Wu v DSMJ Pty Ltd
[2023] FedCFamC2G 876
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v DSMJ Pty Ltd [2023] FedCFamC2G 876
File number(s): SYG 541 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 August 2023 Catchwords: PRACTICE AND PROCEDURE – strike out application – whether affidavit contains lies, falsifications, is disgraceful, defamatory or vexatious – whether affidavit conforms to Court’s rules.
PRACTICE AND PROCEDURE – application for adjournment – whether to adjourn proceedings pending supposed criminal investigations of one respondent.Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04, 1.07, 15.15, 15.16
Commonwealth Evidence Act 1995 (Cth) s 135
Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 14 August 2023 Date of hearing: 14 August 2023 Place: Parramatta Counsel for the Applicant The Applicant appearing in person Counsel for the first, third, fourth and fifth Respondent Ms Brigden Solicitor for the first, third, fourth and fifth Respondent People + Culture Strategies Counsel for the second Respondent No appearance ORDERS
SYG 541 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIANHUA WU
Applicant
AND: DSMJ PTY LTD
First Respondent
JOE COLON
Second Respondent
MEGAN FARRELL (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 AUGUST 2023
THE COURT ORDERS THAT:
1.The matter will proceed in the normal course and will not be live streamed.
2.The application for an adjournment of the Final Hearing be refused.
3.The application to uplift the Affidavit of Mr Tronson be refused.
4.The applicant’s Affidavit of 20 July 2022 be included in the Court Book on the basis that the Respondents also have an opportunity to put in competing transcripts.
5.Costs are reserved.
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
(As revised from the transcript)JUDGE D HUMPHREYS
INTRODUCTION
This is judgment on interlocutory issues in the matter of Wu v DSMJ Pty Limited. The applicant, Mr Wu, has brought a general protections claim in the Court, alleging that he was dismissed contrary to the Fair Work Act2009 (Cth) after making a workplace complaint.
By way of two Application in a Proceedings, Mr Wu seeks orders for an Affidavit of the fifth respondent in the substantive matter, Mr Tronson, be struck out. There is a second Application in a Proceeding in relation to a review of a Registrar’s decision concerning Notices to Produce. Contained within that second Application in a Proceeding is a request that the trial be adjourned pending an investigation by New South Wales Police into possible perjury by Mr Tronson. These two applications add to the list of eight Application in a Proceeding filed by Mr Wu since the beginning of the case in May 2022. The Court notes that the trial for this matter is listed for hearing for five days to commence on 14 August 2023, which is approximately 10 days from today. The Court also notes that the trial was set down for hearing in March 2023, and substantive orders were made at that time for the preparation of the matter for trial.
APPLICATIONS IN A PROCEEDING
In an Application in a Proceeding filed on 20 July 2023, Mr Wu seeks various orders relating to the strike out of the fifth respondent’s Affidavit dated 7 March 2023 (“the Affidavit”). The precise orders sought are as follows as they appear in the application:
1. Make an order that Rohan Tronson’s affidavit affirmed on 7 March 2023 be removed from the proceeding.
2. Make an order that Rohan Tronson be prohibited from giving evidence before the court in this proceeding.
3. Make a declaration that Rohan Tronson has given false evidence under oath in legal proceeding.
4. Make a declaration that Rohan Tronson has lost credibility before the Court in this proceeding.
5. Give leave to the Applicant for the Applicant to include his affidavit affirmed on 20 July 2023 into the Court book of this proceeding.
Contained in the Application in a proceeding filed on 14 July 2023, the applicant has also sought that:
1. Set a new date for the trial hearing or postpone the trial hearing until NSW Police completed the investigation of criminal offence against the Fifth Responden.
Mr Wu claims that the preparation of the outline of submissions by him is dependent on the New South Wales Police investigation. Various other matters have also been raised as to why the Affidavit should be struck out.
THE LAW
Rule 15.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) provides as follows:
Objectionable material may be struck out
1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
a)is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
b)contains opinions of persons not qualified to give them.
2) Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.
Rule 1.07 of the Rules provides as follows:
Court may dispense with rules
1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Rule 1.07 above should be read in the context of the overarching purpose of the Rules provided in Rule 1.04. This provision is as follows:
1) The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
2) To assist the Court, the parties must:
a)avoid undue delay, expense and technicality…
The rules add in substance to s 135 of the Commonwealth Evidence Act 1995 (Cth) (“Evidence Act”), which is a general discretion to exclude evidence. It reads as follows:
The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
a. be unfairly prejudicial to a party or
b. be misleading or confusing or
c. cause or result in undue waste of time.
The Court notes that in relation to a civil proceeding, it is likely that the danger that the prejudice will substantially outweigh the value will only have significance in a jury trial whereas this is a trial is before a Judge sitting without a jury.
It will be an unusual Judge or Magistrate who is prepared to concede that the danger exists that he or she might be unfairly prejudiced by the evidence; thus, this favours the normal proposition that evidence should be allowed in, but then is subject to the usual conclusions in relation to reliability, credibility and the weight that should be given to it in terms of fact-finding.
THE APPLICANT’S SUBMISSIONS
Mr Wu relies on his Affidavit of 21 December 2022, 23 December 2022, 23 March 2023, 20 July 2023, 31 July 2023, and documents produced under a Notice to Produce dated 25 April 2023.
Mr Wu submitted that various paragraphs of the Affidavit are lies or falsified evidence on the basis that they are inconsistent with his own evidence filed in the proceedings. In particular, the Court notes that there is issue in relation to recollections of a conversation that took place between Mr Wu and Mr Tronson, which the applicant apparently recorded. Whether or not those recordings were done with the knowledge of Mr Tronson is another matter. It has been put to me that the material contained in the affidavit was the recollection of the conversations as they took place to the best recollection of Mr Tronson.
If it is a situation whereby, on examination of the audio recordings and the transcript, which has apparently been produced by the applicant, is checked as against that recollection, the evidence that is set out in the recollection will not be read, and, indeed, the lines, in fact, will be replaced with the transcript of the recording. That would appear to cure a significant defect that is complained about by the applicant.
Mr Wu is relying on the audio recording. He alleges that annexure RT-11 of the Affidavit of Mr Tronson is a fabricated screenshot. He submitted that because the fifth respondent has lied and/or falsified evidence, paragraphs 34, 36, 28, 46(k) and 51 should be struck out.
Mr Wu submitted that assertions contained in paragraphs 43(b), 43(c), 43(h), 46(h), 46(i) and 48 are contradictory with written material facts produced by the first and fifth respondent and should be struck out for being lies and/or falsifications. If the Court does not accept these submissions, the Court should find them unfairly prejudicial.
Mr Wu submitted that paragraph 10 contains a lie based on his own his own firsthand knowledge of the responsibilities and duties of the organisation. Mr Wu also submitted that paragraph’s 16 and 17 of the Affidavit are hearsay. He claimed that the evidence was inconsistent with the service level agreement provided by the first respondent and should be struck out for these reasons.
Mr Wu submitted that paragraphs 24 and 25 of the Affidavit are inconsistent with the material facts produced by the first respondent and should be struck out for being unnecessary, irrelevant or at least unfairly prejudicial.
Mr Wu’s health condition was not a matter which was relied upon in making his allegation against any of the respondents and evidence in relation to this contained in paragraphs 29 to 31 of the Affidavit should be struck out for being unnecessary, irrelevant and prolix.
Mr Wu submitted that work-related training is not relevant to these proceedings and as such paragraphs 54 to 61 should be struck out. He further alleges that these paragraphs contain scandalous, vexatious, disgraceful and unfairly prejudicial material.
When pressed in relation to why it was scandalous, Mr Wu indicated that he felt it was because it was lies and would unfairly impact on his reputation. The issue in relation to this relates to a work-based fair work complaint, and it will be necessary for the Court to determine what evidence it is that the Court finds to be the facts. That will necessarily involve a sifting of the evidence, an examination of answers given in cross-examination to find what facts the Court establishes are proven and then apply those facts to the law. It may well be the fact that the Court may find some of the evidence is not reliable, not credible and should not be relied upon in the circumstances of the particular case.
However, that is what the function of a Court is. It is a situation whereby, normally, when a matter gets to trial, there are differing versions of events, and the Court is required to find which version of events it prefers and then, as a result of finding those facts, apply the law to those facts and then determine what the outcome of a case may be. This is a public Court and by commencing proceedings in this Court, issues like this arise all the time, and people take the risk when they commence proceedings that, in fact, they may well find that they have findings made against them. Courts make findings all the time as to whether or not witnesses’ evidence is reliable, credible or, indeed, even truthful.
That is the function of the Court, to get to the bottom of a matter and then to make a determination. Parties take the risk when they come to Court that they will have a public judgment that may well be that they are not a witness of truth. That is what Court proceedings are all about and the risks that are taken. The only way they can be avoided is for proceedings to be settled, because when proceedings are settled, there is no requirement for the Court to make a determination as to what evidence is truthful or not.
It was submitted that paragraphs 63, 64, and 66 to 69 should be struck out for being unnecessary or prolix, or irrelevant to the proceedings. Evidence given in paragraph 128 which refers to an annexure TR-19 being struck out as it is not clear when the email was sent and is therefore unfairly prejudicial. As mentioned earlier, the fact that it may be unfairly prejudicial is a matter that the Court can deal with on the basis that it has to determine whether or not it is reliable. This is not a jury trial. The issue arises if material which is prejudicial goes before a jury who are not able to turn around and properly determine whether or not evidence is, in fact, reliable or credible and should be given weight.
Mr Wu further submitted that annexures mentioned in pages 30, 33, 35, 36, 37, 38, 41, 45, 52, 53, 64, 65, 92, 93, 94, 126, 128, 129 and 131 should be struck out as they are not identified by a page number as required by cl 15.15(4) of the Rules.
In the Court’s view, that can be cured and should be cured prior to the hearing. That is a technical defect only and is capable of being remedied, and the Court will direct that if there is such a matter, that the affidavit be replaced with an affidavit that properly refers to those matters, noting that it is within the power of the Court to dispense with the Rules and noting that the object of the Rules is to ensure the proceedings can be dealt with inexpensively, informally and quickly as possible. In the Court’s view, such a technical defect, if indeed it exists, is quite capable of being cured and it will not result in undue prejudice to any party.
Mr Wu contends that the evidence given in paragraphs 32, 133 to 141 of the Affidavit are in the nature of submissions and should be struck out. If they are submissions, the Court will deal with that when it looks at the evidence as to whether or not they are opinions, and will take no notice of them if they are opinions, or they are submissions.
Mr Wu submitted that paragraphs 5, 21, 22, 34(d), 46(a), 47, 49(a) and 49(c) of the Affidavit are opinions without proper foundation or are unfairly prejudicial and should be struck out as being unfairly prejudicial. Again, the Court can deal with that by way of submissions as to whether or not it places any weight on them.
Further, the applicant alleged that paragraphs 3, 6, 7, 20, 22, 23, 43(a), 44, 46(j), 46(l), 48, 49, 62(c), 95 and 132 are unnecessary or irrelevant or prolix or tendency, and do not contain substantive materials that aide the proceeding. Again, that is a matter that the Court can determine when it receives the entirety of the evidence. It is always open for objections to the evidence to be made and re-made at the trial noting, however, that the Court has referred objections to evidence to be dealt with by a Registrar prior to the hearing.
Mr Wu submitted that 20 paragraphs of the Affidavit are unnecessary, irrelevant or unfairly prejudicial and do not overlap with the paragraphs which contain lies or falsified evidence. He submitted that 10 paragraphs of the Affidavit are in the form of submissions, making 102 paragraphs of the Affidavit inadmissible. Mr Wu further submitted that there should be no substantive material left in the Affidavit which can assist the proceedings or which are supported by identifiable and specific facts. During the course of the proceedings, the Court discussed with Mr Wu the various objections which can be taken and the basis upon which they can be sustained.
CONSIDERATION OF STRIKE OUT APPLICATION
As the Court has indicated to Mr Wu, Mr Tronson is a named respondent to the case. Mr Tronson is entitled to present his case within reason and within the relevant terms of the Evidence Act. If material is objectionable, the Court can turn to and deal with that after it has been dealt with by a Registrar, and hopefully the parties can settle on the matter. To a large extent, the Court can deal with it from the point of view that the Court will seek to rely on evidence that it thinks is reliable. If it is opinion evidence and not properly capable of being given to the Court, it will be ignored. That is, in fact, what the Court does every day. The Court has to sift through evidence, much of it is in less than pristine form, and it is a regrettable fact that in many cases some of the evidence that has presented to the Court, even though it has been prepared by a Solicitor, is full of inadmissible material and that is a reflection on them. The Court deals with it as best as it can.
In the Court’s view, none of the matters that have been raised by Mr Wu are such that the Affidavit should be struck out in its entirety and be removed from the proceeding. The Court declines to make order 6. The Court would urge the respondents to review the Affidavit in the light of the matters that have been raised here and consider whether or not certain paragraphs of the Affidavit are not read and/or that any technical deficiencies that have been identified are remedied and that can be done by way of a replacement Affidavit which removes the objectionable material which they determine should not be pressed.
The Court notes that it may well be the case that, upon review of the transcript of the recordings it may be necessary to remove quite a bit of that material and so be it. The Court has no issue with that or would allow the parties to provide any supplement any material based on that subject to Mr Wu has got a right to have a look at it. Having allowed the evidence to go in, the Court refuses to make a declaration that Mr Tronson has given false evidence. The Court cannot make that declaration now. The Court is not in a situation, not having seen the evidence and having it tested, that it can make such a declaration. The Court refuses to make the similar declaration that Mr Tronson has lost credibility. That will be a matter that the Court will determine during the course of the proceedings. Credibility is a matter that the Court will deal with in terms of the ultimate findings of fact that it makes.
As previously mentioned, it is an essential part of the Court’s remit when considering matters, to consider whether or not witnesses are credible and whether or not their evidence should be relied upon. It has been indicated to the Court that there is no objection to the applicant, including his Affidavit affirmed on 20 July 2023 in the Court Book of the proceeding.
APPLICATION FOR AN ADJOURNMENT
That leaves the final matter which is the application for an adjournment. Mr Wu has said from the bar table that he has made a complaint to police that Mr Johnson has made a false Affidavit. That has been explained on the basis that it was Mr Tronson’s best recollection at the time and that he’s prepared to concede if he agrees to the accuracy of the recording which he did not have access to at the time that he made his Affidavit that, in fact, that the recording is correct.
This matter has been set down since March 2023. The Court has referred to the fact that the overarching purposes within the Rules in r 1.04 is to facilitate the just resolution of disputes according to law and quickly, inexpensively, and efficiently as possible. Contained within ss 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), parties are to act consistently with the overarching purpose and that includes trying to limit the length of the proceedings and also to ensure that matters get on speedily.
In the decision of AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, the High Court made a number of comments relevant to Court’s consideration and determination of whether to permit long-running litigation between parties. These comments are relevant to the considerations regarding the efficient allocation and use of scarce public resources and the impact of delay on other proceedings before the Court.
At paragraph [5], His Honour French CJ stated:
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system…. (emphasis added)
At paragraph [23] His Honour French CJ went on to say:
… the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
His Honour finally said at paragraph [26] that:
… in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider "the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties" … (emphasis added)
The issues that have been put to me that there should be a police investigation into Mr Tronson’s Affidavit have been significantly mitigated by the concession made by the respondents that it may well be that they will seek to amend the Affidavit of Mr Tronson based on the provision now of the Applicant’s Affidavit and that they say that Mr Tronson was seeking to recall as best he could his evidence on memory. He agrees that the audio recording that has been provided is an accurate recording and necessarily amend his evidence to give effect to that recording.
This matter has been set down since March. It is listed for five days. The Court would have significant difficulty at this point in time, being some 10 days away from Hearing, in being able to get other matters that would fill the Court’s diary for that period. There is a public benefit in the speedy disposition of trial matters before the Court, particularly one that is listed to run for five days. Were this matter to be adjourned, it is unlikely the Court would be able to give a new hearing date until well into next year. That would have a significant impact on the respondents who are entitled to have this matter dealt with to finality on the basis of the evidence currently before the Court. To suggest that it should be adjourned pending a New South Wales police investigation as to whether or not there has been deliberately false evidence, in the Court’s view, is an inadequate and improper reason for adjourning the matter.
If Mr Wu has concerns after Mr Tronson’s evidence is affirmed in the witness box and subject to cross-examination, no doubt they are matters that he can put to the police as to whether or not, in fact, there has been a breach or perjury has been committed. They would want that evidence in any event. Mr Wu has indicated to me that he has difficult in preparing submissions. Much of that has been brought about by the way that he has conducted the matter in making late applications. These are matters that can and should be sorted out much earlier. The Court has indicated to Mr Wu that the opening submissions really need to point me to what are the matters he says he’s going to prove and what is the material that he’s going to seek to rely upon.
The Court will give Mr Wu a period of time at the conclusion of the hearing to enable him to provide written submissions which will ensure that he is not prejudiced by the fact that he is not legally represented, by the fact that English is not his first language, and he does need significant time to research. In the Court’s view, no real prejudice will arise from a situation whereby he puts what submissions he can to me prior to the hearing and the Court will take that into account in the way that the hearing is conducted. The Court will make necessary arrangements for that.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 14 August 2023
SCHEDULE OF PARTIES
SYG 541 of 2022 Respondents
Fourth Respondent:
LIONG LIM
Fifth Respondent:
ROHAN TRONSON
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