LEE J:
1 A case management conference has been held today to determine how the Court is best to proceed in dealing with individual claims for compensation. A finding has been made that the first respondent (Qantas) and second respondent (QGS) engaged in contravening conduct and, upon that finding, it is alleged by the Transport Workers Union (Union) that approximately 1680 individuals may have a claim for statutory compensation: see Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; Transport Workers' Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012.
2 It is, of course, entirely impracticable for these individual claims for compensation to be determined by way of the stately progression of individual claims being adjudicated by a judge of this Court. I have raised with the parties the expedient of approaching these individual claims for compensation in a manner similar to the course undertaken by the Court following a successful adjudication of common issues at an initial trial in a representative proceeding.
3 With the cooperation of the parties, three test cases have been identified, dealing with the individual claims for compensation of three non-parties: Mr Chris Carney, Ms Leonie Piggott, and Mr Jeremy McGee (Test Case Individuals).
(1) Mr Carney was employed by Qantas in Canberra, but obtained full-time alternative employment after his retrenchment, and claims non-economic loss for what he alleges is general hurt and distress;
(2) Ms Piggott was employed by the second respondent, QGS, in Sydney, obtained alternative casual employment, and also claims non-economic loss in terms of general hurt and distress; and
(3) Mr McGee, who was also employed by QGS, but in Darwin, has not been able to obtain alternative employment, claims general hurt and distress and has been diagnosed with depression consequent upon retrenchment.
4 Each of these test cases raises disparate, individual issues. Each of the balance of the claims for compensation to be determined later will also raise bespoke issues. None of the claims for economic and non-economic loss is of any real complexity. But they are important not only for the individuals involved, but the determination of these cases on behalf of the Test Case Individuals, and the subsequent ultimate determination of the full quantum of any compensation payable to all those affected, will at least be relevant to the quantum of any pecuniary penalty ultimately visited upon Qantas.
5 As the High Court recently explained in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (at [9] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the normative provisions of the relevant Act by the deterrence of further contraventions. My preliminary view is that the quantum of compensation payable by a contravening party will, it seems to me, inform the amount of the penalty required to achieve the necessary deterrent effect.
6 It is not only in the public interest for any issue of penalty to be determined with alacrity, but it is also important that those seeking compensation have their claim determined as quickly as possible.
7 Accordingly, I have decided to set down the three compensation test cases for a three-day hearing commencing on 18 July 2022. At the conclusion of that hearing, I hope to be able to deliver a judgment, either immediately or shortly thereafter, that will not only make findings in relation to various common issues in relation to the individual claims for compensation, but also provide some guidance as to the quantification of those individual claims. The parties have made some progress in identifying both non-individual and individual issues that need to be determined at the next stage of this litigation, and directions will be made to facilitate the completion of this document.
8 Additionally, the parties have, if I may say so, sensibly agreed on a process of the legal representatives conferring to prepare an agreed facts document which will narrow any disputed issues, and reduce the scope of the evidence required to be adduced at the hearing through the tender of business records, or in some other form. The only two issues that the parties have raised which depart from the course that I had initially contemplated relate to the mode by which evidence-in-chief is to be received, and the way in which questions as to the application of specialised knowledge are to be resolved.
9 As to the first, I am content to make the orders urged upon by the parties for the filing of evidence by way of affidavits. I anticipate that, given the high degree of cooperation that has characterised this case, the scope of the affidavit material will be relatively narrow, as the evidence relevant to the individual circumstances of the test cases should be capable of being agreed. The only exception to this would be subjective evidence that might go to questions of non-economic loss. My preliminary view is that, although I am content for affidavit evidence to be filed relating to this topic, I would be best assisted at the hearing to receive such evidence viva voce, for reasons similar to those supporting the receipt of subjective evidence as to hurt to feelings orally in a defamation case: see Palmer v McGowan (No 2) [2022] FCA 32 (at [42]).
10 I have already referred to one of the claimants having a diagnosis of depression, which is said to be causally related to the retrenchment. It may be that one of the other claimants seeks to make a similar claim. I do not consider that it is consistent with the overarching purpose for me to allow an exchange of experts' reports in relation to this question and order a conferral, only then to make a decision as to which aspects of the expert evidence I should accept. A more pragmatic approach is required. When I raised this at the case management conference, the parties jointly contended that the approach that I should adopt is the appointment of a court-appointed expert under r 23.01 of the Federal Court Rules 2011 (Cth) (Rules).
11 In Tyler v Thomas [2006] FCAFC 6; (2006) 150 FCR 357, Branson J identified (at 365 [29]) the following broad principles that could be deduced from the authorities relating to the appointment of a court-appointed expert:
(1) the power to appoint a court expert is part of the armoury made available to courts for the purpose of ensuring the just, efficient and cost-effective management of litigation;
(2) the power to appoint a court expert is to be broadly understood and is not available to be exercised only where litigation calls for expert evidence of a scientific or technical kind;
(3) a court expert may be appointed to express an opinion on the major issue to be decided in the litigation;
(4) generally speaking, the correct approach will be to regard the appointment of a court expert as the first step, but not necessarily the only step, in the obtaining of expert evidence on a particular issue;
(5) ordinarily the appropriate time for the exercise of the power is well before trial so that the parties have adequate time to give consideration to the report of the court expert and to make decisions on whether they wish to challenge any part of that report; and
(6) the power to appoint a court expert is not ordinarily to be exercise for the purpose of assisting an impecunious party to gather evidence - although the appointment of a court expert may in fact provide such assistance.
12 The appointment of a court-appointed expert is an entirely different course from the appointment of a referee to inquire into and report upon a matter referred by the Court in accordance with s 54A of the Federal Court of Australia Act 1976 (Cth). In a number of judgments, I have traced the history of the referees, both in this Court and elsewhere: see, e.g., Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 (at 307-314 [35]-[63]); CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; (2018) 268 FCR 590 (at 597-300 [26]-[35]). In recent years, referees have played an increasing part in the attempt to case manage proceedings in accordance with the overarching purpose.
13 The parties inform me that there are two reasons why they would prefer a court-appointed expert rather than a referee. The first reason relates to the ability to cross-examine the expert; and the second reason was that there may be some ambiguity concerning the report, which then could be explored or, potentially at least, be the subject of further evidence, subject to leave being granted.
14 As to the first of these matters, this tends to bring into focus why the course of adopting a referee is preferable. I wish to resolve these claims with celerity, and the expedient in having a referee conduct an inquiry, and for a report to be presented to the court, will not be any less expensive than appointing a court expert, and yet will likely reduce further legal costs, and potentially save the Court's time at the hearing. As to the second issue as to any ambiguity, the Rules allow for a supplementary report to be prepared to resolve any ambiguity said to arise from the report, which is a matter that could be raised at any adoption hearing.
15 In my experience over the course of the last several years, rarely has there been a contested adoption hearing. Partly, this is because, at least in the cases where I have appointed a referee, I have also appointed counsel assisting to make sure the report produced by the referee is prepared in such a way as to ensure that it identifies with precision the process of reasoning by which the referee has expressed their view on the matter the subject of report. Accordingly, I think it is consistent with facilitating the overarching purpose that I appoint a referee in relation to any expert questions that arise from the finalisation of the agreed issues statement. I have asked the parties to agree on proposed referees, and conferral can continue during the course of next week.
16 Since delivering the above reasons orally at the case management conference, there have been three developments of significance. First, following the case management conference, it came to my attention that an application had been filed by the respondents for special leave to appeal the decision of the Full Court in Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71. Being unaware of this development, or proposed development, at the time of the case management conference, I subsequently raised the issue with the parties, requesting they indicate whether they consider the hearing of the three test cases should proceed prior to the special leave application being determined. On 17 June 2022, I received correspondence from the parties indicating that, although the respondents were in favour of the vacation of the hearing dates, this was opposed by the Union. In all of the circumstances, it seemed to me at the time that it was appropriate that the matter proceed in accordance with the orders I made on 1 June 2022.
17 Secondly, on 22 June 2022, my Associate received an email sent by the Union indicating that they no longer intended to adduce evidence from Mr Magee as his case study is unlikely to provide any useful guidance. The reasons for this were described as follows: first, Mr Magee had disclosed medical issues such that he would not have been able to resume productive work for QGS even if his position had not been retrenched; and secondly, Mr Magee disclosed that his mental health disorders did not have their genesis in his retrenchment but were caused by pre-existing physical ailments. In the light of these developments, the Union proposed to substitute Mr Magee with Mr Vukasin Andric. Mr Andric was employed by Qantas Airways and, following his retrenchment, developed mental health issues in 2021, in particular depression and anxiety. This change does not cause any difficulty.
18 Thirdly, in the course of conferral as to the Agreed Background Facts document, it is said to have become apparent to the Union that additional evidence will be required for the hearing. In particular, the Union has foreshadowed it intends to lead evidence from Mr Nick McIntosh relating to the counterfactual, in addition to evidence from the Test Case Individuals. The consequence of this, so I am told, is the hearing will not now finish in three days.
19 While it was my initial intention to bring this matter for hearing as soon as practically possible, and despite best efforts, in the light of these three developments, it has become impossible with my current commitments to accommodate the Test Case Individuals hearing in excess of three days until 19 December 2022.
20 I have requested that the parties provide an amended timeline to ready the matter for hearing commencing on 19 December 2022.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.