Murdock v Virgin Australia Airlines Pty Ltd - [2022] FCA 1074 - FCA 2022 case summary — Zoe

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Murdock v Virgin Australia Airlines Pty Ltd

[2022] FCA 1074

Federal Court of Australia|2022-09-09|Before: Mr P, Burley J

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Source facts

Court

Federal Court of Australia

Decision date

2022-09-09

Before

Mr P, Burley J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

PENAL NOTICE: TO: GLENN FLOYD, SHANE MURDOCK, CHRISTOPHER MIHAILIDIS, RAZAAN SULEMAN, CHRISTOPHER DAVID DOUGLASS, ROBERT DOLEVSKI, KARA LE, TERRY ATSAS, SKYE FELLOWS, BIANCA KRISTY TANNOUS, ASHLEA-MAREE WILSON, EBONY MARCZENKO, CATHERINE VIRDO IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR PUNISHMENT FOR CONTEMPT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY LIABLE.

[2]

THE COURT ORDERS THAT:

Subject to paragraph 6, each Applicant is restrained until further order from doing anything that, directly or indirectly, procures or otherwise causes Mr Glenn Floyd to communicate in relation to this proceeding or Imogen Clayton & Ors v Virgin Australia Airlines Pty Ltd (NSD 506 of 2022) with any person described in Attachment A.
Subject to paragraph 6, Mr Glenn Floyd is restrained until further order from, directly or indirectly, communicating in relation to this proceeding or Imogen Clayton & Ors v Virgin Australia Airlines Pty Ltd (NSD 506 of 2022) with any person described in Attachment A.
The Respondents must, as soon as practicable, serve on each Applicant and on Mr Glenn Floyd a copy of each of: a. this Order; b. the Submissions of the Second and Third Respondents dated 8 September 2022; and c. the transcript of the interlocutory hearing on 9 September 2022, (each a Document).

[7]

THE COURT ORDERS THAT:

Subject to paragraph 6, each Applicant is restrained until further order from doing anything that, directly or indirectly, procures or otherwise causes Mr Glenn Floyd to communicate in relation to this proceeding or Shane Murdock & Ors v Virgin Australia Airlines Pty Ltd & Ors (NSD 349 of 2022) with any person described in Attachment A.
Subject to paragraph 6, Mr Glenn Floyd is restrained until further order from, directly or indirectly, communicating in relation to this proceeding or Shane Murdock & Ors v Virgin Australia Airlines Pty Ltd & Ors (NSD 349 of 2022) with any person described in Attachment A.
The Respondent must, as soon as practicable, serve on each Applicant and on Mr Glenn Floyd a copy of each of: a. this Order; b. the Submissions of the Second and Third Respondents in Shane Murdock & Ors v Virgin Australia Airlines Pty Ltd & Ors (NSD 349 of 2022) dated 8 September 2022; and c. the transcript of the interlocutory hearing on 9 September 2022, (each a Document).
Pursuant to rule 10.24 of the Federal Court Rules 2011 (Cth), each Document will be taken to have been served on a person upon it being sent by email to the corresponding email address listed in Attachment B.
Any application to set aside this order (or any part of it) is to be made by 4.00 pm on 14 September 2022 by first notifying the chambers of Justice Burley in writing.
Paragraphs 1 and 2 do not apply to communications solely for the purpose of making an application of the type contemplated by paragraph 5.
The proceeding be listed for a further case management hearing on 21 October 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Attachment A
Any person employed or otherwise engaged by or on behalf of the Respondent, including: (a) Jayne Hrdlicka; (b) Stuart Aggs; (c) Lisa Burquest; (d) David Marr; (e) Susan Schneider; (f) Melissa Bostock; (g) Lillian Khan; (h) Kathryn Brunnen; (i) Lee George; (j) Jemma Kelly; (k) Michelle Harari; and (l) Michelle Budd.
Any legal representative of the Respondent, including: (a) Pawel Zielinski; (b) Ben Dudley; and (c) Philippa Noakes.
Any person employed or otherwise engaged by or on behalf of either Jetstar Airways Pty Ltd and Qantas Airways Ltd, including: (a) Mr Alan Joyce; (b) Mr Gareth Evans; (c) Ms Jessica Farah; (d) Ms Rania Jones; (e) Ms Jeannine Whitmore; (f) Mr Daniel Banens; and (g) Mr Paul O'Brien.
Any legal representative of the Jetstar Airways Pty Ltd and Qantas Airways Ltd, including: (a) Ms Kathy Srdanovic; (b) Ms Jessica Tuffin; (c) Ms Victoria Brooks; (d) Ms Alexandra Goodman; (e) Mr Nicholas Gowland; (f) Mr Richard Dalton QC; and (g) Mr Nico Burmeister.

[9]

INTRODUCTION 1 In proceedings NSD 349 of 2022 and NSD 506 of 2022 (together, the proceedings), 18 individual applicants, who are each former employees of either Virgin Australia Airlines Pty Ltd or Jetstar Airways Pty Limited, contend that they are entitled to damages arising from breaches by their employers of their contracts of employment or applicable Enterprise Bargaining Agreements. The misconduct alleged concerns the issue by Virgin and Jetstar of directives requiring the applicants to obtain COVID-19 vaccines as a condition of their continued employment, and the applicants' subsequent dismissal for failing to do so. The respondents in NSD 349 are Virgin, Jetstar and Qantas Airways Limited. The respondent in NSD 506 is Virgin. 2 A number of documents in the proceedings were prepared by one Glenn Floyd, a person who holds himself out to be a "Pro Bono Advocate and UN Observer/Reporter". 3 At a case management hearing conducted on 8 September 2022, Mr Zielinski, counsel for Virgin, joined with Mr Dalton KC and Mr Burmeister, counsel for Jetstar and Qantas, in an oral application for orders which in broad terms were that: (1) the applicants be restrained from causing Mr Floyd to communicate in relation to either proceedings with the respondents, their employees or lawyers, including a number of individuals; and (2) Mr Floyd be restrained in similar terms. 4 The circumstances leading to the application concerned an escalating use of offensive language and threats made by Mr Floyd in his correspondence with the respondents and their lawyers. Having regard to the language used, and its threatening overtones, I considered it necessary to address the application urgently and so listed the application for hearing on the following day, 9 September 2022. I directed the respondents to file and serve short written submissions setting out the basis for the application and the form of orders sought. I granted leave to the applicants to file a short submission in response. 5 The applicants are not at present legally represented. Although at times they contend that Mr Floyd does not act for them, it is apparent from the evidence that indeed they have authorised him to send communications in the proceedings on their behalf. 6 Mr Floyd has not sought to appear on behalf of the applicants in court. At the first case management hearing conducted in NSD 349 on 6 July 2022, the first named applicant, Captain Shane Murdock, sought (with their consent), and was granted, leave to address the Court on behalf of the other applicants in those proceedings. This was also the course taken in the case management hearings on 8 September 2022 when Captain Murdock, who was a pilot with Virgin before his dismissal, obtained leave to also make submissions on behalf of the applicants in NSD 506 on the same basis. 7 At the hearing of the application on 9 September 2022, the respondents relied on three affidavits sworn by Kathy Srdanovic, a partner of Ashurst Australia, the solicitors for Jetstar and Qantas, an affidavit of Lillian Khan, a solicitor employed by Virgin who was briefly the solicitor on the record, and the written submissions that they had served. The substantive orders sought were that: (1) Each applicant is restrained until further order from doing anything that, directly or indirectly, procures or otherwise causes Mr Glenn Floyd to communicate in relation to Shane Murdock & Ors v Virgin Australia Airlines Pty Ltd & Ors (NSD 349 of 2022) or Imogen Clayton & Ors v Virgin Australia Airlines Pty Ltd (NSD 506 of 2022) with any person described in the schedule. (2) Mr Glenn Floyd is restrained until further order from, directly or indirectly, communicating in relation to Shane Murdock & Ors v Virgin Australia Airlines Pty Ltd & Ors (NSD 349 of 2022) or Imogen Clayton & Ors v Virgin Australia Airlines Pty Ltd (NSD 505 of 2022) with any person described in the schedule. 8 The schedule attached to the proposed orders provides reference to (1) any person employed or otherwise engaged by Virgin, including certain listed individuals; (2) any legal representative of Virgin, including certain listed individuals; (3) any person employed or otherwise engaged by either Jetstar or Qantas, including certain listed individuals; and (4) any legal representative of Jetstar or Qantas, including certain listed individuals. 9 The applicants indicated that they did not oppose the orders sought by the respondents, but relied on written submissions going, inter alia, to the interpretation to be placed on the communications by Mr Floyd. Captain Murdock confirmed during the course of the hearing that the author of those submissions was Mr Floyd. 10 Although the making of the orders was not opposed by the applicants, I heard submissions going to the power of the Court to make the orders and the appropriateness of making them. On the day, I made the orders as sought and now publish my reasons for doing so.

[10]

MR FLOYD 11 Mr Floyd is not a legal practitioner. He has, however, been engaged in the preparation and filing of the originating processes in each of NSD 349 and NSD 506. The Originating Application and Statement of Claim in each of the proceedings state that they were prepared by him. He has also, purportedly on behalf of the applicants: liaised with the Federal Court registry about listing of the proceedings; communicated directly by email with the Court in relation to the conduct of case management hearings; and, corresponded directly with the solicitors acting for the respondents in relation to the conduct of the proceedings. 12 The applicant's written submissions provide the following summary of Mr Floyd's role: Throughout the proceeding, Mr Floyd has never held himself out to be the Applicants' representative. Although he has as a Pro Bono Advocate only prepared Court documents, attended to the filing of those documents, and corresponded with the Respondents' respective legal representatives and the Respondents' officers and employees. And he has liaised with the Court in relation to the Applicants' stated positions (most recently by sending their proposed short minutes of order). The court must be cognisant of the FACT that whenever any communiques were involving the court's case management, Mr Floyd has NEVER done anything other than be polite and respectful to all parties and to the court. 13 The statement that Mr Floyd "has never held himself out to be the applicants' representative" is patently incorrect. By filing documents on their behalf, liaising with the Court on their behalf and corresponding with the solicitors for the respondents on their behalf, Mr Floyd has plainly acted as, and held himself out to act as, the applicants' representative. It is apparent that the applicants have authorised him to do so. 14 The evidence of Ms Srdanovic discloses that Mr Floyd's communications with the solicitors for the respondents have become progressively more aggressive. On 25 August 2022 at 10.48am, he sent an email to a number of recipients, including Ms Khan and three senior Qantas employees in the industrial relations team, stating that the applicants sought to add six further applicants to proceedings NSD 349. At 7.41pm that day, Mr Floyd sent an email to a number of recipients, including Ms Srdanovic, stating that the applicants sought to add an additional applicant to proceedings NSD 349. His sign off, apparently directed to a senior industrial relations manager at Qantas, was (as original): Sleeping in the cockpit is not a good look, WHAT IS YOUR RESPONSE? 15 On 29 August 2022, a solicitor employed by Ashurst emailed the applicants and Mr Floyd serving copies of an interlocutory application filed by Jetstar and Qantas seeking to strike out the proceedings. In the days that followed, Mr Floyd sent three emails to increasing numbers of people within the respondents, including the Chief Executive Officers of Jetstar and Qantas, and Qantas and Jetstar legal representatives. A snapshot of the content of one of the emails is as follows (as original): We fully understand the role of lawyers in the main is to drag out proceedings solely for their money-grubbing conflicts of interests which ignores the course of justice. Notwithstanding the ridiculously irrelevant and immaterial legal point you raise about Mr Attard and Ms Cinque prior unfair dismissal claims; if you actually read the Sealed Statement of Claim and Originating Application you would have noted that this is NOT a case about ANY Fair Work Act breaches at all!! You seem to be having trouble so I'll say it slowly so that even an apprentice, holiday-sandwich-student, first-year, undergraduate, pimply-hyperbolaed, wet behind the ears articled clerk could understand … 16 Ms Brooks, a solicitor employed by Ashurst, responded to this email on the following day in moderate terms, informing Mr Floyd of the expectation that parties communicate courteously with each other at all times, and reminding him that it is inappropriate to copy non-parties to correspondence relating to the proceedings. 17 Mr Floyd responded as follows (as original): Conversely, we feel it is you who are otherwise profoundly offensive and inappropriate; and my quite temperate holding back against your vilest twisted diatribe should be appreciated. … You are also reminded that you bore me with your PERSONAL OPINOPN [sic] that it is inappropriate to copy non-parties to correspondence relating to this proceeding and your request that we refrain from doing so is puerile faux virtue signalling; this is the biggest public case in Australia's history and the public must see what we regard as debauched, depraved psychopathic behaviour; if you don't fight evil you are part of the evil. Tell someone who cares!!!! I will ALWAYS call those out for exactly what some see they are!! NOTHING has been shared that should not be shared. This communique is not going to the court and ALL the recipients are our legal counsel and are enraged at what these drug-pushing cretins have done, and all their legal Pimp- Protectors are doing, in this greatest attack on decency and morality in human history. Take a good hard look at yourself! … 18 In her second affidavit, Ms Srdanovic expressed her concern that Mr Floyd is conducting the proceeding on behalf of the applicants, that the correspondence is escalating and becoming increasingly personal, and that she is concerned for the safety and welfare of her employed solicitors, who are the recipients of the correspondence. 19 That same day, after the affidavit had been served, Ms Srdanovic's concerns about escalation proved to be warranted. Mr Floyd wrote a further email addressed to an extensive list of recipients who, to the knowledge of Ms Srdanovic, have nothing to do with the litigation. Those recipients appeared to include Commonwealth Senators, members of the media and academics, amongst others. Parts of the email are as follows (as original): Hey Srdanovic, Tuffin, pet, precious, sweet, dearie, girlie, fluff, your attempt to drag LEGITIMATE political comment of mine against your indescribably STUPID decisions into the court system, is cheap, fully expected and utterly IMMATERIAL! This is private and nothing to do with the court. … 2. Only BONEHEADS like YOU sent it to the court … 5. Your decision to disallow some applicants to co-join and refuse others defies LOGIC and CONVENTION and deserves sternest retribution … 8. Your pathetic dummy-spitting, panties-wetting, tanty-chucking means NOTHING, there is no statute the court has to abide that deals with my free-speech and private deep loathing of what you are doing in a personal message where the court is not included in messaging 9. I am not going to, and did not notify the court at all of these vile depraved Drug-Pushing GOONS who you willingly act as Pimp-Protectors for 10. Lillian (Genghis) Kahn tied this same STUNT in the Fair Work Commission, and they kicked her arse out through her mouth!! Ask the stupid twat! 11. Your precious little call of my 'inappropriate' remark (as you call it) in the face of your evil benefactors paying your filthy Pimp-Protection of GOONS who mercilessly sack and destroy people's lives at the capricious whim of Pharma-Bribed corrupted politicians Andrews, Morrison, Albanese and Brant et all pales into insignificance 12. This PROFOUND EVIL was not done to me, if it was there just may be a mafia-hit contract out on these depraved ghouls for merciless drug-pushing and sacking! 13. I know death and killing first hand more than most and ALL covid-hoax scum are steeped in it …. 20 The email concludes with: "ADMITTED TO THE BAR 1946 Fuck with a Floyd? > Watch Your Back!" 21 The language of this email was offensive, irrelevant to the conduct of the proceedings and threatening. For the reasons that follow, I considered that it was necessary and appropriate to make the Orders.

[11]

CONSIDERATION 22 Section 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court things appropriate. 23 In the present case, the precondition in s 23 going to jurisdiction is satisfied. The nature of the case advanced by the applicants is, in broad terms, whether or not the respondents have acted in breach of the terms of the Enterprise Bargaining Agreement or contract of employment applicable. Although the applicants have indicated that they intend to re-plead, it is apparent that issues under the terms of the Fair Work Act 2009 (Cth), and in particular s 50, are likely to apply. 24 For present purposes, it may be noted that s 23 of the FCA Act should be understood by reference to the terms of s 37M, which provides: The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (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. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. 25 Section 23 falls within the definition in s 37M(4) of "civil practice and procedure provisions" (see also s 4 of the FCA Act). As a result, pursuant to s 37M(3), s 23 is to be interpreted having regard to the overarching purpose identified in s 37M(1). 26 The Federal Court Rules 2011 (Cth) (FCR) relevantly provide: 1.32 The Court may make any order that the Court considers appropriate in the interests of justice 1.35 The Court may make an order that is inconsistent with these Rules and in that event the order will prevail. 27 The FCR are also to be understood having regard to the overarching purpose. 28 When considered together with s 23 of the FCA Act, in my view these provisions confer upon the Court the power to give such directions and make such orders for the conduct of any proceedings to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That power is not limited to the conduct of proceedings in court, and extends, where appropriate, to the making of orders regulating the manner, timing, content and authorship of communications sent between the parties to proceedings for the purpose of their conduct. 29 I see no reason why the power of the Court does not extend to the making of orders to regulate the conduct of applicants who authorise the sending of offensive or threatening correspondence in connection with Court proceedings, or the conduct of third parties who send such correspondence: see the obiter remarks in McGuirk v University of New South Wales [2010] NSWCA 104 at [162]-[163] (Sackville AJA). I refer to the appropriateness of making such orders in the present case further below. 30 In my view it is antithetical to the overarching purpose for a party to authorise the sending of obscene, offensive or threating communications to an opposing party. The correspondence from Mr Floyd to which I have referred above bears the stamp of each of these adjectives. 31 In a different context, Allsop J (as the Chief Justice then was) remarked in Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 at [34]: Another important feature of the correspondence and the conduct of the case to date is a degree of emotive language used by Mr Maiocchi, at times involving sweeping allegations of impropriety by the respondent and its solicitors. Not all litigation can be conducted in peaceful harmony, but one of the fundamental obligations of any practitioner in the discharge of his or her obligations to the client and to the court is the civil and dispassionate communication with other parties to that litigation: see generally Ex parte Bellanto; Re Prior [1963] SR (NSW) 190 and Garrard v Email Furniture (1993) 32 NSWLR 662 at 667. 32 Although Mr Floyd is not a legal practitioner, the purpose underlying these remarks is not only to ensure that proceedings before the Court are not brought into disrepute, but also to ensure that the efficient resolution of disputes is not clouded by distractions from the issues between the parties caused by offensive or, worse still, threatening communications. 33 In the present case, the most recent email from Mr Floyd contained content attacking a decision on the part of its recipient to withhold consent to the joinder of some applicants in paragraph 5: Your decision to disallow some applicants to co-join and refuse others defies LOGIC and CONVENTION and deserves the strongest retribution 34 It then proceeded to heap personal abuse on the recipient, the solicitor for Jetstar and Qantas. It also made derogatory reference to Ms Khan. The tone appeared calculated to intimidate, with several references to death and killing. The reference to "strongest retribution" in [6] and the sign-off "watch your back" can well be understood as a threat. 35 Furthermore, the content of Mr Floyd's communications is such that his conduct in sending them can reasonably be regarded as amounting to the harassment of parties to the proceedings, or their legal representatives, in a manner which might be perceived as directed at embarrassing or placing pressure on the parties. This is particularly so when those communications are copied to senior employees of the airlines, members of the Commonwealth Senate and members of the media. 36 As I have noted, the applicants affirmed during the course of the hearing that they did not oppose the making of Order 1. Nevertheless, I am independently satisfied that Order 1 should be made, and that the Court has the power to make it. 37 Order 2 concerns Mr Floyd directly. He is not a party to the proceedings, but in my view s 23 of the FCA Act is sufficiently broad to empower the Court to make such an order. I am also satisfied that it is appropriate. 38 The written submissions relied upon by the applicants were, according to Captain Murdock, written by Mr Floyd. Those submissions seek to defend the content of the impugned email on the basis that Mr Floyd was advancing personal opinions and that those opinions were not necessarily held by the applicants. It would appear that Mr Floyd considers that he is at liberty to advance such opinions, apparently independently of any role he may have as a representative of the applicants. It is not apparent to me that, even after the applicants cease to authorise Mr Floyd to correspond on their behalf in accordance with Order 1, he will desist from engaging with the respondents in relation to the litigation, in order to express his own views. 39 Mr Floyd was aware that the application was to be heard on 9 September 2022. He was visible on-screen during the case management hearing on 8 September 2022, when Mr Dalton KC advanced an outline of the arguments in support of the present orders. On that occasion, as Captain Murdock confirmed, Mr Floyd provided sotto voce assistance to Captain Murdock in his submissions. As I have noted, he was also the author of the applicants' written submissions. 40 In such circumstances, I considered it appropriate to make Order 2 on 9 September 2022, despite Mr Floyd's absence from Court. He was plainly aware that the application would be made, and of the orders that would be sought. Nevertheless, I additionally granted the applicants and Mr Floyd liberty to apply in writing to my chambers by 4pm on Wednesday 14 September 2022 should any variation or discharge of the Orders made be sought. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.