This is an application by an Amended Notice of Motion ("Motion") filed in Court today by the defendant, State of New South Wales, for an order in the following terms:
"An order pursuant to s 67 of the Civil Procedure Act 2005 that the proceedings be stayed pending the final determination of the plaintiff's claim Supreme Court New South Wales proceedings numbered 2020/356588 (including the determination of any appeal) or until otherwise ordered by the Court."
The defendant also seeks its costs of the Motion.
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Background
To understand the context of the Motion, it is necessary to note that the numbered proceedings referred to in the order are representative proceedings in this Court brought by Dr Amireh Fakhouri against the State of NSW (the "representative proceedings"). In the representative proceedings, Dr Fakhouri claims that NSW Health has contravened the applicable Public Hospital Medical Officers State Award (the "Award") and that she was underpaid her entitlements in respect of unrostered overtime, rostered overtime, unpaid meal breaks and paid meal breaks.
The representative proceedings allege that those contraventions of the Award occurred whilst she was a junior medical officer working either at the Western Sydney Local Health District ("WSLHD") or, alternatively, at the Children's Hospital at Westmead, which I note is part of a different network to the WSLHD. Being a representative proceeding, there is a large, and as yet undetermined, number of junior medical officers who would be group members of those proceedings.
The present proceedings (the "ASMOF proceedings") is a suit which the Australian Salaried Medical Officers Federation (NSW) ("ASMOF") brings, alleging that NSW Health has contravened the Award and underpaid the entitlements of 54 identified employees in respect of unrostered overtime and unpaid meal breaks. Other claims are made about breaches of the Award which may not give rise to specific amounts by way of underpayment to the specified employees.
The ASMOF proceedings cover underpayments at 48 different hospitals in 16 different Local Health Districts, including the Sydney Children's Hospital Network.
The representative proceedings have been fixed for hearing in May 2024. This Court has determined that Dr Fakhouri's claim will be heard in its entirety and that certain other questions will be determined as being common questions provided that, at the conclusion of the evidence, the trial Judge is satisfied that the answers to those questions are common to some, or all, or none of the group members. The determination of those questions was undertaken by this Court in a judgment which addressed that issue under the rubric of orders that are referred to as "Merck orders" (after the decision of Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; (2009) 355 ALR 20): see Fakhouri v NSW Ministry of Health [2023] NSWSC 808. The State, in the ASMOF proceedings, argues that the answers to these questions will be of guidance in the determination of the ASMOF proceedings.
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Submissions
The submissions of the parties are comprehensively captured in written outlines of submissions, and I note that I have paid careful attention to all of their submissions, written and oral.
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State's Submissions
The submissions of the State commenced with the proposition that the Court is confronted with a position analogous to the circumstances in Wigmans v AMP Limited (2021) 270 CLR 623; [2021] HCA 7. That was a case involving a number of representative proceedings which had been commenced both in this Court and in the Federal Court of Australia.
After a number of steps were taken, the issue to be considered by the High Court was whether, in respect of five open class representative actions commenced against the same defendant in relation to the same controversy, there were any rules or presumptions, or other matters to be considered in procedurally resolving what was described as a multiplicity of proceedings.
In Wiggins, the High Court noted that the multiplicity of proceedings of the kind with which the Court was dealing was not to be encouraged, and that in principle such multiple proceedings may be inimical to the administration of justice: at [106]. The joint judgment of Gageler, Gordon and Edelman JJ considered what factors may be of relevance.
In addition to the risk of the multiplicity of proceedings, their Honours identified three other matters. First, that the "first-in-time" rule, or presumption that the first matter filed ought be favoured, was not an absolute rule and may have varying degrees of relevance and importance depending upon all of the circumstances.
Secondly, that in considering whether or not to grant a stay of one or other proceeding, it is important to consider the breadth of the mandatory and discretionary considerations in Part 6 of the Civil Procedure Act 2005, all of which inform the power to grant a stay. And finally, their Honours noted that the factors which might be relevant could not be listed exhaustively because they would vary from case to case.
The State drew attention to the judgment of Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287 ("Sterling"). At page 291, his Honour listed a series of matters which may be regarded as relevant considerations to be taken into account Which the State submitted were equally relevant in the present circumstances.
In particular, the State noted the second last matter listed by Lockhart J was that "… The law should strive against permitting the multiplicity of proceedings in relation to similar issues". I note that what fell for decision in Sterling was the existence of identical cases being fought between identical parties at the same time in the courts in New Zealand and in Australia.
The essence of the stay proposed by the State envisages that these proceedings are to be put into a "state of hibernation" with nothing at all to occur until a time in the future, which is not capable of precise identification, but which will arrive once the representative proceedings have had their initial hearing, judgment has been delivered and answers to such of the common questions have been formulated as the Court considers appropriate, followed by the exhaustion of available avenues of appeal with respect to that judgment.
The State points to several matters as being of particular importance which, in combination, it submits, warrant the stay order being made. The State, as I have said, commences with the proposition that it is not in the interests of justice and as a matter of principle, it is inimical to the interests of justice to have a multiplicity of proceedings. The State points to the potential for inconsistent verdicts or judgments if the ASMOF proceedings do not await the final outcome of the representative proceedings. Undoubtedly, such a potential exists.
The State points to, on the one hand, the fact that the representative proceedings were filed first in point of time, and are advanced in their preparation and are fixed for trial. On the other hand, the State points to the fact that the ASMOF proceedings are still in the preparatory stage, which includes the service of evidentiary statements and the like. I accept that the representative proceedings were first in time and are at a more advanced stage.
The State points to the duplication of the work which it is obliged to undertake, together with the magnitude of that work in preparing for both the representative proceedings and the ASMOF proceedings as being "highly and unduly oppressive". Whilst I accept that the evidentiary burden of defending these claims has involved obtaining statements from a significant number of witnesses, I do not regard the size or complexity of the work, including any duplication of it, as being highly and unduly oppressive.
The State also submits that a stay will promote the efficient use of judicial and Court time. Further, it submits that, accepting some delay to the ASMOF complainants, the delay is no different from and is the equivalent of the delay to all of the group members in the representative proceedings and that such delay will be likely to occur in any event, particularly where all of the identified employees in the ASMOF proceedings wish to have their claims determined together.
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ASMOF's Submissions
ASMOF submits that the multiplicity of proceedings approach is an inappropriate analogy because the ASMOF proceedings have important differences in the relief sought when compared to the representative proceedings. In particular, ASMOF points to the importance to it and the public generally of establishing the facts of breaches of industrial awards and obtaining the relevant declarations which are sought.
As a matter of ordinary and conventional procedure, and the application of case management principles, ASMOF submits that there is no warrant to stay these proceedings. It submits that a stay for an indeterminate period in the hope that guidance will be provided by the representative proceedings without any estoppel being created is an unsound basis upon which to further the overriding purpose in s 56 of the Civil Procedure Act. ASMOF submits that considerable prejudice would occur to it and the identified employees because of the delay in having their claims determined and that such delay in having these proceedings brought to a hearing would be contrary to the purpose set out in Part 1 of Chapter 7 of the Industrial Relations Act 1996.
It also submits, but I do not accept, that a delay in these proceedings will undermine the opt out rights created by Part 10 of the Civil Procedure Act for individuals who choose to opt out of representative proceedings.
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Discernment
It is necessary to determine these competing submissions. This matter is to be determined, as I see it, by identifying what case management course is in the interests of justice, having regard to the interests of the parties to the proceedings, including any prejudice to them. Any order of the kind in question must be considered in the statutory context of Part 6 of the Civil Procedure Act which provides for case management principles and the exercise of powers of the Court. Section 56(2) of that Act provides that this Court must seek to give effect to the overriding purpose when it exercises any power given to it by the Civil Procedure Act. This is such an occasion.
The overriding purpose of the Civil Procedure Act is found in s 56(1). It provides that the overriding purpose and the rules of court in civil proceedings is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings".
Relevant to the provisions of ss 56(1) and (2) are the objects of case management which are found in s 57 of the Civil Procedure Act, including s 57(1)(c), namely the efficient use of available judicial and administrative resources, and s 57(1)(d), namely the timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the respective parties.
I also note that the provisions of s 59 call for the elimination of delay. That is, the procedure of the Court should be implemented "with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for interlocutory activities is a provision of relevance".
Within that statutory context, which must be taken into account, the State is faced with both a representative proceeding and this ASMOF proceeding. I accept that there is a broad similarity in the subject matter of these claims, although arguably the claims being made in the representative proceedings are broader than those in the ASMOF proceedings. I also accept that the task falling on to the State involves a significant exercise of evidence gathering to meet the claims about the underpayment of junior medical officers. However, it is to be noted that it is a matter of public knowledge that NSW Health is the largest public agency employer in NSW. Claims arising out of a systemic failure to pay the correct salary or wages to staff in the respects alleged can be expected to be complex and burdensome, and to involve a significant number of individuals.
I do not think that any significant weight can be placed on which proceedings were commenced first, although the stage of the progression of the proceedings is of relevance. The risk of inconsistent judgments in the two proceedings, unless a stay is ordered, is, in my assessment, minimal at best and, realistically, likely to be non-existent. The fact is that it is most unlikely that the present proceeding will be able to be heard before the last quarter of 2024, having regard to the interlocutory steps, including preparation, the service of evidence and the shape of any trial.
Having regard to all of the other matters to which reference has been made, and considering the entirety of the matters before me, I refuse the order sought. Principally I do so because the delay envisaged by the order is likely to be considerable. Whilst it is undefined, a reasonable assessment would suggest that any finalisation of the representative proceedings of the kind the State relies upon is at least two years away from now, if not longer. After that period, the parties would then need, having emerged from hibernation, to recommence preparation for a hearing in this matter which, as I have just indicated, would be likely to occupy a period of a further 12 months or so. Such an undefined delay involving at least three years is not consistent with the statutory context of Part 6 of the Civil Procedure Act and, in particular, with the overriding purpose set out in s 56.
The effect of the order for a stay would also preclude sensible case management steps being taken of a kind which might see, through by way of example a Part 28 separate question procedure, ASMOF participating meaningfully in the determination of the common questions defined by the Merck orders during the representative proceedings hearing, and obtaining the benefit for both parties in these proceedings of having the answers to those questions, insofar as they are common, constituting binding findings in this proceeding also.
Further, the efficient use of time by the State to gather and prepare evidence to meet the evidence already filed by ASMOF in this case, which consists of 22 affidavits, will be lost if a stay is granted. The exploration of other case management orders, which would seek to give effect to the overriding purpose of the Civil Procedure Act in the context of this case by, for example, identifying possible sample group members, agreeing on how a case may be tried efficiently and when such a case could be heard would also be lost if a stay was granted.
Finally, the granting of a stay as envisaged by the State would put a halt on the capacity, having regard to the preparatory state of the proceedings, of the parties to engage in any meaningful mediation or conciliation process of an appropriate kind, because the parties will not have factually explored the basis of the claims which are advanced in these proceedings.
I recognise that in coming to this conclusion there will necessarily be some prejudice to the State, particularly in terms of cost, time and resources. However, the cost, time and resources are likely to be needed to be engaged in, in any event, and particularly more likely to be engaged in if there is no binding finding arising out of the determination of the representative proceedings.
I also have to weigh this consideration up against the consequences of the delay to ASMOF and the individual claimants which it has nominated. I do not think that there is a complete equality between the group members in the representative proceedings and the specified employees in the ASMOF proceedings. Of course, they are all junior medical officers and they are making claims for unpaid wages or entitlements, but the nominated employees in the ASMOF proceedings have chosen to disengage from the representative proceedings and have sought to rely on ASMOF to propound their individual claims to the full extent possible. I do not think, therefore, that one can simply say there is no prejudice to those specified employees by the delay in the proceedings or, if there is, it is no different from the group members. Group members are entitled to stay anonymous. They are not required to do anything to progress their claims. Accordingly, the specified employees in the ASMOF proceedings are in quite a different position to the group members in the representative proceedings.
Balancing all of those considerations and for the reasons provided above, which I accept are relatively brief and do not discuss at length all of the submissions made, I would dismiss the Motion.
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Orders
I make the following order:
1. Dismiss the Amended Notice of Motion filed 19 July 2023.
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Decision last updated: 14 August 2023
Parties
Applicant/Plaintiff:
Australian Salaried Medical Officers Federation (NSW)