Security & Technology Services (NT) Pty Ltd v Hurley

1. Leave be granted to the appellant to file an amended notice of appeal in the terms handed to the Court today.
2. Ground 13 of the amended notice of appeal be allowed.
3. The appeal otherwise be dismissed with no order as to costs.
4. The declaration and orders 1 and 2 made on 2 November 2021 and the orders made on 5 November 2021 be set aside.
5. The matter be remitted for rehearing to a different judge of the Federal Circuit and Family Court of Australia (Division 2).
6. A certificate be granted to the respondent under ss 6(1) and 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs of the appeal and the new trial.
7. The matter be referred to a Registrar of the Court for mediation, the mediation to take place at the earliest possible opportunity. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal from orders of the Federal Circuit and Family Court of Australia (Division 2) made on 2 November 2021 and 5 November 2021. On 2 November 2021 the primary judge ordered that, pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth), the appellant (STSNT) pay compensation to the respondent, Mark Hurley, in the sum of $308,401.83, together with interest, for a loss suffered because of a contravention of s 44 of the Act, by failing to give notice of termination as required by s 117. On 5 November 2021 his Honour ordered that STSNT pay a pecuniary penalty to Mr Hurley of $50,000 pursuant to s 546(3)(c) of the Act and the costs of the proceeding, including from 6 April 2021 on an indemnity basis. 2 Although the notice of appeal contained a large number of grounds, STSNT had two fundamental complaints. Those complaints concerned the reasons of the primary judge and his conduct of the trial. 3 The first fundamental complaint, which is the subject of ground 4 of the amended notice of appeal and underpinned many of the other grounds, was that the primary judge had not given any, or any adequate, reasons for his decision, including because he had not given consideration to a large number of serious and substantial submissions made by STSNT's counsel and had not embarked sufficiently, or at times at all, on the fact-finding process. 4 The second, which is the subject of ground 13 of the amended notice of appeal, is that STSNT was denied procedural fairness because the primary judge excessively, unduly and improperly intervened in the conduct of the trial, which: (1) unfairly undermined the proper presentation of its case; (2) gave an appearance of bias; and (3) was such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromised the judge's advantage in objectively evaluating the evidence from a detached distance. Compare, by way of example, Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461 and Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530. 5 At the end of yesterday's hearing, senior counsel for Mr Hurley conceded the substance of ground 13 and agreed that the appeal should be allowed and the proceeding be remitted for rehearing by another judge. 6 The concession was properly made. 7 In our opinion, the judge's conduct of the trial, including his extensive questioning of the appellant's witnesses and his other interventions during the course of the hearing and the closing address of STSNT's counsel, caused a miscarriage of justice, because it unfairly undermined the proper presentation of the appellant's case, gave rise to an appearance of bias, and was an egregious departure from the proper role of the judge. 8 From the outset, the primary judge imposed arbitrary time limits on the cross-examination of witnesses regardless of their importance or the nature of their evidence. His Honour also repeatedly and unjustifiably interrupted the orderly conduct of the cross-examination. 9 Counsel for STSNT took us at some considerable, but necessary, length to numerous passages in the transcript of the hearing in which the primary judge repeatedly cross-examined STSNT's witnesses, at times aggressively, about case theories favouring Mr Hurley's case but not propounded by him, suggesting that his Honour had pre-conceived views about important aspects of the case. 10 Amongst the many unsatisfactory aspects of his Honour's conduct of the trial was the fact that he, rather than counsel for Mr Hurley, initiated the cross-examination of STSNT's leading witness. Another was that he cross-examined another of STSNT's witnesses in pursuit of a case theory of his own which had never been advanced by Mr Hurley and took both the parties and the witness by surprise. Further, he did not call on counsel for Mr Hurley to make closing submissions, instead requiring counsel for STSNT to proceed directly to its submissions. 11 Counsel for STSNT also took us to the transcript of his closing submissions where, on multiple occasions, the judge interjected, often abruptly, in such a way as to prevent counsel from fully developing the submissions that he wished to make, and on many occasions putting a variety of propositions for which Mr Hurley never contended in his pleadings or otherwise. 12 In the end, the judge did not require, or allow, counsel for Mr Hurley to make closing submissions in support of his pleaded case. In those circumstances, there is considerable force in the observation she made to us that her client was also denied procedural fairness, or as she put it, "equally badly treated". 13 It is unnecessary to burden these brief reasons with any more of the myriad examples of the judge's inappropriate interventions. It is sufficient to say that the concession by Mr Hurley's counsel that STSNT was not afforded procedural fairness was properly made. As the cases make clear, because that ground is made out, it strikes at the validity of the trial and requires that the matter to be remitted for retrial. In the particular circumstance of this case, that must be before a differently constituted court. 14 The injustice that results is even more lamentable because the significant amounts of money which both parties no doubt have spent on legal costs are not recoverable in the Fair Work jurisdiction. The fact that the parties themselves will have to bear those costs through no fault of their own is a most regrettable result of the inevitable outcome of this appeal. 15 Mr Hurley applied for the grant of a cost certificate pursuant to ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth). In light of the reasons we have given, it is, in our opinion, appropriate for the Attorney-General to authorise payment under that Act to Mr Hurley in respect of the costs he incurred in relation to the appeal and the new trial. 16 For those reasons, we will make the following orders: (1) Leave be granted to STSNT to file an amended notice of appeal in the terms handed to the court today. (2) Ground 13 of the amended notice of appeal be allowed. (3) The appeal otherwise be dismissed. (4) The declaration and orders 1 and 2 made by the primary judge on 2 November 2021 and the orders made on 5 November 2021 be set aside. (5) The matter be remitted for rehearing to a different judge of the Federal Circuit and Family Court of Australia (Division 2). (6) A certificate be granted to Mr Hurley under ss 6(1) and 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs of the appeal and the new trial. (7) The matter be referred to a Registrar of the Court for mediation, the mediation to take place at the earliest possible opportunity. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, O'Callaghan and Thomas.