Cushway v University of New England

Federal Court of Australia|2015-06-05|Before: Perry J

INTRODUCTION 1 By these proceedings, the applicant, Mr Cushway, seeks relief against the first respondent, the University of New England (the University) and the second respondent, Professor Annabelle Duncan, for injuring the applicant in his employment, allegedly altering his position to his prejudice and his dismissal in early 2014. The actions in question are said to be adverse actions undertaken for proscribed reasons in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the FW Act). The relief sought includes declarations that the actions were taken in contravention of the FW Act, an order for his re-instatement, compensation and pecuniary penalties. 2 This matter is currently listed for trial on 16 to 19 June 2015, with a possible additional day set aside on 29 June 2015. The applicant has applied urgently for the trial dates to be vacated by an oral application this afternoon. That application was foreshadowed in an email from the applicant's legal representatives to the Court (copied to the respondents' representatives) received this morning, being the day on which the applicant's evidence in reply was due. The application is made on two primary grounds: (1) the applicant's alleged inability to prepare its affidavit evidence in reply to the respondents' evidence within the four day period specified in the current timetabling orders, given the scale of the respondents' evidence (600 pages); and (2) the sudden deterioration in condition of the applicant's 17 year old son, giving rise to the need for urgent intervention. 3 If the application to vacate the trial dates is granted, the applicant seeks to have the matter brought back for directions two weeks from today, at which time the applicant's counsel says that the applicant will be in a position to advise the Court as to the time frame within which evidence in reply can be led. 4 In support of his application, the applicant relied upon the affidavit of Ms Megan Louise Bowe, the solicitor with the day-to-day carriage of the applicant's matter. That affidavit referred to the length of, and certain issues raised by, the respondents' affidavit evidence in chief. It also annexed correspondence between Ms Bowe and Professor Barber (a witness for the applicant), and Ms Bowe and Mr Cushway, regarding their respective availability to prepare evidence in reply and personal circumstances. 5 With the benefit of hindsight, it is apparent that the four day period within which the applicant was to file evidence in reply was unrealistic and perhaps that should have been apparent to both parties at the time of the directions hearing on 9 April 2015. It is highly undesirable that the present application has come to be made so close to the hearing date.

BACKGROUND 6 By way of background, timetabling orders relating to the filing of evidence have been varied on two occasions in order to afford the applicant more time within which to comply. 7 Orders were initially made by consent on 19 December 2014 for the applicant to file and serve any affidavits on which he intended to rely by 16 March 2015, with the respondents to file their evidence by 4 May 2015, and any evidence in reply to be filed by 18 May 2015. At the same time the matter was listed for hearing before me on 16 to 19 June 2015 inclusive. 8 Those orders were varied by consent on 16 March 2015 so as to permit the applicant to file and serve any affidavit evidence by 30 March 2015, the respondents to file any evidence in reply by 18 May 2015, and the applicant to file any affidavits in reply by 25 May 2015. 9 At the directions hearing on 9 April 2015, the applicant made an oral application for a further extension of time within which to file his affidavit evidence on the basis that he had changed his solicitors on 10 March 2015, the former solicitors had not completed sufficient work to enable compliance with the timetable, and the new solicitors had been able to access the file only on 26 March 2015. At the time of his application, the applicant was already over a week late in filing his affidavit evidence. Nonetheless, I was satisfied that the variation to the timetable was necessary in the interests of justice. Accordingly, on 9 April 2015, I amended the timetabling orders so as to extend the time within which the applicant was to file his affidavit evidence in chief to 13 April 2015, while preserving the time within which the respondents were to prepare their evidence by reducing the time within which the applicant was to file any evidence in reply. 10 The applicant served its evidence in chief on 13 April 2015 in compliance with the orders made on 9 April 2015, albeit a couple of hours late. That evidence comprised three affidavits, namely, an eight-page affidavit of Ms Clare Campbell with no annexures, a ten-page affidavit of Professor James Barber with no annexures, and a 29-page affidavit of Mr David Cushway with 47 pages of annexures. The respondents also filed evidence comprised of a 48-page affidavit of Mr Brendan Peet with 227 pages of annexures, a three-page affidavit of Mr John Arthur Watkins with no annexures, a six-page affidavit of Ms Evelyn Woodberry with no annexures, a six-page affidavit of Ms Faith Helen Elly Trent with 35 pages of annexures, a 35-page affidavit of Ms Michelle Clarke with 95 pages of annexures and a 52-page affidavit of Professor Annabelle Duncan with 87 pages of annexures. This evidence was filed and served in substantial compliance with the orders, with the unsealed evidence in chief sent by email to the applicant between 4.10pm and 6.39pm on 1 June 2015. Sealed copies were sent to the applicant in a series of emails between 10.00pm on 1 June 2015 and midday on 2 June 2015. It is the alleged inability to comply with order 5 made on 9 April 2015 as to the filing of affidavits in reply which lies at the heart of the present application to vacate the trial dates. 11 Finally, on 30 April 2015, orders were made setting a timetable for the filing and service of any subpoenas to produce by 5 June 2015 to be made returnable by 12 June 2015, for the provision of notice of any witnesses required for cross-examination by 10 June 2015, and for the filing of objections to evidence, chronologies and a Court Book by 15 June 2015 in which the documents relied upon (including those annexed to the affidavits) were to be reproduced in chronological order. It is apparent that the compliance with some of these orders at least will be affected by compliance with the orders for the filing of affidavits.

THE APPLICANT'S SUBMISSIONS 12 The application to vacate the trial dates is made on a number of grounds which can be summarised as follows. (1) The applicant contends that it would be unreasonable for him to be required to respond to the 600 pages of evidence served on 1 June 2015 by the respondents as explained above within the four day period allowed by the current timetabling orders. (2) The applicant contends that the respondents' evidence raised new issues not anticipated by him which will require substantial further evidence from Professor Barber. Professor Barber is, according to the applicant, a crucial witness who was present at important conversations. However, evidence was led that Professor Barber is providing consulting services to a federal minister as a consequence of which he has extremely limited availability this week and next week to consider the material and provide a reply. That said, in my view, the need for him to provide evidence in reply should have been anticipated by the applicant's representatives and time allowed for that. (3) The applicant also submits that, in light of the respondents' affidavit evidence, it will be necessary for him to lead evidence dealing with certain allegations which he had not anticipated would be raised. These include the possible misapplication of university resources, albeit that the respondents have made it clear that fraud is not alleged. (4) In addition, the applicant says that evidence may need to be sought from additional witnesses in reply to issues raised in the evidence which again had not been anticipated. However, to the extent that the applicant contends that he may now need to lead evidence from one or two other witnesses because he had previously anticipated that those witnesses would be called by the respondents, I consider that to be a consequence of a forensic decision made by the applicant and not one lending any weight to the application to vacate the trial date. (5) The applicant also relied upon evidence that his son is suffering from a condition which deteriorated to a critical level yesterday when intensive interventions were recommended. Other close family members are also suffering from serious illnesses, although it does not appear to be said that those would have the same impact on the applicant's capacity to prepare for the trial as his son's deterioration in condition. While no medical evidence was led as to the son's condition, the respondents very properly did not take issue with the evidence on this point. While there was no evidence as to when the son's condition might be alleviated, the applicant's counsel suggested from the bar table that "[t]he acute attention that, no doubt, his son needs in the circumstances I would imagine are those which would run over only a week or two, at least, until circumstances settle and his son is treated in an appropriate facility". In this regard, it does seem that the present application would in all likelihood have been required even if the applicant's son's condition had not deteriorated. Nonetheless, I accept that the deterioration in the applicant's son's condition makes compliance with any requirement to file evidence in a timely fashion before the trial on the dates currently set down even more difficult and problematic.

THE RESPONDENTS' SUBMISSIONS 13 The respondents oppose the adjournment on a number of grounds. 14 First the respondents contend that the applicant was, in effect, the "architect of his own inconvenience" insofar as the very tight timetable set by the Court on 9 April 2015 and, in particular, the reduction in the number of days within which evidence in reply was required to be filed, was a consequence of the applicant having been unable to comply for a second time with the orders by which his evidence in chief was to be filed. While that factor is correct and relevant, I do not consider that it is determinative. Furthermore the respondents contend that the "unrestrained and amorphous nature" of the applicant's case containing five separate sets of complaints, three sets of wide-ranging categories of alleged adverse actions including matters described as "trifling", necessitated the detailed and comprehensive response contained in the respondents' evidence. In this regard, I accept that the applicant's case is widely cast and that no criticism can be made of the respondents in responding to that case comprehensively. 15 Secondly, the respondents submit that the applicant should have foreseen that a substantial quantity of evidence would need to be led by the respondents, given a number of factors including the requirement that the onus lies upon a respondent to lead a positive case to rebut the presumption in s 361 of the FW Act. That section assists an applicant to prove that an adverse action was taken for a proscribed reason in providing that: If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 16 Moreover, at the last directions hearing on 30 April 2015, the respondents had indicated that up to 12 witnesses might be called whereas in fact affidavits were filed from only six witnesses. Against this, however, the number of witnesses who might be called is not necessarily a good indicator of the complexity and volume of evidence in chief which may be filed, as is demonstrated by the fact that a number of the affidavits filed by both parties to date are very short and address discrete issues only. 17 Thirdly, as to the submission that the applicant is being taken by surprise by the issues raised in the respondents' evidence, the respondents point to paragraph 17 of their defence which sets out the issues then addressed, in their submission, in the evidence which has been filed and, in particular, to paragraph 17(b) where the reasons for termination are particularised. However, without suggesting any criticism of the respondents' pleadings, I do not consider that the bare pleadings in paragraph 17 across some 2 pages necessarily put the applicant on notice that such a significant volume of evidence would be forthcoming. 18 Fourthly, with respect to the allegation raised in the respondents' affidavits as to the possible misapplication of university resources, the respondents say that this is an incidental issue relating to the manner in which the applicant handled human resources issues in a micromanaging manner and is not relevant to an allegation of misconduct. That notwithstanding, the respondents do not dispute that this issue had not previously been raised; nor do they suggest that the applicant should have been aware that this issue would arise and, the issue having been raised, that there would be no need for him to respond to it in his evidence. 19 In the fifth place, the respondents point to the fact that much of the documentation annexed to the affidavits had already been produced to the applicant in answer to various subpoenas. Against this, however, the applicant contended with some force that the affidavits explain that documentation and put it in context in a manner which may not necessarily have been apparent from a bare reading of the documents themselves. Explaining the context in which a document is produced, for example, may also demonstrate its relevance to the issues between the parties which might not previously have been apparent. 20 Furthermore, the respondents submit that Mr Cushway could continue to prepare his case in Armidale where his family is located, including his son, and would not need to be away from them in Sydney, pointing out that they had encountered similar logistical issues with most of their witnesses also being located in Armidale. The applicant's counsel accepted that the preparation of the evidence in reply could continue despite the applicant returning to Armidale, although he also submitted that, given the sudden deterioration of his son's condition, the applicant's mind would not be focused in the immediate term on these proceedings. 21 The respondents also rely upon the prejudice which would be occasioned to them if the trial dates are vacated insofar as all of the witnesses have been arranged to attend and given that proceedings under the FW Act do not necessarily attract an order for costs. (In this regard, I note that, while I will reserve the issue, the respondents seek their costs pursuant to s 570(2)(b) of the FW Act on the ground that the application is unreasonable at this stage of the proceedings and seeks indemnity costs). These are important considerations to take into account in the exercise of discretion. In addition, the respondents pointed to the fact that the presently instructing officer of the University, Ms Trent, is leaving her employment with the University at the end of June 2015. However, the applicant pointed out that Ms Trent was the subordinate of Professor Duncan who is the second respondent in the proceedings and the present Vice Chancellor of the University. In so saying, nonetheless I accept that there would be some prejudice to the respondents occasioned by reason of Ms Trent's departure if the adjournment is granted. 22 Finally, while the issue was raised in the context of the costs application, the respondents contend that the application could have been brought earlier at the last directions hearing in April 2015. However, while, as I have earlier said, it is now apparent that the four day period within which to file evidence in reply was unrealistic, and perhaps that should have been apparent to both parties at the time of the directions hearing, I do not consider that the applicant would necessarily have expected that it would have had to respond to so substantial a body of evidence as has in fact been served. Nor, of course, while it is only one of a number of factors, could he have anticipated his son's sudden deterioration in condition.

APPLICABLE PRINCIPLES 23 As the Full Court recently held in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (Luck) at [42]: In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction… including the objectives in s 37M(2) of the [Federal Court of Australia Act 1976 (Cth)]… 24 That overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, and includes a number of objectives under s37M(2) of the Federal Court Act 1976 (Cth) (FCA Act) including: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 25 Section 37N, in turn, requires the parties to a civil proceeding to conduct proceedings in a manner consistent with the overarching purpose. Section 37M sets out in statutory form some of the considerations earlier expressed as conditioning the discretion to adjourn a hearing: Luck at [43]. 26 Some of the factors and the manner in which the balancing process is to be undertaken in the exercise of discretion were considered by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In that case, on the third day of a four week trial of a matter which had been on foot for two years, the plaintiff applied for an adjournment and sought leave to amend its statement of claim to allege a substantially different case. No explanation was given for the delay in applying for the amendment. The primary judge granted leave to amend giving greater weight to the fact that the amendments sought to raise real triable issues, over the objectives in the relevant court rules of minimising delay and costs. That decision was upheld by the Court of Appeal subject to an order that the plaintiff pay the defendant's costs of the amendment on an indemnity basis. 27 In allowing the appeal, Gummow, Hayne, Crennan, Kiefel and Bell JJ identified four matters which should have been taken into account in the circumstances of that case when exercising the discretion whether to grant an adjournment, namely: (1) the explanation, or absence of an explanation, for the adjournment sought (at [108]); (2) the detriment to other parties (at [114]); (3) the detriment to other litigants in the Court (at [114]); and (4) the parties' choices to date in the litigation as to the claims to be made and how they were to be framed (at [112]). 28 As to the last of these considerations, the plurality emphasised that "…limits will be placed upon [the parties'] ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate" (at [112]) (emphasis in the original). Consistently with this, the plurality accepted at [102] that the objectives under the relevant court rules (which set out similar objectives to those in s 37M, FCA Act) do not require that every application for amendment be refused because it involves wasted costs and delay. Rather, "[f]actors such as the nature and importance of the amendment to the party applying cannot be overlooked." 29 French CJ also referred to the broad considerations in assessing an adjournment application at [5], namely: In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is the publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

CONSIDERATION 30 Having regard to these factors, the present case involves a difficult balancing exercise. 31 Without, as I have said, being in any way being critical of the respondents' comprehensive response to the applicant's case, nonetheless I do not consider that it is reasonable to expect a party to respond to over 600 pages of evidence - including substantive evidence in the body of the affidavits - within four days. It is true, as the respondents contend, that the applicant was to some extent the "architect of his own inconvenience" through his inability to meet the initial deadlines set for the filing of his evidence in chief with its consequential impact upon the amended timetable put in place on the basis of the current trial dates. However, on the other side of the equation, the respondents did not file any of their evidence in advance of the date for filing. This is so notwithstanding that, the possibility was specifically raised at the directions hearing on 9 April 2015 where the timetabling orders were varied that that would be desirable given the tightness of the new timetabling orders. Furthermore, the respondents must have been aware before 1 June 2015 that a very substantial body of evidence would be filed. Nonetheless, no notice was given in advance to the applicant that such a substantial body of evidence would be filed even though it must have been obvious that any party would have difficulty in responding to such a large body of evidence in four days. In these circumstances, I do not consider that it would be in the interests of justice and promote public confidence in the judicial system to require the applicant to so respond and thereby effectively preclude him from filing evidence in reply. In this regard, I have also had regard to the fact that the respondents' evidence is not merely in response to the applicant's case, but presents a positive case in order to rebut the statutory presumption. 32 At the end of the day, each party must be afforded a fair opportunity to present his or her case. In circumstances where I do not consider that any party could reasonably respond to the evidence in such a short timeframe and the applicant's ability to respond to an amended timetable is liable to be impacted upon by his son's deterioration in condition which could not have been foreseen, I consider that the interests of justice are best served by vacating the trial dates. 33 In reaching this conclusion, I have also taken into account that I have the capacity to relist the matter for trial within a relatively short period of time and I expect the parties to use their best endeavours to ensure that that will occur consistently with their obligations under s 37N of the FCA Act. As a consequence, subject to hearing from the parties as to their availability, the matter should be able to be relisted within a reasonable period of time and any prejudice that the respondents may suffer by reason of the dates being vacated thereby minimised. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Federal Court Act 1976(Cth)ss 37M, 37N

Court of Australia Act 1976(Cth)

Fair Work Act 2009(Cth)ss 340(1), 361, 570(2)(b)

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