REASONING
The Requirement for Leave
23 The orders made in Judgment No 1 and Judgment No 2 are interlocutory in character. This is so in the case of the order refusing the application to remove Deacons as Telstra's legal representatives because the order does not finally determine the rights of the parties. The order would not of itself prevent the applicant from making another claim for the same relief in the proceedings, even though the application might have little prospects of success: Bienstein v Bienstein (2003) 195 ALR 225, at 230 [25], per curiam. The order striking out, in part, the application to the Federal Magistrates Court is also interlocutory in character: Rana v University of South Australia (2004) 136 FCR 344, at 345-346 [6]-[15], per Lander J.
24 The Federal Court has jurisdiction to hear and determine appeals from the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth: Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'), s 24(1)(d). Since the orders in the present case were interlocutory, leave of the Federal Court is required: Federal Court Act, s 24(1A).
25 In determining whether leave should be granted, the Court applies two inter-related principles: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, at 398-399, per curiam; Bienstein v Bienstein 195 ALR 225, at 231 [29], per curiam. The first is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
The Application for Leave to Appeal from Judgment No 2
26 It is convenient to commence with the application for leave to appeal from the orders made in Judgment No 2. An assessment of the merits of that application must start with an understanding of the effect of the orders made by the Federal Magistrate. This is not an entirely straightforward task in the absence of pleadings, or indeed any other document clearly outlining the applicant's case.
27 The proceedings were commenced in the Federal Court and subsequently transferred to the Federal Magistrates Court. The relief sought by the applicant in his initiating process was as follows:
'1. an order declaring that [Telstra] has committed unlawful discrimination against the [a]pplicant and directing [Telstra] not to repeat or continue such unlawful discrimination.
2. an order requiring [Telstra] to provide a letter signed by the Chief Executive Officer of Telstra to the [a]pplicant stating that:
(a) it subjected the [a]pplicant to disability discrimination in its requiring the applicant to undertake performance improvement on a basis that did not adequately take into account of his disability, or that it treated his disability in a discriminatory manner;
(b) it subjected the applicant to disability discrimination in terminating his employment on the basis of poor performance while the applicant was suffering from a disability and failing to accord him the benefit of Telstra's policy for managing long-term medical restrictions;
(c) it failed to provide the applicant as a person suffering with an anxiety disorder with an environment free of bullying and in which the applicant could feel safe and that it failed to ensure its management was properly trained and supervised so that incidents of bullying did not recur;
(d) it unreservedly apologises for its conduct to the [a]pplicant.
3. an order requiring [Telstra] to re-employ the applicant effective from the date of termination of employment with backdated pay and other entitlements;
4. an order requiring Telstra to advise its employees within the area where the [a]pplicant formerly worked within Telstra that the [a]pplicant was wrongfully terminated and that Telstra acted in a manner discriminatory towards him on the ground of disability;
5. an order requiring [Telstra] to pay to the applicant damages by way of compensation for the loss or damage suffered because of the conduct of the respondent with respect to loss of income, pain and suffering, medical expenses;
6. an order requiring [Telstra] to pay aggravated damages;
7. an order to pay costs'.
28 The application attached the form by which the applicant had complained to HREOC of unlawful discrimination by Telstra. The description in this document of the alleged unlawful discrimination complained included the following acts:
'I. requiring the applicant to undertake performance improvement on a basis that did not adequately take into account … his disability, or that it treated his disability in a discriminatory manner;
II. terminating his employment on the basis of poor performance while the Applicant was suffering from a disability and failing to accord him the benefit of [Telstra's] policy for managing long-term medical restrictions;
III. failing to provide the Applicant, as a person suffering a disability with an environment free of bullying and in which the applicant could feel safe and that it failed to ensure its management was properly trained and supervised so that incidents of bullying did not recur'.
29 The form went on to specify in more detail the alleged discriminatory conduct. The particulars (if this is the proper description) comprised 14 paragraphs. The first three paragraphs alleged that Telstra engaged in unlawful disability discrimination against the applicant:
'a. by requiring the Applicant to undertake contact with personnel that had caused his disability, in circumstances where the Applicant reasonably believed such contact would aggravate his disability and subjecting the Applicant to penalty for being unable to engage in such contact by terminating his employment;
b. by requiring the Applicant to increase his work hours beyond the hours recommended by his medical advisers at a time when he was suffering from a disability of which the Respondent was aware, and then penalising the applicant in relation to claimed failure to meet those increased hours;
c. by failing to adequately take into account the Applicant's disability in the work allocation to him, the conditions of that work and then to penalise him on the basis of those requirements'.
30 A fourth paragraph alleged that Telstra had engaged in unlawful disability discrimination against the applicant:
'h. By requiring the [a]pplicant to undergo the normal [PIP] process at the time he suffered a disability, including because [his] injury would be aggravated by the process'.
31 The application and the annexed documentation did not specify any temporal limitation in relation to the conduct complained of. Perhaps for this reason, a substantial amount of hearing time was apparently spent in the Federal Magistrates Court attempting to ascertain the precise nature of the applicant's case. Without implying any criticism of the Federal Magistrate, who was faced with a very difficult task, this endeavour does not seem to have been entirely successful, although his Honour did say that the applicant's real complaint centred on the requirement that he participate in the PIP.
32 The most significant orders made by the Federal Magistrate were as follows (retaining the original numbering):
'(2) The application filed on 18 April 2007 be struck out, except insofar as it asserts indirect disability discrimination in relation to the performance improvement programme [in] which the applicant was required to participate in July 2004.
…
(5) The applicant has leave to file and serve on the respondent an amended application limited to the ground of disability discrimination identified by the Court in order (1) above, but seeking such relief in respect of that ground that the applicant deems appropriate, no later than 14 September 2007'.
33 I asked both the applicant and Mr Shields, who appeared for Telstra, precisely what contentions order 2 permits the applicant to advance in the Federal Magistrates Court. I also asked what aspects of the applicant's case, if any, are foreclosed by the terms of order 2.
34 Mr Shields indicated that he had some difficulty in answering the question, although he said that the order was clearly intended to prevent the applicant raising any claim connected with the so-called independent investigation carried out by Deacons. He did not dissent from the proposition that the orders do not foreclose the applicant from claiming that Telstra's requirement that he participate in the PIP in July 2004 involved unlawful disability discrimination. Nor did Mr Shields dissent from the proposition that the applicant is free to contend that Telstra's conduct leading up to the imposition of the PIP requirement failed to pay regard to the applicant's disability and therefore amounted to disability discrimination. Mr Shields also accepted, as I understood him, that the applicant is free to claim that, insofar as Telstra's termination of his employment resulted from his refusal to participate in the PIP, the dismissal itself involved unlawful disability discrimination. (I should add that it appears to be the case that the applicant's employment was terminated on the ground that he had refused the instructions of management to participate in the PIP, although the applicant seemed to suggest that his employment was terminated because he failed to achieve the required improvement in standards.)
35 The applicant explained that, despite the form of the application filed in the Federal Court, he has never intended to rely in the Federal Magistrates Court on Telstra's conduct insofar as that conduct took place before 9 February 2004. The substance of the case he wishes to put, as I followed his explanation, is this:
· by reason of the inappropriate conduct of Telstra's managers on 9 February 2004, the applicant became disabled (that is, he suffered from the stress-related condition that led to him taking sick leave from 10 February 2004 until 3 May 2004);
· from his return to work on 3 May 2004 (on a part-time basis) until the termination of his employment on 19 August 2004, Telstra imposed requirements and conditions on him that took no, or insufficient, account of his continuing disability and amounted to disability discrimination;
· since the applicant was unable by reason of his disability to comply with these requirements and conditions, Telstra required him to participate in the PIP;
· the requirement for him to participate in the PIP was itself disability discrimination in contravention of the DD Act; and
· the termination of the applicant's employment resulted from disability discrimination because it was a direct consequence of his refusal to participate in the PIP.
36 Mr Shields accepted that the orders made by the Federal Magistrate do not prevent the applicant pursuing the case as outlined above. The only qualification he attached to this proposition was that, although the applicant is free to adduce evidence of allegedly discriminatory conduct by Telstra during the period 3 May 2004 to 19 August 2004, he cannot claim relief by reason of that conduct, except insofar as it related to the imposition of the requirement that the applicant participate in the PIP.
37 I asked the applicant to identify any aspect of the case he wishes to pursue that, in the light of Telstra's understanding of his Honour's orders as explained by Mr Shields, the orders do not permit him to pursue. The applicant did not identify any such aspect of his case. Indeed I did not understand the applicant to say that he wishes to claim any relief in respect of any discriminatory conduct by Telstra during the period 3 May 2004 to 19 August 2004, except to the extent that the conduct related to the imposition of the PIP requirement. This is not to say that the applicant did not assert before the Federal Magistrate that his case was more wide-ranging than now appears to be the case.
38 In these circumstances, it seems to me that the applicant will not suffer substantial injustice if leave to appeal from Judgment No 2 is refused. The reason is that the orders made by the Federal Magistrate do not prevent the applicant, in substance, pursuing the case he wishes to make. It is perhaps unfortunate that this conclusion did not emerge clearly in the proceedings before the Federal Magistrates Court, although it seems likely that any lack of clarity was attributable, in large measure, to the way in which the applicant presented his case. Be that as it may, the position became tolerably clear on the hearing of the application for leave to appeal.
39 Thus far, I have approached the application for leave to appeal from Judgment No 2 without addressing the arguments the applicant wishes to canvass, should leave to appeal be granted. His outline of submissions identifies a large number of such arguments. Some are not easy to follow and others plainly lack merit.
40 One argument that perhaps is not so readily dismissed is the applicant's contention that the Federal Magistrate erred in characterising his disability discrimination claims as an abuse of process, in that his Honour failed to give sufficient weight to the fact that the issues considered by the AIRC were not the same as those the applicant now seeks to ventilate in the Federal Magistrates Court. However, in my view it is not necessary to evaluate the merits of this argument for the purposes of disposing of the leave application in relation to Judgment No 2. Even if the argument is plausible, it would not change my view. The applicant will not suffer substantial injustice by being denied the opportunity to put the argument on appeal, since the orders do not prevent him from putting the case he wishes to advance in the Federal Magistrates Court. It is also appropriate to take into account the fact that if the applicant ultimately fails in the Federal Magistrates Court proceedings, he has available to him an appeal as of right from the final orders made in those proceedings.
Judgment No 1
41 I have some sympathy with the applicant's sense of grievance that the same solicitors who conducted the so-called 'independent investigation' of July 2004 have represented Telstra in the Federal Magistrates Court proceedings. The applicant was interviewed by the solicitors and he subsequently signed a statement setting out his version of the events of 9 February 2004. His statement recorded that it was made:
'in relation to the special independent investigation arranged by Telstra into my complaint regarding an incident on 9 February 2004'. (Emphasis added.)
42 It no doubt would have come as a surprise to the applicant that the solicitors who interviewed him and assessed the credibility of his allegations should then have acted for Telstra in opposing his claims for compensation and reinstatement. In my view, Telstra's decision to engage Deacons in both roles - and, for that matter, Deacons' decision to accept both roles - was not particularly sensitive to the position in which the applicant found himself. The sensitivity or otherwise of the decision is, however, not the issue that I must address.
43 Nothing the applicant has said in support of his application casts doubt on the principles stated and applied by the Federal Magistrate. There is no reason to doubt his Honour's finding that no solicitor-client relationship existed between the applicant and Deacons. There is also no reason to doubt his Honour's conclusion that Deacons did not acquire any confidential information by reason of its role as an investigator. As the applicant's written statement shows, there is nothing to indicate that he communicated information to the solicitors that otherwise would have been confidential. In substance, he recounted his version of the events that occurred on 9 February 2004. He had previously complained of those events to Telstra and set out his account of what occurred.
44 The Federal Magistrate identified the relevant question for decision as:
'whether, on the evidence before the Court, a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be restrained from acting for its client in the proceedings'.
(quoting Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404, at [35], per Young J). His Honour accepted that the description of the investigation as 'independent' was 'probably unfortunate' and 'may have [led] the applicant to a misapprehension of the investigation process'. Nonetheless, his Honour did not think that the interests of justice required the solicitors to be restrained from acting for Telstra.
45 In my view, the applicant has an arguable case that, having regard to the real prospect that he had been misled by the description of the investigation as 'independent' (as the Federal Magistrate appears to have found), his Honour should have concluded that the interests of justice justified the Court restraining the solicitors from acting in the proceedings against the applicant. However, I am not satisfied that substantial injustice would be caused to the applicant if leave to appeal is refused. There is no plausible suggestion that the solicitors acquired any information adverse to the applicant in consequence of the investigation, let alone any confidential information. It is true that the authors of the report did not accept that the managers had actually intimidated the applicant at the meeting of 9 February 2004 and that they did accept that managers believed that the applicant had acted inappropriately. But the applicant's allegations were not found to lack credibility. On the contrary, the report in substance adopted his account of what the participants said at the meeting. It is difficult to conceive that the interview the solicitors conducted with the applicant in March 2004 would give Telstra a significant advantage in the current Federal Magistrates Court proceedings, whether in relation to cross-examination of the applicant or otherwise.
46 In the absence of any demonstrable injustice to the applicant, I do not think it is appropriate to grant leave to appeal from the Federal Magistrate's refusal to restrain Deacons from acting in the proceedings. As I have noted, if the applicant fails in the proceedings, he will have an appeal as of right. Should the applicant exercise that right, he will have the opportunity to argue, if he wishes, that Telstra obtained an inappropriate forensic advantage by having Deacons as its legal representatives in the proceedings in the Federal Magistrates Court.
Judgment No 3
47 The applicant has not succeeded in his application for leave to appeal against the orders made in Judgment No 1 and Judgment No 2. He may have an argument that the Federal Magistrate's discretion on costs miscarried so far as the costs of the summary dismissal application are concerned. A contention perhaps may be open that his Honour did not take into account (as now appears to be the case) that the striking out of part of the applicant's case does not prevent him from pursuing the substance of the disability discrimination case he wishes to present to the Federal Magistrates Court. On the other hand, his Honour attributed to the applicant responsibility for the lack of clarity in his case and the consequent waste of court time spent in trying to ascertain the precise nature of that case.
48 In view of the dismissal of the applications for leave to appeal against the substantive orders in Judgments No 1 and No 2, I do not think it appropriate to grant leave to appeal solely against the costs order made by the Federal Magistrate in relation to the summary dismissal application. If the applicant ultimately fails in the proceedings, he will be entitled to appeal as of right. Such an appeal may provide the applicant with the opportunity to challenge the Federal Magistrate's order that he pay Telstra's costs of the summary dismissal application.