FEDERAL COURT OF AUSTRALIA

Kennedy v Secretary, Department of Industry [2016] FCA 485

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Application filed on 3 February 2016 seeking relief, including an extension of time, is dismissed.

2.    The Amended Interlocutory Application filed on 30 March 2016 seeking relief, including an order restraining Ashurst from further representing the First Respondent, is dismissed.

3.    The Amended Interlocutory Application filed on 18 April 2016 is stood over to 15 June 2016.

4.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, Mr Ross Kennedy, was formerly employed by the Commonwealth Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education (the “Department”).

2    His employment with the Department came to an end in July 2012. He claimed that he was forced to resign by the conduct of the Department. His case was one of constructive dismissal.

3    For present purposes, it is sufficient to note that in September 2013 he lodged an application with the Fair Work Commission (the “Commission”) seeking relief under s 394 of the Fair Work Act 2009 (Cth) for unfair dismissal. Section 394(2) provides that an application “must be made within 21 days after the dismissal took effect” or within such further period as may be allowed under s 394(3). Section 394(3) provides that a “further period” may be allowed if the Commission is satisfied there are “exceptional circumstances”.

4    By the time Mr Kennedy made his application in September 2013 he was more than a year outside the time prescribed by s 394(2). In December 2013 Commissioner Deegan concluded that Mr Kennedy’s application was to be dismissed as there were no “exceptional circumstances” warranting an extension of time: Kennedy v Commonwealth of Australia [2013] FWC 9932. Mr Kennedy sought to appeal the Commissioner’s decision. There were 38 grounds of appeal. A Full Bench of the Commission dismissed the appeal in June 2014: Kennedy v Commonwealth of Australia [2014] FWCFB 3530.

5    Mr Kennedy then sought judicial review in this Court and invoked the jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth). That application was dismissed in July 2015: Kennedy v Secretary, Department of Industry [2015] FCA 714. In doing so, the primary Judge noted that because he had “dealt with the merits of an application in a substantive and final way, it is more appropriate that any order be a final, rather than interlocutory, one”: [2015] FCA 714 at [34]. In August 2015 orders were made for the payment by Mr Kennedy of the Department’s costs: Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884.

6    In August 2015 Mr Kennedy then filed a document titled “Notice of Appeal”.

7    The matter is before the Court as presently constituted for the purposes of case management. Before an appeal proceeds to hearing before a bench of three Judges of this Court it is common for the matter to come before a single Judge to ensure that the appeal is ready for hearing and to ensure that appropriate directions or orders are made to facilitate the efficient hearing and disposition of the appeal. That objective, of course, is consistent with the mandate imposed by s 37M of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”).

8    Unfortunately the present matter has not progressed smoothly. The matter has now come back before the Court as presently constituted on three occasions, namely:

    14 October 2015;

    23 February 2016; and

    12 April 2016.

But the number of occasions the matter has come before the Court presently assumes little relevance.

9    The difficulties in the preparation of the appeal for hearing initially had their origin in the form in which the Notice of Appeal as first filed was drafted. It was a document comprising some 91 paragraphs and many criticisms of the reasons provided by the primary Judge. From these criticisms it may have been possible to distil properly formulated Grounds of Appeal. But, as filed, the document failed to comply with r 36.01 of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”).

10    In order to afford Mr Kennedy an opportunity to remedy the perceived deficiencies in his Notice of Appeal, the Court on 14 October 2015 made the following directions:

1.    The Appellant is to file and serve, by no later than midday on 12 February 2016, an Amended Notice of Appeal which complies with the Federal Court Rules 2011 (Cth), and in particular with r 36.01.

2.    The Appellant is to file and serve, by no later than midday on 12 February 2016, an Outline of submissions of no more than 20 pages in length (those 20 pages to be inclusive of any annexures, appendices and attachments), which addresses:

a.    the errors said to have been committed by the Full Bench of the Fair Work Commission in its decision dated 20 June 2014 in refusing to grant leave to appeal from the decision of the Commissioner Deegan; and

b.    the appellable errors said to have been committed by Justice Buchanan in his Honour’s decision of 15 July 2015.

The following direction was also made:

3.    Any Interlocutory Application to be filed by any of the parties is to be filed and served with all evidence in support, by no later than close of business on 16 February 2016

The matter was stood over for further mention.

11    Mr Kennedy did not file an Amended Notice of Appeal; nor did he file an Outline of Submissions. What he did file on 3 February 2016 was an Interlocutory Application seeking (inter alia) “leave from the Court to an extension of 150 days to meet requirements made … on 14 October 2015…”.

12    On 23 February 2016 Orders 1 and 2 as previously made were varied such that the Amended Notice of Appeal and submissions were to be filed by 30 March 2016. The time for the filing of any Interlocutory Application was also extended to 1 April 2016. The hearing of the existing Interlocutory Application and any further Interlocutory Application was set down for hearing in Canberra on 12 April 2016.

13    Thereafter, Mr Kennedy:

    on 23 March 2016 filed an Amended Notice of Appeal; and

    on 24 March 2016 e-mailed to the Registry of the Court in Canberra, but did not file, an Outline of Submissions. On 30 March 2016 he filed an Outline of Submissions. What is significant for present purposes is that the two Outlines are substantially different.

Separately from those steps, Mr Kennedy also:

    on 9 March 2016 e-mailed to the Court Registry an application pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “Judicial Review Act”) seeking a statement of reasons for why the Court had refused leave for him to issue subpoenas;

    on 9 March 2016 filed an Interlocutory Application seeking an order that the Court be reconstituted due to apprehended bias;

    on 29 March 2016 e-mailed to the Registry of the Court an application that the hearing on 12 April 2016 be “vacated for another date 4 weeks in advance to enable me to adequately prepare submissions”; and

    on 30 March 2016 filed an Amended Interlocutory Application seeking an order that “Ashurst Australia be restrained from further representing the Commonwealth of Australia’s Department of Industry, Innovation and Science in the proceedings…”.

One further application should be noted, namely:

    the Interlocutory Application filed by the First Respondent on 1 April 2016 seeking an order that the proceedings be struck out.

14    At the outset of the hearing on 12 April 2016 the parties were advised that the Court proposed to set the appeal down for hearing on 15 and 16 June 2016. Although it was contemplated that the appeal would take less than a day, it was considered prudent to allow extra time to ensure that the appeal would be completed.

15    At the outset of the hearing on 12 April 2016, Mr Kennedy also advised the Court that he had recently secured legal representation and wished to amend further his existing Amended Notice of Appeal. Although any further amendment was opposed by Counsel for the First Respondent, the fact that Mr Kennedy had secured legal representation held out the prospect that a further amendment may better identify the Grounds of Appeal to be argued. The Court therefore granted leave and made directions extending the time for the filing of submissions and any Further Amended Notice of Appeal. Setting down the appeal for hearing inevitably had the consequence that Mr Kennedy would have the additional time in which to prepare. It accordingly became unnecessary to resolve his Interlocutory Application seeking extra time to file submissions and prepare for the appeal. It was understood that he abandoned the Interlocutory Application seeking that relief. He abandoned any allegation of apprehended bias arising out of the present constitution of the Court. He also abandoned the Interlocutory Application directed to that relief.

16    As at 12 April 2016, that left for resolution:

    the Interlocutory Application seeking an order against the future participation of Ashurst in the proceeding; and

    the application for reasons why the Court refused Mr Kennedy leave to issue the subpoenas.

Mr Kennedy sought an adjournment of the hearing of this Interlocutory Application. The evidence he sought to secure by way of the subpoenas, he maintained, was “critical” to the relief he sought in his Interlocutory Application. The evidence he sought to secure was of no relevance to the resolution of the Grounds of Appeal from the decision of the primary Judge; the relevance of the evidence was confined to the resolution of the orders sought against Ashurst. The two outstanding issues in need of resolution were thus inherently intertwined – if the evidence was indeed “critical” and if the application for leave to issue subpoenas needed to be revisited by reason of Mr Kennedy’s forensic objective being exposed to scrutiny, an adjournment would become inevitable. If leave were granted to issue one or other of the subpoenas, the hearing of the Interlocutory Application seeking orders against Ashurst could not proceed in advance of that further evidence being secured.

17    In very summary form, the factual basis upon which orders were sought against Ashurst (in one way or another) sprang from:

    the fact that Commissioner Deegan left her employment with the Fair Work Commission and became employed by Ashurst in September 2014; and

    the fact that communications between Mr Kennedy and the Commission were in turn disclosed to Ashurst.

18    Although the relief now sought is confined to the future participation of Ashurst in the appeal now listed for hearing on 15 and 16 June 2016, it is nevertheless necessary to set forth a brief overview of the manner in which Mr Kennedy’s claims before the Commission were resolved, and the resolution of his claim for judicial review before this Court. That context will assist the proper characterisation of the circumstances in which information was passed on to Ashurst.

19    After the hearing in Canberra on 12 April 2016, Mr Kennedy (inter alia):

    on 18 April 2016 filed a further Interlocutory Application seeking “an extension of time to complete all Orders made by Justice Flick on 12 April 2016 by 90 – 100 days” and an adjournment of the hearing of the appeal on 15 and 16 June 2016.

20    Notwithstanding what was understood to be a consensus at the hearing on 12 April 2016 that 15 and 16 June 2016 were convenient dates, it would appear that Mr Kennedy now wishes to re-canvas the setting down of his appeal for hearing.

THE DECISION OF THE PRIMARY JUDGE & THE ISSUES INVOLVED

21    In considering the importance of the directions made for the conduct of the appeal, and the manner in which Mr Kennedy sought to marshal his arguments regarding potential appellable error, it is necessary to re-visit the decisions of the primary Judge and the basis upon which his Honour dismissed Mr Kennedy’s proceeding at first instance.

22    It is important to note that the origin of Mr Kennedy’s concerns can be traced back to the refusal of Commissioner Deegan of the Fair Work Commission to accede to an argument:

    that a notice of discontinuance of Mr Kennedy’s claim for unfair dismissal was filed under duress, the claim for unfair dismissal having been made in respect to the termination of his employment at the Department; and

    that he be allowed a period of time in which to lodge a further application.

The former decision was made by the Commissioner in August 2013; the latter decision was made in December 2013. Thereafter, in June 2014 a Full Bench of the Fair Work Commission declined to give permission to appeal and dismissed the appeal.

23    Thereafter Mr Kennedy commenced proceedings in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth). The hearing of the application took place on 2 July 2015 and judgment was published on 15 July 2015: Kennedy v Secretary, Department of Industry [2015] FCA 714. The application was dismissed. His Honour set forth the background to the dispute and compendiously expressed his reasons for rejecting the arguments then advanced on behalf of Mr Kennedy as follows:

[19]    The jurisdictional errors alleged in the amended statement of claim filed on 12 December 2014 commence with a complaint of lack of procedural fairness and natural justice owing to the composition of the Full Bench. Those complaints relate to the “gender equity” of the composition of the Full Bench and alleged failures of prompt response to correspondence from the applicant. A series of complaints follow which allege a failure to deal with claims of presumed bias, a failure to notify the identity of all the members of the Full Bench in advance, failure to grant adjournments or allow adequate time for the hearing, that members of the Full Bench asked wrong and irrelevant questions and that the Full Bench “failed to reasonably review the exercise of power” by Commissioner Deegan. Then a series of complaints are recorded about the way in which the Full Bench dealt, or failed to deal, with particular findings of Commissioner Deegan.

[20]    The following is not a complete catalogue, but it will serve to indicate the nature and character of the complaints made by the applicant in his written submissions and statement of claim.

[21]    Because Commissioner Deegan is a woman, and two women sat on the appeal with a single man, the applicant complained that the Full Bench was inappropriately and invalidly constituted because the composition of the Full Bench lacked “gender equity”. The applicant’s contention was that at least two men should have sat on the appeal. The applicant also urged upon the FWC before the hearing that the presiding member should be a man, rather than a woman, as he had been advised. The constitution of a Full Bench is a matter for the President of the FWC pursuant to s 618(2) of the FW Act. The only restriction is that at least one presidential member (President, a Vice President or a Deputy President) must be on the Full Bench. The President’s discretion is not subject to considerations of the kind the applicant alleged.

[22]    A related complaint was that the applicant had not been told in advance who the other members of the Full Bench might be despite his specific request for that information. In his submissions he contended that the failure to provide that advice to him was a contravention of the FW Act. That contention has no substance. It betrays a mistaken belief by the applicant, in this and other respects, that the discretions and procedures of the FWC under the FW Act would only be exercised “justly” or “fairly” (and hence validly) if he had no occasion to object to them.

His Honour then went on to reject an argument that the Full Bench had wrongfully denied Mr Kennedy an adjournment, two such applications having been made, respectively, four days and one day before the hearing of the appeal. His Honour continued:

[24]    The applicant complained that insufficient time had been allowed to hear the appeal, but he was told more time would be made available if necessary and, in fact, the hearing continued beyond the time allocated so that he could put all his oral submissions.

[25]    The applicant alleged that he was disadvantaged by having to address whether granting permission to appeal would be in the public interest and that he was not informed by the FWC that such an issue would be considered by the Full Bench. The public interest consideration is a statutory pre-condition (FW Act, s 400). Before the Full Bench the applicant did in fact address both the merits of the appeal and the question of public interest. No jurisdictional issue arises from this complaint. However, another argument was that he wished to advance the issue and was prevented from doing so. The passages in the transcript relied upon to support that contention do not support it. They reveal that the presiding member was sympathetic to the fact that the applicant is not legally trained, but there was no restriction imposed on his ability to address the public interest issue.

[26]    The applicant complained that allegations of bias he made against the presiding member of the Full Bench were not formally dealt with before the hearing. I say “formally’ because no doubt if the presiding member thought she should not sit she would not have done so. It is not now relevant that such an allegation was made unless there are grounds to think the allegation was well-founded as to actual or apparent bias. I see no support at all for any such suggestion. In fact, the Full Bench did refer to this complaint and explained why it had not been accepted.

[27]    The applicant complained that he was required to seek leave to amend his grounds of appeal. The complaint has no merit. He was granted the leave which he sought.

[28]    He complained about various procedural directions, and steps, and alleged shortcomings (including the content of one or two innocuous questions he was asked during the appeal), but none of those matters touch upon the jurisdiction of the FWC.

[29]    The applicant’s complaints included a challenge to the “weight” that the Full Bench gave to certain factors, an allegation that the Full Bench did not establish that Commissioner Deegan was qualified to exercise the jurisdiction of the FWC and that the FWC exhibited bias against the applicant in certain communications it had with the first respondent. There is no substance to any of these complaints. There is no basis to support a finding of jurisdictional error.

[30]    There were further procedural complaints which seem to me, with respect, to proceed from the same misunderstanding by the applicant that the jurisdiction of the FWC (and the Full Bench in particular) depended upon a maintenance of “confidence and trust” by him in the processes he had initiated, such as the appeal itself. Similar problems in due course attended his contribution to the hearing of the application in this court.

[31]    The complaints made about how the Full Bench reviewed Commissioner Deegan’s specific findings amounted to disagreement with those findings and a complaint that the Full Bench had accepted them. There is no substance in any of those complaints in the context of the present proceedings which are concerned with questions of jurisdictional error.

[32]    In my respectful view, there is no substance either (if this is what the applicant intended to submit) in any suggestion that the Full Bench appeared to misunderstand or failed to apply itself to its correct role on the appeal or that it appeared to misunderstand or failed to apply the relevant statutory provisions.

[33]    None of the grounds of the application, or the submissions in support of them, raise any substantive legal issue, much less a jurisdictional one. Rather, they represent a series of procedural complaints and assertions. None of those complaints should be accepted. None of them appear to me to make out any coherent case of jurisdictional error.

the orders sought against ashurst

24    Mr Kennedy’s opposition to Ashurst representing the First Respondent in the present proceeding was initially raised in his Interlocutory Application of 3 February 2016. Thereafter, on 30 March 2016 he filed an Amended Interlocutory Application seeking an order restraining Ashurst from representing the First Respondent.

25    Mr Kennedy’s primary position was that the hearing of this Interlocutory Application could not properly proceed without the evidence he sought to secure by way of subpoena. This evidence, he submitted, was “critical”.

26    In order to understand the basis of this submission Mr Kennedy was invited to outline his argument why an order should be made against Ashurst. To some extent, the factual basis of his argument was a matter of common ground; to some considerable extent, however, his argument depended on an analysis of e-mails by which information Mr Kennedy provided to the Commission was in turn disclosed to Ashurst.

The factual basis of the argument

27    The evidence upon which the application to adjourn, and in the event that the adjournment was refused, the evidence upon which the Interlocutory Application was to be resolved, was to be found within:

    factual matters which were common ground;

    a series of e-mails which were separately marked as an exhibit;

    a press release about the appointment of Ms Deegan as a consultant to Ashurst dated 23 September 2014; and

    an affidavit filed by the First Respondent, being an affidavit of Mr Jonathon Lovell sworn on 7 April 2016. Mr Lovell is a partner within Ashurst. Mr Kennedy made no objection to that affidavit.

28    It was common ground that Ashurst represented the First Respondent in the proceedings brought by Mr Kennedy in the Fair Work Commission.

29    It was also common ground that Ms Barbara Deegan was the Commissioner who made the decision in December 2013 refusing Mr Kennedy’s application for an extension of time. At the time she was a Commissioner her Associate was Ms Sarah Meier. It was also common ground that Ms Deegan was employed as a consultant with Ashurst in September 2014. A press release dated 23 September 2014 announced her appointment as a consultant and stated that the appointment was “an enormous coup for the firm”. The press release further stated that Ms Deegan was to “work closely with partners Paul Vane-Tempest and Jon Lovell”.

30    It was also common ground that a series of e-mails disclosed information to Ashurst that Mr Kennedy had communicated to the Commission.

31    What was not common ground was the proper characterisation of the information communicated by Mr Kennedy and the consequences (if any) flowing from the disclosure of that information to Ashurst.

32    Mr Kennedy submitted that the information disclosed to Ashurst was confidential information and that its disclosure was (for example) a breach of fiduciary duty. On behalf of the First Respondent it was submitted that the information was not confidential and that rather than preserving confidentiality there were sound reasons for ensuring that information communicated by Mr Kennedy to the Commission was in turn disclosed to Ashurst.

33    To give content to his submission, Mr Kennedy made reference (by way of example) to an e-mail forwarded on 3 July 2014. Of present relevance is:

    the date of the e-mail – that date being after the decision of Commissioner Deegan in December 2013 and the decision of the Full Bench in June 2014 and before an outstanding application for costs was resolved;

    the identification of the persons to whom the e-mail was forwarded and those persons who were “copied in” on that exchange; and

    the information disclosed.

34    The 3 July 2014 email was (in part) as follows (without alteration):

From: [Sarah Meier]

To: [Ross Kennedy]

CC: [John Lovell]

Subject: Counter Attendance

Date: Thu, 3 July 2014 07:01:48 +0000

Mr Kennedy,

I refer to our conversation this afternoon. You came to the counter to raise a number of issues. You indicated that:

You have filed an application in the Federal Court of Australia (FC) and were seeking to provide that form to the Commission;

RK: Yes, I gave you a copy of my FC application.

You did not want the contents of that form to be used against you by the Commission;

RK: No, correct.

…

You attended the counter of the FC earlier today and were advised by the Registry that what you were purporting to do at [10] of the application was not lawful because the FWC and FC are separate systems with separate processes;

RK: Yes, correct. As stated to you, Part 10 of FD application was a ‘fall back position’ only if FWC refused to adjourn the costs Hearing until the FC matters have taken course. I understood the FC would send the FWC a copy.

You were unable to attend the hearing this morning because there was not enough notice given and you have work commitments;

RK: I was unable to attend due to short notice, travel and work committments, IT issues/problems and an expectation that any reasonable requests for me to attend any FWC hearing would only be held after 4 July 2014 when the costs hearing was originally scheduled for, not after. I purchased new laptops on Saturday (Toshiba, Good Guys, Fyshwick) and Monday (Apple, Canberra Civic) last causing delays from transfer of data, applications, etc and can provide receipts to FWC to verify. Please advise if these are required.

RK: I am currently a shift worker and require 3-4 days to arrange a colleague to work on my behalf and obtain clearance from Qantas management. I apologise for any inconvenience caused to Commissioner Deegan and the Commission and advised you at the counter that I had sent you an email and telephoned you yesterday morning as soon as I saw the email whilst at work the Directions Hearing details. I did not feel it necessary to check my emails everyday before 4 July 2014 for any advice from FWC to attend to any matter with a deadline before 4 July 2014.

…

RK: Yes, and more convenient. If Commissioner Deegan finds against me on the costs order, I will likely appeal to Full Bench and then to FC again if Full Bench finds against me which is likely given the contents of Decisions by FWC. Commissioner Deegan’s and the Full Bench’s Hearings and Decisions are infected badly with jurisdictional errors. The FWC member that hears the costs Hearing will simply rely upon the Decision made by the Full Bench to finds costs against me. I believe that it is a fait accompli that costs will be awarded against me given the decision made by the Full Bench. I believe that I have no option other than to take the matter to the Federal Court given that the FWC member who hears the Costs matter will simply cite and point to the Full Bench Decision to find against me.

RK: As you are aware, the underlying value of the FWC is that participants meet their own costs and access to arbitration at FWC should accommodate applicants like myself without fear of being having costs awarded against them. Withdrawing my application at any stage due to fear of having costs being awarded against me runs counter to the principles of FWC and Fair Work Act and Commissioner Deegan should be cognisant of this.

I also stated to you that I believed that I am not being taken seriously by the FWC as I am self-representing. I am hoping that the FC will take myself and my matters seriously.

RK: Commissioner Deegan stated to me at the substantive application Hearing that: ‘Merit is already down on your side’ and then proceeded to prevent me from further outlining the merits of my case. It is quite clear in the Transcript. This should be sufficient for any FWC member to dismiss the Respondent’s costs application. It is absurd that given that Commissioner Deegan stated that ‘merit is already down on your side’ at Hearing, we are continuing to contest the issue wasting all parties’ time and resources and Australia Taxpayers money that fund the FWC, Department of Industry and Ashurst Australia’s legal fees. I call on Commissioner Deegan and the FWC to reflect again on the statement made by Commissioner Deegan at Hearing in the context of prospects of success that: ‘Merit is already down on your side.’

…

You feel you were not given a fair deal with respect to the two decisions of Commissioner Deegan and the decision the Full Bench;

RK: No. As I stated to you, the Decisions by Commissioner Deegan and the Full Bench were offensive to me. I described them to you as ‘rubbish’. Both Decisions contain errors in fact and law. I believe that Commissioner Deegan also made an error in respect to the application to set aside the Notice of Discontinuation which is also part of FD application.

You are happy to conciliate with Mr Lovell, but you have not heard back from him as yet;

RK: Yes, correct. It seems Mr Lovell was only prepared to conciliate if I dropped FC matter. After consideration, I will not be doing this. I stated to you that I would be seeking reinstatement and monetary compensation as first options in any conciliation with Mr Lovell and the Respondent. Ashurst has failed to respond to my letter of 1 January 2014 to Mr Paul Vane-Tempest on the costs matter. I have further sought a response on the letter sent to Mr Vane-Tempest from Mr Lovell last week without response.

35    Further e-mails followed. Thus Mr Kennedy e-mailed Ms Meier on 7 July 2014 as follows:

Ms Meier

The conversation and email that I provided to you and Fair Work Commission was provided ‘in confidence’ not to be distributed in any way to any other parties.

I do not recall your seeking my permission to provide the information to the Respondent.

Ms Meier responded on 8 July 2014 as follows:

Mr Kennedy

I refer to your email below and advise that in my capacity as an Associate I do not engage in ‘in confidence’ discussions with parties. I have informed you on a number of occasions that I cannot provide you with legal or specific advice. You should proceed with the knowledge that all correspondence that you send to Chambers will be disclosed to the respondent, and as a matter of course, you should copy in the respondent’s representative to any emails that you send to the Fair Work Commission.

Regards,

36    The specific reference to these e-mails is sufficient to give substance to the argument sought to be advanced by Mr Kennedy. The e-mails provide an example of the concerns expressed by Mr Kennedy. His concerns were that Ms Meier disclosed to Ashurst matters that he maintained went to the forensic “strategy” he was pursuing, or that disclosed his “tactics” and what he perceived to be the “strengths and weaknesses” of his case. With reference to the 3 July 2016 e-mail, Mr Kennedy instances these disclosures as including:

    the fact that he could not attend the hearing because “not enough notice was given” and the fact that he had “work commitments”;

    the fact that he was a “shift worker and require[d] 3-4 days to arrange a colleague to work on my behalf”;

    the prospect of appealing to the Full Bench if Commissioner Deegan found against him on costs; and

    the fact that he described the decisions of Commissioner Deegan and the Full bench as “rubbish”.

It is unnecessary to refer to other e-mails or to further extracts from the 3 July 2016 e-mail properly and adequately to set forth the manner in which Mr Kennedy sought to advance his argument.

The principles to be applied

37    The power of the Court to restrain a legal representative of a party from future participation in a case is not in doubt.

38    At its most fundamental, the power is founded upon the necessity to ensure the “due administration of justice and to protect the integrity of the judicial process”: Fonterra Brands (Australia) Pty Ltd v Viropolous [2013] FCA 657 at [29], (2013) 304 ALR 332 at 336 to 337. Justice Robertson there referred with approval to the observations of Mandie J in Grimwade v Meagher [1995] 1 VR 446 at 452 that the Court has “jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done”.

39    The power is frequently invoked where a client or former client seeks to prevent a legal representative from appearing in circumstances where there is a conflict of interest (cf. Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222) or where there is a “duty of loyalty owed by the solicitor to the former client” (cf. Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065 at [36], (2014) 228 FCR 252 at 261 per Beach J).

40    But the power is not confined to those circumstances in which there is an existing or former relationship: cf. Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248, (2001) 4 VR 501. Nor is the power confined to those circumstances in which there is a danger of misuse of confidential information. In Spincode, Brooking JA thus observed:

[38]    There is a good deal of authority for the view that a solicitor, as an officer of the court, may be prevented from acting against a former client even though a likelihood of danger of misuse of confidential information is not shown …

In Grimwade v Meagher [1995] 1 VR 446 at 452 Mandie J observed:

… The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.

No relevant difference is to be drawn for present purposes between the right to retain Counsel of one’s choice as opposed to a solicitor, or firm of solicitors of one’s choice. The use of the expression “inherent jurisdiction” may be inappropriate in the context of a statutory Court such as the Federal Court of Australia; but it matters not for present purposes whether the jurisdiction is characterised as part of an “inherent jurisdiction” of this Court or as a necessary incidental part of its statutory jurisdiction. The existence of the power cannot be doubted.

41    It is unnecessary for present purposes further to distil the basis upon which this Court may act in restraining a solicitor from acting in particular litigation. It is sufficient for present purposes to accept that the power may be exercised whenever it is necessary to “protect the integrity of the judicial process…”.

The application to adjourn

42    The application to adjourn the hearing of the Interlocutory Application seeking to restrain Ashurst from further participating in the proceeding is refused.

43    There are a number of reasons for that conclusion.

44    The principal reason for so concluding is that any adjournment would neither:

    add meaningfully to the factual basis upon which that Interlocutory Application proceeded – even if leave were to be granted to issue subpoenas addressed (for example) to Ms Deegan or Ms Meier or Mr Lovell, such evidence would not obviously advance any factual issue in need of resolution. The e-mails speak for themselves;

nor would it

    assist in identifying the legal principles which could characterise the information disclosed by Mr Kennedy as “confidential information”.

Given that Mr Kennedy was unrepresented at the interlocutory hearing, however, and given the fact that he had only recently secured legal representation, an opportunity was granted for the parties to file and serve further submissions directed to:

    the application to adjourn the hearing of the Interlocutory Application; and

    the orders sought in that Application.

Any such further submissions were to be filed by Mr Kennedy or his newly retained legal representatives on or before 22 April 2016.

45    A further and important reason for refusing the adjournment is that any application seeking to restrain Ashurst from participating in the hearing should have been made before the primary Judge. An adjournment of the present Interlocutory Application would not overcome the obstacle of refusing relief by reason of delay. No adjournment can overcome the fact that:

    Mr Kennedy was aware from at least 8 July 2014 of Ms Meier’s view that she did “not engage in ‘in confidence’ discussions with parties…”.

More uncertain is:

    the date upon which Mr Kennedy became aware of the press release dated 23 September 2014 concerning the appointment of Ms Deegan as a consultant to Ashurst. Mr Kennedy in oral submissions stated that he was not sure whether he became aware of her appointment before or after the hearing before the primary Judge. But whatever the date, Mr Lovell’s April 2016 affidavit stated that Ms Deegan “has no involvement in the matter currently before the Court”. In correspondence annexed to that affidavit, a letter dated 23 December 2015 from Ashurst to Mr Kennedy states that “Ms Deegan has had and will have no involvement with your matter” and further states that she “does not work on any aspect of your matter”.

Any concern regarding the participation of Ashurst in the proceeding should have been raised before the primary Judge. Given the absence of any involvement on the part of Ms Deegan in the conduct of the proceeding before either the primary Judge or the Full Court on appeal, there is no factual foundation for any relief of the kind sought in the Interlocutory Application by reason of her retention as a consultant with Ashurst.

46    Such reasons, it may readily be accepted, do not confront Mr Kennedy’s strongly held conviction that information he had communicated to Ms Meier (for example) was information that should not have been further disclosed to Ashurst.

47    But if attention is directed to this central aspect of his submissions, there is no reason to reach any different conclusion because:

    the information being communicated by Mr Kennedy was not “confidential information”;

and, moreover

    concerns relating to the “due administration of justice and … the integrity of the judicial process” (Fonterra) would dictate that such information as was communicated by Mr Kennedy to Ms Meier should have been passed on to Ashurst.

Again, no adjournment would prevent these fundamental concerns undermining the submissions being advanced by Mr Kennedy.

48    As to the former concern, an oft-repeated identification of that information which the Courts will protect as confidential information is the following statement of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443:

... It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information …

See also: Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 234 to 235; Campbell v Illawarra Golf Club Pty Ltd (in liq) [2012] NSWSC 1252 at [78] to [84].

49    Reservation is expressed as to whether any of the information being disclosed by Mr Kennedy to Ms Meier can properly be characterised as a confidential:

    “strategy”;

    “tactic”; or

    assessment of the “strengths and weaknesses” of Mr Kennedy’s case.

Cloaking a submission with a characterisation of the information being communicated does not serve to render confidential that which is not.

50    But it matters not how this submission that the information was “confidential” may ultimately be resolved. More fundamentally important is the fact that the basis upon which a Court may restrain a legal representative from further participating in a hearing is not confined to protecting confidential information or to prevent a conflict of interest. The basis is more broadly expressed in terms of ensuring the “due administration of justice and to protect the integrity of the judicial process” (Fonterra). The disclosure to Ashurst of the information Mr Kennedy communicated (for example) to Ms Meier gives rise to no concern for the “due administration of justice and … the integrity of the judicial process”. Indeed, rather the reverse. A concern for the due administration of justice would arise if a litigant sought to have confidential communications with an Associate to either a Commissioner or any other member of the Fair Work Commission. There are sound reasons why an obligation of confidence should not be imposed upon Ms Meier. It is, with respect, antithetical to the open administration of justice for a party to have “in-confidence” communications with an Associate having a direct bearing on the issues in a proceeding: John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 at [23], (2011) 276 ALR 221 at 227.

51    Two further considerations relevant to the decision not to adjourn the Interlocutory Application seeking orders against Ashurst include:

    the interests of the First Respondent. If an order were to be made restraining Ashurst from further representing the First Respondent, its interest in securing alternative representation in advance of the hearing of the appeal is a consideration which cannot be ignored; and

    the “overarching purpose of civil practice and procedure”, namely the imperative imposed by s 37M of the Federal Court Act to facilitate the “just resolution of disputes … as quickly, inexpensively and efficiently as possible”. There is also the requirement imposed upon the parties to a civil proceeding to “conduct the proceeding … in a manner which is consistent with the overarching purpose”. That is a requirement imposed upon parties represented by legal advisers, and also unrepresented parties. The repeated requests for adjournments made by Mr Kennedy are antithetical to the requirement imposed upon him by s 37N. The request for an adjournment of present relevance, namely the request to adjourn the hearing of the Interlocutory Application, would do nothing to facilitate the “just resolution” of the Interlocutory Application.

52    The application to adjourn the hearing of the Interlocutory Application seeking an order against Ashurst is thus refused.

The application to adjourn – critical evidence the subject of subpoenas

53    Such considerations leave outstanding Mr Kennedy’s submission that he sought an adjournment of the Interlocutory Application seeking orders as against Ashurst in order that he could obtain by way of subpoena evidence “critical” to the relief he sought.

54    The Court had previously refused leave to issue any of the subpoenas sought by Mr Kennedy. Each of those decisions has been revisited in light of the “forensic purpose” which Mr Kennedy has identified. Notwithstanding the conviction with which Mr Kennedy advanced his submissions during the hearing on 12 April 2016, nothing that was then said (with respect) leads to any different conclusion. Leave to issue each of the subpoenas is refused.

55    Given the conclusion that subpoenas will not be issued, there is no reason to adjourn the hearing of the Interlocutory Application seeking orders against Ashurst to accommodate the need for subpoenaed documents to be produced or for persons to attend to give evidence. There will be no such evidence secured by these means.

56    Given the importance Mr Kennedy attached to the subpoenas he sought to have issued, there nevertheless remains outstanding his application (or request) that reasons be provided pursuant to s 13 of the Judicial Review Act for refusing leave.

SECTION 13 & THE DUTY TO GIVE REASONS

57    Mr Kennedy has on three occasions sought leave to issue subpoenas.

58    In this Court leave is required before a subpoena may issue. That constraint is to be found in r 24.01 of the Federal Court Rules which provides as follows:

Leave to issue subpoena

(1)    A subpoena may be issued only with the leave of the Court.

(2)    A party may apply to the Court for leave to issue a subpoena without notice to any other party.

Rule 24.12(1) clearly confers discretion upon the Court whether or not to grant leave. That sub-rule provides as follows:

The Court may, in any proceeding, by subpoena, order the addressee:

(a)    to attend to give evidence as directed by the subpoena; or

(b)    to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or

(c)    to do both of those things.

The existence of the discretion is made readily apparent by the use of the term “may” in r 24.12(1). When exercising that discretion, a matter of fundamental importance is whether or not the party seeking leave has demonstrated a “legitimate forensic purpose in relation to the issues in the proceedings”: Wong v Sklavos [2014] FCAFC 120, (2014) 319 ALR 378. Jacobson, White and Gleeson JJ there relevantly summarised the principles relevant to the issue of a subpoena:

[12]    Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings … A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings … Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative … or that the material sought is reasonably likely to add in some way to the relevant evidence in the case … or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued …

Even where leave has been granted to issue a subpoena, an application may be made to have the subpoena set aside: r 24.15. One of the bases upon which a subpoena may be set aside is if it is “oppressive”: cf. Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 per Powell J.

59    On the first of the three occasions on which Mr Kennedy sought leave to issue subpoenas he sought a subpoena to produce documents directed to:

    Mr Craig Rawson, Australian Government Solicitor; and

    Mr Peter McNulty, Ashurst Australia.

The application for leave to issue those subpoenas was supported by an affidavit which in relevant part simply stated:

Under Rule 24.13(1)(b) of the Federal Court Rules 2011, I lodge 2x Form 43B ‘Subpoena to produce documents’ for service on the First Respondent Department of Industry, Innovation and Science as represented by Ashurst Australia and Second Respondent Fair Work Commission as represented by the Australian Government Solicitor.

Leave to issue those subpoenas was refused on 25 February 2016. No reasons were given.

60    On 31 March, the second occasion upon which Mr Kennedy sought leave to issue subpoenas, he sought to issue subpoenas for the following persons to give evidence at the interlocutory hearing on 12 April, namely:

    Ms Barbara Deegan, Ashurst Australia;

    Mr Paul Patti; and

    Ms Sarah Meier, Fair Work Commission.

Also on 31 March, Mr Kennedy lodged the third and final set of subpoenas for the following persons to attend and give evidence on 12 April:

    Mr Jonathon Lovell, Ashurst Australia;

    Mr Paul Vane-Tempest, Ashurst Australia; and

    Ms Rhondda Nicholas, Nicholas Dibb Solicitors.

The application for leave to issue the subpoenas lodged on 31 March was again supported by an affidavit which did little to assist in identifying the forensic purpose Mr Kennedy sought to pursue. Apart from identifying Mr Kennedy and his address, and stating that the affidavit was “made on the basis of my own information and belief based on my own personal knowledge”, the text of the affidavit said only: “I lodge Forms 43A”.

61    The applications for leave to issue all of those subpoenas were resolved in Chambers without hearing submissions from either Mr Kennedy or the Respondents. No reasons were given.

No requirement under section 13

62    To the extent that an application is made for such reasons, pursuant to s 13 of the Judicial Review Act, that application is refused. Section 13 does not impose any requirement to provide reasons for a decision refusing leave to issue a subpoena.

63    Section 13(1) provides as follows:

Reasons for decision may be obtained

Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

Section 13(1), it will be noted, provides that the entitlement to seek a statement of reasons attaches to “a decision to which this section applies…”. Section 13(11) relevantly defines this phrase as follows:

In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:

…

(c)    a decision included in any of the classes of decision set out in Schedule 2.

Section 3 relevantly provides:

decision to which this Act applies means a decision of an administrative character made … under an enactment …

Schedule 2 thereafter provides in relevant part as follows:

Classes of decisions that are not decisions to which section 13 applies

…

(f)    decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of enactments, and, in particular:

…

(iv)    decisions under enactments requiring the production of documents, the giving of information or the summoning of persons as witnesses;

…

64    Section 13, it will be noted, only attaches to a “decision to which this Act applies”, namely a decision which is relevantly of “an administrative character made … under an enactment…”. Even if it were to be assumed that a decision to grant or refuse leave to issue a subpoena is a decision of an “administrative character”, any ambiguity as to whether or not a decision to issue a subpoena would otherwise fall within the phrase “decisions in connection with the … conduct of proceedings in a civil court…” is unequivocally removed by reference to para (f)(iv) of Sch 2. The former phrase is a phrase of “wide import”: Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146. See also: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 at [257] to [260], (2007) 97 ALD 652 at 700 to 701 per Bennett J.

The reasons provided – the initial decision & the applications for leave revisited

65    But the refusal of the application for a statement of reasons pursuant to s 13 of the Judicial Review Act may assume little practical relevance.

66    Even in the absence of any requirement to provide reasons for an exercise of the discretion to grant or refuse leave to issue subpoenas, there is no prohibition upon a Judge doing so. Any such reasons may be provided orally and need not be recorded in a “formal judgment of the court”. And the extent of any reasons provided will depend upon the circumstances of each individual case: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [131] per Logan and Flick JJ (Graham J agreeing). The fact that short reasons may be provided voluntarily should not encourage a course whereby reasons are routinely given. It is the normal practice of the Court for formal reasons not to be provided. That should, it is respectfully considered, remain the normal practice.

67    If the time at which the applications for leave to issue the subpoenas is confined to that prior to the hearing on 12 April 2016, the reasons for refusing leave may be briefly stated. At that point, it was concluded that the applications for leave to issue the subpoenas:

    assumed no relevance to the issues to be resolved on the appeal from the decision of the primary Judge;

and that

    there was no self-evident “forensic purpose” that would be relevant to any of the outstanding applications for interlocutory relief.

The former assessment was confirmed by Mr Kennedy during the hearing on 12 April 2016 when he stated that the sole purpose was to bolster or support his application for interlocutory relief against the continued participation of Ashurst in the proceeding.

68    After the conclusion of the hearing on 12 April 2016, the applications for leave to issue one or other of the subpoenas was revisited with a view to assessing afresh whether any of the submissions then outlined by Mr Kennedy in fact disclosed a legitimate forensic purpose warranting the grant of leave. Notwithstanding Mr Kennedy’s submissions, it was again concluded that leave to issue each of the subpoenas should be refused. No legitimate forensic purpose of any relevance was discernible. Even if a forensic purpose could be discerned, it is concluded that the discretion to grant or refuse leave should be exercised adversely to Mr Kennedy. The merit of his argument can be resolved without such further limited assistance as could have been gleaned from reliance upon further subpoenaed materials. To employ the language of Jacobson, White and Gleeson JJ in Wong v Sklavos, it is concluded that the evidence sought to be secured by way of subpoena was not “reasonably likely to add in some way to the relevant evidence in the case”.

THE FURTHER APPLICATION TO ADJOURN THE APPEAL

69    The decisions which form the subject of this appeal, it will be recalled, were made in July and August 2015. The Notice of Appeal in this matter was first filed in August 2015.

70    The initial Directions to file an Amended Notice of Appeal and an Outline of Submissions were made on 14 October 2015. Those Directions required the documents to be filed by 12 February 2016 – a date some four months after the Notice of Appeal was first filed. It was on 3 February 2016 that Mr Kennedy filed an Interlocutory Application seeking an extension of 150 days in in order to comply with the October 2015 Directions. It should also be recalled that Directions were then made on 23 February 2016 extending the time for Mr Kennedy to file his amended documents until 30 March 2016.

71    Given that the hearing of the appeal has been set down on 15 and (if necessary) 16 June 2016, further time could readily be granted in which to file a further Outline of Submissions and to ready the appeal for hearing. During the course of the interlocutory hearing on 12 April 2016, Mr Kennedy initially sought an extension of four weeks, until 10 May 2016. Given that the 15 and 16 June hearing dates could still be met if time were extended, the Court granted the extension until 10 May 2016.

72    In view of that extension of time, it was understood to be common ground that it was unnecessary to resolve Mr Kennedy’s Interlocutory Application filed on 3 February 2016 seeking the 150-day extension. The date by which Mr Kennedy was to file his Outline of Submissions, namely 10 May 2016, was a period of time in excess of six months after the Directions were made on 14 October 2015.

73    Even if this was not common ground, no further extension of time would have been granted in any event. A period in excess of nine months from the date on which he filed a Notice of Appeal, and a period in excess of six months after the Directions were made in October 2015, it is respectfully considered, is more than adequate time within which the appeal can be readied for hearing.

74    Assuming that there was no common ground on 12 April 2016, an assumption which is not borne out by a review of what unfolded on that date, the Interlocutory Application filed on 3 February 2016 seeking an extension of time is dismissed.

75    The Interlocutory Application subsequently filed on 18 April 2016 (and after the hearing on 12 April 2016) is stood over for hearing on 15 June 2016. If Mr Kennedy wishes to seek a further extension of time and to adjourn the hearing of his appeal, that is an application which he can make to the Full Court. It is for the Full Court to resolve that application, on the basis of such evidence Mr Kennedy may adduce.

76    In order to avoid any uncertainty on the part of Mr Kennedy, he should be aware that if the Full Court is not minded to grant him an adjournment, he should be ready on 15 June 2016 to run his appeal. There is no further extension of time for the date by which Mr Kennedy is to file and serve his Outline of Submissions as directed on 12 April 2016. Without pre-empting any decision that may be made by the Full Court, one prospect of which Mr Kennedy should be made aware is that the Full Court may refuse an adjournment and call the appeal on for hearing. But that decision will be made by Full Court on the basis of the evidence before it.

CONCLUSIONS

77    It is concluded that:

    the setting down of the appeal for hearing on 15 (and, if necessary, 16) June 2016 affords Mr Kennedy more than an adequate opportunity in which to prepare for the hearing of that appeal;

    leave to issue the subpoenas sought by Mr Kennedy was rightly refused;

    there is no reason to further adjourn the hearing of the Interlocutory Application seeking orders restraining Ashurst from representing the First Respondent in the appeal;

    no order should be made restraining Ashurst from representing the First Respondent in the hearing of the appeal; and

    reasons for the refusal of leave to issues subpoenas need not be provided pursuant to s 13 of the Judicial Review Act.

78    It is noted that the application made by Mr Kennedy for the reconstitution of the Court on the basis of a reasonable apprehension of bias has been abandoned. The fact that he should personally have no hesitation in pressing such relief, and the difficulties of later seeking to resurrect any such application founded upon the same facts, were brought to Mr Kennedy’s attention on 12 April 2016.

79    The hearing of the more recent Interlocutory Application filed on 18 April 2016 seeking to adjourn the hearing of the appeal is an application that may be made to the Full Court at the outset of the hearing on 15 June 2016.

THE ORDERS OF THE COURT ARE:

1.    The Interlocutory Application filed on 3 February 2016 seeking relief, including an extension of time, is dismissed.

2.    The Amended Interlocutory Application filed on 30 March 2016 seeking relief, including an order restraining Ashurst from further representing the First Respondent, is dismissed.

3.    The Amended Interlocutory Application filed on 18 April 2016 is stood over to 15 June 2016.

4.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    11 May 2016