FEDERAL COURT OF AUSTRALIA
Printing Industry Association of Australia v Jurkin [2018] FCA 1001
ORDERS
PRINTING INDUSTRY ASSOCIATION OF AUSTRALIA Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appellant be granted leave to file and rely upon the Further Amended Notice of Appeal dated 31 May 2018.
2. The appeal be allowed.
3. The declaration and orders 2 and 3 of the Federal Circuit Court of Australia made on 11 August 2017 be set aside.
4. The proceeding be remitted to the Federal Circuit Court of Australia, differently constituted, for hearing and determination according to law.
5. The respondent repay to the appellant the sums of $6,752 and $5,000 paid pursuant to the orders of the Federal Circuit Court of Australia made on 11 August 2017.
6. The respondent be granted a certificate to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect the costs incurred by the respondent in relation to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’CALLAGHAN J:
Introduction
1 One of the primary principles upon which the judicial system operates is that, before any judicial decision which has substantive consequences is made, there generally should be a hearing: International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319, 379 at [141]. That means that the parties must be afforded, among other things, “an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for:” International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319, 379 at [141]. The principle that a person against whom a claim is made must be given a reasonable opportunity of appearing and presenting their case is a fundamental principle of procedural fairness and it applies to all courts, whether superior or inferior: Cameron v Cole (1944) 68 CLR 571, 589.
2 The appellant, the Printing Industry Association of Australia (the PIAA), was the respondent to a claim brought by Ms Jurkin (Ms Jurkin) in the small claims list of the Federal Circuit Court of Australia (the FCCA). The primary judge found in favour of Ms Jurkin, holding that she was entitled to payment of $6,752 in respect of unpaid sales commission arising out of the performance of her job with the PIAA, plus an award of costs fixed in the sum of $5,000. The PIAA’s primary submission in this appeal from that decision is that it was denied procedural fairness because the learned primary judge made orders on Ms Jurkin’s claim without affording it any (or any reasonable) opportunity to tender or call evidence, to make submissions, or otherwise to present its case. The PIAA also contends that the primary judge mistook critical facts, including the true circumstances in which the FCCA made an order directing the PIAA to make discovery, and whether the PIAA had complied with that order. The grounds of appeal also allege that the primary judge took into account irrelevant considerations, failed to take into relevant considerations, made a declaration and orders that were not supported by the evidence and failed to give adequate reasons.
3 For the reasons given below, the PIAA must succeed on its primary contention that it was denied procedural fairness. In those circumstances, it is unnecessary to decide the other grounds of appeal.
The facts
4 Ms Jurkin was employed by the PIAA in the role of State Sales Manager for Victoria and Tasmania. She was made redundant, and her employment ended on 29 November 2016.
5 On 3 March 2017, Ms Jurkin filed an application in the small claims list of the Fair Work Division of the FCCA seeking unpaid sales commissions totalling $6,752.60 that Ms Jurkin claimed were payable to her pursuant to the terms of her contract of employment. She claimed $4,977.60 in respect of commission said to be payable relating to “new membership sales” and $1,775 in respect of a program called “Make It Cheaper”.
6 The PIAA filed a written response denying any obligation to pay commission in any amount on four grounds:
(1) Ms Jurkin was paid all wages due, including statutory entitlements, upon termination of her employment.
(2) The new membership sales claimed by Ms Jurkin had not been realised as revenue for the PIAA and Ms Jurkin was only entitled to commission at a percentage of net revenue.
(3) Ms Jurkin had incorrectly attributed to her claim several companies as “new members” or as members for which she was responsible for the sale of their “new membership”.
(4) The sales for the “Make It Cheaper” services did not form part of Ms Jurkin’s key performance indicators, nor had Ms Jurkin been able to quantify sales made through the “Make It Cheaper” services.
7 On 8 June 2017, Mr Mitchell, on behalf of the PIAA, emailed a one page document “run” by the PIAA’s Chief Financial Officer (CFO) which recorded a summary of the relevant net revenue in respect of sales made by Ms Jurkin (the new sales report) together with a 3 page written submission, which responded paragraph by paragraph to Ms Jurkin’s submissions to Ms Jurkin’s solicitor, Ms Bottrell (Ms Bottrell). The submission admitted a number of the matters relied on by Ms Jurkin, denied others, and advanced, among others, the following propositions by way of positive defence:
(1) The attached new sales report recorded the total amount of sales of $8,316.17, which was the total amount of realised revenue in respect of sales made by Ms Jurkin for 2016 from new Victorian members.
(2) A “new sale” is not a renewal for the purposes of attracting a commission.
(3) Ms Jurkin was not responsible for the new sale of Bambra Press (one of the sales referred to in the new sales report).
(4) The PIAA’s CEO was substantially responsible for the Bambra Press new sale.
(5) The PIAA admitted the following “new sales” based upon the sales referred to in the new sales report, namely with respect to: DMC Group ($2,169 realised revenue); Kwik Kopy Cheltenham ($247.21 realised revenue); Taylor’d Press ($330.75 realised revenue); Gulman Machinery ($673.51 realised revenue); Kwik Kopy Camberwell ($290 realised revenue); Digital Print HQ ($137.83 realised revenue); Holmesglen Tafe ($4,151.08 realised revenue).
(6) As to the claim for commission arising out of “Make It Cheaper” sales, Ms Jurkin was not entitled to any commission in that regard because such sales did not form part of her key performance indicators, at no time during her employment was it ever raised that Ms Jurkin would be entitled to commission for such sales and such an entitlement was never discussed with her.
8 The hearing took place before the learned primary judge on 9 June 2017 and (after that hearing was adjourned) on 11 August 2017. At the conclusion of the hearing on 9 June 2017, the primary judge adjourned the further hearing of the application. The manner in which orders were made that required the PIAA to make discovery before the adjourned date is a question that is controversial, and I shall return to it shortly.
9 Ms Jurkin was given leave to be represented by Ms Bottrell. The PIAA was given leave to be represented by its industrial relations manager, Mr Mitchell. Mr Mitchell was not a lawyer, although he told the primary judge that he had obtained a law degree.
The 9 June 2017 hearing
10 At the 9 June 2017 hearing, Ms Bottrell made short submissions in support of her client’s claim, and led evidence from Ms Jurkin. She was not cross examined. Ms Bottrell also gave evidence, apparently directed to the PIAA’s “argument … that the failure to collect … revenues falls upon [Ms Jurkin] and, therefore, no commission is payable” and Ms Jurkin’s contention that “issues with the management of the accounts department … resulted in the failure to collect invoices and revenue from members”. Ms Bottrell also gave evidence about a particular transaction involving Bambra Press, a client of the PIAA, which formed part of Ms Jurkin’s claim to entitlement to commission. At that point, the primary judge noted that Ms Jurkin had closed her case.
11 The primary judge then asked Mr Mitchell whether the PIAA intended to call evidence. Mr Mitchell replied that it did and that he wished to call Mr Macaulay, the PIAA’s chief executive officer. Mr Mitchell also told the primary judge that the PIAA did not contest that Ms Jurkin would be entitled pursuant to the terms of her contract of employment to commission in respect of new membership sales if she had realised more than $15,000 of revenue, but because she had only achieved $8,316.17 of realised revenue on commissions, she was not entitled to any commission.
12 Mr Mitchell then sought to tender what he described as “a report run by the [Chief Financial Officer] of [the PIAA]”, listing “all the revenue that we’ve collected from new members in 2016”. That document is the new sales report that was sent by Mr Mitchell to Ms Bottrell on 9 June 2017 referred to above.
13 The transcript records that the following exchanges occurred between the learned primary judge and Mr Mitchell:
MR MITCHELL: So as – as Ms Bottrell said, the – the case basically is – has two limbs: one is the commission on sales, the – and the second is the Make It – Make It Cheaper part. With respect to the commission sales, the respondent does not contest that the applicant would be entitled to commission if the applicant had realised more than $15,000 worth of revenue. That’s provided for in the applicant’s contract of employment at clause – does your Honour have a copy of that?
HIS HONOUR: Well, I’ve got snippets of it.
MR MITCHELL: Clause 4, 4.1, Remuneration. So does your Honour have – have that?
HIS HONOUR: I do.
MR MITCHELL: Basically, that – that sets out the applicant’s – or Ms Jurkin’s remuneration. And, specifically, what the first limb of the applicant’s case says is that because the applicant says that Ms Jurkin achieved over $30,000 worth of sales that she would be entitled to 15 per cent of subscriptions. So the respondent’s submission is that she did not achieve that amount. She actually achieved eight thousand – $8316.17 of realised revenue on commissions.
HIS HONOUR: Well, what are you reading from to enable you to say that?
MR MITCHELL: So this – I’m not sure if I should tender this now or – or later, but this is a report run by the CFO of the Printing Industries Association which basically asserts – which basically tells us all the money that we’ve – or all the revenue that we’ve collected from new members in 2016.
HIS HONOUR: Well, just one second. Ms Bottrell told me a minute ago that – when I asked her about the substantiation of the entitlements to the commission she said that she had been asking you for some time for the figures – you being presently able to provide it, and only you, because it was on Ms Jurkin’s computer and she’s no longer with the entity – and now you produce a document. So why haven’t you exchanged this beforehand? I mean, it seems pivotal to the way the case should have been properly advanced.
MR MITCHELL: Your Honour – yes, ah ---
HIS HONOUR: Well, “yes, ah”, doesn’t help me very much.
MR MITCHELL: I’ve got – I’ve got the document now.
HIS HONOUR: Well, you might, but it’s a question of fairness ---
MR MITCHELL: Yes.
HIS HONOUR: --- and if you come to court ambushing people – and this is in the category of ambush. Let’s face it: the information was on your client’s computer. Ms Jurkin did not have access to that document, she couldn’t reasonably have obtained the document, and you come along on the trial seeking to produce it without having provided it to her in advance. That smacks of procedural unfairness and that would indicate to me that you’re at risk of an adjournment with costs against you for a cavalier approach to this case, unless you can persuade me out of it.
MR MITCHELL: With
HIS HONOUR: What do you say to that?
MR MITCHELL: With respect to the computer, as I am led to believe, there was quite a number of issues with respect to our organisation getting into that computer.
HIS HONOUR: Well, so what? The simple point is, your client – or your employer – was the only party who had control of that information. That’s undisputed, isn’t it?
MR MITCHELL: Well
HIS HONOUR: Well, let’s – no.
MR MITCHELL: --- we ---
HIS HONOUR: You can’t be serious to qualify that answer.
MR MITCHELL: We – we were in constant communication with Ms Jurkin’s solicitor with respect to what Ms Jurkin may or may not have earned. This report was only run on – on Tuesday.
HIS HONOUR: Well, it should have been provided at the moment it was run. And you can’t ambush people in litigation, and although the rules of evidence don’t apply to this jurisdiction, basic fairness commands that if you rely on a document of that importance representing what you say is the financial explanation of what you say is the knock-out point to this case, at the very least you should have provided it well prior to this case starting and not during the opening of your case. So what is to be done at this particular juncture, and at the moment I’m not either going to let you rely on it or, if you do press it, the case will be adjourned. So what do you want me to do?
MR MITCHELL: It was served on the applicant ---
HIS HONOUR: Just answer my question.
MR MITCHELL: --- yesterday. Well, obviously we want this document relied on, because ---
HIS HONOUR: Okay. I will see you next time. It’s most unsatisfactory for you to conduct litigation on that basis, and if there are any other documents exchange them. Very well. This will be marked part-heard on whatever day we can find it – 11 August – and I will consider at that time whether costs should be ordered for the approach that has been adopted in the provision of material in this case.
14 The transcript then records: “Matter adjourned at 11.16 am accordingly.”
15 There is disagreement between the parties about the manner in which discovery orders were made. Ms Jurkin and Ms Bottrell have sworn in affidavits filed in this appeal to the effect that the primary judge made additional orders in open court in Mr Mitchell’s presence, requiring the PIAA to disclose certain categories of documents to Ms Jurkin by 23 June 2017. Mr Mitchell swore in his affidavit filed in this appeal that the primary judge did not make such orders in open court. The PIAA says that his Honour must have made such an order at a later time in chambers. Mr Mitchell also swore in his affidavit that neither he, nor anyone else at PIAA, received a copy of the order because the judge’s associate emailed it to the email address of a former employee. (In its written submissions, PIAA accepted some responsibility for this, as it did not provide the Court with an updated email address for the receipt of correspondence).
16 It is clear, however, that the primary judge was mistaken in his belief that Mr Mitchell had not previously provided to Ms Bottrell a copy of the report run by the CFO (that is, the new sales report). It was in fact provided to her, together with the PIAA’s written submissions, on 8 June 2017: see [7] above. For whatever reason, Mr Mitchell was unable to convey that point to the Court. Had he done so, it is difficult to imagine that his Honour would have persisted with his assertion that Mr Mitchell was trying to “ambush” Ms Bottrell at the hearing with a late produced document.
PIAA gives discovery on 2 August 2017
17 On 1 August 2017 (a week after the order required discovery to have been made) Ms Bottrell emailed Mr Mitchell requesting the documents and noting non-observance with the order. Mr Mitchell swore in his affidavit filed that that was the first he had heard of the order requiring discovery by 23 June 2017 and that he forwarded all the documents to Ms Bottrell by email the next day, 2 August 2017 (being 9 days before the next hearing on 11 August 2017). Mr Mitchell wrote to Ms Bottrell twice, on 3 August and again on 7 August, extending an offer to consent to an adjournment if she wished it, but the offers were declined.
18 It should be noted that it is common ground that the discovery was made, as Mr Mitchell swore, on 2 August 2017. However, Ms Jurkin maintained before the primary judge and on this appeal that the discovery was insufficient.
19 The hearing recommenced on 11 August 2017.
The 11 August 2017 hearing
20 It is necessary to set out in full the transcript of what transpired on 11 August 2017:
HIS HONOUR: Just pardon me one second. Okay. When we were last dealing with this case, Mr Mitchell needed to get some extra documents; is that right? From memory. Have you done that?
MR P. MITCHELL: We have, your Honour.
HIS HONOUR: Yes. Have you provided them to the other side?
MR MITCHELL: We have, your Honour.
HIS HONOUR: All right. Now, so where do we stand with the – where do we stand now that that has happened.
MS S. BOTTRELL: Excuse me, your Honour. May I make a point?
HIS HONOUR: Yes.
MS BOTTRELL: At the previous hearing, the respondent was requested to provide us with material by 23 June. We did not receive any materials until 2 August, which was just last week. And we have not been provided with adequate time to review the materials that have been supplied. It was six weeks beyond the period at which time they were ordered to supply those materials to us. And we – our position is that we are significantly disadvantaged by the lack of time.
HIS HONOUR: Okay. Just let’s go back in time. Remind me what you were expecting to receive.
MS BOTTRELL: We ---
HIS HONOUR: Or, better still, what was ordered to be provided to you.
MS BOTTRELL: The order provided for all materials to be provided in respect of the payment of commission in relation to general member sales and also payment of commission under a particular program called Make it Cheaper. We had made a request on 20 December of last year of the applicant – of the – sorry – respondent to provide us with materials contained in a folder on the applicant’s computer with the respondent. We have not been provided with materials. That contains emails, invoices, sales notes – a range of materials. We have not been provided with that material to date. We have received a small amount of material in relation to some sales figures from the respondent. I have attempted to look at those and try and make some sense out of it, but it is extremely difficult to ---
HIS HONOUR: Have you been in touch with Mr Mitchell expressing your concerns?
MS BOTTRELL: I notified Mr Mitchell actually on 2 August that I had not received the materials.
HIS HONOUR: Right.
MS BOTTRELL: And then he responded by providing us with an email with a number of attachments. I will say that also not all the attachments – not all of the exhibits noted in Mr Mitchell’s submissions were actually attached to the email. So I am missing one of them. But, yes, I have been busy with ---
HIS HONOUR: Well, what do you say should happen today as a result of what has happened?
MS BOTTRELL: Well, I would request that the court deny the respondent the ability to put forward the evidence that they seek to.
HIS HONOUR: Your client is – I forget. Is she still responding to questions. I seem to remember she – has she finished her evidence?
MS BOTTRELL: Yes, your Honour.
HIS HONOUR: Okay. All right. Thank you. Now, Mr Mitchell, you’ve heard that Ms Bottrell tells me that you were significantly late in complying with the things that you were ordered to supply. What do you say to that?
MR MITCHELL: Your Honour, I’m not sure if you’ve received our submissions with respect to that matter but also the case generally where I enclosed the attachments.
HIS HONOUR: No.
MR MITCHELL: No. Well, I became aware of a specific date associated with us being required to produce those documents to the applicant on 2 August when the ---
HIS HONOUR: Hang on. Just – whoa, whoa, whoa. How can you make that submission? You were in court when I ordered you on 9 June to supply the material by 23 June. You were physically standing in front of me, and I directed you
MR MITCHELL: I – yes, yes. That’s correct. I
HIS HONOUR: Just a – please.
MR MITCHELL: Sorry.
HIS HONOUR: You’re not a legal practitioner, but you’re required to observe the niceties of – as if you were. Otherwise, I won’t continue to allow you to appear in this court if you don’t behave properly. You were physically present when I ordered you to do certain things by a particular time. Now, why didn’t you do it?
MR MITCHELL: I don’t recall you mentioning a specific date on that day.
HIS HONOUR: You were served with a sealed copy of the order that I made, which records in printed form the precise details of the order that I made. So, again, how can you make that submission?
MR MITCHELL: That was sent to a fellow called Charles Watson, who is, as I said on the date of the hearing of 10 June, is no longer employed by the Printing Industries Association. So, as I said to the applicant’s solicitor when she informed me that that was the specific date of the orders, I had no receipt and I – I was not aware that a specific date had been set with respect to providing that information.
HIS HONOUR: Have you investigated the court portal to see what the status of filings in this proceeding are?
MR MITCHELL: I phoned up the ---
HIS HONOUR: No, no. That’s – you’re answering a different question. Have you investigated the court portal to see the state of filings in this case?
MR MITCHELL: No, I have not.
HIS HONOUR: Had you don’t that electronically, you would have seen the order that I made. Most litigants do that in this court. Is there some reason why you didn’t do it?
MR MITCHELL: I assumed that we would come back on 11 August and have it out. That’s ---
HIS HONOUR: And debate your non-compliance with my previous orders? No. That’s not how this – that’s not how I conduct litigation.
MR MITCHELL: I don’t recall those orders being made.
HIS HONOUR: I made them in your presence. Whether you remember them is neither here nor there. And – no point shrugging your shoulders at me. I’m looking at a document that’s sealed, bears my name. It faithfully records the orders that I pronounced on 9 June. Now, Ms Bottrell says because of your late compliance and partial compliance only with the orders that I made, I should refuse you the opportunity to make of the documents that you should have supplied whatever you want to make of them. And I must say I’m presently minded to do that. Is there anything you can say in opposition to that?
MR MITCHELL: I don’t believe that the applicant has been unduly prejudiced by receiving the documents ---
HIS HONOUR: When you say, “I don’t believe”, that’s not a proper submission, Mr Mitchell.
MR MITCHELL: Well, we submit ---
HIS HONOUR: I’m not interested in your beliefs. I mean ---
MR MITCHELL: We submit ---
HIS HONOUR: Upon what do you base that submission?
MR MITCHELL: Well, the documents that the – that we have since provided the applicant – the substantial amount of those documents that – were already in their possession.
HIS HONOUR: How am I to know that? I’m the one who is judging this case. I don’t – I can’t say that you’re correct in that.
MR MITCHELL: I’ve got the submissions here. And ---
HIS HONOUR: No, I’m not interested in your written submission. I’m interested in your paraphrasing them and responding to the questions that I’m asking you. That’s one of the privileges of standing at the bar table.
MR MITCHELL: I understand. I have email evidence to suggest that they have already received ---
HIS HONOUR: You might, but it’s not before me.
MR MITCHELL: I’ve sent all the documents that we believe are salient to this matter to the registrar.
HIS HONOUR: Again, not before me.
MR MITCHELL: I can’t explain that because those documents were sent to the registrar.
HIS HONOUR: All right. Well, we were halfway through dealing with your case in this case. It doesn’t appear that you’re relying on any evidence in this case so how do you suggest I proceed? It looks to me ---
MR MITCHELL: Well, we certainly are relying on evidence because ---
HIS HONOUR: Well, what do you mean by that? Where is your evidence?
MR MITCHELL: Those ---
HIS HONOUR: It can be in one of two forms. Either viva voce – said from the witness box – and none has been given in that. Or (b) in affidavit form. I don’t see any affidavit in this case from your side.
MR MITCHELL: Well, we submitted all our submissions to the ---
HIS HONOUR: No, no. A submission is different to evidence.
MR MITCHELL: Well, in that case I will – we’ve served all the relevant documents on ---
HIS HONOUR: Mr Mitchell, please focus on what I’m asking you. I’m asking you where is your evidence in this case. Do you know what I mean by the word evidence?
MR MITCHELL: I do, your Honour.
HIS HONOUR: It’s not submissions and it’s not assertions. It’s not what you take to be the construction of whatever you think might sit in your file. It’s what is presently in front of me. And I see no evidence on behalf of your employer in this case. So what am I to do? There doesn’t appear to be evidence that you lead in this case.
MR MITCHELL: Okay. Well, we do have with us today Andrew Macaulay who is the CEO of Printing Industries.
HIS HONOUR: Why should I receive that evidence? You should have filed affidavit material.
MR MITCHELL: Well, in the same way that you received evidence at our last hearing from the applicant.
HIS HONOUR: She filed affidavit material. And she filed a proceeding to commence this litigation.
MR MITCHELL: And we filed a defence to that.
HIS HONOUR: Yes. And you haven’t filed anything else.
MR MITCHELL: Well, I’ve sent the documents to the registrar.
HIS HONOUR: What documents?
MR MITCHELL: The – I’ve sent the documents ---
HIS HONOUR: What documents, I asked you.
MR MITCHELL: The evidence to ---
HIS HONOUR: What evidence?
MR MITCHELL: The evidence which suggests that ---
HIS HONOUR: No, no. Is it an affidavit? My associate is looking at the court portal for an affidavit that you say you filed. So far no such affidavit has been unearthed. Have you filed an affidavit in this case?
MR MITCHELL: No, I have not.
HIS HONOUR: Well, that’s the conventional way you file evidence upon which you wish to rely in a proceeding and if the other side wants to cross-examine you they can require you to be cross-examined on your affidavit. But we don’t have the affidavit in this case. So where do you suggest we go?
MR MITCHELL: Well, I request an adjournment so we can ---
HIS HONOUR: No, no, no. You had – on 9 June this case should have been dealt with at trial. You wanted to rely on material that you hadn’t shown to the other side. You didn’t comply with the order that I made on 9 June. Here we are, 11 August and you’re still in a state of disarray. I’m not going to adjourn this case. That would be grossly unfair to shut out the applicant who is after an amount of $6,752 in this case and you’ve had more than ample opportunity to put forward whatever you want to put forward in this case. You seem to have thumbed your nose at the proper protocol. I mean, if you were serious about this case you would have got lawyers involved. But you haven’t done that. So that’s your choice of course but you suffer the consequences of not preparing properly.
MR MITCHELL: Well, we are serious about this case and ---
HIS HONOUR: Not as far as I can see.
MR MITCHELL: --- we have provided the applicant with all the relevant documentation.
HIS HONOUR: You keep saying that, Mr Mitchell, and I must say, I’m finding it not a particularly attractive proposition. Anything else you would like to say?
MR MITCHELL: I humbly request an adjournment so we can get the documentation before the ---
HIS HONOUR: I refuse that application. Where do we go from there? You’ve not led any evidence in this case.
MR MITCHELL: Well ---
HIS HONOUR: That sounds like the case is proved by the applicant.
MR MITCHELL: Well, there is evidence in our response to the application.
HIS HONOUR: Mr Mitchell, I’m not going to continue to bang on the drum here. You don’t seem to have an appreciation of the difference between an assertion and sworn affidavit material. There is no affidavit material in this case therefore there is no evidence in this case. And therefore whatever you might say from the bar table I can’t accept if it’s unproven. And it’s not presently proven. Okay. Thank you. I will hear from Ms Bottrell as to where we go.
MS BOTTRELL: Thank you, your Honour. We would request an order in favour of the applicant based on the respondent’s lack of putting forward a case. And we would also request at that point that we be – an offer of settlement was made in respect to – under ---
HIS HONOUR: Wait, wait, wait.
MS BOTTRELL: Sorry. Sorry, your Honour.
HIS HONOUR: No, no. You’re not entitled to tell me about ---
MS BOTTRELL: Yes.
HIS HONOUR: --- until I determine the principal question. I gather you will ultimately be making a costs submission.
MS BOTTRELL: Yes.
HIS HONOUR: Well, you have to overcome the presumption against costs in this jurisdiction so I take it you’re going to take me to that. Not now but at an appropriate time.
MS BOTTRELL: Yes. Yes, your Honour.
HIS HONOUR: All right.
MS BOTTRELL: So we would request an order in our favour.
HIS HONOUR: All right. Thank you.
JUDGMENT DELIVERED
21 The primary judge then acceded to Ms Bottrell’s submission that the PIAA be ordered to pay Ms Jurkin’s costs, fixed in the sum of $5,000. The formal declaration and orders were in these terms:
I DECLARE THAT the respondent by failing to pay the applicant in the form of commission contravened the applicant’s contract of employment.
I ORDER AS FOLLOWS –
1. The application by the respondent for an adjournment of today’s proceeding is refused.
2. The respondent pay the applicant the sum of $6,752.00 forthwith.
3. The respondent pay the applicant’s costs fixed in the sum of $5,000.00.
Submissions on appeal
The 9 June 2017 hearing
22 Mr Tracey of counsel, who appeared for the PIAA, submitted that I should find, consistently with what the transcript records (or rather does not record), and with Mr Mitchell’s sworn evidence, that the primary judge did not pronounce the discovery order in open court, and that it should be inferred that the order was instead made in the judge’s chambers sometime after the hearing of 9 June 2017. He submits, therefore, that the orders were made ultra vires, and not made within jurisdiction, because none of the criteria in s 13 of the Federal Circuit Court of Australia Act 1999 (Cth), which permit jurisdiction to be exercised in chambers, existed.
23 Ms Dowsett of counsel, who appeared for Ms Jurkin, submitted that I should be satisfied, on the sworn testimony of her instructor and Ms Jurkin, that the primary judge did make the order for discovery in open court.
24 It is unnecessary to resolve that issue, including because it is common ground that the terms of the order became known to Mr Mitchell on 1 August 2017 and that he provided discovery (albeit, according to Ms Jurkin, insufficient discovery) the next day.
25 Mr Tracey also submitted that the primary judge was mistaken in his belief that Mr Mitchell was seeking to ambush Ms Jurkin by the production at the hearing of the new sales report, because (and there is no dispute about it on appeal) the PIAA had provided that document to Ms Bottrell the day before the hearing on 9 June 2017, something which Mr Mitchell endeavoured to communicate to the learned primary judge, but which the judge apparently either did not hear or did not appreciate, as the last exchanges at the hearing on that day indicate.
26 In any event, as I will explain below, the principal complaints concerning the ground of denial of procedural fairness arise out of the hearing on 11 August 2017.
The 11 August 2017 hearing
27 In light of the evidence, all of which is undisputed (except that relating to the question whether the 11 June 2017 order was made in open court or not) a number of things need to be said about the exchanges that occurred between Ms Bottrell and the primary judge, on the one hand, and between Mr Mitchell and the primary judge, on the other.
28 Before turning to the matters which go the question of whether the learned primary judge failed to accord to PIAA procedural fairness, it is necessary to make two points in relation to submissions advanced on behalf of Ms Jurkin before the primary judge, which, it seems to me, if I may say so with respect, led the learned primary judge into error.
29 First, Ms Bottrell’s submission that, due to the fact that she did not receive the PIAA’s discovery until 2 August 2017, she had not “been provided with adequate time to review the materials that have been supplied” and that she was “significantly disadvantaged by the lack of time” was a submission that, in my view, should not responsibly have been made in circumstances where Mr Mitchell had expressly provided his written consent to any adjournment application that Ms Bottrell may have chosen to make, and those invitations were declined.
30 Secondly, having declined Mr Mitchell’s offers to adjourn the proceeding to remedy any prejudice occasioned by delay, it is surprising that Ms Bottrell “request[ed] that the court [deny] the respondent the ability to put forward the evidence that they seek to.”
31 I turn now to the matter of the exchanges between the learned primary judge and Mr Mitchell, each of which demonstrates a failure by the learned primary judge to accord to the PIAA procedural fairness: Cameron v Cole (1944) 68 CLR 571, 589; International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319, 379 at [141].
32 First, the primary judge did not afford sufficient opportunity to Mr Mitchell to explain his case that, as the transcript of the hearing on 11 June 2017 would suggest, the discovery order was not made in open court and that he was in the events that occurred not aware of it until Ms Bottrell told him about it on 1 August 2017. Whether it was made in open court or not, it is clear that Mr Mitchell wished to tell the judge that he did not recall the orders being made; and that he insisted, or sought to insist, that he only became aware of the existence of the order on 1 August 2017.
33 Secondly, although Mr Mitchell attempted to show the primary judge PIAA’s written submissions and attempted to adduce evidence about the discovered documents not only having been served on Ms Bottrell but also emailed to his Honour’s associate, the judge was emphatic (without allowing Mr Mitchell to explain to the contrary) that the PIAA had not complied with orders and that the PIAA had been aware of the order since 9 June 2017.
34 Thirdly, when the primary judge asked Mr Mitchell what he had to say about Ms Bottrell’s submission that he should refuse the PIAA the right to rely on the documents “because of your late compliance and partial compliance only with the orders I made”, he refused to allow Mr Mitchell to explain that it was his “belief” that Ms Jurkin was not prejudiced, because his Honour insisted on hearing “submissions” not “beliefs”. When Mr Mitchell then attempted to rephrase what he was endeavouring to say as a “submission”, namely by stating “[w]e submit … [that] the documents … have since [been] provided [to] the applicant” and that “I’ve got the submissions here”, the judge then told Mr Mitchell that he was “not interested in [his] written submissions”, and that he wanted Mr Mitchell to “paraphrase” them, because, as the judge put it, “[t]hat’s one of the privileges of standing at the bar table”.
35 Fourthly, when Mr Mitchell endeavoured to take the Court to what he called “email evidence” to show that Ms Bottrell and the Registrar of the FCCA had been given “all the documents that we believe are salient”, the judge declined to permit Mr Mitchell to explain what he meant, or to produce the evidence, because as the judge put it, “it’s not before me”. When Mr Mitchell then endeavoured to put his submission that the PIAA was “certainly … relying on evidence”, the judge told Mr Mitchell that he could only rely on evidence if it was “in affidavit form”, which it was not, or “viva voce - said from the witness box”. His Honour was under the misapprehension that Ms Jurkin had “filed affidavit material”, and that because she had done so, Mr Mitchell would not be permitted to call the witness from the PIAA because “[y]ou should have filed affidavit material”. In fact Ms Jurkin had not filed or sought to rely on any affidavit material at the hearing on 9 June 2017. She gave only viva voce evidence. To refuse Mr Mitchell the right to call his witness to give viva voce evidence in those circumstances – that is to say, to refuse to permit Mr Mitchell to call evidence in the same way that Ms Bottrell had been permitted to call evidence – was an additional denial of procedural fairness. So too was the judge’s refusal to permit Mr Mitchell to call the viva voce testimony of Mr Macaulay on the ground that “[t]here is no affidavit material in this case therefore there is no evidence in this case”.
36 Finally, the learned primary judge denied the PIAA procedural fairness in concluding, as he did, that because “[y]ou’ve not read any evidence in this case … [t]hat sounds like the case is proved by the applicant”. If that statement is understood as meaning that merely because the PIAA had not adduced evidence, Ms Jurkin was bound without more to succeed, it cannot be correct. In any event, it was at that point, as Mr Tracey submitted, that even assuming, contrary to the view that I have formed, that the learned judge had been correct to refuse to permit the PIAA to rely on any evidence or submissions in support of its defence (the details of which the judge seems to have been unaware), his Honour was bound to have explained to Mr Mitchell, whom it must be remembered was a lay person appearing on his employer’s behalf, that in conducting his case he was entitled to make submissions on the facts and the law based on the evidence that was before the Court. The learned judge’s failure to inform Mr Mitchell of the fact that such a course was open to him, especially in circumstances where it is far from clear that Ms Jurkin had made out her case, was a fundamental denial of procedural fairness. See Hamod v New South Wales [2011] NSWCA 375 at [309]-[316], cited with approval by Robertson J (with whom Mortimer J agreed) in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [37].
37 For each of those reasons, the PIAA was denied procedural fairness in the conduct of the 11 August 2017 hearing, and the appeal must be allowed.
38 It is also clear from the primary judge’s ex tempore reasons (Jurkin v Printing Industry Association of Australia [2017] FCCA 2123) that each of the matters to which I have referred in [32]-[36] above led him into error. For example, his Honour, in his reasons: rejected Mr Mitchell’s explanations that he did not know of the order and that the order had been sent to a former employee (at [5]); stated that the PIAA had not “conducted this litigation in a way that was to be expected in this court” (at [6]); and held that because “[t]here was no sensible challenge” to the evidence adduced by Ms Jurkin, which was not described other than to say that Ms Jurkin “gave evidence … in considerable detail … [explaining] the way in which that claim was made up”, she was entitled to succeed (at [7]). With great respect to the learned judge, and making appropriate allowance for the fact that this case was one of a number that the judge heard in the small claims list that day, the reasons are not sufficient to inform the losing party why it lost, and, it may be assumed, may not have been reached in any event if the PIAA had been afforded procedural fairness concerning each of the matters to which I have referred in [32]-[36] above.
Conclusion
39 Having come to the view of the matter that I have described above, it is unnecessary to consider the other grounds of appeal (described at [2] above). The orders of the primary judge that the PIAA pay Ms Jurkin $6,752 and that it pay her costs fixed in the sum of $5,000 cannot stand. The matter will be remitted to the FCCA, to a judge other than the primary judge, for determination according to law. I will make orders accordingly.
I certify that the preceding thirty-eight (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. |
