FEDERAL COURT OF AUSTRALIA

Newton v Australian Postal Corporation [2018] FCA 2007

REASONS FOR JUDGMENT

BROMBERG J:

1    In this proceeding, the applicant (“Mr Newton”) seeks various remedies under the Fair Work Act 2009 (Cth) (“FW Act”) against four respondents. There is also a contractual claim against the first respondent (“Australia Post”), but for present purposes it is not necessary to further refer to that claim.

2    Relevantly to the issues I need to decide, Mr Newton alleges that the third respondent (the “Union”) and fourth respondent (“Mr Metcher”) contravened ss 348 and 355 of the FW Act and that the second respondent (“Mr Fahour”) and Australia Post were accessories to those contraventions.

3    For present purposes, I proceed on the basis that Mr Newton has closed his case. It is not necessary for me to here deal with an issue which has also arisen as to whether Mr Newton closed his case with the qualification that he also relied on documentary evidence not yet tendered.

4    Mr Newton having closed his case, the Union and Mr Metcher have sought to make a submission that each of those parties has no case to answer (the “no case submission”). Australia Post and Mr Fahour have not made a no case submission, but did not oppose the submission made by the other two respondents. In fact, they supported the no case submission including by submitting, without significant elaboration, that the interests of justice would not be compromised if the no case submission was accepted.

5     There are three questions which arise for consideration in response to the no case submission:

(1)    In circumstances where each of the Union and Mr Metcher have tendered a documentary exhibit, do they have the capacity to make the no case submission? (“Threshold Issue”)

(2)    In the exercise of the Court’s discretion, should the Court permit the no case submission to be made? (“Second Issue”)

(3)    If the making of the no case submission is to be permitted, how should that submission be determined? (“Third Issue”)

6    As a matter of procedure I determined to deal with the Threshold Issue and the Second Issue first, and although I have heard short submission from the Union and Mr Metcher on the substance of their no case submission, I did not hear the applicant on the Third Issue. Accordingly, these reasons deal only with the Threshold Issue and the Second Issue.

Relevant background matters and legislation

7    At all relevant times, Mr Newton was an employee of Australia Post and Mr Fahour its Chief Executive Officer. Mr Metcher was the Branch Secretary of the New South Wales Branch of the Union.

8    Broadly speaking, the allegations made against the Union and Mr Metcher relate to a telephone conversation that took place on 5 February 2016 between Mr Metcher and Mr Fahour where it is alleged that Mr Metcher coerced or intended to coerce Mr Fahour and Australia Post to engage in certain conduct including removing Mr Newton from the position he then held, thereby contravening ss 348 and 355 of the FW Act. Mr Newton’s case against the Union relies on the alleged conduct of Mr Metcher.

9    Section 348 of the FW Act provides:

Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

10    The meaning of “engage in industrial activity” as it appears in s 348 is defined in s 347 of the FW Act. Relevantly, s 347 provides:

Meaning of industrial activity

A person engages in industrial activity if the person:

…

(b) does, or does not:

…

(iv) comply with a lawful request made by, or requirement of, an industrial association; or

…

(e) complies with an unlawful request made by, or requirement of, an industrial association; or

…

11    Section 355 of the FW Act provides:

Coercion--allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) employ, or not employ, a particular person; or

(b) engage, or not engage, a particular independent contractor; or

(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or

(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.

Note: This section is a civil remedy provision (see Part 4-1).

12    In relation to Mr Newton’s claim under s 348 of the FW Act, Mr Newton alleges that the relevant industrial activity for the purposes of s 347(b)(iv) and (e) took place during the 5 February 2016 telephone conversation when Mr Metcher requested that Mr Fahour:

(1)    cancel Project Dove (a project Mr Newton had been working on, designed to change the way in which Australia Post dealt with those of its employees receiving workers’ compensation); and

(2)    remove Mr Newton from his position as National Compensation Manager with Australia Post.

13    It is further alleged that Mr Metcher threated that, unless Mr Fahour complied with his requests, Mr Metcher would leak Australia Post documents about Project Dove to the media and to politicians, arrange protest rallies about Project Dove, take Australia Post “to the cleaners”, take serious industrial action and take legal action. These threats are alleged to constitute the threatened “action” to which s 348 refers.

14    In relation to Mr Newton’s claim under s 355 of the FW Act, Mr Newton contended that the threats made by Mr Metcher to Mr Fahour to remove Mr Newton from his position as National Compensation Manager were made with the intent to coerce Mr Fahour and Australia Post:

(1)    not to allocate particular duties or responsibilities to Mr Newton, namely the role of National Compensation Manger; or

(2)    not to designate Mr Newton as having particular duties or responsibilities, namely those associated with the role of National Compensation Manager.

15    It is alleged that Mr Fahour and Australia Post were, for the purposes of s 550 of the FW Act, each “involved in” the contravention of ss 348 and 355 of the FW Act by Mr Metcher and the Union. That is, that Mr Fahour and Australia Post were accessories to the coercive conduct of Mr Metcher and the Union.

16    Section 550 of the FW Act provides:

Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

the no case submission

17    The Union and Mr Metcher submitted that, on a consideration of all of the evidence adduced by Mr Newton, the evidence could not support a finding that the Union or Mr Metcher had contravened ss 348 and 355 of the FW Act. It is not necessary to go to the detail of the submissions made. For present purposes, it is sufficient to record that the no case submission which the Union and Mr Metcher seek to establish is grounded on an inadequacy of evidence to support the causes of action alleged against them.

the threshold issue

18    Mr Newton relied on the fact that each of the Union and Mr Metcher had gone into evidence by tendering a documentary exhibit during the course of running his case. Mr Newton contended that having gone into evidence, the Union and Mr Metcher no longer have a capacity to make a no case submission.

19    In response, the Union and Mr Metcher rejected the proposition that by the tendering of documents, either of them had gone into evidence. They submitted that, conceptually, it would only be where a respondent calls its own evidence (presumably through a witness) that any question of disqualification might arise.

20    It seems to me, without deciding, that whether evidence is adduced through the tender of a document or by the calling of a witness to give evidence, the party who has either tendered or given the evidence has gone into or called evidence. However, as the Full Court in Rasomen v Shell Company of Australia (1997) 75 FCR 216 said at 225 (Doussa, Drummond and Finn JJ):

[E]ven where a party moving a no case submission has called evidence, the trial judge retains the discretion to entertain a no case submission.

21    The Full Court continued:

There is no general rule that requires that a party seeking to make a submission of no case must elect to adduce no further evidence if some evidence has already been led, or if exhibits have been tendered during cross-examination. In a particular case, the fact that the respondent has taken steps of this kind will be one of the circumstances to be taken into account in the exercise of the discretion.

22    Rasoman was followed in Tru Floor Service Pty Ltd v Jenkins (No 2) [2006] FCA 632 at [19] (Sundberg J).

23    Accordingly, I reject the Threshold Issue raised by Mr Newton.

SECOND ISSUE

24    In seeking to put their no case submission, both the Union and Mr Metcher indicated that they intend to call no evidence. In those circumstances, there is no impediment to the Court hearing and determining the no case submission arising from the general rule that “a decision will not be given on a submission of no case to answer unless the moving party elects to call no evidence” (Rasoman at 223 (Doussa, Drummond and Finn JJ)).

25    Nevertheless, there remains the question of whether, in the words of French J in J Corp Pty Ltd v BLF (No 2) (1992) 38 FCR 458, as “a matter of proper case management having regard to the interests of justice, including the convenience and economy in time and money that might be achieved in an appropriate case”, the discretion to permit the making of a no case submission should be exercised in favour of the Union and Mr Metcher.

26    In J Corp, French J gave consideration as to whether, where there are two or more respondents to a proceeding, one respondent should be permitted to put a no case submission where the other respondents do not.

27    At 382 his Honour referred to the observations of Toohey J in James v ANZ Banking Group Limited (1986) 64 ALR 347 at 401 that “the arguments against allowing one respondent to make a no case submission are powerful and have been endorsed by courts on a number of occasions”. French J, however, noted that those authorities were, for the most part, cases that involved respondents who were sued jointly. His Honour also noted that Toohey J had seen these decisions as “resting on a broader foundation of convenience and justice to the parties”.

28    At 464 French J went on to observe that the question of whether or not to entertain a no case submission by one of several respondents “is, like the simple case of one respondent, a matter of proper case management having regard to the interests of justice, including the convenience and economy in time and money that might be achieved in an appropriate case”. On that basis, his Honour considered that the observations of Toohey J in James would not preclude the possibility, for example, that the Court might “entertain a no case submission based upon a proposition of law rather than one which goes to the adequacy of the evidence adduced against a party seeking to make the submission”.

29    By reference the observations of the Full Court in Menzies v Australian Iron and Steel Ltd (1952) 52 SR (NSW) 62 (Street CJ, Owen and Clancy JJ), at 465 his Honour identified the “practical difficulty of dismissing a defendant out of a case and leaving its co-defendant free to endeavour to shift the burden of notional liability onto its absent and now disinterested co-party”. However, his Honour did not accept that such considerations would “operate with the same force in all cases”. His Honour considered that circumstances may arise “in which one respondent may without inconvenience be dismissed out of a case notwithstanding that the case proceeds against another one”, identifying that one such example might be where a question of jurisdictional fact arises.

30    His Honour concluded his discussion of the principles by observing, at 465, that:

[i]n the contemporary climate where judicial time is limited and the costs of legal services are high, it is my opinion that courts should not be slow to consider the possibility of entertaining a submission of no case to answer from one of a number of respondents where the interests of justice are not compromised and economies may be effected thereby.

31    Applying the principles he identified to the circumstances of the case before him, French J concluded at 465-466:

Having said that, I am not satisfied that the present case is one in which I should entertain a submission of no case on the part of the BTA. While the interests of the BLF and the BTA may be closely aligned, it is not beyond the bounds of possibility that the course of the BLFs defence could involve, raising at least the hypothesis that some of the conduct attributed to it by the applicant is attributable to the BTA. This is particularly so where the two organisations have a common secretary and some apparent degree of common administrative support. It is also part of the applicant's case that the two organisations acted in concert with each other. This makes the case somewhat analogous to that of the concurrent or joint tortfeasors. Moreover from a practical point of view it has not been established that there would be any significant saving in the time taken at trial if the BTA were to be dismissed out of the case at this point. Counsel for the BTA has foreshadowed that it intends to call only one witness, and in that respect only one affidavit has been filed. In the circumstances it is my opinion that the negative factors referred to in the decided cases dealing with multiple respondents outweigh any convenience that may be achieved by proceeding to hear and deal with a no case submission at this point. This of course involves no finding about the strength of the case against the BTA or that a prima facie case even exists.

32    It is apparent from the judgment of French J in J Corp that considerations of the interests of justice will take into account the nature of the allegations made against the respondent. In that respect, a compelling factor against allowing the moving respondents to make a no case submission is the extent to which the claims made against it bear a close relationship to the claims made against the other respondents. In that respect, French J had in mind as examples whether there was a claim that “respondents had acted jointly” (at 463), or whether it was alleged that the respondents were “concurrently concerned in incidents out of which it was alleged that liability arose” (at 464).

33    On the other hand, his Honour recognised that countervailing factors may be found in the nature of the no case submission itself, so that, and again by way of example, his Honour referred to a no case submission grounded in a proposition of law, or a no case submission grounded in the absence of a necessary jurisdictional fact, as factors favouring the exercise of the discretion in favour of the moving respondent.

34    The judgment of French J in J Corp, and the judgments upon which his Honour relied, show that, first, the no case to answer process is a case management tool, which may be utilised where the interests of justice, including matters of convenience and economy, make its use appropriate. Second, those judgments demonstrate that courts are astute to ensure that the no case to answer process not be used as an instrument for facilitating a result which, in an overall sense and taking into account the legitimate interests of all parties, may give rise to unfairness or injustice. Third, those judgments also recognise that, given the dynamics involved in litigation, the risk of an unjust result overall is greater where the litigation involves multiple respondents sued jointly where the allegations made against them, out of which liability arises, are closely connected.

35    The opportunity to shift blame as a means of avoiding liability is one example of the risk to achieving an overall just result that the splitting of a suit brought jointly against multiple respondents has. This is exemplified in many of the cases referred to by French J in J Corp.

36    A further example of the Courts being astute to avoid such a risk, this time in the context of a split sought to be achieved through the summary judgment process, is given in Wickstead v Browne (1992) 30 NSWLR 1 at [11]-[12]. At [11], Handley and Cripps JJA said this:

At the close of the plaintiff’s case, there may be evidence against some defendants but not against others. The court will not entertain a motion for judgment by some only of the defendants because any gaps in the plaintiff’s case against those defendants may be filled when the other defendants go into evidence.

37    Applying the guidance given by the authorities to the current case, it seems to me that, with regard to the interests of justice, the nature of the allegations made against the respondents bear a very close relationship. They are, in essence, allegations that the respondents were concurrently concerned in incidents or events upon which their liability to Mr Newton is asserted. The various acts or conduct of Mr Metcher alleged to be in contravention of s 348 and 355 of the FW Act and which Mr Newton alleges was either action of the Union or action engaged in by the Union are alleged to be acts which Mr Fahour and Australia Post were each involved in as an accessory, being an aider and abettor, a person knowingly concerned with and a conspirator with Mr Metcher in each of the contraventions alleged.

38    Furthermore, because Mr Newton must prove the primary contraventions pleaded against Mr Metcher in order to succeed on the accessorial contraventions pleaded against Mr Fahour and Australia Post, Mr Newton’s case against Mr Fahour and Australia Post relies upon the very same allegations he must establish to succeed against Mr Metcher. For those reasons, I consider that there is a strong nexus between the allegations made against Mr Metcher and the Union and those made against Mr Fahour and Australia Post. It follows that this is a proceeding in which the claims made upon each respondent are largely based on the same facts and where the evidence which has been or will be called is largely common to all claims.

39    Those are factors which weigh against the exercise of the Court’s discretion to permit a no case submission to be put by some respondents when other respondents have elected not to do so. They demonstrate that the risk of an overall unjust result, brought about by the splitting of the determination of liability as between different respondents, is real.

40    Just how the no case to answer process may result in an unjust outcome overall may not be readily discernible because much may depend upon how any opportunities which arise by the splitting of the trial are utilised. The point is that the nature of multi-respondent litigation involving allegations of concurrent conduct and joint liability tend to provide such opportunities. I note in this respect that French J in J Corp determined not to entertain a no case submission without attempting to identify with any precision how the no case to answer process may, in the context of that case, lead to the interests of justice being compromised.

41    There are, however, a number of aspects of this case which ought to be mentioned. First, I am not in a position to assess whether the evidentiary gap which the Union and Mr Metcher assert and which is the basis of their no case submission is made out. Assuming that it is, and on the basis of the notice given by Mr Fahour and Australia Post to Mr Newton that Mr Fahour would give evidence and as to the content of the evidence he proposed to give, it is fair to say that Mr Newton should be regarded as having had a legitimate expectation that any such evidentiary gap may be filled by the evidence of Mr Fahour. Those circumstances would provide powerful reasons for not permitting Mr Fahour and Australia Post to opportunistically make a no case submission grounded in that evidentiary gap. I appreciate that the Union and Mr Metcher are in a different position. They did not provide the notice given by Mr Fahour and Australia Post. Nevertheless, they were aware of it and it seems to be a fair inference that they seek to take advantage from it. It seems to me that in that context, the closely related multi-respondent nature of this litigation has created opportunities which, if permitted, may lead to an unjust result overall, thereby compromising the interests of justice.

42    Second, I note that it was the fact that the no case submission had an evidentiary basis in circumstances where the non-moving respondent proposed to call evidence, as in this case, which persuaded Toohey J in James to reject the making of a no case submission (at 402-403). His Honour considered that the interests of justice favoured the court determining at the close of the case of every respondent whether the causes of action against each was made out. Furthermore, his Honour appears to have reached that view including for the reason that the evidence to be presented by the non-moving respondent may tend to falsify the decision that may be given on the no case submission (at 398). That possibility arises here too.

43    Third, there is the possibility that any appeal against any ruling I make accepting the no case submission, will succeed. The avoidance of a further trial in circumstances where issues largely common to all respondents will have been finally heard and determined against some of the respondents is a weighty consideration. That is particularly so, in circumstances such as the present, where the Court may end up making inconsistent findings on the same question (for instance, as to whether Mr Metcher contravened the FW Act) on a final basis in two separate trials. The possibility of inconsistent results, including the need to call witnesses twice in two separate trials, weighs heavily against accepting the no case submission.

44    I accept that it is possible that those circumstances may be avoided if the Court, should it accept a no case submission, adjourns to give Mr Newton an opportunity to consider whether or not he wishes to appeal. It may be that he will, in which case the Court could adjourn until the appeal is heard and determined. That process may well avoid the prospect of inconsistent findings. But inevitably it is a process that brings with it a different kind of potential detriment, and that is the prospect of this trial being vacated and the hearing and determination of the claims raised being substantially delayed.

45    In relation to the prospect of an appeal, I note the observations made by Kennedy J in BHP Steel (RP) Pty Ltd trading as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294 at [7], that the general rule that a party wishing to make a no case submission is required to elect not to call evidence, is primarily based on the avoidance of a new trial should an appeal against a decision that there is no case to answer succeed.

46    This is not a case where countervailing considerations of the kind referred to by French J in J Corp arise. Nor is there the countervailing consideration relied upon by Barker J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No. 4) [2011] FCA 618 at [16] where his Honour reasoned that if the no case submission brought by one respondent succeeded, the case against all respondents would inevitably fail.

47    No countervailing considerations beyond those of economy, in terms of time and resources, were raised by the respondents. As to that matter, I accept that allowing a no case submission to be put would result in a saving of resources for the Union and Mr Metcher should their no case submission succeed. I do not accept that there would be an overall saving in Court time, and a commensurate saving in expense to the remaining parties. The estimate given as to the time necessary to respond to the no case submission and the time likely to be taken up by any replies suggests that the net saving of Court time is likely to be marginal.

48    The limited extent to which Mr Metcher and the Union have gone into evidence (if that is what they have done) does not, in my view, weigh against the exercise of the discretion favourably to the Union and Mr Metcher.

49    In the totality of the circumstances, I consider that the negative factors to which I have referred outweigh the possible costs savings that may be achieved for the Union and Mr Metcher.

50    Accordingly, I rule against entertaining the no case submission.

Associate:

Dated:    12 December 2018

SCHEDULE OF PARTIES