FEDERAL COURT OF AUSTRALIA

Rooney v AGL Energy Limited (No 2) [2020] FCA 942

ORDERS

THE COURT ORDERS THAT:

1.    Order 6 of the orders made herein on 14 April 2020 be vacated.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant, Ms Rooney, is a former employee of the respondent’s. By this proceeding, she alleges that, throughout her employment (and, in particular, by the manner in which it came to an end), she was subjected to numerous instances of adverse treatment in contravention of various of the “general protections” provisions of pt 3-1 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”). She seeks relief in the nature of declarations, compensation, interest and penalties.

2    Ms Rooney’s employment with the respondent ended in June 2017. She commenced the present proceeding in September 2017. By orders made on 21 June 2019 (after the matter was allocated to my docket), it was set down for trial to commence on 20 April 2020. Earlier this year—and in consequence of the COVID-19 pandemic that has struck Victoria and most of the world—those trial dates were vacated and the matter was listed instead for trial commencing 27 July 2020.

3    On 29 June 2020, the matter was the subject of a case management hearing, at which the parties very helpfully and constructively discussed some steps that might be taken to limit the amount of time that the trial would require in-person sittings of the court. At the time, it was envisaged that the bulk of the trial could be conducted in person, as was the clear preference of the court and both parties.

4    On Tuesday, 30 June 2020—and in consequence of the increased COVID-19 infection rates that have recently beset Victoria—the court announced an immediate suspension of in-person hearings in Melbourne through until the end of July 2020. In light of that development, it became necessary to consider whether the matter could proceed by remote means or whether the existing trial dates should be vacated. It is to that question that these reasons are directed.

5    The applicant maintains that this matter is not one that lends itself entirely to trial by video. She advanced four primary submissions to that end.

6    First, she submits that a trial by remote means would require additional time, such that the eight days that are presently allocated would not be sufficient. That, in turn, would increase the cost of the proceeding, which neither party is likely to recoup in light of s 570(1) of the FW Act. It will also, she said, likely result in the matter being part-heard whilst additional hearing time can be allocated, which in turn would likely result in additional costs for both parties.

7    Second, the applicant submits that this matter is one in which demeanour and witness credit will be squarely in issue, such that it is imperative that the court hear from the central witnesses in person. It is critical, she submits, to subject those witnesses to the usual rigours of cross-examination and in-person assessment. Necessarily, a trial by remote means, she says, would prevent that from occurring, which would be contrary to the interests of justice.

8    Third, the applicant submits that it is impractical to require that her legal team should conduct a complex trial such as this remotely. As of today, most Victorians (including the applicant’s counsel and instructing solicitors) will return to a state of government-imposed “lockdown”. Her counsel—who lives with his partner and their infant—cannot sensibly conduct the trial from his home.

9    Fourth, the applicant points to the difficulties that a remote hearing would subject her to directly. The applicant lives in Adelaide and suffers from health issues that make travel to, from and within, Victoria potentially hazardous. It is, she says, highly preferable (if not essential) that she should travel to Melbourne to be able to participate in the trial in proximity to her legal team; but doing so necessarily exposes her to health risks and the need to quarantine upon her return (if, indeed, she would be permitted to travel to Victoria at all). Not travelling to Melbourne would make it extremely difficult—and practically not feasible—for her to communicate with her advisors throughout the course of the hearing.

10    The respondent opposes the vacation of the existing trial dates. It submits that the difficulties associated with a remote hearing can, at least to some extent, be overcome through the use of technology. It submits, for example, that the applicant could maintain alternative communication channels with her legal team from Adelaide, and that her counsel could (despite any lockdown) conduct the trial remotely from chambers or from the offices of his instructors. It is confident that the trial will complete within the eight days presently assigned to it.

11    The respondent submits that, if the existing trial dates are vacated, it will effectively throw away costs recently expended in preparation for the trial. Of most significance, it submits that any further delay will prejudice its defence of Ms Rooney’s claims. The events that are at the centre of the proceeding occurred more than three years ago. If the matter is deferred again—in all likelihood into 2021—there is a real risk that the memories of its witnesses will fade in a manner apt to affect the court’s assessment of their evidence. The respondent notes—and it is not lost on me—that it bears the onus of proving that none of the instances of adverse action that Ms Rooney alleges were inflicted upon her for reasons that part 3-1 of the FW Act proscribes. On balance, the respondent maintains that the prejudice that will attach to the vacation of the existing trial dates outweighs the prejudice that will attach to the conducting of the hearing remotely.

12    Although there is room to debate the scope, I accept that either outcome in this matter—that is, the vacation or the maintenance of the existing trial dates—will visit the various forms of real prejudice to which each party refers. The court thus faces a difficult predicament. There is, to put it bluntly, no good option: either the trial proceeds by video (or other remote means), which will prejudice the applicant largely in the ways that she identifies (and, indeed, may adversely affect some of the respondent’s witnesses); or it should be vacated, which will visit alternative forms of prejudice, principally in the form of delayed justice and the prospect of impaired memories. The court must, in effect, identify and select what it considers is the least-bad option.

13    With significant hesitation, I have resolved to vacate the trial dates. For whatever it might be worth, I do so with much sympathy for the submissions made forcefully on the respondent’s behalf. My reasons for favouring the outcome that I have can briefly be stated.

14    I accept that the respondent might be prejudiced by a further delay to the hearing of the trial, particularly in that the memories of its key witnesses may degrade over the additional time. I am conscious of the respondent’s submission that the trial will involve receipt of “an extensive volume of documentary evidence”, which, it is to be hoped, might alleviate against that potential (although I acknowledge that it might not). Further, although the risk of greater prejudice is present, one might fairly suppose that the marginal degradation of witness recollections after what has already been a significant period of time is unlikely to be material.

15    I also accept that the respondent will likely incur additional costs in consequence of the delay, which it is unlikely to be able to recover, even in the event that its defence of the action succeeds. Countering that, however, is the probability that it won’t be put to the additional expense likely to be necessary in the event that the matter were to proceed remotely (which would arise as the likely consequence of the additional time that such hearings inevitably require).

16    I also accept that there are avenues available to the applicant to minimise—although not to eliminate—the inconvenience or difficulties that a remote hearing would visit upon her conduct of the trial. Nonetheless, it is plainly the case that Ms Rooney’s prosecution of her case will be aided by her access and proximity to her legal advisors. As much is so for the respondent, as well. That inclines in favour of vacation.

17    A more significant factor warranting vacation of the existing trial dates is the need to expose key witnesses to the processes of in-person examination and cross-examination. Plainly, there are aspects of the trial—openings, closings and secondary witnesses, for example—in respect of which remote hearing technology will likely suffice. Other aspects, however—principally, the oral evidence of the applicant and the key decision makers within the respondent—don’t as easily qualify in that regard. As all parties rightly appreciate, the present matter will turn largely upon contested questions of fact. As with most general protections matters, the court’s assessment of the witnesses who are called to give evidence (or at least the key witnesses amongst them) will be paramount.

18    I acknowledge that some judges of this court have expressed the view that such assessments can be made as well by remote means as by traditional in-court examination: see, for example, ASIC v Wilson [2020] FCA 873, [35] (Lee J); Tetley v Goldmate Group Pty Ltd [2020] FCA 913, [16] (Bromwich J); and Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [19] (Perram J). Those conclusions are, of course, personal to those who have drawn them. My own experience of present-day remote hearing technology is slightly less positive (although, I stress, not negative). I consider it a good and, in many instances, necessary “Plan B”. However, the available technology cannot fully replicate the court room environment that is so often central to an adversarial system of civil justice. In my experience, the technology inhibits (if not prohibits) the cadence and chemistry—both as between bar and bench, and bar and witness box—that personify well-run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152, 171 [78] (Buchanan J). Further, the technology often begets delay, particularly when documents are to be supplied remotely. Although broadly reliable, it is not uncommon for connections to be momentarily of poor quality, occasionally to the point that they are unusable. All of these factors influence the user experience of a justice system from which all litigants are entitled to benefit.

19    Moreover, there is a sense of solemnity—perhaps even intimidation—that attaches to the receipt of oral evidence from a courtroom witness box that not even the best technology can replicate. When all witnesses (or crucial witnesses) in a matter are subjected to that same stage, the truth is less easily spun, and unsuccessful parties are less inclined or less able to find fault with the process that delivered their defeat. That is especially important in cases such as this one, where serious allegations of statutory contravention are advanced, and the outcome of the cause turns upon contested facts and the credit of those who recount them: see, in that vein, Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614, [22] (Besanko J). Appreciating that there should be no one-size-fits-all approach and that, as Lee J put it in Wilson, care should be taken to ensure that the perfect does not become the enemy of the good, the circumstances that currently present in this matter favour, in my view, an orthodox approach to the receipt of crucial witness evidence.

20    On balance, then, I consider that the interests of justice incline in favour of vacating the existing trial dates. I will instruct my chambers to liaise with the parties with a view to identifying alternative trial dates (taking account of counsel and witness availability). At present, it is unlikely that the trial will take place this year. Again, I acknowledge the potential impact of such a delay. At the time that the matter does proceed to trial, it is to be hoped that the court—and the community generally—will not find itself in the grip of pandemic-inspired restrictions on movement or public gathering. Of course, it might well be that such restrictions (or similar restrictions) remain in place and, if that is so, the parties should not expect that the court will lightly entertain further attempts to postpone the trial. The circumstances as they presently exist are finely balanced—they might be less finely balanced in three or six or nine months’ time.

Associate:

Dated:    8 July 2020