FEDERAL COURT OF AUSTRALIA

Wilczak v Alpine Refrigeration & Air Conditioning Pty Limited

[2004] FCA 1356

PRACTICE AND PROCEDURE – appeal – setting aside judgment – discovery – obligations on party giving discovery to make inquiries and search – whether respondent complied with Federal Magistrate’s order for discovery – whether a real possibility that hearing would have resulted in a different outcome – whether Federal Magistrate should have made inferences from deficiencies in discovery

FEDERAL JURISDICTION – Federal Magistrates Court – jurisdiction over a ‘matter’ – extent of justiciable controversy between the parties – whether issue as to leave entitlements part of the relevant matter

WORDS AND PHRASES – ‘matter’

Evidence Act 1995 (Cth) s 131

Federal Magistrates Act 1999 (Cth) s 3, s 14, s 18 and s 45

Trade Practices Act 1974 (Cth) s 51AC

Commonwealth Constitution ss 76-77

Australian Securities and Investment Commission v Edensor Nominees Pty Ltd 204 CLR 559 applied

Brookfield v Yevad Products Pty Ltd [2004] FCA 1164 cited

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 followed

Re Gorm; Ex parte Co‑operative Building Society of South Australia (1989) 86 ALR 275 followed

ANNA WILCZAK v ALPINE REFRIGERATION & AIR CONDITIONING PTY LIMITED (ACN 055 127 163) AND HARRY SISSANES

N 257 of 2004

BRANSON J

21 OCTOBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT the appeal be stood over to a date to be fixed for the purpose of making orders, including an order or orders as to costs, giving effect to these reasons.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal from the whole of a judgment of the Federal Magistrates Court.  Pursuant to a direction of the Chief Justice, the appeal was heard by a single judge rather than by the Full Court.

2                     The applicant instituted a proceeding in the Federal Court following the termination of her employment by the first respondent, a company of which the second respondent is the managing director.  By her application the applicant claimed, amongst other things, declarations that the respondents had breached her employment contract, breached their duty of care to the applicant and were liable to pay damages to the applicant by reason of their breach of various provisions of the Trade Practices Act 1974 (Cth) (‘the TPA’) and by way of compensation in equity.  She further alleged that the respondents engaged in unconscionable conduct in breach of s 51AC of the TPA by refusing to pay her outstanding entitlements of annual leave with leave loading.  A judge of this Court transferred the proceeding instituted by the applicant to the Federal Magistrates Court.

3                     The learned Federal Magistrate (Driver FM) who heard and determined the proceeding dismissed the application with costs to be assessed on an indemnity basis.  His Honour concluded that the application failed because of lack of proof.  His Honour found the allegation on which the appellant’s claims under the TPA depended, namely that the respondents had made certain representations concerning the legality and ethical standards of the first respondent’s business practices, to be absurd.  His Honour further found that even if the alleged representations had been made, there was no reliable evidence that they were untrue.  His Honour preferred documentary evidence and the evidence of Patricia Alfonso (‘Ms Alfonso’), a former colleague of the appellant, to the evidence given by the appellant as to the respondent’s business practices.

4                     On the issue of the alleged inadequacy of the discovery given by the respondents, the Federal Magistrate at [59] observed:

‘The applicant would have me believe that the evidence of unethical business practices exists and that it must be in documents withheld from discovery.  The applicant had sought discovery against the respondents that amounted to an oppressive fishing expedition.  They were right to resist it.  The limited discovery that I permitted was sufficient to reveal evidence of commercial wrongdoing over the relevant period if it existed.  No commercial wrongdoing was revealed and the vituperative inventive about discovery indulged in by the applicant does her no credit at all.’

5                     His Honour further concluded that the appellant’s claims of breach of contract and negligence failed.  His Honour at [61] said:

‘…There is no reliable evidence that the respondents breached any implied terms of contract or duty of care owed to the applicant in relation to her not being required to perform duties that were illegal, immoral or unconscionable.  The applicant was, however, expected to perform her normal duties with reasonable efficiency.  There is strong and persuasive evidence that she failed to do so.  The applicant was not simply a bad employee; she was deplorable. ….’

6                     Although his Honour recognised in his reasons for judgment at [7] that the appellant claimed that she had not been paid her employee entitlements in full, he made no explicit finding concerning the appellant’s claim in respect of her leave entitlements.

grounds of appeal

7                     The notice of appeal purports to identify thirteen grounds of appeal.  The majority of the purported grounds of appeal are unparticularised complaints as to the manner in which the hearing before the Federal Magistrate was conducted and as to the outcome of the application to the Federal Magistrates Court.

8                     The appellant’s written and oral submissions lead me to conclude that her principal complaint concerning the judgment of the Federal Magistrates Court is that her inability to prove the case pleaded in her statement of claim was the direct result of the respondents’ failure to give discovery as ordered by the Federal Magistrate.  She also contends that the respondents’ failure to give discovery as ordered should have made the Federal Magistrate more ready than he might otherwise have been to infer that her allegations against the respondents had merit.  The appellant did not seek to challenge the appropriateness of the discovery order made by Driver FM.  By her written submissions dated 7 July 2004 the appellant contended:

‘My position is that the Respondents did fail to provide discovery as ordered and that they did so as a tactic that denied me a fair trial.’

consideration

Discovery

9                     Section 45 of the Federal Magistrates Act 1999 (Cth) (‘the FMA’) provides that discovery is not allowed in relation to proceedings in the Federal Magistrates Court unless the Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow discovery.

10                  On 20 June 2003 Driver FM made, amongst other orders, the following orders:

‘1.        The first respondent is to give discovery of the documents in categories 1 to 7 in annexure “A” to the affidavit of Nicholas Sean Burke filed on 17 June 2003, limited to the period from 1 November 2001 to 31 December 2001 and limited further to documents relating to warranty claims and the sale of goods and services.

2.                  The first respondent is to give discovery to [sic] the documents in categories 8 and 9 in annexure “A” to the affidavit of Nicholas Sean Burke filed on 17 June 2003.

…

6.                  Discovery is to be completed on or before 21 July 2003.

7.                  Inspection of documents is to take place on or before 4 August 2003.’

11                  Annexure “A” to the affidavit of Nicholas Sean Burke filed on 17 June 2003 is a copy letter dated 8 May 2003 written on behalf of the appellant to the solicitors for the respondent.  The letter sought discovery of documents in the following categories:

‘Category 1.

All Invoices produced during the period 10 September 2001 to 27 May 2002

Category 2.

All cash receipt books for the same period.

Category 3.

All warranty claims for the same period.

Category 4.

All Worksheets for the same period

Category 5.

Bank deposit books for the same period

Category 6.

Printout of the MYOB accounts during the same period.

Category 7.

Spiral bound cash books (please refer to statement of claim)

Category 8.

All documents relating to Anna Wilczak with respect to her worker compensation claim.

Category 9.

All documents relating to terms of employment of Anna Wilczak.

All documents relating to awards or workers compensation payments.’

12                  No order for discovery was made requiring the second respondent personally to make discovery of documents.  No party suggested that Driver FM had not declared, as required by s 45 of the FMA, that it was appropriate, in the interests of the administration of justice, to allow discovery.  I therefore proceed on the basis that his Honour did so declare.

13                  It is of critical importance to litigation conducted under the common law system that parties to litigation comply with their respective obligations to give discovery.  In this case the obligation of the first respondent to give discovery arose from, and was circumscribed by, the orders made by Driver FM which are set out in [10] above.  It is open to this Court to set aside the judgment entered by Driver FM in favour of the respondents if the Court is satisfied that:

(a)                the first respondent failed to comply with its obligations in respect of discovery; and

(b)               the interests of justice would be best satisfied by the Court doing so.

Authorities that support the above proposition include Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 and Brookfield v Yevad Products Pty Ltd [2004] FCA 1164.

14                  In Commonwealth Bank of Australia v Quade at 142-143 the High Court observed:

‘It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court’s assessment of what will best serve the interests of justice, “either particularly in relation to the parties or generally in relation to the administration of justice”: cf, eg, McDonald v McDonald (1965) 113 CLR at 533, 542. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party (cf Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985), 2 NSWLR 340 at 357), any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is “almost certain” or “reasonably clear” that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.’

15                  The passage quoted above makes it plain that it is appropriate in this case to give consideration first to whether the appellant has established that the first respondent failed to comply with its obligations to give discovery and, secondly, if she has, whether it appears that there is at least a real possibility that a judgment in her favour would have been entered had the first respondent in fact complied with its obligations in respect of discovery.  The appellant, in a schedule that she usefully provided to the Court, identified six pieces or categories of evidence which, she submitted, supported her claim that the first respondent had not complied with its duty to make discovery of documents as ordered by the Federal Magistrate.

16                  The first piece of evidence on which the appellant relied was the last sentence of par 12 of annexure E of the affidavit of the second respondent sworn on 17 October 2003.  Annexure E to the second respondent’s affidavit of 17 October 2003 is a copy of a statement made by the second respondent on 8 July 2002 concerning the appellant.  In the statement at par 12 the second respondent refers to the appellant taking about two weeks to alter the first respondent’s entire filing system in a way which the second respondent considered unsatisfactory.  The final sentence of par 12 of the annexure reads:

‘This then meant that the 2 weeks work she had previously performed had to be all undone and everything was put back the way it was.’

This sentence has no direct relevance to the issue of the adequacy of the respondent’s discovery.  I consider below whether it has any indirect relevance or provides the context in which certain complaints concerning the respondents’ discovery are to be understood.

17                  The second piece, or perhaps category, of evidence on which the appellant relied was annexures ‘D’, ‘E’, ‘J’, ‘Q’ and ‘S’ to the affidavit of the second respondent dated 17 October 2003.  The appellant’s complaint with respect to these annexures was, as I understand it, that they were not included in the respondents’ list of discovered documents.  The relevant annexures to the affidavit of the second respondent dated 17 October 2003 are:

annexure ‘D’:     a copy letter from the second respondent to the first respondent’s workers compensation insurer (‘GIO’) dated 2 July 2002;

annexure ‘E’:      a copy statement made by the second respondent to an investigator from GIO dated 8 July 2002;

annexure ‘J’:       a copy letter dated 20 November 2002 from GIO to the appellant;

annexure ‘Q’:     a copy letter dated 4 February 2003 from GIO to the first respondent; and

annexure ‘S’:      a copy taxation statement of the first respondent dated 4 January 2003.

18                  I am willing to proceed on the assumption that the order for discovery made by Driver FM reached to the annexures identified above although, in my view, it may be doubted that the order did reach at least to annexure ‘S’.

19                  It appears that the first respondent gave discovery by serving a list of documents on or about 21 July 2003 and an amended list of documents on or about 19 August 2003.  In each case the list was verified by an affidavit sworn by the second respondent.  The item descriptions used in the lists are sufficiently general for it to be impossible for me to determine whether annexures ‘D’, ‘E’, ‘J’ and ‘Q’ were formally discovered by the first respondent.  It appears probable that annexure ‘S’ was not discovered.

20                  However, the appellant was provided with copies of the annexures to the affidavit of the second respondent dated 17 October 2003 when that affidavit was served on her.  There is no evidence before me fixing the date on which that affidavit was served on the appellant.  However, nothing before me undermines the natural inference that the affidavit was served on the appellant on or about the day that it was filed in the Federal Magistrates Court, namely 20 October 2003.  The trial before Driver FM took place on 17‑18 November 2003.  I therefore conclude that, whether or not all of the documents that became annexures to the second respondent’s affidavit were discovered by the first respondent, the appellant saw them approximately four weeks before the hearing of her application to the Federal Magistrates Court.  The appellant has not suggested that she was in any way disadvantaged by not seeing the documents that became annexures to the second respondent’s affidavit at an earlier time.  Indeed, annexures ‘D’, ‘E’, ‘J’, ‘Q’ and ‘S’ to the second respondent’s affidavit of 17 October 2003 do not appear to provide support for the case that the appellant sought to maintain before the Federal Magistrate.  Even if I am wrong in concluding that the appellant would have seen the annexures to the second respondent’s affidavit dated 17 October 2003 some weeks before the hearing of her application to the Federal Magistrates Court, I am not satisfied that there is a real possibility that the hearing would have resulted in a different outcome if she had seen them at this, or an earlier, time or that for any other reason the interests of justice would be served in setting aside the judgment of the Federal Magistrates Court because of any failure by the respondent to discover the annexures.

21                  The third piece of evidence on which the appellant relied was annexure ‘D’ to the affidavit sworn by Philip Julian Hardcastle (‘Mr Hardcastle’) on 25 August 2003.  Annexure ‘D’ to Mr Hardcastle’s affidavit of 25 August 2003 is a copy of the affidavit sworn by the second respondent on 19 August 2003 to verify the first respondent’s amended list of documents.  By par 3 of his affidavit the second respondent deposed to having his car broken into and his briefcase, which contained certain of the documents identified in the amended list of documents, stolen.  The appellant drew attention to the fact, as it appears to be, that the documents identified by the second respondent as having been stolen were not referred to in the first respondent’s initial list of documents.  I assume that the amended list of documents was prepared to remedy deficiencies in the initial list of documents, including the deficiency of not listing the documents later identified as having been in the stolen briefcase.  The documents that were lost with the stolen briefcase were listed in the amended list of documents, under the heading ‘Documents that were in the Second Respondent’s possession but no longer are’, as follows:

‘23.      A number of individual deposit slips for the period 1 November 2001 to 31 December 2001;

24.       Original spiral bound cash book from 31 October 2001 to 7 November 2001.’

22                  I accept that had the first respondent given discovery of the documents that were lost with the stolen briefcase on or before 21 July 2003 as the Federal Magistrate ordered, the appellant would, in all probability, have inspected the documents before the date on which they were stolen along with the briefcase.  However, I note that the first respondent’s amended list of documents discloses that bank deposit books and bank statements from 3 November 2001 to 4 January 2002 were discovered as being in the respondent’s possession as was a spiral bound cash book from 7 November 2001 to 2 January 2002.  There is no evidence before me which suggests that the unavailability to the appellant of the limited documentation lost with the stolen briefcase could have disadvantaged the appellant in the presentation of her case in the Federal Magistrates Court.  The appellant’s case as pleaded was that ‘numerous’ false invoices were issued by the first respondent, that on ‘numerous occasions’ during her employment the second respondent instructed her to create false invoices and that it was a common practice of the second respondent to conceal the truth to enable false warranty claims to be made.  Proof of the appellant’s pleaded case in the circumstances is unlikely to have depended upon the availability of the documents, or copies of the documents, lost with the stolen briefcase.  I am not satisfied that there is a real possibility that the hearing would have resulted in a different outcome or that for any other reason the interests of justice would be served by setting aside the judgment of the Federal Magistrates Court because of deficiencies in the first respondent’s initial discovery.

23                  The fourth piece of evidence on which the appellant placed reliance was a passage from the transcript of the hearing before the Federal Magistrate.  The passage appears between pages 151‑154 of the transcript.  It records part of the evidence given by Ms Alfonso while being cross‑examined by the appellant.  In the passage on which the appellant relies, Ms Alfonso gave evidence that all of the financial records of the first respondent were entered into a MYOB accounting package so that, in respect of a particular period, reports could be produced showing, for example, all payments received, all sales made and all outstanding accounts.  She also gave evidence that the MYOB package allowed trial balance sheets to be prepared and allowed all cash and cheque payments to be balanced against all issued invoices.  She did not give evidence that in fact any trial balance sheets had been prepared or that at any time cash and cheque payments had been balanced against issued invoices.

24                  I assume that the appellant placed reliance on the above passage from the transcript because of the order made by the Federal Magistrate that required the first respondent to give discovery of, amongst other documents, the documents in category 6 in annexure ‘A’ to the affidavit of Nicholas Sean Burke filed on 17 June 2003, limited to the period from 1 November 2001 to 31 December 2001 and limited further to documents relating to warranty claims and the sale of goods and services.  Ms Alfonso’s evidence did not establish that the first respondent failed to comply with the discovery order made by the Federal Magistrate concerning the category 6 documents.  That order is to be understood, in my view, as requiring the first respondent to discover documents in existence that had been printed out using the MYOB package; it did not require the first respondent to bring into existence documents that could be, but had not been, printed using the MYOB package.  It is not in dispute that numerous MYOB documents were discovered by the first respondent and made available for inspection by the appellant.  These included records of sales made and invoices issued during the relevant period.  There is no evidence that shows that any other relevant classes of documents were ordinarily brought into existence using the MYOB package in the course of the first respondent’s business or had in fact been printed using the MYOB package.  The order did not in these circumstances require the first respondent to operate the MYOB package to produce trial balance sheets or in an attempt to balance all cash and cheque payments against all issued invoices.

25                  The fifth piece of evidence on which the appellant relied was another passage from the transcript of the hearing before the Federal Magistrate.  This passage appears at page 205 of the transcript.  It records part of the evidence given by the second respondent while being cross‑examined by the appellant.  The appellant drew the second respondent’s attention to par 4 of the affidavit by which he verified the first respondent’s amended list of documents.  Paragraph 4 of the affidavit states:

‘I previously had in my possession a number of technicians yellow worksheets for the period 31 October 2001 to 31 December 2001 however despite extensive searches I have not been able to locate the majority of these documents amongst the archived filed documents nor anywhere else.  These cannot be found due to the filing system implemented by the Applicant during her period of employment with the First Respondent.’

26                  The transcript at page 205, in the passage on which the appellant places reliance, records the following exchanges:

‘MS WILCZAK:  Okay.  Could you tell me if you were able to or not locate the majority of the documents?---Yes, as I’ve explained there the majority of the yellow work sheets.  The documents we located them all which were MYOB print‑outs, but the majority of the yellow work sheets we could not locate.

Hang on.  You just said ---

HIS HONOUR:  Mr Sissanes, are there any documents in the bundle comprising exhibit R9 which is this bundle ---?---That’s them, yes.

Have you found additional documents which were included in that document or is it the same documents that you discovered that you refer to in paragraph 4 of your affidavit?---They’re the ones we had found.

Right?---But we could not find all of them.

Yes.  Thank you?---I mean, if we looked through every single archive box in the place we’d probably find them somewhere.  Like, we’ve probably got 30 boxes to go through and individual files.’

27                  I understand the second respondent by his reference, recorded in the above passage, to the probability of finding the documents somewhere to be acknowledging that the documents had not been stolen or destroyed; that is, to be acknowledging the probability that the documents remained somewhere in the possession of the respondents.  However, I do not understand him to have in any way retreated from his affidavit evidence that, despite extensive searches, he had not been able to locate them.  Additionally, I note that exhibit R9 includes more than thirty‑five yellow work sheets respectively bearing dates between 31 October 2001 and 20 December 2001.

28                  It may be that the first piece of evidence on which the appellant relied (see [16] above) is intended to form part of the context in which the second respondent’s evidence concerning the unfound yellow work sheets should be considered.  If it is, it is appropriate to note that I do not understand the second respondent’s reference to ‘everything [being] put back the way it was’ to be intended to convey that every document was put back precisely where it previously was, but rather that it was intended to convey that the previous system of filing was re‑established.  The second respondent, who did not undertake the alteration of the filing system, or the re‑establishment of the original system, could not be expected to know the precise location of every document within, or indeed outside, the filing system.

29                  The orders made by Driver FM requiring the first respondent to give discovery are to be understood in the light of the authorities touching on the extent of the obligation which rests on a party that is required to give discovery.  These authorities are usefully summarised in the following passage from the judgment of von Doussa J in Re Gorm; Ex parte Co‑operative Building Society of South Australia (1989) 86 ALR 275 at 278:

‘The obligation resting on a party obliged to give discovery requires that he make proper inquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making inquiries from the person in whose possession the documents now are: see Mertens v Haigh (1863) 3 De GJ & Sm 528 at 531; 46 ER 471 at 472. It was said in the nineteenth century case of Taylor v Rundell (1841) Cr & Ph 104; 41 ER 429 at 433 by Lyndhurst LC: “If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it”; see also Palmdale Insurance Ltd (in liq) v L Grollo and Co Pty Ltd [1987] VR 113.

The scope of the inquiries which should be made will depend on the circumstances of the case having regard to the need for discovery in order to dispose fairly of the matters in question, or to save costs in the proceedings. The inquiries must be reasonable, but do not demand of the party giving discovery that he goes to lengths which are oppressive. Guidance is available from cases on the allied procedure for interrogatories. In Sroka v Gorbal and Scott (1980) 25 SASR 356 the Full Court of South Australia held that it was reasonable to require a party interrogated about the circumstances of a car accident to revisit the scene for the purpose of answering provided that to do so would not impose undue hardship.’

30                  The extent of the efforts that the first respondent was required to make to locate the worksheets was dependent upon the circumstances of the case brought by the appellant.  Those circumstances included that the case was one considered by a judge of this Court to be suitable for trial in the Federal Magistrates Court.  The FMA reflects a legislative intention that the Federal Magistrates Court should provide a forum in which disputes may be resolved informally, expeditiously and inexpensively (see, in particular, s 3 of the FMA).  As mentioned above, the second respondent gave evidence that extensive searches had been made in an endeavour to find all of the yellow worksheets.  It appears that the appellant contends that such extensive searches were insufficient to satisfy the obligation that rested on the first respondent because, as was conceded by the second respondent, exhaustive searches would probably have located the missing yellow worksheets.  I reject this contention; the order made by Driver FM did not require the making by the first respondent of exhaustive, as opposed to reasonable, searches.

31                  I am not satisfied that the first respondent failed to make reasonable efforts to locate all of the yellow worksheets of which it was obliged to give discovery.

32                  In any event, there does not seem to me to be a real possibility that judgment would have been entered in the appellant’s favour had the first respondent discovered all of the yellow worksheets.  The appellant’s claims under the TPA failed principally because Driver FM was not satisfied that the alleged representations that were critical to the appellant’s claim had been made.  The yellow worksheets had no evidentiary relevance in respect of the alleged representations.  The yellow worksheets, on the appellant’s case, were relevant to her claim that the respondents had on numerous occasions engaged in unlawful and unethical behaviour concerning warranty claims.  His Honour concluded that the appellant’s own evidence showed that she had ‘remarkably little understanding of the warranty claims system’ of the first respondent.  His Honour also accepted the evidence of a witness, whom he regarded as ‘honest and reliable’, that ‘there were no false warranty claims, or indeed any unlawful or unethical behaviour by the respondents’.  It is of some significance, in my view, that the appellant was not able to identify, by reference to customer name or otherwise, particular yellow worksheet or worksheets that were not discovered and which would have provided support for her case.  Moreover, if the respondents had, as the appellant alleged, engaged in unlawful and unethical behaviour concerning warranty claims on numerous occasions one might expect that at least one of the yellow worksheets contained in the exhibit R9 would have supported the appellant’s allegations.  I am not satisfied that the interests of justice would be served by setting aside the judgment of the Federal Magistrates Court because of the first respondent’s failure to locate all of the yellow worksheets of which it was required to give discovery.

33                  The sixth piece of ‘evidence’ on which the appellant placed reliance was the first sentence of [55] of the reasons for judgment of Driver FM.  That sentence reads as follows:

‘This application fails because of a lack of proof.’

34                  As I understand it, the appellant drew the Court’s attention to this aspect of the reasons for judgment of Driver FM to emphasise the importance that his Honour attached to evidentiary deficiencies in the case that she presented.  It is plain that his Honour did attach importance to the evidentiary deficiencies.  However, for the reasons given above, this fact does not assist the appellant in establishing that the judgment entered in favour of the respondents should be set aside.  She has not satisfied me either that the respondents engaged in any misconduct relating to discovery or, assuming that they did, that fuller discovery by the first respondent would have assisted her case before the Federal Magistrate in a meaningful way.

35                  I have considered above each of the appellant’s complaints concerning the discovery made by the first respondent separately.  It is also appropriate for me to give consideration to the possible cumulative effect of any possible deficiencies in that discovery.  Having done so, I am not satisfied that a new trial should be ordered in this case because of the alleged deficiencies in the discovery given by the first respondent.  To the extent that any relevant evidence may not have been disclosed to the appellant, I am not satisfied that even the cumulative effect of that non‑disclosure had any real significance to the outcome of the trial.  The interests of justice would not be served by an order for a retrial.  Further, I am not satisfied that the circumstances surrounding the giving of discovery by the first respondent should have made the Federal Magistrate more ready than he might otherwise have been to infer that the appellant’s allegations against the respondent had merit.

Leave Entitlements

36                  The notice of appeal includes the following ground:

‘Driver FM erred by failing to conclude that the Respondents owed the Plaintiff paid leave entitlements even though the Respondents orally evidenced it was so.’

37                  By subparagraph 19(c) of her statement of claim in the Federal Magistrates Court the appellant alleged that the respondents engaged in conduct in breach of s 51AC of the TPA in that they:

‘(c)       refused to pay the Applicant her outstanding entitlements of annual leave with leave loading.

            Particulars

(i)                 The Applicant was informed by Facsimiles received in February 2003, from Nick Burke of Heard McEwan Lawyers acting for the Respondents, that they acknowledged the unpaid entitlement of the Applicant and the requirement by law to pay the entitlement but refused to pay them unless the applicant gives a release of all claims against their clients.’

38                  The reasons for decision of Driver FM record under the heading ‘Evidence’ that the second respondent gave evidence that:

(1)               he arranged for the appellant’s employee entitlements up to February 2003 to be paid to her; and

(2)               two payments were made, the second to correct a possible calculation error in the first payment.

However, his Honour’s reasons for decision include no finding with respect to the appellant’s leave entitlements. 

39                  The written outline of submissions of the respondents on the appeal includes the following paragraph:

‘The appellant’s complaint at paragraph 4 of the notice of appeal is that Driver FM failed to find that the respondents owed the plaintiff paid leave entitlements.  There are a number of answers to this contention, but the most obvious is that it has nothing at all to do with the issues raised by the pleading.  If the respondents owe the appellant some further accrued leave entitlement (which is not accepted), it is a debt.  It is not a federal matter and it is not a claim for misleading and deceptive conduct in relation to a representation about hourly rates.’

40                  Federal jurisdiction, and thus the jurisdiction of the Federal Magistrates Court, is a jurisdiction in respect of ‘matters’ (see ss 76-77 of the Commonwealth Constitution).  A ‘matter’ in this sense is a ‘justiciable controversy identifiable independently of the proceeding brought for its determination’ (see Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 per Gleeson CJ, Gaudron and Gummow JJ at [54] (‘ASIC v Edensor’)). 

41                  Sections 14 and 18 of the FMA provide as follows:

‘14.      In every matter before the Federal Magistrates Court, the Federal Magistrates Court must grant, either:

(a)        absolutely; or

(b)        on such terms and conditions as the Federal Magistrates Court thinks just;

all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:

(c)        all matters in controversy between the parties may be completely and finally determined; and

(d)       all multiplicity of proceedings concerning any of those matters may be avoided.

…

18.       To the extent that the Constitution permits, jurisdiction is conferred on the Federal Magistrates Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Magistrates Court is invoked.’

42                  I reject the submissions of the respondents that, as I understand it, the appellant’s claim in respect of her leave entitlements did not fall within the jurisdiction of the Federal Magistrates Court.  In my view that claim was part of the matter that came before the Federal Magistrates Court for determination.  It was part of the justiciable controversy between the parties as to the rights, if any, of the appellant consequent upon her employment by the first respondent having regard to the circumstances that surrounded and attended that employment and its termination.  If the relevant matter cannot be understood so widely, nonetheless, in my view, s 18 of the FMA gave the Federal Magistrates Court jurisdiction to entertain the claim in respect of the appellant’s leave entitlements (ASIC v Edensor).  I also reject the submission that the claim was not raised by the pleadings.  In my view the issue of whether the appellant had been paid her leave entitlements in full was raised by par 19(c) of the statement of claim ‑ albeit that the statutory basis for the claim may have been wrongly identified.  The reasons for judgment of the Federal Magistrate suggest that the parties conducted their respective cases before his Honour on that basis.

43                  It seems clear that the facsimile transmission received in February 2003 referred to in par 19(c)(i) of the Statement of Claim was not received in evidence by Driver FM because s 131 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) rendered it inadmissible.  Section 131 of the Evidence Act is concerned to prevent evidence being adduced of communications between persons in dispute in connection with an attempt to negotiate a settlement of the dispute.  However, rejection of the tender of the letter did not mean that the appellant’s claim that she had not received the full amount of her leave entitlements necessarily failed.  Counsel for the respondents acknowledged before Driver FM that the appellant should be paid leave entitlements calculated until February 2003.  The evidence before his Honour does not, as I understand it, demonstrate beyond argument that the appellant had been paid leave entitlements calculated until February 2003.

44                  The failure of the learned Federal Magistrate to make a finding in respect of the appellant’s claim that she had not been paid her leave entitlements in full was, I conclude, probably the result of his Honour adopting the practice of giving consideration to the evidence adduced at the hearing witness by witness rather than issue by issue.  It may be that his Honour would have accepted the evidence of the second respondent that the appellant had been paid her employee entitlements in full had he given the claim explicit consideration.  However, although his Honour summarises in his reasons for judgment the evidence given by the second respondent, including his evidence relevant to the claim concerning leave entitlements, he does not indicate whether he accepted all of that evidence.  Although there is no reason to conclude that his Honour took an adverse view of the second respondent’s credibility, the possibility exists that the second respondent could have made an honest error in respect of the quantum of the appellant’s leave entitlement.  His Honour’s reasons for judgment record no finding as to the quantum of the appellant’s leave entitlement.  After some hesitation, I have concluded with regret that this aspect of the appellant’s claim must be remitted to the Federal Magistrate for further consideration unless it can be resolved by the parties themselves.

Judicial Bias

45                  A number of the grounds of appeal set out in the notice of appeal raise the suggestion that the Federal Magistrate was hostile to the case of the appellant because of the adverse view that his Honour took of the role played by Mr Philip Hardcastle in the presentation of that case.  These grounds of appeal must be understood to challenge the judgment of the Federal Magistrates Court on the basis that the Federal Magistrate displayed actual or apparent bias against the appellant or her case during the course of the hearing.

46                  Mr Hardcastle, who I understand to be the appellant’s de facto husband, was permitted by the Federal Magistrate to act as the appellant’s ‘McKenzie friend’.  His Honour, in his reasons for judgment, expresses the view that Mr Hardcastle played the dominant role in conducting the appellant’s litigation with venom and in circumstances in which it had ‘very poor prospects of success’.  His Honour was concerned to see that the parties, including the appellant, were given an opportunity to seek a costs order against Mr Hardcastle.  I note, incidentally, that no party took up this opportunity.

47                  The above circumstances fall well short of establishing that a fair‑minded person might conclude that the Federal Magistrate might not have brought an impartial mind to the determination of the litigation before him.  Indeed, a fair‑minded person would note his Honour’s concern to provide protection to the appellant in respect of the conduct of Mr Hardcastle of which his Honour was critical.

48                  The contention that the Federal Magistrate displayed actual or apparent bias against the appellant, or her case, fails.

Exclusion of Evidence

49                  The notice of appeal contains a ground of appeal that suggests that the Federal Magistrate erred by excluding certain evidence that the appellant sought to adduce.  I have referred above to his Honour having declined to allow the appellant to place in evidence a communication made ‘without prejudice’.  His Honour’s correct ruling in this regard was dictated by the terms of s 131 of the Evidence Act.  The appellant’s submissions do not identify any other evidence that the Federal Magistrate refused to allow her to adduce.  This ground of appeal also fails.

other Matters

50                  The general complaints made by the notice of appeal about the manner in which the Federal Magistrate reached his judgment have, subject to the issue of the appellant’s claim for leave entitlements, not been substantiated.  Subject to the issue of the appellant’s leave entitlements I am not satisfied that his Honour failed to consider the evidence before him or reached conclusions not supported by the evidence.  I am not satisfied that his Honour conducted the hearing in an unfair way.

conclusion

51                  Subject to the issue of the appellant’s claim to be entitled to receive payment of leave entitlements, the appeal must be dismissed.  The appeal will be stood over to a date to be fixed for the purpose of making orders, including an order or orders as to costs, giving effect to these reasons.

Associate:

Dated:              21 October 2004