the separate question procedure is generally only available where the facts have been judicially determined or agreed upon by the parties (and see further: Anderson v Wilson [2000] FCA 394 at [28]).
The Court must also be mindful of whether the separate determination of the question will result in significant overlap between the evidence adduced at the preliminary hearing of the separate question and at the substantive hearing - possibly involving the calling of the same witnesses. This factor will be of particular significance if the court may be required to form a view as to the credibility of witnesses who may give evidence at both the preliminary and substantive hearing stages: Reading Australia at [8].
Whether the separate question will prolong, rather than shorten, the proceedings is also an important consideration: Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69, [42] (Rares J) citing AWB Limited v Cole [No 2] [2006] FCA 913, [26] - [40] (Young J).
The Respondents’ Submissions in Support of a Preliminary Hearing on the Separate Question
In support of a preliminary hearing on the separate question of whether the applicant was dismissed, the respondent provided detailed written submissions dated 11 September 2018. These submissions can be broadly summarised as follows:
a)determining the separate question will involve a short time for the application to be dealt with by the Court relative to the total length of time of a final hearing, because the determination of a preliminary question:
i)is likely to require limited evidence relating to the matters that transpired during a meeting on 22 October 2017 during which the applicant alleges his employment was terminated and the respondents allege that the applicant resigned (“alleged resignation”); and
ii)would require no more than 4 witnesses (the applicant and the second, third and fourth respondents) to give evidence about the alleged resignation and on that basis it is unlikely that the preliminary hearing will extend beyond 1 day.
b)the determination of the preliminary question would be more efficient and cost effective for all parties and the Court as:
i)it may lead either to the dismissal of the proceedings or, at least, a significant narrowing of the issues to be determined at the final hearing; and
ii)the preliminary hearing might facilitate a settlement of the matter.
c)The length of the litigation, at least insofar as hearing of the substantive matter is concerned, will not be protracted by reason of the determination of the separate question.
In oral submissions to this Court, Counsel for the respondents further argued that:
a)there is a large array of agreed facts and the balance of facts not agreed to could be dealt with at a preliminary hearing; and
b)the preliminary question is a fact only question, not a question of mixed fact and law, but even if does involve a question of mixed fact and law, the question is sufficiently precise to allow the preliminary question to be adjudicated and determined.
The Applicant’s Submissions in Opposition to a Preliminary Hearing on the Separate Question
In written submissions dated 17 September 2018 the applicant argued that a preliminary hearing would be inappropriate because:
a)The question to be answered may not result in a final determination of the matters. Where the question is answered in the affirmative, being that the applicant’s employment was terminated, the question of whether adverse action occurred will still need to be determined.
b)The parties have not agreed on the facts. Hence, a finding of fact needs to occur before any determination of the preliminary question can be made.
c)A determination of whether adverse action occurred relies upon the same set of facts and evidence as those which relate to the question of the applicant’s dismissal.
d)As the question of whether the applicant was dismissed cannot be separated from the other substantive issues, the witnesses who will be required at the preliminary hearing will also be required at a substantive hearing. Allowing a preliminary hearing to occur in these circumstances will result in unnecessary expense and duplication of the proceedings.
Consideration
Nature of the hearing
The determination of a separate question is ordinarily directed to a narrow point, the resolution of which “would be likely to lead to a settlement of the proceeding as a whole”: Reading Australia at [14] per Branson J.
Here, the separate question sought to be asked and determined by the respondents is a narrow question and a substantial issue in the litigation. However, the Court is not satisfied that a preliminary hearing on a separate question will result in a final determination of the matter or, at least, a significant narrowing of the issues to be determined at hearing. As highlighted by the applicant, where the central question is answered in the affirmative, the question of whether adverse action occurred will still need to be determined. This weighs against having a hearing on the separate question.
The Court also notes that a finding on whether the applicant was dismissed is dependent on the Court determining what occurred and what was said between the parties in the meeting on 22 October 2017 (“the meeting”) and the circumstances leading up to the meeting.
The applicant contends that he was terminated from his employment and did not resign (see: Affidavit of James White dated 16 August 2018, [28]-[34] and [37]). The respondents contend that the applicant resigned from his employment (see: Affidavit of Lesley Sherry dated 25 October 2017, [15]). There is no agreed statement of facts before the Court. Hence, there remain important factual disputes between the parties.
In the absence of agreed facts, it is not open for the Court to proceed to answer the separate questions without finding the facts relevant to the questions asked: Rainsford at [37], [43] (Kenny J). In this case, the determination of the separate question would involve both a question of fact in relation to what occurred in the meeting and the circumstances leading up to the meeting and a question of law in relation to whether the applicant was dismissed under s.386 of the Fair Work Act 2009 (Cth).
It may be especially difficult to use the separate question procedure appropriately where there are questions of mixed fact and law: Bass v Permanent Trustee Co Ltd [1999] HCA 9 at [53].
It was noted in Bass (at [53]) that:
Special problems can arise where the preliminary question is one of mixed fact and law. As Brooking J pointed out in Jacobson v Ross [61], it is necessary in that situation that there be precision both in formulating the question and in specifying the facts upon which it is to be decided. His Honour added:
Care must be taken to ensure that, in one way or another, all the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable as facts assumed to be correct for the purposes of the preliminary determination, or as facts which both sides accept as correct, or as facts which are to be judicially determined. Failure to do this, and in particular failure to perceive that the facts alleged in a pleading are some only of the facts relevant to the determination of the preliminary question, may make the order for preliminary determination unfruitful.
Given the determinations that will need to be made in relation to both fact and law in these proceedings, the Court is not satisfied that a preliminary hearing is appropriate in this case. On the facts and evidence before the Court, the Court finds there to be little prospect of saving time and expense by determining the preliminary question.
Overlap of Evidence - Witnesses
Where a separate determination will result in a significant overlap of evidence (for example, by calling the same witnesses at both the preliminary hearing of the separate question and a later substantive hearing), it will normally be inappropriate for a separate determination to be heard: Reading Australia at [8], per Branson J.
Here, the hearing on the separate question would require the calling of witnesses. Unless the matter is disposed of after the separate question has been determined, the witnesses who would be called to give evidence at the hearing of the separate question would also be required to give evidence again at a later stage of the proceedings.
This raises the prospect of not only unnecessary duplication and expense but also of an adverse finding of credit being made in relation to these witnesses, thereby compromising the ability of the judge who decides the separate question from continuing with further stages of the proceeding: Prescott Securities Limited at [13] (White J).
This is of particular concern to the Court as the findings of fact that will need to be judicially determined in relation to the disputed meeting will necessarily involve credit assessments being made in relation to the applicant and the second, third and fourth respondents, who all attended the meeting.
This too weighs heavily against a preliminary hearing on the separate question.
Conclusion
For the above reasons, the Court is not satisfied that there should be a preliminary hearing on the separate question.
The respondents’ application in a case is, accordingly, dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 21 December 2018
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