Drummond v Canberra Institute of Technology

BANKS-SMITH J: 1 The respondent in this matter, Canberra Institute of Technology (CIT), seeks expedition of the hearing of an application for leave to appeal and the proposed appeal filed by the applicant, Dr Mark Drummond, on 18 August 2022. CIT's application was heard on an urgent basis on 1 September 2022 and orders were made that day. I indicated to the parties that I would publish these reasons as soon as practicable. 2 A single Judge of the Court may make an order for the expedited hearing of an appeal in appropriate circumstances under s 25(2B)(c) of the Federal Court of Australia Act 1976 (Cth), which confers power to give directions about the conduct of an appeal, and under r 36.11 of the Federal Court Rules 2011 (Cth), which relates to a party applying for directions in relation to the management, conduct and hearing of an appeal. 3 Whilst the Court has a broad discretion, an order for expedition will not be granted unless the Court is satisfied that it is in the interests of justice to make an order for an expedited hearing. 4 For the reasons that follow I have determined that the hearing should be expedited.

Background to the application for leave to appeal 5 This litigation has a long history, and it is not necessary to record the underlying claim in detail. It arises, however, from an application for relief brought by Dr Drummond under the Fair Work Act 2009 (Cth). 6 Dr Drummond seeks leave to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (FCFCOA) on 4 August 2022. The orders and notations made on that day (as recorded in the reasons published on or about 11 August 2022) were as follows: UNTIL FURTHER ORDER, THE COURT ORDERS THAT: 1. The Court makes an Order under Division 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, and in particular, under Rule 11.07(1)(b) and 11.10(1), for the immediate appointment of a litigation guardian for the Applicant. The reasons record that there is a very wide scope for who may be so appointed, including family or friend. Such person does not need to be legally qualified. 2. Within 28 days of the date of these Orders, being by 1 September 2022, the Applicant is to notify the Court and the Respondent of the nomination of (or appropriate steps to secure) a litigation guardian. If there is any impediment to that appointment, which arises from any action from the Applicant, subject to evidence and submissions, it may be necessary to dismiss the proceedings. 3. The Applicant is not permitted to file anything with the Court for the remainder of the litigation. Only his litigation guardian and/or Counsel are permitted to do so. 4. The Applicant is not to communicate directly with Chambers for the remainder of the litigation. Communication may only be made by his litigation guardian or Counsel. 5. The part-heard matter be listed for a further 2 day Final Hearing commencing on 6 October 2022 at 10:00am in CANBERRA. 6. As confirmed by Counsel for both parties at the recent final hearing, for the remainder of the litigation, the Court will only consider claims made by the Applicant in relation to the Fair Work Act 2009 (Cth) and arising under the Collective Agreement. 7. Subject to evidence and submissions, should the conduct of the Applicant in any way constitute an impediment to the conduct of the remainder of the trial, or the Applicant breaches any of these Orders, the Application may be summarily dismissed. 8. If the Application is summarily dismissed pursuant to Order 7, subject to submissions, the Court may award costs pursuant to s.570(2) of the Fair Work Act 2009 (Cth). AND THE COURT NOTES THAT: A. Despite previously advising in writing that he would do so, the Applicant did not attend the judgment delivery. This was unfortunate and surprising given how often the Applicant has referred to his keenness to finalise the litigation; and B. The Transcript from the Final Hearing on 26, 27 and 28 July 2022 will be admitted into evidence as Exhibit B. (original emphasis) 7 These orders were made after two full days of hearing on 26 and 27 July 2022 during which Dr Drummond was represented by direct access counsel, Mr Duc. 8 The hearing was listed to continue on 28 July 2022. Prior to the commencement of Court on that date Dr Drummond sent an email to the primary judge's associate (and others) stating relevantly that he was exhausted and unable to continue in the hearing; that he would continue to be represented by Mr Duc at the hearing on that day; that he would file an affidavit with a doctor's letter after a scheduled appointment early the following week; and that he considered he would be fine for a continuation of the hearing in August 2022 or October 2022 (being dates that had apparently been foreshadowed). 9 At the hearing on 28 July 2022 the primary judge apparently noted that Dr Drummond had completed giving his evidence and asked Mr Duc to take instructions as to the potential appointment of a litigation guardian. 10 The following day Mr Duc relayed by email to the primary judge's associate that Dr Drummond opposed any such appointment, noting amongst other things that he had suffered a temporary medical event; that he had demonstrated his ability to participate in the proceedings and give counsel instructions; and that it would take substantial time for a litigation guardian to come up to speed with the content of the documentation and the claim in issue. The respondent also wrote to the primary judge's chambers, relevantly pointing to prejudice caused by any further delay in securing additional hearing dates. 11 On 3 August 2022 the primary judge's associate wrote to the parties indicating judgment would be delivered on 4 August 2022. Also on 3 August 2022, Dr Drummond sent an email to the primary judge's associate attaching a letter from his doctor, Dr Wessell, and stating that he and Mr Duc would appear at judgment delivery by telephone. Dr Wessell's letter stated: In my opinion Mark Drummond was unfit to continue participation in the court hearing from 28/07/2022 to 29/07/2022 due to exhaustion. He had weathered an intense grilling over the issues in his legal case following several weeks of work finalising his response to numerous objections from CIT over documents for the case. These objections were presented just weeks before the hearing, necessitating long hours of work up to and into the first 2 days of the hearing. He would benefit from a couple of weeks mental rest and recuperation but I believe he is well able to continue the hearing to its conclusion when the court resumes. He is well prepared to cross-examine the CIT witnesses with his barrister as he has ample documentation. I feel appointment of a litigation guardian would occasion a significant extra workload and would constitute a re-traumatisation. This would be detrimental to his health. 12 On 4 August 2022 the primary judge gave oral reasons and made the orders set out above. In the end (according to his grounds of appeal) Dr Drummond was unable to attend judgment delivery due to his work commitments. It appears his counsel participated. 13 The reasons were published on 11 August 2022: Cockburn v Canberra Institute of Technology [2022] FedCFamC2G 646. It is apparent from those reasons that a live issue on the proposed appeal with respect to the appointment of a litigation guardian is whether as a matter of principle medical evidence was required, and the nature of any such evidence. A related question arises as to the manner in which Dr Wessell's letter was considered and assessed by the primary judge. It is not appropriate to address these issues further in an interlocutory application such as this. It is sufficient to say that there are a number of authorities that guide the courts in this area: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 and the cases collected by the Full Court at [26]-[27]. 14 Against this background, Dr Drummond seeks leave to appeal from the orders of the primary judge. It is not necessary to summarise all of his proposed grounds of appeal. Although his complaints are lengthy, they include: allegations of a denial of natural justice (ground 3); allegations that the primary judge's reasons were affected by irrelevant considerations 'including excessive and egregiously improper reliance upon' earlier medical evidence (ground 4); an absence of consideration of matters relevant to the appointment of a litigation guardian (ground 5); and apprehended and actual bias (grounds 12 and 15). At grounds 8 and 9, Dr Drummond notes that the orders as actually made on 4 August 2022 begin with a note as to his non-attendance for judgment delivery (included in the orders set out at [6] above). Dr Drummond contends that this indicates that the appointment of a litigation guardian was made because of his non-appearance by telephone. 15 Dr Drummond seeks (in summary): (1) orders setting aside the orders made on 4 August 2022; (2) orders transferring the matter to this Court for all future case management and hearing and determination; (3) alternatively to 2, an order removing the primary judge from future involvement in the proceedings; and (4) alternatively to 2 and 3, orders permitting him to make an application (without a litigation guardian) in the FCFCOA for his matter to be transferred to this Court. 16 Having regard to the nature of the orders made by the primary judge, the published reasons, the principles relating to the appointment of a litigation guardian, and the effect of such an appointment on both Dr Drummond's ability to pursue the trial before the FCFCOA and such proceedings more generally, at least on a preliminary review of the proposed grounds it cannot be said that there is no prospect that leave to appeal would be granted. 17 In communications to the parties, the primary judge's chambers noted that Dr Drummond's appeal might 'imperil' proposed further hearing dates in October 2022, and said that whether or not the appeal succeeded, the proceeding might now go into its eighth year. The primary judge inquired as to whether the parties or one of them might request that the leave application and appeal be dealt with by this Court on an expedited basis. The primary judge had indicated that he was available on 6 and 7 October 2022 but otherwise would not be able to hear the proceeding until late 2023. A few days later CIT brought this application.

Principles 18 The principles as to the exercise of the Court's discretion to expedite a hearing were conveniently summarised by Kenny J in Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 as follows: [19] The factors falling for consideration in the exercise of the Court's discretion will depend, at least in part, on the particular case. Such factors may include whether, if the hearing did not take place at the earliest convenient time or prior to a particular date, the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home. Other factors include a serious detriment to good public administration or to the interests of others not party to the appeal. Hence, an appeal from a judgment on judicial review challenging the lawfulness of the conduct of public bodies or officials, especially where that conduct has implications for others or for the proper administration of the law, may well attract an order for an expedited hearing: see Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 … at 400 to 402. [20] Other factors relevant to the Court's exercise of discretion relate to the parties' own conduct. Thus, the Court may consider whether the applicant for an expedited hearing order has proceeded with due speed prior to the date of the expedition application. The fact that a respondent does not oppose an application for expedition is also relevant. [21] The Court will also bear in mind the interests of other litigants in other cases and balance the likely consequences of refusing an order for expedition against any adverse effect on the parties to other appeals if the order is made: see, for example, British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718 at [7] (North J). Moreover, regard must also be had to s 37M of the Federal Court Act in the application and interpretation of s 25(2B)(c) of that Act and r 36.11 of the Rules. [22] Plainly enough, however, the above-mentioned considerations are not the only considerations relevant to the Court's exercise of discretion. Other factors will be relevant, depending on the nature and circumstances of the case. See, for example, Elders at 400-402 and Li v Chief of Army [2012] FCA 808 at [9] (Griffiths J). Further, the weight to be given to any particular consideration will also vary depending on the circumstances of the individual case.

Submissions of the parties 19 In summary, CIT seeks expedition because it considers the central point of the appeal to be the issue relating to the appointment of a litigation guardian, being a relatively contained but important point. There is considerable force in this submission. CIT points to the history in this litigation that includes three previous 'false starts' at trial and a number of appeals: see, for example, Drummond v Canberra Institute of Technology [2020] FCAFC 131; (2020) 278 FCR 436; and Drummond v Canberra Institute of Technology [2021] FCA 376. CIT emphasises that the current hearing is part heard and that appeals that arise during proceedings are amongst the types of hearings where the courts have recognised that expedition may be appropriate, citing relevantly Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 at 401. CIT also refers to potential prejudice to its witnesses if there is further delay, having regard to the effluxion of time and the age of at least one of the key witnesses. Counsel for CIT acknowledged that CIT was prepared to assist with matters such as the Appeal Book, and that it had considered the programming of necessary steps for the appeal so that a hearing in September 2022 would be feasible. 20 Dr Drummond initially expressed reluctance for any expedition of the appeal, his main concern being the practical difficulties that he might face in preparing for the appeal and the number of matters that might need to be addressed, a concern formed in the context of his understanding that his powers are somewhat 'frozen' by the orders of the primary judge. I explained to Dr Drummond that to any extent it was needed, I would at this point expressly grant him permission to appear on his own behalf on the application for leave and the appeal hearing in this Court (without suggesting he could not appear through counsel), a course that counsel for CIT also accepted was appropriate in the circumstances. I otherwise explained to Dr Drummond that, focussing on the order relating to the appointment of a litigation guardian, if his appeal was successful in that regard and the order was overturned, then he would be free to continue with the balance of the hearing in the FCFCOA on the given dates in October 2022, potentially bringing that proceeding to an end after many years. However, continuing on those dates would only be achievable if the appeal was also expedited. On the other hand, if the appeal was not successful, even if expedited, it is not possible to predict when a litigation guardian might be ready to proceed, what other orders might be sought in the FCFCOA, or when the hearing would resume. Taking those matters into account, the surest method by which Dr Drummond could preserve the potential to proceed on the October dates and to complete his trial is to participate in an expedited appeal. 21 I should add that Dr Drummond expressed other general reservations about participating in an expedited appeal but he appeared to acknowledge and understand the potential benefit of doing so. It is not necessary for me to record the nature of all of his reservations, some of which may or may not be addressed by the Full Court in due course.

Consideration 22 It is appropriate to order that the application for leave to appeal be heard concurrently with, or alternatively, immediately before, the appeal which is the subject of that application. The issues relevant to the application for leave must be addressed in some detail and it is efficient that they be addressed at the one hearing. As discussed, it is not the case that the grounds indicate that there is no prospect that leave to appeal would be granted. 23 There are a number of matters that persuade me that it is appropriate that the application for leave and the appeal be heard at an expedited hearing. I have been informed that the Court is undertaking urgent inquiries and will seek to make a bench available to hear the application and appeal during September 2022. 24 The matters raised by this appeal with respect to the breadth of the orders made by the primary judge and the effect of the appointment of a litigation guardian are significant and should be resolved sooner rather than later, in circumstances where the hearing is part heard. 25 The potential to retain the October 2022 hearing dates is important and should be pursued. Adjournment of a trial part heard can create significant difficulties in terms of the allocation of Court resources, continuity of counsel representation and the memories and cooperation of witnesses and parties. It is to be noted that the events the subject of the proceeding occurred as early as 2008 and 2009, although the proceeding was instituted in 2015. I accept that there is the potential for prejudice to CIT from further delay. As I attempted to explain to Dr Drummond, I am concerned that his own interests may also be affected by further avoidable delay and the ongoing position that, in his own words, he is 'frozen' insofar as the FCFCOA proceedings are concerned. 26 CIT acted quickly to seek expedition once served with the application for leave and the proposed grounds of appeal. There has been no conduct on its part with respect to the appeal that weighs against expedition. 27 There are important issues of public administration in issue in a case such as this which has a long history, and has involved the allocation of not insubstantial court resources over many years. Expedition reduces the prospect of the matter remaining unresolved well into 2023 and potentially 2024. 28 The practical disadvantages to Dr Drummond of an expedited appeal may be ameliorated by requiring CIT to assume responsibility for many steps such as the preparation of the Appeal Book. I also take into account that Dr Drummond has already given his evidence in the FCFCOA trial and he is represented by counsel in that matter, and so his efforts might now be directed in the interim towards the appeal. Additionally, I will ensure that the transcript of the hearing before the primary judge of 26, 27 and 28 July 2022 is made available to the parties to assist in the appeal preparation. 29 Expedition is also consistent with the broader overarching purpose of case management principles and the obligations on parties that are given statutory force by s 37M and s 37N of the Federal Court of Australia Act. 30 Based on the above considerations, I am satisfied that an order for an expedited hearing is in the interests of justice. 31 Orders were made accordingly. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.