Laing O'Rourke Australia Management Services Pty Ltd v Haley

COLVIN J: 1 Mr Thomas Haley worked for Laing O'Rourke Australia Management Services Pty Ltd. On 24 July 2020 he received an email attaching a letter that said a decision had been made to terminate his employment. Mr Haley claimed that the termination of his employment constituted adverse action in contravention of s 340(1) of the Fair Work Act 2009 (Cth). He brought proceedings in the Federal Circuit and Family Court of Australia seeking relief. 2 After a five day hearing, the primary judge reserved his decision. Detailed reasons, being some 300 pages in length, were delivered on 28 March 2024: Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286. On that date, declarations were made to the effect that Laing O'Rourke had contravened the Fair Work Act. Also, directions were made for the exchange of submissions 'on damages and compensation'. At the subsequent request of Mr Haley, dates were set for the hearing of oral submissions on those matters. 3 In consequence of the decision by the primary judge, it will also be necessary for the Circuit Court to determine whether pecuniary penalties should be imposed in respect of the declared contraventions and, if so, in what amount. No directions have been made as to the further conduct of that aspect of the proceedings. 4 On 11 April 2024, Laing O'Rourke commenced proceedings in this Court seeking leave to appeal the declaratory orders: as to the need for leave, see Monash Health v Singh [2023] FCAFC 166 at [27]-[44] (Katzmann, Snaden and Raper JJ). 5 On 24 April 2024, almost a month after the primary decision was delivered, Laing O'Rourke brought an application in the Circuit Court seeking a stay of the further conduct of the proceedings pending the outcome of its application in this Court for leave to appeal. After receiving written submissions on the stay application and in circumstances where the parties were content to have the stay application determined without an oral hearing, the primary judge proceeded to determine that application. On 14 May 2024, the primary judge dismissed the stay application: Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 6) [2024] FedCFamC2G 434. 6 Then, on 27 May 2024, Laing O'Rourke brought an interlocutory application in this Court seeking a stay of the Circuit Court proceedings pending the outcome of its application for leave to appeal. 7 In the meantime, written submissions on damages and compensation had been filed in the Circuit Court by Mr Haley on 24 April 2024 and by Laing O'Rourke on 24 May 2024. The primary judge had also listed the hearing at which oral submissions on damages and compensation would be received. So, by the time the application for a stay was commenced in this Court, the only further step required of the parties in relation to damages and compensation was the making of oral submissions. 8 The interlocutory application for a stay came before me on 21 June 2024. I determined that a stay pending the outcome of the application for leave to appeal should be granted as to the determination of penalty only. I indicated at the time that I would provide my reasons. These are my reasons.

Relevant principles 9 As was stated in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 at [36] (French CJ, Hayne, Kiefel, Bell and Keane JJ): '… the courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order'. I referred to the principles to be applied where a stay is sought pending the outcome of an appeal in WSP Structures Pty Ltd v Liberty Mutual Insurance Company t/as Liberty Specialty Markets (Stay Application) [2023] FCA 1617 at [6]-[7]. As there noted, ordinarily, a successful litigant will be entitled to enforce the judgment pending the determination of the appeal: see also T v B [2018] WASCA 157.

The context for the application in the present case 10 In the present case, Mr Haley has succeeded in establishing liability on the part of Laing O'Rourke. Consistently with that success he seeks to proceed to have the quantum of any damages and compensation assessed. He does so in circumstances where there was no formal order splitting liability from damages. Rather, after the evidence had concluded it was proposed that findings be made on liability with directions to be made about determining damages or compensation if liability was established. That is to say, in the events which have occurred, Mr Haley simply seeks to proceed with the conclusion of the hearing on liability and damages. 11 It appears that only the issue of penalty has been formally separated. Mr Haley also opposed any stay in respect of the determination of the claim to relief by way of penalties.

The matters relied upon by Laing O'Rourke in support of the stay application 12 The application for leave to appeal relies upon the following matters: (a) by reason of the orders made by the primary judge, it is likely, if not certain, that [Laing O'Rourke] will be subjected to penalties and other relief following a further hearing (or hearings) directed to those questions, even though no such relief may ultimately be justified; (b) [Laing O'Rourke's] costs of the further hearing(s) relating to penalties and other relief will likely not be recoverable, even if [Laing O'Rourke] is ultimately successful on appeal, by reason of section 570 of the Fair Work Act 2009 (Cth); and (c) any damages or other relief that [Laing O'Rourke] may be ordered to pay to [Mr Haley] will likely not be recoverable (or alternatively, may only be recoverable upon the incurring of costs in relation to any process of enforcement that may be available), even if [Laing O'Rourke] is ultimately successful on appeal, in circumstances where [Mr Haley] is a citizen of the United Kingdom and is ordinarily resident in the United Kingdom with no assets in Australia. 13 In substance, the submissions in support of the stay application were to the same effect. In addition, submissions were advanced to the effect that there was a case with substantial merit to be argued on appeal. Indeed, it was contended in oral submissions for Laing O'Rourke that the strength of the grounds of appeal supported the stay application. 14 For Laing O'Rourke it was said that a stay should be granted as a matter of fairness. Save for the submission concerning Mr Haley not having a presence in the jurisdiction, it was not claimed by Laing O'Rourke that any appeal would be rendered nugatory if a stay was not granted. 15 In oral submissions, it was also put that Laing O'Rourke should not have to face the reputational consequences of a penalty hearing in circumstances where it sought to challenge the conclusion as to liability.

The position of Mr Haley on the stay application 16 Mr Haley did not seek to submit that the appeal that Laing O'Rourke sought to bring was so lacking in merit that the stay should be refused for that reason alone. He disputed the claim that there would be significant costs that might be avoided if the proposed short oral hearings on compensation and damages were allowed to proceed. He challenged the reliability of the costs estimates advanced by Laing O'Rourke. 17 As to Mr Haley's presence in Australia, it was not denied that he was a resident of the United Kingdom. However, counsel for Mr Haley pointed to the fact that Mr Haley had indicated that if an order for payment of compensation was made then he would consider any reasonable proposal to avoid the risk of dissipation. 18 Mr Haley pointed to the prejudice to him if there was a delay in the award of compensation and potential penalties in circumstances where the relevant events took place in 2020.

Two aspects to the stay application 19 The proposed stay would prevent two distinct aspects of the proceedings in the Circuit Court from being allowed to continue pending the determination of the application for leave to appeal and any appeal; namely (a) the determination of damages and compensation; and (b) the determination of whether there should be penalties for the contraventions and, if so, in what amount.

Stay as to the determination of damages and compensation 20 For the following reasons, I determined that there should be no stay as to the determination of damages and compensation: (1) All that remained as to damages and compensation was the conduct of the hearing to receive oral submissions and therefore the additional costs involved would not be considerable. (2) In any event, it had not been shown that the quantum of costs would impose any genuine prejudice upon Laing O'Rourke, particularly in circumstances where it had been willing to incur the unnecessary expense of flying senior and junior counsel across the country for a short interlocutory hearing in Perth rather than seeking leave to appear remotely (a now common course for interlocutory hearings where short oral submissions are to be presented). (3) There would be costs in the parties having to refresh as to matters concerning damages and compensation if the application by Laing O'Rourke in this Court was unsuccessful and inefficiencies in the primary judge having to return to the matter in that event. (4) The oral hearing was imminent and there had been delay by Laing O'Rourke in seeking a stay which delay was not explained adequately. (5) After that delay, Laing O'Rourke had chosen to seek a stay before the primary judge and did not seek to demonstrate error or unfairness in the way in which the primary judge had approached that application. Although Laing O'Rourke was entitled to renew its application in this Court, the fact that it had sought the same order before the primary judge and had been refused was a matter relevant to the exercise of discretion whether to grant a stay. (6) Determination of the quantum of damages and compensation would result in final orders that Laing O'Rourke could appeal as of right. Laing O'Rourke's position was that it would pursue an appeal irrespective of the outcome as to quantum. Therefore, if quantum was determined, the need to consider the leave application would fall away. (7) On the other hand, if a stay was granted which deferred the determination as to quantum then there was the possibility that quantum would have to be determined by the primary judge after a period of considerable delay and the possibility of a further appeal. (8) Given the open position adopted by Mr Haley in relation to considering any reasonable proposal to avoid the risk of dissipation, there was no demonstrated prejudice to Laing O'Rourke of that kind. In any event, that aspect could be addressed once the outcome as to quantum was known. (9) The proposed appeal as to the declarations of contravention would not be rendered nugatory if the determination of quantum proceeded. (10) Therefore, there was no prejudice to Laing O'Rourke other than the minimal costs associated with the hearing to receive oral submissions. 21 In the circumstances described above, the application for a stay that prevented the determination of quantum lacked any real foundation. Even if it be accepted (as senior counsel for Laing O'Rourke submitted in forceful terms) that there were good prospects that leave would be given to appeal and good prospects the appeal would be successful (and that was relevant to whether to grant a stay), it remained the case that, as matters presently stand, Mr Haley has the benefit of a considered decision in his favour and, as has been explained, no real prejudice to Laing O'Rourke has been demonstrated to support a stay. For that reason, I did not consider it necessary to evaluate the strength of the many points that Laing O'Rourke seeks to raise in the proposed appeal.

Stay as to determination of penalty 22 For the following reasons, I determined that there should be a stay as to the determination of penalty pending the outcome of the application for leave to appeal: (1) The parties had proceeded before the primary judge on the basis that there would be a separate and subsequent hearing as to whether there should be orders for penalty and, if so, the amount of those penalties. Therefore, that aspect of the proceedings had always been split. (2) The hearing as to penalties is likely to require the consideration of more issues than the mere characterisation of the seriousness of the conduct as found and evidence is likely to be received. (3) The hearing as to penalties has not been scheduled and materials relating to that issue have not been prepared or filed. (4) If the appeal that Laing O'Rourke seeks to pursue is successful then the costs associated with assessing penalty will have been wasted and those costs have not yet been incurred. (5) Ordinarily, the nature of the proceedings means that there will be no order as to those costs so they will fall on Laing O'Rourke even if it is successful in challenging the declarations of contravention. (6) In cases where civil penalties are assessed it is necessary for the Court to characterise the seriousness of the contravening conduct and also to make findings as to the extent of culpability for the conduct. Findings of that kind have the potential to be of considerable prejudice to the reputation of the party concerned in respects that differ from the finding of contravention itself. (7) It is common for hearings as to penalty to be deferred until after the outcome of any appeal as to findings of contravention. This practice reflects the fairness and efficiency that is usually associated with such a course. 23 The matters referred to in (4) and (5) were of some significance in circumstances where there had been a formal order deferring the question of penalties and taken together with the other matters which were of greater significance, I was persuaded that there should be a stay limited to that aspect.

Communications by Mr Haley 24 In the course of the hearing I was taken to certain correspondence that had been sent by Mr Haley. In an affidavit in support of the application for a stay the solicitor on the record for Laing O'Rourke referred to what he described as 'cause to express great concern for Mr Haley's propensity to send, inappropriate and inaccurate emails, and other forms of communication, to persons referred to in the [reasons for decision given by the primary judge]'. It was said that these communications had the potential to adversely affect the reputation of Laing O'Rourke. 25 Without condoning the communications to which I was taken, I did not see the relevance of the communications for the stay application.

Oral application for leave to appeal 26 The hearing that I conducted was in respect of the interlocutory application for a stay. At the conclusion of that hearing, senior counsel for Laing O'Rourke invited me to grant leave to appeal. As the application for leave had not been listed for hearing I declined to entertain that application. In any event, as has been explained, the likely consequence of refusal of the stay application as to the question of quantum of damages or compensation is that Laing O'Rourke will be able to pursue any appeal without leave.

Transfer of proceedings 27 The proceedings before the primary judge took place in New South Wales. The application for leave to appeal and, consequently, the interlocutory stay application, were filed in the West Australia Registry of this Court. This was said to be due to 'a number of software issues'. A transfer to the New South Wales Registry was originally proposed by Laing O'Rourke on 13 May 2024. It was not opposed by Mr Haley. For reasons unexplained steps were not taken to facilitate the transfer of the proceedings to the New South Wales Registry. There being nothing to support the proceedings continuing in the West Australia Registry I ordered that the proceedings be transferred to the New South Wales Registry.

Costs 28 Mr Haley sought an order for costs. It was opposed. It seemed to me that it would be appropriate to deal with the costs when dealing with the application for leave to appeal, especially as Laing O'Rourke sought to justify the stay on the basis of contentions as to the strength of the proposed appeal grounds.

Orders 29 For those reasons, I ordered that there be a stay of the proceedings in the Circuit Court but only as to the determination of the quantum of any penalties. Otherwise, I ordered that the interlocutory application for a stay be dismissed. I ordered that the application for leave to appeal be transferred to the New South Wales Registry and that the costs of the interlocutory application be reserved. 30 I note that the application by Laing O'Rourke was for a stay pending the determination of the application for leave to appeal. Although the order was not expressed in those terms, my intention was that it would operate until that time or further order. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.