Mr P Ginters - Respondent
File Number(s): 2016/58214 (formerly IRC 247 of 2015)
[2]
Judgment
These proceedings concern an application by Mr Benjamin Creighton ("the applicant") for a temporary stay of proceedings commenced on 22 April 2015 in 2016/58214 (formerly IRC 247 of 2015) pursuant to s 84 of the Industrial Relations Act 1996 ("the Act").
Directions for arbitration of the matter were made on 26 May 2015. However, that time table was extended on 4 August 2015 by consent on the grounds that the applicant was awaiting the outcome of his Working with Children Check Clearance ("a clearance") application made to the Office of the Children's Guardian ("OCG") in or around August 2014. The OCG had earlier advised the applicant that his application for a clearance was subject to a risk assessment. The applicant requires a clearance to enable him to work with children.
For present purposes, it is sufficient to note that the Department of Education and Communities ("the respondent") dismissed the applicant for breach of the respondent's Code of Conduct. The nature of that breach was misconduct as determined under the Teaching Service Act 1980.
The applicant is seeking reinstatement or redeployment with the respondent.
On 6 November 2015, the OCG advised the applicant a decision had been made to refuse his application for a clearance. That decision is subject to review by the NSW Civil and Administrative Tribunal ("NCAT"). Counsel for the applicant estimated the NCAT proceedings would take at least six months to conclude.
The applicant seeks a temporary stay of the Commission proceedings pending the outcome of the proceedings on foot before NCAT. It is not be possible for him to be reinstated or re-employed by the respondent without a clearance.
In the event the Commission granted the temporary stay, the applicant was prepared to give the respondent an undertaking that if he was successful in his s 84 application, any order for lost remuneration would exclude the period commencing from the date of this application and the date the stay is dissolved. The applicant also gave an undertaking that he would discontinue the s 84 proceedings should his application before NCAT fail.
The applicant submitted that the Commission and NCAT proceedings, with the exception of their procedural fairness aspects, cover the same or similar issues. Should the NCAT proceedings be unsuccessful, the s 84 application will be discontinued and the respondent will incur no further legal expense. Accordingly, there is a public interest consideration in favour of the Commission granting the stay.
It was the applicant's case that the NCAT proceedings were well advanced with substantial evidence, including an expert forensic psychiatrist's report. The applicant also asserted the evidence to be relied upon in the s 84 proceedings was largely the same as that relied upon before NCAT, including the expert evidence.
The granting of the stay will avoid unnecessary duplication of some or all of the evidence and avoid the undesirability of two quasi-judicial bodies making inconsistent findings on the same evidence.
The respondent will suffer no prejudice as a result of the stay being granted given the applicant's undertakings. However, should the applicant be required to conduct two separate proceedings concerning substantially similar facts, he personally would suffer "double financial disadvantage".
The respondent opposed the application. In the absence of a clearance from the OCG, the applicant cannot be reinstated or re-employed in child-related work. Such circumstances are largely irrelevant to whether his dismissal was harsh, unreasonable or unjust. Moreover, a clearance is not a precondition to the determination of whether the dismissal was harsh, unreasonable or unjust.
The stay application ignores the fact that the respondent (and the Commission) has an interest in the proceedings being resolved expeditiously. It is neither the applicant nor the interests of the applicant that determine how and when unfair dismissal proceedings are timetabled.
In opposing the application, the respondent urged the Commission to proceed to determine the separate question of whether the dismissal was harsh, unreasonable or unjust separate from the question of remedy. Shortly stated, the respondent contended the applicant was seeking to "hedge his bets".
The Commission has power to order the trial of a separate question pursuant to s 162(1) of the Act and Rule 28.2 of the Uniform Civil Procedure Rules 2005.
In support of the proposition to determine the separate question, the respondent submitted:
1. The question of the "fairness" of the applicant's dismissal is distinct and severable from the question of remedy (should that question arise).
2. The determination of whether the applicant's dismissal was harsh, unreasonable or unjust is critical to the disposition of this matter.
3. The determination of the separate question may otherwise promote the early resolution of the proceeding.
4. If the Commission concludes that the applicant's dismissal was not harsh, unreasonable or unjust the question of remedy (if any) becomes otiose.
5. Should the Commission conclude that the applicant's dismissal was harsh, unreasonable or unjust, the Commission can program the hearing of the remedy question, aided by a better understanding of the status of the applicant's review application before NCAT.
The respondent contended the applicant's undertakings attempt to bolster his submission that the granting of a stay potentially means that the respondent may incur no further costs in the s 84 proceedings because they may be discontinued. That submission ignores the costs already incurred by the respondent.
The applicant's contention that the Commission and NCAT proceedings "cover the same issues" demonstrates a fundamental misunderstanding of the statutory task that is required to be performed by the Commission in determining an application under s 84 of the Act and the statutory criteria NCAT must apply in deciding whether or not to make an order which has the effect of enabling a person to work with children under the Child Protection (Working with Children) Act 2012.
[3]
Consideration
The applicant sought to rely upon the principles determined in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [98], L & W Developments Pty Ltd v Della [2003] NSWCA 140 and L & D Lowe Transport Pty Ltd and Ors v Riteway Transport Pty Ltd t/as Riteway Express [2009] NSWIRComm 22 to support the proposition that the application should be stayed temporarily.
The respondent's position was that despite some similarity, the questions ultimately required to be determined by the Commission and NCAT are fundamentally different. The application also seeks to delay the Commission proceedings. In the circumstances, it is appropriate that the Commission should proceed to determine the second question.
The respondent submitted the decision in Lowe Transport was distinguishable given the proceedings before the Federal Magistrates Court had been the subject of a substantive hearing and decision. In contrast, the Commission proceedings were in the "embryonic stage". The NCAT proceedings will only be relevant to remedy should the Commission determine the dismissal was harsh, unreasonable or unjust.
Moreover, Lowe Transport concerned an application for the recovery of money in circumstances where the Federal Magistrates Court had made certain findings concerning contractual unfairness, circumstances quantifiably different from a case where the applicant has pressed unfair dismissal and reinstatement is sought.
The Commission also notes that the decision in L & W Developments concerned determination of the contractual relationship between the parties where proceedings had been brought in two jurisdictions and whether it was appropriate that one proceeding be determined before the other was heard.
In L & W Developments, Mason P (with whom Giles and Santow JJA agreed) canvassed the principles that govern the grant of a temporary stay of proceedings in one court to enable related proceedings in another to proceed first to determination.
Mason P referred to the decision in Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) [1992] FCA 72;(1992) 34 FCR 287, where Lockhart J said (at 290-1):
The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first.... The court is a superior court of record and obviously may control its own proceedings including, where appropriate, the exercise of a power to grant a stay....
In my opinion relevant considerations to be taken into account in the present case include the following:
Which proceeding was commenced first.
Whether the termination of one proceeding is likely to have a material effect on the other.
The public interest.
The undesirability of two courts competing to see which of them determines common facts first.
Consideration of circumstances relating to witnesses.
Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
How far advanced the proceedings are in each court.
The law should strive against permitting multiplicity of proceedings in relation to similar issues.
Generally balancing the advantages and disadvantages to each party.
I have considered the respective submissions put to the Commission for consideration and determined that the principles enunciated by the Court of Appeal in L & W Developments are relevant and useful principles to be applied in this matter. As a general proposition, parallel proceedings in different jurisdictions or proceedings on foot pending a determination in another forum should be avoided where possible.
In deciding whether to grant a temporary stay of the s 84 proceedings the Commission must have regard to the interests of the parties, the interests of justice, the public interest and where relevant the broader considerations identified by Lockhart J in Sterling Pharmaceuticals.
[4]
Which proceedings commenced first
The Commission proceedings were filed on 22 April 2015. The clearance application to the Office of Children's Guardian was made in or around August 2014.That application failed and the appeal to NCAT for administrative review was made in or around the end of November 2015. Those proceedings, whilst separate to the initial clearance application, are related proceedings.
[5]
Whether the determination of one proceeding is likely to have a material effect on the other
The applicant's position is as stated above. An important countervailing factor to be considered by the Commission is that in the event his clearance application appeal before NCAT fails, the applicant has given an undertaking that he will discontinue the Commission proceedings. Should his application before NCAT be upheld, the applicant has given an undertaking that he would not seek an order for lost remuneration for the period of the stay. I consider such undertakings weigh in favour of granting the stay sought.
Counsel for the applicant also submitted that the relevant tests under the Working With Children Act had been amended, so as to now require that an order enabling an affected person such as the applicant to work with children shall not be made unless the Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person, while the affected person was engaged in any child-related work, and, it is in the public interest to make the order.
Counsel for the applicant conceded that given the recent legislative changes, "… the prospect of those proceedings being successful has …diminished".
[6]
The public interest
The granting of the stay application has potential capacity to reduce future legal costs of both parties which in my view is a strong public interest consideration, particularly given the pressures upon funding for education.
[7]
The undesirability of two courts competing to see which of them determines common facts first
Both the Commission and NCAT will be required, in part, to consider a similar set of facts concerning the incident that gave rise to the applicant's failure to obtain a Clearance and his dismissal.
Counsel for the applicant contends the material the applicant seeks to rely upon before the Commission and NCAT is substantially the same. That material includes an expert report prepared by a forensic psychiatrist. Notwithstanding that similarity, the Commission and NCAT are required to make quite separate and distinctively different findings.
Sections 56 and 57 of the Civil Procedure Act applicable to the Supreme Court relevantly state, in part, that proceedings should be conducted efficiently. It must therefore follow that as a matter of principle, it would be more efficient and cost effective for the NCAT proceedings to be determined first.
A temporary stay will seek to avoid the possibility that the Commission and NCAT could make different findings on the evidence.
[8]
Considerations relating to witnesses
Given the nature of the evidence to be relied upon in proceedings before both the Commission and NCAT, the granting of the stay would possibly avoid a number of witnesses having to give their evidence twice.
[9]
Whether work carried out on pleadings etc will be wasted, how advanced are the proceedings in each Court
There is no current requirement for the respondent to file its evidentiary case. The applicant submits that the limited evidence that he has filed to date is similar or identical to that filed in support of his OCG clearance and the NCAT appeal.
Costs expended by the respondent to date will be affected should the application before NCAT fail and the Commission proceedings be discontinued. However, the hearing of the separate question will also trigger additional legal costs to both parties which could be wasted if the NCAT proceedings fail.
The potential requirement for a second hearing on remedy renders the determination of the separate question a more expensive option than the Commission determining merit and remedy simultaneously.
Proceedings to date have largely been confined to conciliation conferences and report back proceedings concerning the status of the clearance application to the Office of Children's Guardian.
On the material before the Commission, I do not consider that the extent of legal work undertaken by the parties to date would be such so as to prevent the Commission granting the application for a stay.
[10]
The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues
While there may be a number of common matters or issues raised in proceedings, the purpose of the NCAT proceedings and the Commission proceedings are fundamentally separate and distinct. As mentioned above, should the NCAT proceedings fail, the applicant has given an undertaking that the Commission proceedings will be discontinued. Moreover, the NCAT proceedings obviously do not involve the respondent.
The determination of the separate question will involve legal costs that may be wasted should the NCAT proceedings fail.
[11]
How far advanced the proceedings are in each court
This consideration has been dealt with in part above.
[12]
Conclusion
The respondent has urged the Commission to proceed to determine the separate question and dismiss the stay application. That would require the filing of evidence and trigger further and immediate costs to the parties.
Directions for the arbitration of the s 84 application were issued on 26 May 2015. That timetable was subsequently varied by consent on 4 August 2015 pending the outcome of the applicant's clearance application. In the interim, the applicant has filed a statement and a number of short witness statements attesting in the main to his character. That material was also material filed in support of the applicant's clearance application.
Determination of the second question would require directions that the parties to file evidence to enable the Commission to determine whether that applicant's dismissal was harsh, unreasonable or unjust at significant cost when there is a possibility that NCAT may dismiss the appeal.
Determination of the NCAT appeal, although more relevant to the consideration of remedy, may cause the s 84 application to be withdrawn or proceed more efficiently if NCAT determines the applicant should be granted a clearance.
I have given consideration to all the material put to the Commission by the parties. The circumstances of this particular case justify the Commission exercise its discretion and grant the temporary stay sought pending the determination by NCAT of the application for a clearance.
I am satisfied, on balance, those factors in favour of granting the stay outweigh those against, particularly the fact that the applicant, a person I consider of limited means when compared to the respondent, would have to fund two separate proceedings.
The determination of the separate question may also require the parties to file further evidence as to remedy at additional cost. Clearly, it is more efficient to conduct an unfair dismissal proceeding as a single proceeding rather that in two parts, as would be the case if the separate question proposal pressed by the respondent was accepted.
[13]
ORDER
The proceedings in IRC Matter No. 2016/58214 shall be stayed temporarily pending the determination of the applicant's appeal to NCAT for a review of the Office of Children's Guardian decision not to grant him a clearance to work with children.
The decision to stay the proceedings is conditional upon the following undertakings given to the Commission:
1. the applicant shall file a Notice of Discontinuance in IRC Matter No. 2016/58214 should his appeal to NCAT be dismissed; and
1. in the event NCAT upholds his appeal, the applicant undertakes not to seek an order for lost remuneration for the period commencing from 30 October 2015 to the date the stay is dissolved.
The applicant is directed to advise the Industrial Registrar of any decision made by NCAT concerning his appeal application within seven (7) days of any such decision being made.
JD Stanton
COMMISSIONER
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Decision last updated: 22 April 2016
Parties
Applicant/Plaintiff:
Benjamin James Creighton
Respondent/Defendant:
NSW Department of Education and Communities
Legislation Cited (1)
Child Protection (Working With Children Act 2012(NSW)