Yalda v Consulate General of the Republic of Iraq, Sydney
[2021] FCCA 499
•19 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499
File number(s): SYG 1754 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 19 March 2021 Catchwords: INDUSTRIAL LAW – general protections – applicant an Australian permanent resident employed as translator by a consulate (Consulate) pursuant to a contract of employment for a fixed term – the Consulate informed the employee before the term of her contract of employment ended that the employee’s contract will not be renewed – the Consulate so informed the employee after the employee had made enquiries of the Fair Work Ombudsman (FWO) in relation to her employment and after she had lodged an application with the Fair Work Commission (FWC) alleging bullying – the employee claims the Consulate dismissed her because she had made enquiries of the FWO and had lodged a bullying complaint with the FWC – whether the employee’s enquiries of the FWO and lodgement with the FWC of a bullying complaint constituted the exercise of a workplace right – whether at the time the Consulate notified the employee it would not renew the employee’s contract the Consulate was a prospective employer and the employee a prospective employee – whether by notifying the employee that the Consulate would not renew the employee’s contract of employment the Consulate as the prospective employer refused to employ the employee and therefore took adverse action against the employee as prospective employee – whether the Consulate decided not to renew the employee’s contract of employment for the reason claimed by the Consulate, namely, that the Consulate’s policy was to employ only qualified translators which the employee was not and to eliminate the financial burden of having to pay the employee as an unqualified translator in circumstances where the Consulate also had to pay for qualified translators – the Consulate did not discharge the burden of showing it decided not to renew the employee’s contract of employment for the reason it claimed it did not renew the employee’s contract of employment – the Consulate as the prospective employee therefore is presumed to have taken adverse action against the employee as prospective employee because the employee had exercised her workplace rights by making enquiries of the FWO and by lodging a bullying application with the FWC. Legislation: Consular Privileges and Immunities Act 1972 (Cth)
Evidence Act 1995 (Cth) ss 55, 56, 57(1), 58(1)
Fair Work Act 2009 (Cth) ss 12(1), 14, 30B, 30C(1), 30D(1)(a), 30G(1), 30L, 337, 339(a), 339(b), 340, 341(1)(b), 341(1)(c)(i), 342, 357, 360, 361(1)
Federal Rules of Evidence 1975 (US) r 901(a)
Industrial Relations (Commonwealth Powers) Act 2009 (NSW)
Vienna Convention on Consular Relations Arts 1(1), 3, 35(1), 61
Cases cited: Al-Attar v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 500
ASIC v Rich [2005] NSWSC 417
Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893
Australian Competition and Consumer Commission v Air New Zealand Ltd [2012] FCA 1355
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63, 98 ER 969
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Briginshaw v Briginshaw (1938) 60 CLR 336
Clifton v The United States 45 US (4 How) 242 (1846)
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Henderson v Queensland [2014] HCA 52
Interstate Circuit, Inc. v United States 306 US 208 (1939)
Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834
Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Russo v Aiello [2003] HCA 53
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stephens v Australian Postal Corporation [2014] FCA 732
Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771
United States v Caldwell 776 F2d 989 (11th Cir 1985)
United States v Safavian 435 FSupp2d 36 (DDC 2006)
Visscher v The Honourable President Justice Giudice [2009] HCA 34
Willis Australia Group Services Pty Limited v Mitchell-Innes [2015] NSWCA 381
Number of paragraphs: 161 Date of last submission/s: 15 September 2020 Date of hearing: 1, 2, 3, 4 and 7 September 2020 Place: Sydney The Applicant: Appeared in person Counsel for the Respondent: Mr J Fernon SC Solicitor for the Respondent: Macpherson Kelley ORDERS
SYG 1754 of 2019 BETWEEN: MARIAM YALDA
Applicant
AND: CONSULATE GENERAL OF THE REPUBLIC OF IRAQ, SYDNEY
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
19 MARCH 2021
THE COURT DECLARES THAT:
1.The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) by notifying the applicant by letter dated 27 November 2018 that it would not renew the applicant’s contract of employment that was due to end on 31 December 2018.
THE COURT ORDERS THAT:
2.The name of the respondent recorded in the application be amended to “Consulate General of the Republic of Iraq, Sydney”, and the respondent’s name on this page shall be “Consulate General of the Republic of Iraq, Sydney”.
3.The matter be listed for directions at 9:30 am on 26 March 2021 for the purpose of fixing at that directions hearing a time and day to hear submissions on:
(a)the denomination in which the order for compensation should be expressed;
(b)whether it is open to the Court to find that the applicant claims the respondent:
(i)failed to provide payslips to the applicant;
(ii)failed to pay superannuation in relation to the applicant; and
(iii)required the applicant to take annual and sick leave during the course of the year without allowing these benefits to accrue;
(c)whether it is open to the Court to consider whether the respondent took adverse action against the applicant on 27 November 2018 when Mr Witwit directed her not to return to the respondent’s premises; and
(d)if (b) or (c) or both are answered in the affirmative, what directions, if any should be made for the Court to be in a position to hear the claims referred to in (b) or to consider the question in (c).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Ms Yalda, applies for relief under the Fair Work Act 2009 (Cth) (FW Act) against the Consulate General of the Republic of Iraq, Sydney (Consulate).[1] Ms Yalda, who is not legally represented, claims the Consulate contravened s 340(1) of the FW Act by dismissing her from her employment as a translator because she had made a complaint or enquiry in relation to her employment, or because she had initiated a bullying proceeding in the Fair Work Commission (FWC).
[1] In the application commencing the proceeding the respondent is named “Consulate General of the Republic of Iraq”, whereas in the Form 2 the respondent is named “Consulate General of the Republic of Iraq, Sydney”. That appears to be the correct title and, as I state at the end these reasons I propose to order that the name of the Consulate stated in the application be amended to read “Consulate General of the Republic of Iraq, Sydney”.
The Consulate accepts Ms Yalda was employed at the Consulate as a translator since 21 October 2011, and that her employment with the Consulate ended on 31 December 2018; but the Consulate denies it dismissed Ms Yalda. The Consulate claims Ms Yalda’s employment ended by effluxion of time in accordance with the terms of a contract of employment Ms Yalda signed on 1 May 2018 after the Consulate, by letter dated 27 November 2018, informed Ms Yalda that her contract of employment would not be renewed. The Consulate also accepts that in the course of her employment Ms Yalda had entered into contracts of employment with the Consulate, each for a fixed term, which the Consulate regularly renewed. The Consulate claims, however, it decided not to renew Ms Yalda’s employment after 31 December 2018 because in July 2018 Mr Witwit, the Consulate’s Acting Consul General, had decided that, in accordance with a policy directive from the Iraqi Ministry of Foreign Affairs (Ministry), the translation services Ms Yalda had provided in the course of her employment needed to be provided by an accredited translator, not by Ms Yalda who is not an accredited translator; and the Consulate wished to eliminate the financial burden of having to employ unqualified translators in circumstances where the Consulate was paying for qualified translators.
The principal questions I consider in these reasons for judgment, therefore, are whether the Consulate’s decision not to renew Ms Yalda’s contract of employment constituted “adverse action” within the meaning of s 342 of the FW Act and, if it did, whether the Consulate decided not to renew Ms Yalda’s employment “because” Ms Yalda had made enquiries or complaints in relation to her employment, or because she initiated a proceeding with the FWC. I will also address at the end of these reasons whether Ms Yalda arguably makes any additional claims under the FW Act. The Consulate submits the only claim Ms Yalda has made, and the only claim the Consulate came prepared to defend, is Ms Yalda’s claim based on the circumstances in which her employment with the Consulate ended.
There is one other set of issues; and these arise from the entity against whom Ms Yalda has brought this proceeding, namely, the Consulate. Ms Yalda and the Consulate assume the Consulate is a legal person that is capable of being sued, and that it is the Consulate that employed Ms Yalda. Further, the Consulate has not submitted the FW Act does not apply to it, and it has not raised any claim for immunity under the Vienna Convention on Consular Relations as incorporated into law in Australia by the Consular Privileges and Immunities Act 1972 (Cth) (Consular Convention). It will be necessary, however, to consider whether it is correct to dispose of the application on the premises that the Consulate is a legal person and, if so, that the Consulate is the person against whom Ms Yalda ought to have brought this proceeding. I will consider these issues later in these reasons. In the meantime, I will assume the Consulate is a person or body that is capable of being sued, and that it is the proper respondent to Ms Yalda’s claims.
APPROACH
The determination of the principal questions turns on findings of fact I make on the evidence. A significant area of inquiry, however, relates to two documents on which the Consulate relies. The first is a memorandum dated 10 August 2018 addressed to the Ministry (10 August 2018 memorandum). That memorandum purports to contain Mr Witwit’s recommendation that Ms Yalda’s employment, and the employment of another translator, Mr Al-Attar, not be renewed after 31 December 2018, and purports to record the reasons why their employment should not be renewed. The second document is a memorandum dated 1 November 2018 purportedly from the Ministry addressed to the Consulate (1 November 2018 memorandum) which the Consulate claims responded to the 10 August 2018 memorandum by authorising the Consulate not to renew Ms Yalda’s and Mr Al-Attar’s contracts of employment.
Ms Yalda submits (as does Mr Al-Attar in a separate proceeding he has brought against the Consulate) that the 10 August 2018 memorandum is an invention. By that I understand Ms Yalda to submit the 10 August 2018 memorandum was not created by Mr Witwit at the date on which or the purpose for which the memorandum represents it was prepared; it was not sent to the Ministry, if it was sent at all, on 11 August 2018; and, more broadly, it does not reflect any transaction or event that occurred before the Consulate decided not to renew Ms Yalda’s contract of employment. Ms Yalda did not expressly submit the 1 November 2018 memorandum is also an invention. Ms Yalda, however, in her cross-examination of Mr Witwit, asked questions that put in issue the authenticity of what purports to be the Arabic version of the 1 November 2018 memorandum. In any event, Ms Yalda’s submission that the 10 August 2018 memorandum is an invention necessarily calls into question the authenticity of a document – the 1 November 2018 memorandum – the Consulate claims was a response to the 10 August 2018 memorandum. Thus, an important question of fact is whether the 10 August 2018 memorandum and the 1 November 2018 memorandum are what the Consulate claims them to be.
I will proceed as follows. First, I will briefly describe the course of the hearing before me. Second, I will refer to some principles that are relevant to the assessment and weighing of evidence, and also to principles relating to the authentication of documents. Third, I will set out the evidence in narrative form, and in the course of doing so make findings of fact, including findings relating to the authenticity of the 10 August 2018 memorandum and the 1 November 2018 memorandum. Unless the context suggests otherwise, my stating in that section of my reasons without qualification a fact is to be taken to be a finding of the fact I state. I will then consider, on the basis of the findings I make, whether the Consulate has taken any adverse action against Ms Yalda and, if so, whether the Consulate did so in contravention of s 340(1) of the FW Act. Finally, I will consider whether there may be other issues that arise in the proceeding that may need to be determined.
COURSE OF HEARING
I heard Ms Yalda’s application for relief together with applications for relief under the FW Act two other former employees of the Consulate separately commenced in this Court. Those former employees are Mr Al-Attar and Mr Sultan, each of whom is also not legally represented. I heard the three matters together after I made orders in each proceeding to the effect that the evidence in each proceeding be evidence in all proceedings.[2] Each of Ms Yalda, Mr Al-Attar, and Mr Sultan read their affidavits and was cross-examined by Mr Fernon SC on behalf of the Consulate. The Consulate then led its evidence, which largely consisted of affidavits made by Mr Witwit; and he was cross-examined by each of Ms Yalda, Mr Al-Attar, and Mr Sultan. The cross-examination proceeded on the basis that Mr Al-Attar, Ms Yalda, and Mr Sultan would each direct his or her cross-examination of Mr Witwit to matters that concerned each of their claims, and that Mr Witwit would not be cross-examined about matters on which he had already been cross-examined. Ms Yalda, Mr Al-Attar, and Mr Sultan made oral submissions in their own cases. Mr Fernon SC then made submissions on behalf of the Consulate in relation to the claims made by Ms Yalda, Mr Al-Attar, and Mr Sultan.
[2] I made these orders on 14 August 2020.
SOME PRINCIPLES FOR ASSESSING EVIDENCE
I have set out elsewhere the approach I take to assessing testimonial evidence;[3] and I have attempted to follow that approach in the assessment of the testimony in this case. There are, however, two related sets of principles that are particularly relevant to assessing the authenticity of the 10 August 2018 memorandum and the 1 November 2018 memorandum.
[3] Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834, at [29]-[33], [37], [38]
Blatch v Archer
The first set of principles is that associated with the maxim Lord Mansfield stated in Blatch v Archer, namely, that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.[4] It has been observed that the maxim “is a fundamental precept of the adversarial system of justice, and is treated as axiomatic in the day to day operations of courts”.[5]
[4] Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63, at 65; 98 ER 969, at 970
[5] Russo v Aiello [2003] HCA 53, at [11] (Gleeson CJ). See also Henderson v Queensland [2014] HCA 52, at [91] (Gageler J)
The application of the maxim presupposes a disputed question of fact (contested fact) in relation to which one party bears the legal burden of proof (proponent). It also presupposes, however, that the proponent has adduced some evidence which is reasonably capable of proving the contested fact. If there is no such evidence, the court will simply find the proponent has not proved the contested fact. The maxim, therefore, can only come into play when the proponent has adduced some evidence that is reasonably capable of proving the contested fact (proponent’s evidence) and the court comes to consider the weight it should give to that evidence. Here the application of the maxim requires the court to consider up to two sets of questions.
The first set of questions is directed to the proponent: what evidence, or classes of evidence, is it reasonable to suppose is in the power of the proponent to produce to prove the contested fact? Has the proponent produced the best evidence it is reasonable to suppose is available to the proponent to produce to prove the contested fact? If the court is satisfied the proponent has produced the best evidence available to it, the maxim can have no further application to the proponent.[6] If, on the other hand, the court is satisfied the proponent has not produced the best evidence that it may reasonably be supposed is available to the proponent to adduce to prove the contested fact, it would be open to the court to infer that the reason the proponent did not produce the best evidence is there is no such evidence. That, in turn, may lead the court to place no weight on the evidence the proponent in fact adduces. The court might be entitled to draw an even stronger inference; the court might infer that the reason the proponent did not produce its best evidence is that the best evidence available to the proponent would be unfavourable to the proponent. This form of reasoning was referred to by Justice Nelson when delivering the opinion of the Supreme Court of the United States in Clifton v The United States:[7]
It is well observed by Mr. Evans, (2 Evan’s Pothier, 149), in substance, that if the weaker and less satisfactory evidence is given and relied on in support of a fact, when it is apparent to the court and jury that proof of a more direct and explicit character was within the power of the party, the same caution which rejects the secondary evidence will awaken distrust and suspicion of the weaker and less satisfactory; and that it may well be presumed, if the more perfect exposition had been given it would have laid open deficiencies and objections which the more obscure and uncertain testimony was intended to conceal.
[6] That, in fact, was the case in Blatch v Archer itself. The defendant submitted the plaintiff ought to have subpoenaed the defendant’s son to prove a certain fact, but Lord Mansfield held it “would have been most improper to have called the son”.
[7] Clifton v The United States 45 US (4 How) 242 (1846), at page 248
This form of reasoning was stated more concisely by Justice Stone when delivering the opinion of the Supreme Court of the United States in Interstate Circuit, Inc. v United States:[8]
The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse. . . . . Silence then becomes evidence of the most convincing character . . . .
[8] Interstate Circuit, Inc. v United States, 306 US 208 (1939), at page 226
A particular application of the maxim in Blatch v Archer occurs where the proponent fails to ask a witness it calls a question about a matter it is reasonable to suppose is within the knowledge of that witness. Handley JA considered that circumstance in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd:[9]
In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of Mr Ferrarese. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.
There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates “as the most natural inference that the party fears to do so”. This fear is then “some evidence” that such examination in chief “would have exposed facts unfavourable to the party”: see Jones v Dunkel…. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.
There is in fact extensive case law in the United States on this question although it is not referred to in Wigmore, Evidence, 3rd ed (1940). It may be found summarised in 5 ALR 2d, par 25 at 949-951. One of the leading cases is Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896), a decision of the Appellate Division of the Supreme Court of New York. The judgment of the Court was given by Follett J who said (at 276):
“In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favourable to the party … The existence of this rule is not disputed but it is urged that it is not applicable to this case because the daughter was produced as a witness, and that no presumption arises from the plaintiff's failure to interrogate her, that her testimony would have been unfavourable to him. I think the rule is as applicable to a case in which a party fails to interrogate a friendly witness, so situated as to be presumed to have knowledge of the existence or non-existence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favourable to the party's case is stronger than the one which arises from the failure to produce such a person as a witness.”
[9] Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, at pages 418-419. This is a more specific manifestation of the operation of the maxim stated in Blatch v Archer.
Although the particular issue Handley JA addressed in Ferrcom was the significance to be attached to not asking a witness in chief a question of a person who has been called to give evidence, what his Honour said applies to where a person is not called as a witness at all. That is clear from the passage of the judgment of Follett J that Handley JA quoted.
The second set of questions that may arise in the application of the maxim in Blatch v Archer is directed to the person against whom the evidence has been adduced (opponent): what evidence or classes of evidence is it reasonable to suppose it is in the power of the opponent to produce to contradict or explain away the proponent’s evidence? Has the opponent produced the best evidence it is reasonable to suppose is available to the opponent to produce? If the court is satisfied it is not reasonably within the power of the opponent to produce evidence that contradicts or explains away the proponent’s evidence, or the court is satisfied the opponent has produced all evidence it may reasonably be supposed to be in the opponent’s power to contradict or explain the proponent’s evidence, the maxim ceases to apply to the opponent. If, on the other hand, the court finds it is in the power of the opponent to produce evidence to contradict the proponent’s evidence, but the opponent fails to produce such evidence, or fails to produce the best evidence it may reasonably be supposed is available to the opponent, the court may show greater willingness to accept the proponent’s evidence and to draw all inferences that may reasonably be drawn on the basis of that evidence.[10] The court might even draw inferences that the reason the opponent did not produce such evidence is either because there is no such evidence or the evidence the opponent is in a position to produce in relation to the contested fact does not assist the opponent.
[10] This, in fact, is the process of reasoning that falls within the “principle” associated with Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Authentication
In the context of a litigated hearing “authentication” denotes a process associated with a proponent’s seeking to adduce a thing into evidence. Although not often acknowledged, “authentication” also describes a process that is associated with what a proponent does in relation to a thing after the thing has been admitted into evidence. The things to which “authentication” is associated may include physical objects, such as a knife or a stained garment; but documents are the most commonly encountered things parties seek to adduce into evidence, at least in civil proceedings. The process “authentication” denotes is the proponent adducing evidence and making submissions to a court that is intended to show that the thing the proponent seeks to adduce, or the thing that has been admitted into evidence, is what the proponent claims the thing to be.[11] If a court in its capacity of finder of fact accepts the thing is that which a party claims it to be, the thing is said to have been authenticated.
[11] See, for example, ASIC v Rich [2005] NSWSC 417, at [118]: “Authentication is about showing that the document is what it is claimed to be . . . .”
The need to show that the thing the proponent seeks to adduce into evidence is that which the proponent claims it to be is most readily felt in relation to things that are not documents; and that is because things that are not documents usually contain no writing or other information that represents the thing’s link to what the proponent claims the thing to be. That link must be supplied by evidence from a witness or witnesses, possibly in combination with other evidence. In that context, “authentication” in relation to a thing is the tendering of evidence, and the making of submissions on the basis of that evidence, that covers matters such as the circumstances in which the thing was created or first came into the custody of the proponent, whether the thing has remained in the custody of the proponent, whether anything has been done to the thing while in the custody of the proponent, and the circumstances in which the thing has been held in the custody of the proponent.
There are at least two reasons why the need for showing that a document is what the proponent claims it to be is less readily felt than is the case with things that are not documents. First, a document usually contains writing and often images that convey representations that, if accepted as accurate, would show the document is what the proponent claims it to be. This capacity of the contents of a document itself to satisfy a court that the document is what its contents represent the document to be is often described as “self-authenticating”; and a court finding that a document is that which it purports to be solely on the basis of its contents is often referred to as “self-authentication”. Second, the use of documents, and in particular documents generated by businesses, governments, and other organisations, is ubiquitous; and the documents that are used are generated by machines such as computers that are regarded as having a very high degree of accuracy and reliability, both in their ability to record information users intend to record on or through them, and in their ability to retain such information in the form in which the information was originally recorded. The consequence is that in many, and perhaps in the great majority of civil cases, a proponent adduces a document into evidence without objection from the opponent because the opponent is prepared to accept on the basis of the information contained in the document that the document is what information contained in it represents the document to be. In other words, in many cases, documents are admitted into evidence because the parties accept the documents are self-authenticating.
But it is not in every case that the opponent accepts a document is self-authenticating; and where that occurs, that is, where the authenticity of a document is put in issue, it is necessary for the proponent to prove the document (disputed document) is what the proponent claims it to be. It may cause confusion, however, not to appreciate that authentication occurs at two stages in the evidentiary life of a disputed document. The first stage is when the proponent seeks to adduce the disputed document into evidence. As with all evidence that a party seeks to adduce into evidence where the Evidence Act 1995 (Cth) (Evidence Act) applies, the proponent must show the disputed document is “relevant” within the meaning of s 55 of that Act; and that is because s 56(2) of the Evidence Act provides that evidence that is not relevant is not admissible.
The relevance of a disputed document depends on the combination of two things. The first is the contents of the disputed document and their links to issues in the proceeding. The contents of a document usually consist of language or images. The language or images may be relevant to an issue in the proceeding either because the proponent wishes to rely on the language or images testimonially, that is, as evidence of the truth of the matters the language or images may reasonably be taken to intend to represent; or the language and images may be relevant for some other reason. The second thing on which the relevance of a disputed document depends is whether there is some evidence on the basis of which it would be reasonably open to find that the disputed document is that which the proponent claims it to be. This relationship between the authenticity of a document and the relevance of the contents of a document is reflected in s 57(1) of the Evidence Act (emphasis added):
If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant:
(a) if it is reasonably open to make that finding; or
(b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.
When applied to documents, s 57(1) of the Evidence Act assumes that the authenticity of a document – that is, the quality of a document’s being what the proponent claims it to be – is or at least may be relevant to determining whether the disputed document is relevant under s 56(1) of the Evidence Act; and where the relevance of a document under s 56 of the Evidence Act depends on a finding that the document is what the proponent claims it to be, the court may find the document is relevant if it is reasonably open to make a finding that the document is what the proponent claims it to be.
That a disputed document has been admitted into evidence because the court has found it is relevant because it is reasonably open to find the document is what the proponent claims it to be does not mean the court as trier of fact must regard the document as being that which the proponent claims it to be. Subsection 57(1) of the Evidence Act only requires the court to determine, at the point questions of admissibility are raised, whether it is reasonably open to make a finding that the document is what the proponent claims it to be; it does not require or even authorise the court to find that the document is in fact what the proponent claims it to be. If the court finds it is reasonably open to find that the document is what the proponent claims it to be, and finds the document is relevant, whether the document is in fact what the proponent claims it to be is to be determined by the court in its capacity as trier of fact at the time the court considers all of the evidence that has been admitted into evidence and makes its findings of fact. The process by which the proponent seeks to persuade the court as a trier of fact that the disputed document is what the proponent claims it to be is equally to be described as “authentication”; and it constitutes the second of the two stages at which the process of authentication of a disputed document occurs.
That the question of the authentication of a disputed document occurs at two stages – at the stage of admissibility and at the stage of proof – has been noticed in cases under r 901(a) of the Federal Rules of Evidence 1975 (US) which, unlike the Evidence Act, expressly requires that an item be authenticated; and that this be done by requiring the proponent to produce “evidence sufficient to support a finding that the item is what the proponent claims it is”. In United States v Caldwell the Eleventh Circuit of the United States of Appeals Court of Appeals said:[12]
Authentication or identification under rule 901 merely involves the process of presenting sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be. Once that prima facie showing has been made, the evidence should be admitted, although it remains for the trier of fact to appraise whether the proffered evidence is in fact what it purports to be.
[12] United States v Caldwell 776 F2d 989 (11th Cir 1985), at page 1002
To similar effect is the following passage from the opinion of the United States District Court of Columbia in United States v Safavian:[13]
The question for the Court under Rule 901 is whether the proponent of the evidence has “offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is.”
If the common law rules of evidence applied, and the opponent did not accept a document to be that which the proponent claims it to be, the question of the document’s authenticity would have turned on the application of the ancient rule that, subject to exceptions, only the original of the document sought to be tendered would be admissible. As a matter of logic, proof that the document is an original could not have been supplied by the contents of the document itself. Proof had to be supplied by evidence that lay outside the contents of the document. The logical implications of the rule governing the admissibility of documents was summed up by saying that a document is not self-authenticating. That difficulty, however, is overcome by s 58(1) of the Evidence Act, which provides:
If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
In Australian Competition and Consumer Commission v Air New Zealand Ltd, Perram J held that “authenticity is not a ground of admissibility under the” Evidence Act; the question of authenticity does not “directly arise for the tribunal of law’s consideration at the level of objections to evidence”; and that, if “there is raised a question about the authenticity of a document . . . then there will be an issue in the proceedings about its authenticity”.[14] It is true that, unlike the Federal Rules of Evidence 1975 (US), the Evidence Act does not contain a provision that in terms requires that a document or thing be authenticated before it can be admitted into evidence. But s 57(1) and s 58(1) of the Evidence Act use the language of authentication; and a court must consider questions of the authenticity of a document if the opponent claims the document is not what the proponent claims it to be; and that objection is determined by the court considering, not whether the document is in fact that which the proponent claims it to be, but whether it is open to find that the document is what the proponent claims it to be. If the court answers that question in the affirmative, the document is admitted into evidence, but the question of the document’s authenticity remains open and is to be decided when the court considers all of the evidence before it makes its findings of fact.
[14] Australian Competition and Consumer Commission v Air New Zealand Ltd [2012] FCA 1355, at [92]
Blatch v Archer and authentication of computer generated documents
The maxim in Blatch v Archer has particular relevance to disputed documents that have been generated by computers.
It is has become a common place to observe that most information is recorded in digital form. But that commonplace is not generally reflected in the day to day practice of litigation: documents are usually adduced into evidence in the form of paper containing printed writing and images without any thought being given to the processes by which the writing and images have come to be recorded and stored in digital form, and then produced on the paper being tendered. That process, however, is well known, at least in general terms, because of the widespread use of personal computers; and this general knowledge may be treated as part of the common stock of knowledge to which the court in its capacity as a fact finder is entitled to have regard whenever the court is considering questions of authenticity in relation to a disputed document that has been generated from digital information.[15]
[15] As to the use of generalisations in fact finding see Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths, at [3200]-[3290]
Much of the commentary in relation to digital evidence addresses its vulnerability to tampering. My concern here, however, is not with tampering, but with digital information that as a matter of common knowledge is generated and stored by a computer in connection with the creation of the digital information that is the source of the words and images that appear on paper documents that are adduced into evidence. “Metadata” is the name given to such associated digital information. Tamberlin J described the nature of “metadata” in Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited:[16]
The expression “meta-data,” which is the subject of a substantial part of the claim for discovery in relation to electronic records, is a reference to electronic information created by and embedded in electronic documents in the form of electronic data. The term describes data contained within an electronic file relating to the identification, origin or history of the file itself. It is, in effect, electronic information about other electronic data. Meta-data can be used to ascertain the author and origin of a document, the existence of any attachments, and whether the document was sent or received by any particular individual. The information which is contained in the meta-data is not visible on a print-out of the relevant document, which shows only the face content and does not disclose the layers of electronic data beneath the visually readable information.
[16] Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802, at [11]
Where a disputed document is a computer generated document, it is reasonable to expect there is metadata readily available in relation to the document that identifies the document, and records its origins and history; and the proponent’s unexplained failure to provide such evidence of a disputed document’s metadata may be a reason for doubting the paper document that has been generated from digital data is what the proponent claims it to be.
EVIDENCE AND FINDINGS
Ms Yalda commenced her employment with the Consulate in Sydney on 21 October 2011 as a translator.[17] The Consulate classified Ms Yalda as a “locally engaged staff” (Local Employee), namely, a person who is either an Australian citizen or a permanent resident of Australia.[18]
[17] Affidavit M Yalda 29.01.2020, [1]; affidavit of M Yalda 17.02.2020; affidavit A M B Witwit 12.06.2020, [23]
[18] Affidavit A M B Witwit 12.06.2020, [18]
Consulate’s practice in engaging Local Employees
The Consulate engaged each Local Employee for a fixed term on the terms set out in a written contract. Within one month before a contract of a Local Employee was due to expire, the Consulate’s administration manager provided or arranged to provide a draft contract of employment to the Local Employee. If the Local Employee wished to renew his or her current contract of employment, he or she would sign the draft contract.[19] The contract as signed by the Local Employee was then provided to the “Head of Mission”, being the Consul General, or Deputy Consul General, or such other person who acted as Consul General.[20] The Head of Mission then considered and had the ultimate say in determining whether to renew the contract with the Local Employee.[21]
[19] Affidavit A M B Witwit 12.06.2020, [19], [20]
[20] See affidavit A M B Witwit 12.06.2020, [18], where Mr Witwit says that “Consulates” are referred to as “Missions”.
[21] Affidavit A M B Witwit 12.06.2020, [21]
According to Mr Witwit,[22] whose evidence on this point I accept, it was not the Consulate’s practice to renew automatically a Local Employee’s employment contract. The contracts of Local Employees who had performance issues, for example, would be renewed, if at all, only after the employee had a meeting with the Consul General, or Deputy Consul General, or the administration manager. Additionally, when considering whether to renew a Local Employee’s contract of employment, the Head of Mission “was also required to consider any limitations placed on the Consulate by the Ministry, for example, budget constraints and regulations”. After receiving feedback about the relevant Local Employee’s performance from his or her supervisor, the Head of Mission “then made the decision . . . either to renew or not to renew the employment contract”. The Head of Mission would signify the Consulate’s decision to renew the Local Employee’s contract of employment by signing the contract.
[22] Affidavit A M B Witwit 12.06.2020, [21], [22]
The general practice of renewing employment contracts with Local Employees, as described by Mr Witwit, was followed in relation to Ms Yalda. Before the end of the term of each contract Ms Yalda had entered into, someone from within the Consulate, typically the administration manager, provided Ms Yalda with a draft contract for a new fixed term. Ms Yalda understood that if she wanted to renew her employment contract she would have to sign the contract that had been provided to her and return it, generally, to the administration manager. Ms Yalda understood that after she signed the contract her employment would continue when the Head of Mission approved the renewal. Ms Yalda agreed this occurred “in respect of the various contracts” she had worked under.[23]
[23] 01.09.2020 T83.5-25
31 March 2018 – Ministry issues regulation for employment of Local Employees
On 31 March 2018 the Ministry issued a memorandum to all of its diplomatic and consular missions abroad titled “Subject: Regulations related to the employment of the local employees for the Year 2018”.[24] The memorandum states that “the regulations related to the local employees of the year 2016 and the circulars attached thereto” were cancelled, and that the “New Regulations of the year 2018 related to the local employees attached shall be approved as from the date indicated above”. The memorandum attached a document titled “Regulations regarding the Employment of Local Employees” (2018 Regulation). Clause 9 is particularly relevant:
The Committee on the Employment of Local Employees set up within the Mission shall examine the applicants for the job title “Translator” from the Arabic language to the Local language and vice versa with a view to assessing their qualifications. The Applicant shall hold a related university certificate.
[24] Exhibit AW-1, pages 35-41
In his affidavit Mr Witwit says “from the start of the 2018 Regulations, all translators were required to hold tertiary qualifications”.[25] That is not, however, what cl 9 of the 2018 Regulation says. It assumes there exists, or contemplates there should be established, in each consulate office a “Committee on the Employment of Local Employees”; it prescribes what such committee should do in relation to “applicants for the job title “Translator” from the Arabic language to the Local language and vice versa”; and it prescribes the qualifications an applicant for that position must have, namely, a “related university certificate”.
[25] Affidavit A M B Witwit 12.06.2020, [37]
There is evidence that suggests that persons in authority in the Consulate, including the Head of Mission, Ms Alesi, and Mr Witwit, did not understand or believe that the 2018 Regulation required the Consulate employ as translators only those persons who hold a “related university certificate”, or that it required the Consulate to replace employees who occupied the position of translators but who did not hold a “related university certificate” with persons who did hold a “related university certificate”.
First, there is no evidence there existed within the Consulate, or steps had been taken to establish, a “Committee on the Employment of Local Employees”. Second, as I set out later, the Consulate provided to Ms Yalda a draft contract of employment which she signed on 1 May 2018; and which the Head of Mission, Ms Alesi, signed on behalf of the Consulate on 27 June 2018. A draft contract of employment was also provided to Mr Al-Attar who signed it on 1 May 2018; and which Ms Alesi also signed on 27 June 2018. Like Ms Yalda, Mr Al-Attar was employed as a translator, and he too held no formal qualifications. Had the Head of Mission or any other person responsible for renewing Ms Yalda’s and Mr Al-Attar’s employment contracts believed or understood that the 2018 Regulation required the Consulate to employ as translators only those persons who hold a “related university certificate”, or that it required the Consulate replace employees who occupied the position of translators but who did not hold a “related university certificate” with persons who did hold a “related university certificate”, the Head of Mission would not have signed the employment contracts with Ms Yalda and Mr Al-Attar on 27 June 2018. Mr Witwit has given evidence, to which I refer below, that purports to explain why the Consulate employed Ms Yalda and Mr Al-Attar after the Consulate was notified of the 2018 Regulation; but, for reasons I give later, I do not accept that evidence.
Third, Mr Witwit gave evidence that after Ms Yalda’s and Mr Al-Attar’s employment ended by no later than 31 December 2018, employees of the Consulate holding no tertiary qualifications performed the translation roles that Ms Yalda and Mr Al-Attar had performed when they were employed by the Consulate:[26]
[26] 03.09.2020 T300.25-T301.35
HIS HONOUR: All right. Now, I have some questions, subject to any objection, of course. . . . . I’m just going to ask you to go to the – to page 155 of the court book, and that’s the regulation. So if you can go to clause 9. I asked you a question before but this is just something different. So have you got that in front of you? ‑‑‑ Yes.
As I read it, it assumes that a mission would have somebody who occupies a position of a translator. Is that how you would read it? ‑‑ Yes.
Yes. Does that mean that . . . when [Ms Yalda] ceased her employment, to use a neutral term, did the consulate have a position called translator? ‑‑‑ Yes.
And when was that position filled? ‑‑‑ Not till now.
Not till now. So now ‑ ‑ ‑? ‑‑‑ Your Honour, two positions ‑ ‑ ‑
All right. Two positions?‑‑‑ ‑ ‑ ‑ because ‑ ‑ ‑
Well ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ there was more – we have Ms Yalda and Mr Al-Attar.
All right?‑‑‑Both of them are translators.
Yes. But they ceased their employment [at] the end of 2018? ‑‑ Yes. Until now we didn’t find someone qualified to fill those spaces ‑ ‑ ‑
So who has been doing ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ as in – as – as a qualified translator.
So translation is done in the consulate but by a person who’s not qualified; is that right?‑‑‑In accordance with – with – if it was needed to be from qualified translator, we translate outside the consulate.
Yes. All right. But I think you’ve accepted that while Ms Yalda was there translating – while she was there she did translation work. Same with Mr Al-Attar?‑‑‑Yes.
Did anyone do the job that Ms Yalda was doing after she ceased her employment?‑‑‑Your Honour, yes, we have.
Yes, yes. And that has been the case from then until now; is that right?‑‑‑Yes.
And your case is the reason you – well, the reason you give for not renewing the contract is that Ms Yalda and Mr Al-Attar was not qualified – was not a qualified translator, but for the last 18 months you’ve been using a translator who’s not qualified; is that right?‑‑‑Excuse me.
Yes?‑‑‑Could you repeat that.
. . . . What I’m saying is I understand that the reason you say you did not renew the contract of Ms Yalda and Mr Al-Attar is that they were not qualified. They didn’t have the appropriate qualifications?‑‑‑In accordance with the regulations.
Yes?‑‑‑Yes.
But the job that they were doing as translator has still – is still being done and has been done by translators who are not qualified; is that right?‑‑‑The – the parts that don’t need to be ‑ ‑ ‑
Right?‑‑‑ ‑ ‑ ‑ qualified, yes.
Right. But if all the translation that Ms Yalda did, or Mr Al-Attar – I don’t know anything about Mr Al-Attar, but Ms Yalda, that job is – was being done – is being done by somebody else in the embassy; is that right?‑‑‑Yes.
Had those with authority to engage employees on behalf of the Consulate believed or understood that the 2018 Regulation required the Consulate employ as translators only those persons who hold a “related university certificate”, or that it required the Consulate replace employees who occupied the position of translators but who did not hold a “related university certificate” with persons who did hold a “related university certificate”, they would not have authorised the Consulate to employ or maintain in its employment persons to act as translators who did not hold tertiary qualifications.
Fourth, the evidence suggests that the Consulate engaged external translators, if at all, only to a very limited extent. I will set out that evidence later in these reasons when I consider a statement contained in the 10 August 2018 memorandum in which it is asserted the “Mission is bearing financial burdens out of using the services of the licensed and accredited Translation Offices”.
I find that at no time did Mr Witwit, or the Head of Mission, Ms Alesi, or any other person who had authority on behalf of the Consulate to renew or terminate contracts of employment with Local Employees, understand or believe that the 2018 Regulation required the Consulate to employ as translators only persons who hold a “related university certificate”, or that it required the Consulate to replace employees who occupied the position of translators but who did not hold a “related university certificate” with persons who did hold a “related university certificate”.
1 May 2018 – Ms Yalda signs employment contract
On 1 May 2018 Ms Yalda signed another contract of employment. Given the practice by which the employment contracts of Local Employees were renewed, I find that the administration manager provided or arranged to provide to Ms Yalda a draft of the contract she signed by no earlier than one month before 30 April 2018, being the day on which the employment contract Ms Yalda signed on 1 May 2017 was due to expire.[27] There is no evidence there was any performance issue relating to Ms Yalda; and the Head of Mission, Ms Alesi, signed the contract on 27 June 2018.
[27] Exhibit AW-1, pages 19-26
Mr Witwit has given evidence about the reason why Ms Yalda’s contract was set for a term of eight months, rather than for one year. Mr Witwit says that in around May 2018, when he was in the role of Deputy Consul-General, he was not involved in authorising Ms Yalda’s employment contract. Mr Witwit says, however, that at around that time Ms Alesi, the Head of Mission, informed Mr Witwit that Local Employee contracts, including the contract in relation to Ms Yalda, were only going to be renewed for an eight month term. Mr Witwit says he recalls discussing “this matter with Ms Alesi in a number of meetings”. Ms Alesi said words to the effect that the reason contracts were being renewed for eight months “was due to the fact that the 2018 budget for the Consulate had been set earlier that year and, notwithstanding the Ministry changed its guidelines for the employment of [Local Employees] in March 2018 . . . there were sufficient funds in the budget to accommodate the local employees’ salaries, including Ms Yalda’s salary, for the remainder of the calendar year”.[28]
[28] Affidavit A M B Witwit 12.06.2020, [30]
Mr Witwit, however, has also given evidence which I understand is intended to explain why Ms Yalda’s contract was renewed on 27 June 2018 in circumstances where, according to Mr Witwit, the 2018 Regulation required translators whom the Consulate employed to have tertiary qualifications, but Ms Yalda did not have such qualifications. Mr Witwit’s evidence is as follows:[29]
When Ms Yalda first started working at the Consulate it was not a requirement of the Ministry that translators hold tertiary qualifications. However, from the start of the 2018 Regulations, all translators were required to hold tertiary qualifications and Ms Yalda did not meet this requirement when the 2018 Regulations were issued by the Ministry. I was in the role of Deputy Consul-General and (as stated above) I was informed by the then Consul-General that the budget for the 2018 year had already been set before the 2018 Regulations were issued and that there was sufficient budget for Ms Yalda’s salary to the end of the year. It was in that context I was informed that Ms Yalda’s contract was renewed for 8 months to the end of the calendar year.
[29] Affidavit A M B Witwit 12.06.2020, [37]
There are a number of observations that may be made about Mr Witwit’s evidence. First, on his own evidence, Mr Witwit was not involved in authorising Ms Yalda’s contract of employment. According to the ordinary course of renewing contracts of employment of Local Employees, a draft contract was provided to the Local Employee by the administration manager; and, once signed, the decision whether to renew the contract on the terms signed by the Local Employee rested with the Head of Mission or some other person who had authority to act for or as the Head of Mission. In the case of Ms Yalda’s contract of employment, that decision rested with, and was made by, the Head of Mission, Ms Alesi. In those circumstances, there is nothing to suggest there would have been any occasion on which Ms Alesi, the Consulate’s Head of Mission, would have had any discussion with Mr Witwit about the renewal of Ms Yalda’s employment contract in particular.
Second, Mr Witwit’s evidence reports what he says Ms Alesi said to him about why Ms Yalda’s employment contract had been set for a term of eight months; and I read Mr Witwit’s evidence as intending to imply that Ms Alesi decided to renew Ms Yalda’s contract of employment, notwithstanding Ms Yalda’s not being a translator who meets the requirements of what Mr Witwit says is the effect of the 2018 Regulation, because there were sufficient funds in the budget to maintain Ms Yalda’s employment until the end of 2018. Counsel for the Consulate in fact submits, on the basis of Mr Witwit’s evidence, that that is the reason Ms Yalda’s employment contract as a translator was renewed, notwithstanding her not meeting the requirements of what Mr Witwit says is the effect of the 2018 Regulation. There are three difficulties with this submission.
(a)Mr Witwit does not report statements by Ms Alesi to the effect that she was aware of the 2018 Regulation; that she understood the 2018 Regulation to require the persons whom the Consulate employed as translators must hold a tertiary qualification; or that she approved the renewal of Ms Yalda’s employment as a translator, notwithstanding her not holding any tertiary qualification, because there was money in the budget to pay for Ms Yalda’s employment up to 31 December 2018.
(b)The Consulate has not called Ms Alesi to give evidence; and it has given no explanation why Ms Alesi has not been called. In the absence of any evidence from Ms Alesi I am not prepared to infer that Ms Alesi decided to renew Ms Yalda’s employment, notwithstanding Ms Yalda’s not being a translator who meets the requirements of what Mr Witwit asserts is the effect of the 2018 Regulation, because there were sufficient funds in the budget to maintain Ms Yalda’s employment until the end of 2018.
(c)That there was money available in the budget to pay for Ms Yalda’s employment until 31 December 2018 is incapable of rationally reconciling a state of affairs stated by Mr Witwit, namely, that the 2018 Regulation required, or those within the Consulate who had the authority to employ Local Employees believed or understood the 2018 Regulation required, that the Consulate employ as translators only persons who held tertiary qualifications, and the Consulate’s nevertheless deciding to engage Ms Yalda and Mr Al-Attar, persons who did not hold a tertiary qualification. If, in truth, the 2018 Regulation required the employment of Local Employees who were qualified translators, the Consulate would have used money provided in the budget to engage Local Employees who were qualified translators or to engage external qualified translators; or, to the extent the budget was not sufficient, the Consulate would have sought to increase the amount that had been budgeted for the engagement of qualified translators.
Relevant to the third difficulty is the following evidence Mr Witwit gave:[30]
HIS HONOUR: All right. So can I just then ask you to go to paragraph 38 of your affidavit – sorry – paragraph 37. You say there that you were informed by the Consul-General that the budget for the 2018 year had already been set and there was sufficient budgets for Ms Yalda’s salary to the end of the year, and that’s what you understood to be the explanation for her contract being renewed ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ after there came into effect ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ a requirement that there be a qualified translator?‑‑‑Yes.
Well, couldn’t that budget have been used to, in effect – you may not want to – well, can’t answer that. That’s appropriate. Wasn’t that budget available to engage some other qualified interpreter or not?‑‑‑Sorry, your Honour. I didn’t understand your question.
Well, you say there was a budget for Ms Yalda’s employment in place, and that’s the explanation you give in your affidavit for saying her contract was renewed even though she was not qualified. Do you understand?‑‑‑Yes.
What I’m saying is wasn’t that budget available to actually engage a qualified interpreter or not?‑‑‑No. Because the – the – the position was already being occupied as – as a number of staff by Ms Yalda and Mr Al-Attar.
All right?‑‑‑So we – we couldn’t hire or afford to appoint a new translator that we don’t have a spot for him.
All right. . . . .
[30] 03.09.2020 T301.40-T302.15
Ms Yalda seeks an order that the Consulate pay a pecuniary penalty, and she also claims an order for compensation.
In her application Ms Yalda claimed damages that included lost wages for two years. Ms Yalda says, however, that she commenced employment with another employer on 26 July 2019.[122] Ms Yalda gave evidence that she receives $1,800 every fortnight into her bank account. Thus, her wages, net of tax and superannuation contribution, is $1,800 per fortnight.
[122] 04.09.2020 T446.10
Principles
To determine whether an applicant has suffered economic loss because of a contravention of a civil remedy provision of the FW Act, two sets of circumstances must be compared.[123] Where it is not alleged that an applicant failed to mitigate his or her loss, one set of circumstances is actual, and the other is hypothetical. The actual circumstances are those in which the applicant finds himself or herself at the date compensation is fixed or at some earlier appropriate date. The second, and hypothetical, circumstances are the financial position in which the applicant would have found himself or herself at the relevant time had the employer not contravened a civil remedy position. If, after these two positions are identified, the applicant’s actual financial position is less favourable than the hypothetical financial position, compensation will be fixed in an amount that reflects the difference between the two positions. That is, compensation will be fixed in such amount as will put the employee in, or substantially in, the position he or she would have been, had the employer not contravened a civil remedy provision.
[123] I substantially repeat here what I said in Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771, at [87] and [88]
There will usually be little difficulty in determining an applicant’s actual financial position. That will be a matter of history, most of the traces of which will be captured in documents. It is another matter to determine the hypothetical position. Here, judgments must be made, often on the basis of incomplete evidence. That will usually give rise to a range of plausible hypothetical financial positions against which to compare the applicant’s actual financial position and, hence, a range of amounts that it may be reasonable to assess as compensation. Nevertheless, an applicant bears the onus of adducing evidence from which the court can rationally infer a relevant hypothetical position.
Determination
The Consulate submits that, assuming Ms Yalda establishes the Consulate dismissed her from her employment, Ms Yalda should be entitled to no more than four weeks’ worth of wages because her employment could and would have been lawfully terminated.[124] This submission is based on the premise that Ms Yalda “was no longer regarded as qualified to undertake the role of ‘translator’ within the Consulate”.[125] In light of my findings, that premise is incorrect, and compensation cannot be assessed on the assumption that the Consulate would not have decided to renew Ms Yalda’s employment after 31 December 2018 because she was not a qualified translator.
[124] Respondent’s Outline of Submission for hearing on 7 September 2020, [59], [60], relying on Willis Australia Group Services Pty Limited v Mitchell-Innes [2015] NSWCA 381, at [117]-[121]. Those passages are authority for the proposition that in assessing damages for repudiation by an employer of an employment contract where the employer could have lawfully terminated the contract on notice, damages are to be assessed having regard to an assessment of the probability that the employer would have in any event have terminated the contract on giving notice.
[125] Respondent’s Outline of Submission for hearing on 7 September 2020, [60]
I have found that, after 31 December 2018 the Consulate employed persons who were not qualified translators to perform the work Ms Yalda had performed before 1 January 2019; and that remained the position at the time of the hearing before me in September 2020, some twenty one months after the Consulate notified Ms Yalda that her contract of employment would not be renewed. Ms Yalda’s contract of employment had been regularly renewed since she commenced employment with the Consulate on 21 October 2011; and there is no evidence that the Consulate had any concerns with Ms Yalda’s capacity to perform the work she had been employed to perform. The Consulate does not claim Ms Yalda’s not having found other employment until 26 July 2019 was due to her failing to do that which it was reasonable for her to do to find alternative employment. It is therefore open to me to find, and I do find, that had the Consulate not decided not to renew Ms Yalda’s contract of employment: the Consulate would have provided Ms Yalda with a draft contract of employment covering the year 1 January to 31 December 2019 on the same or substantially the same terms of the contract for employment that was due to expire on 31 December 2018; Ms Yalda would have signed the draft contract and given it to the administration manager, thus signifying she would wish to work with the Consulate for the term specified in such contract; the Consulate would have signed the contract without any further need to have any discussion with Ms Yalda; and Ms Yalda would have continued her employment with the Consulate for the term of the contract.
In light of these findings, I am satisfied that the fair measure of Ms Yalda’s economic loss is an amount that reflects wages she would have earned with the Consulate, had she remained in employment with the Consulate up to and including 25 July 2019, inclusive of interest. I will not, however, make an order for compensation until I hear further submissions about the denomination in which the order for compensation should be expressed. That is necessary because the Consulate paid Ms Yalda wages in amounts denominated in United States dollars.
OTHER ISSUES
In her Form 2 Ms Yalda claims the Consulate failed to pay her superannuation, it did not provide her with payslips, and the Consulate required Ms Yalda to take all annual and sick leave during the course of the year without allowing these benefits to accrue. As I noted at the beginning of these reasons, the Consulate submits these were not claims it had come prepared to defend. In my view, it is reasonably arguable that these are claims Ms Yalda makes in the proceeding.
In her Form 2 Ms Yalda also claims the Consulate did not provide her with group certificates, it did not pay tax on her income, and it did not increase her salary. Ms Yalda also claims her pay was suspended. The first two of these claims do not raise any arguable claim of contravention of any provision of the FW Act. As for the third of these claims, Mr Witwit has given evidence the Consulate briefly suspended the payment of Ms Yalda’s salary because she had not provided a medical certificate explaining her absence.[126] I am not satisfied this raises any arguable claim of contravention of any provision of the FW Act.
[126] Affidavit A M B Witwit 12.06.2020, [50.c]
Finally, there is an issue I raised at the hearing with counsel for the Consulate, and that is whether Mr Witwit’s directing Ms Yalda on 27 November 2018 not to return to the Consulate to perform what remained of her contract of employment constituted adverse action within the meaning of s 342 of the FW Act.
DISPOSITION
I propose to make a declaration to the effect that by the Consulate notifying Ms Yalda by its letter dated 27 November 2018 that it would not renew Ms Yalda’s contract of employment the Consulate contravened s 340(1) of the FW Act. I also propose to list the matter for directions at 9:30 am on 26 March 2021 for the purpose of fixing at that directions hearing a time and day to hear submissions on:
(a)the denomination in which the order for compensation should be expressed;
(b)whether it is open to me to consider whether Ms Yalda claims that the Consulate:
(i)failed to provide Ms Yalda payslips;
(ii)failed to pay superannuation; and
(iii)required Ms Yalda to take annual and sick leave during the course of the year without allowing these benefits to accrue;
(c)whether it is open for me to consider whether the Consulate took adverse action against Ms Yalda on 27 November 2018 when Mr Witwit directed Ms Yalda not to return to the Consulate; and
(d)if (b) or (c) or both are answered in the affirmative, what directions, if any should be made to be in a position to hear the claims referred to in (b) or the question referred to in (c).
It will also be necessary, at some stage, to set the matter down for hearing on the question of penalty.
Finally, the name of the Consulate in the application Ms Yalda filed is stated to be “Consulate General of the Republic of Iraq”. The correct name is “Consulate General of the Republic of Iraq, Sydney”. I propose to order that the name of the Consulate stated in the application be amended to read “Consulate General of the Republic of Iraq, Sydney”.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 19 March 2021
[13] United States v Safavian, 435 FSupp2d 36 (DDC 2006), at page 38
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