Federal Court of Australia
Ittyerah v Coles Supermarkets (Australia) Pty Ltd  FCA 1497
FAIR WORK COMMISSION
DATE OF ORDER:
16 october 2020
THE COURT ORDERS THAT:
1. The applicant’s application for interlocutory relief is dismissed.
1 The applicant was employed by the first respondent Coles Supermarkets (Australia) Pty Ltd (respondent), as a store cleaner from 14 September 2015 until his employment was terminated on 22 July 2019, effective from 23 July 2019.
2 On 14 August 2019, the applicant filed unfair dismissal proceedings in the Fair Work Commission (FWC), which was outside of the prescribed time limit: s 394(2)(a) of the Fair Work Act 2009 (Cth) (FW Act). On 14 November 2019, the FWC dismissed the applicant’s application for an extension of time on the basis that it was not satisfied there were exceptional circumstances that justified the granting of an extension of time, taking into account the criteria in s 394(3) of the FW Act: George Ittyerah v Coles Supermarkets Australia Pty Ltd  FWC 7404. On 19 January 2020, the Full Bench of the FWC refused the applicant permission to appeal that decision: George Ittyerah v Coles Supermarkets (Australia) Pty Ltd  FWCFB 407. The decisions are the subject of an application for judicial review to this Court.
3 The applicant seeks interlocutory relief, first, an injunction requiring the respondent to retain the categories of evidence identified in Annexure A of the statement of claim until the unfair dismissal proceedings have been finally disposed of; second, an order requiring the respondent to submit an affidavit specifying the categories of evidence identified in Annexure A that it has retained; and third, costs.
4 The applicant filed written submissions in chief, and in reply in support of his interlocutory application, and relied on affidavits by him dated 18 June 2020 and 19 June 2020. The respondent filed written submissions and relied on an affidavit of Olivia Rachel Bramwell dated 20 July 2020.
5 The parties agreed that the interlocutory application be determined on the papers, without an oral hearing.
6 For the reasons below the interlocutory orders sought are refused.
7 In a nutshell, the applicant submitted that the material identified in Annexure A is relevant to his FWC proceedings, in particular the remedies he may seek in the FWC.
8 The respondent submitted that in relation to the interlocutory application the applicant had not established that there was a serious issue to be tried in relation to the judicial review proceedings in this Court, that in any event in relation to each of the categories of material in Annexure A that, even if it existed, for the most part it is irrelevant to the proceedings. It submitted that in any event there is no risk of destruction of the material that does exist within the respondent’s control.
9 As to the latter submission the respondent, although not accepting for the most part that the documents sought could be in any way relevant, nonetheless provided evidence, an affidavit of Olivia Rachel Bramwell dated 20 July 2020, which states that documents meeting the descriptions in Annexure A which are in the respondent’s control have been located and provided to its solicitors who will retain the documents until the resolution of the proceedings. At a case management hearing after the affidavit was filed the respondent confirmed that was the position, informing the Court that the documents would be preserved until the matter is finally disposed of.
10 Despite that the applicant persisted with the application for the orders sought.
11 The applicant objected to the affidavit of Ms Bramwell on the basis that this was a final hearing, that the evidence is hearsay and inadmissible and in any event, ought to be excluded under s 135(b) of the Evidence Act 1995 (Cth) (Evidence Act) as the probative value of the affidavit is outweighed by the danger that the evidence might be misleading or confusing. The applicant in the alternative submitted that little weight should be given to the affidavit under s 136(b) of the Evidence Act.
12 The applicant provided no real submission as to why the orders sought ought to be made given that the documents in Annexure A, which the respondent said are in its control, are to be retained by them.
13 The respondent approached the submission on the basis of the well-established principles relevant to the granting of an injunction, referring to Australian Broadcasting Corporation v O’Neill  HCA 46; (2006) 227 CLR 57 at , although it accepted the applicant’s submission that the considerations akin to those raised in r 7.43 of the Federal Court Rules 2011 (Cth), when considering a search order, were relevant. It was submitted that applying those principles, the applicant has not established that the orders sought ought to be granted.
14 This applicant’s submission must be considered in context. This includes that an application for retention of the material was not made by him until 28 February 2020, although he filed the initial proceedings in the FWC in August 2019. I note that the applicant’s affidavit states, inter alia, that he first sent a letter to the respondent seeking they retain “categories of evidence”, and there appeared to be some correspondence between the parties thereafter, until approximately August 2019. That said, the applicant deposes that the categories of evidence in this application are different from those in his original correspondence.
15 The material sought, even accepting for the purposes of argument that it might be relevant for the applicant’s underlying FWC proceedings, in practical terms could not be relevant unless the applicant satisfies this Court on the judicial review proceedings that jurisdictional error is established and the matter is remitted to the FWC to hear the application for an extension of time, and the FWC on reconsideration of the matter grants the applicant permission to appeal the first instance decision, and the applicant succeeded on that appeal. Or alternatively, that judicial review proceedings in respect to each decision succeeded.
16 I appreciate that the applicant has an application for judicial review against both the primary and Full Bench decisions of the FWC. The jurisdiction to address both will, no doubt be considered on the substantive application. Suffice to say at this stage that in this matter the applicant has exhausted the appeal rights under the FW Act and so there will often be compelling reasons for this Court not to entertain an application for judicial review of the primary decision in addition to an application for judicial review of the Full Bench’s decision relating to the Commissioner’s decision: Mwango v Fair Work Commission  FCA 1274 at .
17 As to the applicant’s objections to the affidavit, I note that the affidavit was not required to be filed under any order, but rather it was relied on in support of the respondent’s position. The purpose of the applicant’s objection is unclear. If it succeeded the result would be that there is no evidence before the Court as to the respondent’s response to this application, nor as to its assurance that the documents are to be retained. That would not alter the current position of the respondent that it retains the material in Annexure A, but seems is an attempt to remove the evidence of that position. It would not alter the position that the respondent has given assurance to the Court of that fact, and that the material would be preserved until the matter is finally disposed of. This is also in a context where the orders sought by the applicant include that the respondent be required to file an affidavit specifying the categories of evidence it has retained.
18 That said, there is no proper basis on which the affidavit should not be admitted. None has been identified by the applicant. In the circumstances of this case, this application is interlocutory, and s 75 of the Evidence Act provides an exception to the hearsay rule, permitting such an approach to evidence adduced in interlocutory hearings. Any order made does not finally determine the rights of the parties. The legal effect of a judgment is not final, where it would be open to a party to bring a second application, even if it would be doomed to fail: Bienstein v Bienstein  HCA 7; (2003) 195 ALR 225 at ; Plaintiff S164/2018 v Minister for Home Affairs  HCA 51; (2018) 361 ALR 8 at . There is also no proper basis to exclude the evidence under s 135(b). The applicant’s criticisms of the affidavit, which includes that it is on information and belief, do not establish that it is misleading or confusing. The respondent has identified the material it has in its control, that it is being retained and there is no evidence to suggest it might destroy such evidence or cause it to be unavailable for use in evidence in the FWC proceedings. Nor is there a proper basis established that this Court should allocate minimal weight to the evidence or limit its use under s 136(b). There is no proper basis not to accept that evidence for the purposes of this application.
19 Leaving aside the issue of whether there is a serious question to be tried, and despite there being a live issue as to the relevance of the material sought, the affidavit establishes that there is now no utility in the orders sought. The material, in so far as it exists within the control of the respondent, is being retained. It is open to conclude that this is the same material which would be retained if an order were made. There is no proper basis to suggest that the respondent did other than its best effort in searching and gathering the material. There is no basis in the evidence to properly suggest that there is other material than the material retained within the respondent’s control. There is no risk of destruction of that material that does exist within the respondent’s control. In that context also the balance of convenience favours the respondent. It ought not to be put to further expense and time which would necessarily be entailed by court orders.
20 In that context it is unnecessary to determine whether there is a serious question to be tried in this Court and/or the challenges to the relevance of the evidence to any future proceedings. Even if that were to be established, for the reasons given above, the orders sought would not be made. Moreover, in those circumstances it is not in the applicant’s interest that those issues be decided, in particular the serious question to be tried or that there is a prima facie case, because to do so, if the Court were to accept the respondent’s submission that there was no arguable prima facie case, would not assist the applicant’s claim for final relief.
21 The interlocutory application is dismissed.
Dated: 16 October 2020