Plaintiff v Defendants

1 By summons filed on 10 September 2019, the plaintiff, Mr Tucker, seeks to vacate the trial listed this day. The trial is in respect of the undertaking as to damages that he provided on 2 March 2018. Consent orders of that date record the undertakings given by the parties in Other Matters.

1. Upon the Plaintiff by his solicitor undertaking to the Court to abide by any order that the Court may make as to damages in the event the Court is hereafter of the view that the Defendant suffered any by reason of giving the undertaking referred to herein that the Plaintiff ought pay.
2. And upon the Defendants by their counsel undertaking to the Court that the Defendants will not, until the determination of this proceeding, or as otherwise agreed between the parties or by further order of the Court, finalise the proposed discipline outcomes set out in the letters of 25 October 2017 and 7 February 2018 to the Plaintiff.

2 The substantive proceeding was determined on 16 July 2019.[1] On that date, orders were made by consent releasing the defendants from their undertaking and setting out the timetable for this trial. Orders were also made dismissing Mr Tucker's proceeding as against the defendants. The defendants are the State of Victoria (at that time, his employer) and Mr Paul Broderick (in his capacity as the Commissioner of State Revenue). For convenience, I shall refer collectively to the defendants as 'the State' in this ruling.

3 Following the substantive proceeding, Mr Tucker was dismissed from his employment as a senior solicitor at the State Revenue Office ('SRO'). Mr Tucker then lodged an unfair dismissal claim in the Fair Work Commission ('the Commission') ('the unfair dismissal proceeding').

4 Mr Tucker seeks to stay the trial until after determination of the unfair dismissal proceeding. He also wishes to adjourn the trial until after Mr Broderick becomes available to give evidence. I shall return to these matters shortly. The State opposes the stay and adjournment applications.

5 Prior to addressing the parties' submissions, I will outline applicable principles.

6 Rule 49.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) is applicable. It states: 'The Court may adjourn a trial on such terms as it thinks fit.'

7 The Civil Procedure Act 2010 (Vic) ('the Act') is also applicable. Section 9(1) requires the Court to further the overarching purpose in the Act by having regard to a number of objects, including, relevantly:

(a) the just determination of the civil proceeding;

...

[b] the efficient conduct of the business of the court;

[c] the efficient use of judicial and administrative resources;

[d] minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for (i) the fair and just determination of the real issues in dispute; and (ii) the preparation of the case for trial;

[e] the timely determination of the civil proceeding ...

8 Section 9(2) sets out factors to which the Court may have regard. These include the extent to which parties have complied with any pre-litigation processes and the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps, and whether there delay has arisen from circumstances beyond the control of a party.

9 Section 14 of the Act obliges legal practitioners and law practices not to cause a client to contravene any overarching obligation.

10 Section 25 of the Act requires parties and others to use reasonable endeavours in connection with the civil proceeding to act promptly and minimise delay.

11 Part 2.4 outlines sanctions for contravening overarching obligations.

12 The authorities indicate that in considering whether or not to vacate a trial date there must be a weighing exercise between case management considerations and the dictates of a fair trial: see for instance Grace v El Masri.[2]

13 Sections 9 and 25 place obligations on the parties and their legal representatives to act promptly and minimise delay. In making orders, the Court must consider the efficient use of judicial and administrative resources, and the timely determination of the proceeding.

14 I shall now address outline the parties' key oral and written submissions in relation to the stay application.

15 Mr Tucker says that he wishes Mr Broderick to attend and give evidence. Mr Broderick is apparently on vacation. Mr Tucker proposes to subpoena Mr Broderick. Mr Tucker says that on 10 September 2019 he wrote to the State Revenue Office (his former place of employment), and said that he had been informed that Mr Broderick was on vacation and therefore concluded that he wished to adjourn.

16 Mr Tucker also says that another witness for the State, Mr Joyce, has upcoming leave.

17 In response, the State refers to orders for trial by affidavit. It does not rely upon Mr Broderick as a witness and has not filed an affidavit by him. Mr Tucker initially told the State it needed to call Mr Broderick as a witness and it declined to do so. If Mr Tucker calls Mr Broderick then he cannot cross-examine him. Mr Tucker will need leave to call viva voce evidence.

18 In respect of Mr Joyce, the State said he is ready and available to give evidence.

19 The orders made on 16 July 2019 provide for trial by affidavit. Mr Tucker informs the Court he was aware of those orders, and the Court timetable, the day after they were made. He has not yet issued the subpoena to Mr Broderick.

20 The late application to adjourn the trial date is not consistent with the overarching principles of the Act. Mr Tucker knew about the trial date, from 17 July, but did not raise the issue in a timely manner.

21 I will provide Mr Tucker with the opportunity to seek leave for viva voce evidence to be used at trial. If he is successful then the issue can be dealt with. For instance, arrangements could be potentially be made for Mr Broderick to give evidence by video link if he is overseas.

23 Mr Tucker says that there will be an overlap in the factual matters to be considered in his unfair dismissal proceeding and the trial. The Commission will undertake a merits review of the termination of employment and are best placed to do that, and if this trial proceeds he believes it will be a 'dress rehearsal' for the unfair dismissal proceeding. He also refers to procedural issues which he believes will overlap. Mr Tucker considers that mitigation of loss will be relevant to both proceedings.

24 Mr Tucker also refers to the material, filed by the State in the unfair dismissal proceeding, which largely refers to the findings in the substantive proceeding.

25 Mr Tucker considers that there is a risk of inconsistent findings in respect of the unfair dismissal proceeding and this trial. For instance, he is claiming reinstatement and wants orders for continuity of employment. So, this Court could make finding on the merits of the termination of employment and then the Commission may order reinstatement.

26 On the other hand, the State says that the overlap between the unfair dismissal proceeding and the trial is completely overstated. It says there are separate issues to be determined. The unfair dismissal proceeding is to determine whether the termination of employment was fair. This proceeding is to determine whether the State has reasonably suffered loss as a consequence of giving the undertaking not to proceed with the disciplinary consequences in place.

27 The State says that the best outcome Mr Tucker could get from the unfair dismissal proceeding is reinstatement and continuity of employment to be backdated to the termination of employment. That does not affect the period prior to that, which is the period covered by the undertaking.

28 Further, the State says that the substantive proceeding did not involve findings on credit. There was a document trail that was unremarkable. No matter what the findings made in the unfair dismissal proceeding, they will not affect this case. This Court is not bound by findings of fact.

29 If the proceeding is stayed, then it may go off into the 'Never Never' the State says. This is because the unfair dismissal proceeding may be appealed, once determined, by the losing parties. It will take the proceedings into 2021-2022.

30 Further, this proceeding was commenced first. There have been nearly two years of litigation since. It is prejudicial to delay further and keep the stress of the upcoming trial on the State's two witnesses: Aon Risk Services Australia Limited v Australian National University[3] ('Aon').

31 The relevant principles were summarised by Hargrave J in UDP Holdings Pty Ltd (rec and mgr appted) v Ironshore Corporate Capital Ltd & Anor as follows:[4]

To begin with, I will set out the relevant principles which apply in circumstances where there are proceedings pending in two courts which raise parallel claims, or where there is a substantial overlap of issues.

It is first necessary to note that there is a substantial difference between an application for a permanent stay, and an application for a temporary stay or adjournment pending the completion of other proceedings which are likely to impact the outcome of the proceeding in question. In Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd, Lockhart J pointed to the difference between the two forms of stay:

There is obviously a substantial difference between a motion for a permanent stay or dismissal of a proceeding and a notice of motion for a temporary stay or lengthy adjournment of a case. ... The court remains in full control of the proceeding before it when it is stayed only temporarily ...

Earlier, Lockhart J stated:

The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances, including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first ...

Lockhart J then proceeded to list a catalogue of factors to be taken into account by a court in considering whether to grant a temporary stay pending the determination of proceedings in another court involving the same or substantially similar issues:

In my opinion, relevant considerations to be taken into account in the present case include the following:

[1] Which proceeding was commenced first.

[2] Whether the [de]termination of one proceeding is likely to have a material effect on the other.

[3] The public interest.

[4] The undesirability of two courts competing to see which of them determines common facts first.

[5] Consideration of circumstances relating to witnesses.

[6] Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted [if the stay is not granted].

[7] The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

[8] How advanced the proceedings are in each court.

[9] The [application of the principle that the] law should strive against permitting multiplicity of proceedings in relation to similar issues.

[10] Generally balancing the advantages and disadvantages to each party.

In Commonwealth Bank v White (No. 3), Warren J (as she then was) expressly approved this list of relevant factors, and described factor [10] as involving 'weighing up issues of justice and convenience'. Moreover, as Warren J noted, the approach in Sterling Pharmaceuticals was referred to with approval by the High Court of Australia in Henry v Henry, and also in CSR Ltd v Signa Insurance Australia Ltd.

32 This proceeding was commenced prior to the unfair dismissal proceeding. They relate to two separate issues. In the unfair dismissal proceeding, the Commission will direct itself to the question of whether or not Mr Tucker's termination of employment was harsh, unjust or unreasonable. Here, the question is whether or not the State can succeed in its application for Mr Tucker to pay damages to it following the undertaking of damages that he provided to it. In return, it undertook not to finalise proposed discipline outcomes (including termination of employment) until determination of the substantive proceeding.

33 Whether or not the State should have terminated Mr Tucker's employment immediately prior to giving its undertaking is not the question here. The issue will be whether or not it would have terminated his employment. Even if the question arose as to whether or not it could have terminated his employment at the time of the undertaking or beforehand, it is a different question to that arising before the Commission. The Commission will be considering the fairness of the termination made after the substantive proceeding and whether it was harsh, unjust or unreasonable. There is a timing issue.

34 Mr Tucker concedes the legal issues are different in each proceeding. Even if I am wrong in respect of the factual issues, s 91 of the Evidence Act 2008 (Vic) is applicable. The Commission is not bound by any factual findings that I make, nor am I bound by any factual findings it makes.

35 I consider the proceedings are separate and there are no issues of public interest that arise. Nor are witness issues a consideration for the reasons discussed above.

36 I do not consider that there will be an overlap with orders. The Commission orders will relate to and from the dismissal. The period for assessment of damages is prior to dismissal.

37 Nor do I accept that the real issue between the parties is the lawfulness or otherwise of the termination of employment. That is in issue at the Commission. In dispute here is the prior period.

38 As to mitigation, that is an issue in this proceeding in respect of what steps the State has taken to mitigate any loss. The State's actions as to mitigation are not the subject of the unfair dismissal proceeding. In the unfair dismissal proceeding, the question of mitigation may arise in respect of Mr Tucker, and what steps, if any, he has taken to mitigate his loss since dismissal.

39 The parties have undergone the cost and time of preparation for the trial. I will give a short adjournment to enable further preparation and any further material to be filed.

40 Mr Tucker says that the State will suffer no prejudice by delaying proceedings. He says if it is concerned about the stress on witnesses then it should not have called them.

41 The State says its witnesses will be negatively impacted by delays in proceedings. Further, it refers to the general prejudice of delay.

42 There is no evidence of specific prejudice before me. I refer to the principles in the Act and Aon. There is general prejudice from delay. I accept that.

43 Mr Tucker said that there had been an unusual chronology. He points to a range of issues such as his solicitors ceasing to act, preparation for multiple other proceedings, and the need to file supplementary materials.

44 I will adjourn the start of the trial to the date which is currently listed for the third day of trial, namely: 24 September 2019. This will give the parties adequate time for additional preparation and the filing of any further material.

45 I will make orders dismissing the applications for an adjournment and stay.

PAUL BRODERICK (in his capacity as the Commissioner of State Revenue)

[1] [2019] VSC 420.

[2] [2013] VSC 432.

[3] (2019) 239 CLR 135.

[4] (2016) 51 VR 60, [26]-[30] (citations omitted, emphasis in original).