LEE J:
A INTRODUCTION
1 This hearing concerns statutory compensation sought by the Transport Workers' Union of Australia (the Union) under s 545(1) of the Fair Work Act 2009 (Cth) (FWA) following my finding that Qantas Airways Limited (Qantas) engaged in contravening conduct: see Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873 (liability judgment).
2 On 11 December 2023, as part of readying the matter for hearing, I made an order that the parties deliver to my Associate, both electronically and in hard copy form, a court book which, among other things, contained, in Part A, "the final version only of the Points of Claim, the Points of Defence, the Agreed Facts and the Supplementary Agreed Facts".
3 When the court book was prepared, although a points of claim document (which was in an unorthodox form) was included in the court book, there were no points of defence. The purpose of Part A of the court book was for me to obtain documents which clarified the points in issue in the compensation claim by some form of joinder. It is unfortunate that this did not occur, but that is the reality, and the Court must deal with the procedural position as it is.
B BACKGROUND
4 There has been an exchange of helpful and detailed written submissions in advance of oral addresses. This has involved the exchange of an initial outline of submissions and the filing of revised submissions addressing the earlier submission filed by the counterparty.
5 When those first submissions were filed on 12 April 2024, a new argument was raised as to the appropriate counterfactual which was posited by Qantas as being integral to the calculation of any statutory compensation. It is frankly accepted on behalf of the respondents that this was the first time what it describes as a so called "logical" counterfactual was raised. In the submissions filed by the Union in response, the Union contends:
It is not open for Qantas to raise this contention in final submissions in circumstances where the TWU was not on notice that this counterfactual would be raised. Qantas' case in opposition to the TWU's claim for compensation has always been that it would have decided to outsource its ground handling and fleet operations in August 2021: Respondents' Outline of Submissions regarding compensation for Test Case Individuals 12 March 2024 at [2]; oral opening, T185.19-186.13. The TWU was not afforded the opportunity of adducing evidence or cross-examining Qantas' witnesses about the 'logical counterfactual'. The TWU will be denied procedural fairness to the TWU if Qantas is allowed to run a case that was never pleaded or adverted to before final submissions.
6 It followed that when the matter was called on for oral addresses this morning, I was faced with a dilemma. On the one hand, Qantas wish to advance a case as to the appropriate counterfactual without adducing further evidence and which they say is based on the findings I previously made in the liability judgment (as supplemented by the evidence adduced at this hearing). The Union, on the other hand, says that it would have conducted its case differently in the event that this new argument had been flagged in a timely way.
C RELEVANT PRINCIPLES
7 Relevantly, s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) 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 mattes 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.
8 In exercising a practice and procedure discretion, it is necessary, consistently with s 37M(3), that I do so in such a way as best promotes the overarching purpose.
9 The foundation of the exercise of judicial power is reflected in the overarching purpose by the fact that the Court is to facilitate the just resolution of disputes. Efficiency, expense and speed are all relevant, but the hallmark of judicial power is to quell the controversy between the parties justly.
D CONSIDERATION
10 In giving proper regard to what is just, in circumstances where one party, in advance of final submissions, says that they only wish to rely on the evidence already adduced to advance an argument as to a finding critical to the ultimate issue at the hearing (that is, as to identification of the likely counterfactual), then I would be loath to prevent them from doing so unless it resulted in unacceptable delay and expense or caused some other real prejudice to the other party.
11 Senior counsel for the Union, Mr Gibian SC, has said that there is real prejudice in that, consistently with the submissions made in writing, the conduct of the cross-examination of Qantas' witnesses would have proceeded differently and that consideration would be required to be given to adducing further evidence. When I suggested to Mr Gibian that this prejudice could be ameliorated by making appropriate orders requiring Qantas to recall their witnesses for the purposes of the Union being entitled to cross-examine further and to allow the Union to reopen its case to adduce further evidence, it was said that this would not be a satisfactory solution.
12 The exchange between myself and Mr Gibian is recorded on the transcript, but I must confess, I do not understand why any such prejudice is more than theoretical. I accept that a cross-examiner would be required to consider whether or not evidence given by a witness as to both the "logical" and now alternative counterfactual should form the subject of questioning, but this would have been necessary in the event that the argument now wished to be relied upon by Qantas had been advanced timeously. No specific part of the cross-examination (or even any particular question) has been identified which suggests that the cross-examination (relevant to the issues then understood to be in play) would have been conducted differently.
13 Further, following a short adjournment, it became apparent that in the event that I did allow the new case to be run, then there would be no further cross-examination sought to be undertaken. This tends to confirm my view that the prejudice pointed to in the submissions is perhaps overstated. Despite this, I do not want there to be any suggestion that I have denied the Union procedural fairness by allowing Qantas to raise what it accepts is a new point.
14 I intend to make orders under s 37P(2) of the FCA Act about the practice and procedure to be followed in relation to this proceeding, which would have the effect of only allowing the so called "logical" counterfactual argument to be advanced by Qantas in the event that they are prepared to present any witnesses called in their case in chief that the Union requires for the purposes of cross-examination. I would also impose a term that the Union be allowed to seek any further orders in relation to the production of documents concerning the "logical" counterfactual by compulsory process and which have not already been produced and allow the Union to reopen its case to adduce any further evidence it wishes to rely upon in response to the new counterfactual.
15 In my view, there has been no compelling reason advanced as to why the making of such orders would not overcome any real prejudice to the Union in the circumstances. All such decisions involve balancing between the parties, but ultimately, I am required to not only have regard to the mandates of Pt VB of the FCA Act but also the interests of justice generally, and I think this approach adequately protects the position of both parties.
E ORDERS AND CONCLUDING REMARKS
16 Accordingly, I will make the following orders:
1. Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), the respondents are required to produce for further cross-examination any witnesses called in their case-in-chief for the purposes of any cross-examination required to be undertaken on behalf of the applicant.
2. The applicant be given leave to seek production of any further documents it considers apparently relevant which would not already have been produced.
3. The applicant be given leave to reopen its case following any further cross-examination of the respondents' witnesses.
17 After pronouncing these orders, Mr Gibian indicated that he did not seek the production of further documents, did not wish to exercise the liberty to reopen the case of the Union, nor did he require any witnesses to be produced for the purposes of cross-examination, and, accordingly, it appears there is no need to adjourn the proceedings, and they can proceed to final oral submissions.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.