Federal Court of Australia

Grunsell v Ceerose Pty Ltd [2022] FCA 1130

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    The appeal be allowed.

3.    The matter be remitted to the Federal Circuit and Family Court of Australia for rehearing before a differently constituted court.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    By an application filed 4 August 2021, the applicant, Mr Grunsell, seeks an extension of time to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth). All parties agreed this aspect should be dealt with on the papers, and if the extension was granted, the matter was appropriate to be dealt with by a single judge. After consideration of the written submissions on that application, it became apparent, given the nature of the draft grounds of appeal, that the application should be addressed at the same time as the hearing of the substantive matter. This matter has been certified as an appeal appropriate to be heard by a single judge.

2    For the reasons below, the extension of time is granted, and the appeal is allowed.

Factual overview

3    Mr Grunsell was employed by the first respondent, Ceerose Pty Ltd (Ceerose), from 11 January 2016 until 31 August 2020. During that period, the second respondent, Mr Edward Doueihi, was a director of the first respondent, and the third respondent, Mr Bradley Smith, was a general manager of the first respondent.

4    The applicant commenced proceedings in the then Federal Circuit Court of Australia, alleging a contravention of s 119 of the Fair Work Act 2009 (Cth) (Fair Work Act), on the basis that he should have been, but was not, paid redundancy following the termination of his employment by Ceerose.

5    On 1 June 2021, that application was heard before the primary judge who, on the same day, dismissed the application providing oral ex tempore reasons.

6    On 3 June 2021, the applicant’s solicitor contacted the chambers of the primary judge by email, inquiring about the provision of written reasons. His Honour’s chambers responded that because oral reasons had been given, no written reasons would be published, but the Court would take the email as “a request to settle the transcript of the published oral reasons, a copy of which [would] be provided within the next 4-6 weeks”.

7    On 29 June 2021, the date by which any appeal was required to be filed, the applicant’s solicitors attempted to file a notice of appeal in this Court in relation to the orders made and the oral reasons delivered. The notice of appeal was not accepted for filing by the Registry, on the basis that the reasons for the decision had not been annexed to it. At that time, Mr Grunsell had not been provided with written reasons for the decision or a transcript of the primary judge’s oral reasons delivered on 1 June 2021.

8    On 30 July 2021, the primary judge’s chambers provided the applicant’s solicitor with a copy of the transcript. His Honour’s reasons were published: Grunsell v Ceerose [2021] FCCA 1209 (Primary Judgment).

9    On 2 August 2021, the applicant’s solicitors again attempted to file a notice of appeal in this Court, which was again rejected. That rejection was on the basis that the time period by which to institute the appeal had expired.

10    On 4 August 2021, the application for an extension of time was filed.

Extension of time

Legal principles

11    The power to extend time in which to appeal is unfettered. However, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters identified in that judgment to which the Court will usually have regard are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally. See for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17]-[19] per Spender, O’Loughlin and Dowsett JJ and Kumar v Bathini [2015] FCA 632 at [26] per Mortimer J.

Consideration

12    The applicant’s application for an extension of time was supported by an affidavit of Mr Kyle Kutasi, his solicitor, which relevantly gives evidence of the facts summarised above at [5]-[9].

13    In written submissions, the respondents opposed the application on the bases that: there was an inadequate explanation for the delay, in particular, as to why the extension of time application could not have been filed at an earlier time without having obtained written reasons; and the proposed grounds lacked merit. However at the hearing, counsel for the respondents properly accepted that an adequate explanation for the delay had been provided.

14    As was observed by the Full Court in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [26]-[28]:

[26]    On 23 May 2018, the solicitor again emailed the Associate to the primary judge to follow up on the previous day’s email. Ten minutes later the solicitor received an email from a person identified as the Deputy Associate to the primary judge attaching the Reasons for Judgment delivered on 30 April 2018.

[27]    The Minister did not challenge any of the evidence adduced by the solicitors for the appellant. The evidence supports findings that the appellant’s solicitors took timely and reasonable steps to obtain a copy of the primary judge’s written reasons within the period for filing a notice of appeal to this Court, but the FCC did not respond to the inquiries, or publish its written reasons to the applicant until after the time for appeal had expired. This had the consequence that he was required to seek the indulgence of the Court to file the appeal out of time.

[28]    The situation where the written reasons for judgment are not available to a litigant who wishes to consider appealing until shortly prior to or after the expiration of the appeal period is less than desirable. In Singh v Minister for Immigration & Border Protection [2017] FCAFC 195, the Full Court (Perram, Farrell and Perry JJ) said of such a situation:

Thirdly, while the appellant was present in court when the primary judge gave an ex tempore (oral) judgment, he has given a reasonable explanation for the delay. Nor did the Minister suggest otherwise. The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. Where that may not occur, however, it should be borne in mind that FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration & Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result.

15    The applicant did try to file the appeal within time, even without having been provided written reasons. That attempt was in circumstances where the applicant had requested written reasons. The delay in filing was therefore out of the applicant’s hands. Further, once the transcript of the oral reasons and judgment had been provided, the applicant promptly filed the application for an extension of time.

16    The respondents also accepted that they suffered no prejudice as a result of the delay.

17    In that context, the merits of the proposed grounds are the focus of this application.

18    The applicant, by a revised draft notice of appeal, seeks to rely on five grounds of appeal:

1.    The primary judge misconstrued and/or misapplied section 119(1) of the Fair Work Act, by proceeding upon the footing that ‘the only basis upon which there can be redundancy under section 119 is when the company itself has come to a view about a particular position’.

2.    The primary judge’s critical finding findings at [10] and [11] of the Primary Judgment that the Applicant was not a witness of credit and that the Respondent’s witnesses were credible were legally unreasonable.

3.    The Applicant was denied a fair hearing, by reason of the primary judge excessively, unduly and improperly intervening in the conduct of the trial, including the hostile and/or aggressive questions put to the Applicant by the primary judge during cross-examination and other interventions that:

(a)    unfairly undermined the proper presentation of the Applicant’s case;

(b)    gave an appearance of bias; and

(c)    was such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromised the judge’s advantage in objectively evaluating the evidence from a detached distance.

4.    The Applicant was denied procedural fairness arising from a failure to hear and determine the Application in a Case filed by the First Respondent that sought to set aside all of the Notice to Produce served on the solicitors for the First Respondent by the solicitors for the Applicant by email on 7 April 2021.

5.    The primary judge erred in fact in finding, at [15] of the Primary Judgment, that no steps were taken to convey to the applicant that the employer no longer required the job done by the applicant to be done by anyone.

19    In oral submissions, the respondents accepted that if either of grounds 2 or 3 were established, the appropriate order would be that the matter be remitted for rehearing before another judge.

20    Before considering the grounds of appeal, it is appropriate to consider the reasons provided by the primary judge.

Primary judgment

21    The primary judge dismissed the applicant’s application alleging that the respondents had contravened ss 44(1) and 119 of the Fair Work Act 2009 (Cth) by failing to pay him redundancy.

22    Section 44(1) of the Fair Work Act provides that an employer must not contravene a provision of the National Employment Standards, while s 119(1) relevantly states:

119 Redundancy pay

Entitlement to redundancy pay

(1)    An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:

(a)    at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)     because of the insolvency or bankruptcy of the employer.

23    The primary judge identified the core issues pleaded by the applicant as: that he had been terminated without notice; and that he had been made redundant. The respondents’ defence was summarised as the applicant having resigned, rather than being dismissed or made redundant: at [3].

24    His Honour accepted the respondents’ evidence, finding that the applicant resigned at the meeting in question on 25 August 2020. The result was that none of the pleaded contraventions against any of the three respondents were made out: at [4] and [16]-[19].

25    That conclusion was based on his Honour’s findings at [9] that: the applicant changed his position between the 25 August 2020 meeting and making the assertion that he had not resigned on 1 September 2020; and cl 2.1 of a draft deed sent to the applicant on 8 September 2020 corroborated the respondents’ case that the applicant had resigned. His Honour also found that although the applicant’s application filed in the Fair Work Commission and statement of claim both asserted a conversation with the second respondent to the effect that he had been made redundant, no evidence of such a conversation existed, with either the second respondent or any other officer of the first respondent: at [10].

26    In oral evidence, the applicant indicated that his only basis for asserting that he was made redundant was a reference to being given his entitlements. His Honour found that was not a proper basis to assert an oral conversation that the applicant had been made redundant or to infer that he had been made redundant: at [10] and [14]. Rather, his Honour found that the applicant resigned at the meeting of 25 August 2020 on his own voluntary initiative: at [11] and [15].

27    On the basis that the applicant had been willing to assert that he was verbally told he was made redundant when that did not occur, his Honour found that the applicant was not a reliable witness: at [10]-[11]. That finding was in circumstances where his Honour also concluded that nothing was said in the meeting of 25 August 2020 to communicate that the first respondent no longer required the job to be done by the applicant or by anyone: at [15].

28    His Honour held that the first respondent temporarily stood down the applicant due to financial difficulties and temporary lack of work: at [12]. His Honour did not accept that the temporary standing down constituted dismissal or constructive dismissal, or that the applicant was asked to take a permanent 70 percent pay cut: at [12]-[13].

29    With respect to costs, his Honour was not satisfied that the requirements of s 570(2) of the Fair Work Act were satisfied such as to warrant the making of a costs order: at [23]. His Honour stated that although the facts identified in the statement of claim could have been articulated with “greater clarity”, the arguments made by the applicant were not necessarily “hopeless” nor the proceedings instituted “without reasonable cause”: at [22].

Consideration

30    In light of the respondents’ submission as to the consequence of grounds 2 and 3 if established, it is appropriate to first consider those grounds.

31    Before doing so, it is of assistance to refer to aspects of the conduct of the hearing relied on by the applicant, for although the two grounds allege different complaints, there is some overlap in the underlying material relied on to establish each.

32    The substantive hearing effectively commenced at 10.36 am, with the applicant called to give evidence. Shortly after the commencement of cross-examination, the following exchanges occurred:

MR FESEL: … Mr Grunsell?---Yes.

This is a statement of claim filed on your behalf with respect to these proceedings; is that correct?---That is correct.

If you could have a look at paragraph 17, which the court has so kindly produced, could you read that for a moment?---Yes.

And it says the second respondent notified the applicant orally that his employment was being terminated by reason of redundancy?---Yes.

Could you advise the court who is the second respondent?---The second respondent I believe is listed as Edward Doueihi.

Now - - -

HIS HONOUR: Mr Grunsell, in your affidavit, you don’t identify any conversation, do you, with the second respondent saying that you’re to be made redundant?---No. No, I don’t, your Honour.

And you don’t identify any conversation with the third respondent in which you are expressly told you are being made redundant, do you?---I refer to – if the third respondent was Mr Bradley Smith.

I understand the third respondent is Mr Bradley Smith, but nowhere in your affidavit do you directly depose to a conversation in which he says you are being made redundant; is that correct?---No, your Honour.

I see. Which paragraph do you say you say that in?---The agreement to pay or leave and notice and entitlements.

But, Mr Grunsell, the question I asked you was whether you were orally told by the third respondent that you were being made redundant. The answer to that question is nowhere does that appear in your affidavit, isn’t it?---No, it didn’t, your Honour.

MR ..........: ..... my evidence.

HIS HONOUR: And in circumstances where you weren’t told you were going to be made redundant, your only basis for asserting you were made redundant is your reference to the notice and entitlements; is that correct?---That was correct, your Honour.

Yes. You do understand, don’t you, Mr Grunsell, that the only basis upon which there can be a redundancy under section 119 is when the company itself has come to a view about a particular position and you had no communication to you that the company had come to that view; is that correct?---I’m not understanding the question, your Honour.

I will break it down for you. Mr Grunsell, the proceedings you’ve brought are ones alleging that you were made redundant. You’ve got no conversation in which you were told you were made redundant; correct?---Only the conversations that we were to be paid out my leave and my entitlements and everything that was owed to me.

That is not a conversation to the effect that the company had made a decision that your position was to be made redundant, is it?---I – I’m – I’m not sure, your Honour.

Yes. Yes, all right. Yes, Mr Fesel. Is there anything else you wish to ask?

33    And then:

MR FESEL: … Mr Grunsell, you have instructed your solicitor to plead in your application for relief from unfair dismissal that you were - - -?---Yes.

- - - told verbally that you were going to be made redundant?---It was in my contract conditions, and that was what was discussed.

Yes. If you listen to the question, please - - -?---Yes.

- - - my question is why isn’t that in your affidavit of 13 April, specifically, the conversation that occurred in the meeting between yourself and Mr Smith and Mr Massoud on 25 August 2020?---I believe it might have been an oversight that I didn’t put the actual wording in.

HIS HONOUR: Well, Mr - - -

MR FESEL: Would you care to tell - - -

HIS HONOUR: Just pause.

MR FESEL: - - - his Honour - - -

HIS HONOUR: Sorry. Mr Grunsell, the court - - -

MR FESEL: Sorry.

HIS HONOUR: - - - has just raised with you earlier - - -?---Yes.

- - - that there is nowhere in your affidavit a conversation in which either the second or third respondent said to you, “You’re being made redundant.” Do you wish to withdraw that evidence and change it?---No, I do not, your Honour.

Yes. Yes?---It was the – there was a conversation, I believe, that – that was – it was inferred and that was the - - -

I - - -?---The intent was - - -

I understand you rely - - -?--- - - - for – for my conditions - - -

- - - on what was said in relation to - - -?---Yes.

- - - entitlements. Yes. Is there anything else - - -?---Yes.

- - - you wish to say, Mr Fesel?

MR FESEL: No, your Honour.

34    That was the conclusion of the cross-examination. At 10.50 am, the applicant was asked one question in re-examination:

MS KUMAR: … Mr Grunsell, why did you form the view that redundancy pay was included as part of the entitlements that you were to be paid out?---Because I was told that there was no longer a requirement for me to work there and that it was part of my contract conditions that it was an entitlement, and that entitlement was agreed at the time of the – the meeting it was to be paid. So it was an entitlement ..... that – that included and there was no reference made to – to other entitlements, either, but they were – they were considered under the – the same as an entitlement that what I would be considered to be paid.

35    Two witnesses were called by the respondents. Cross-examination of both was completed by 11.09 am.

36    The parties had filed written submissions in advance of the hearing. The applicant’s counsel was called on and asked by his Honour “how can you succeed?”. Brief oral submissions were made by the applicant supplementing his written submissions, with the respondents not being called on. The primary judge then gave an ex tempore judgment, rejecting the applicant’s application.

37    The hearing was briefly adjourned at 11.18 am before recommencing shortly thereafter with submissions as to costs under s 570 of the Fair Work Act. Relevantly, during those submissions, the primary judge made the following statements:

HIS HONOUR: Ms Kumar, no criticism of you. I am deeply troubled by the fact that your solicitor certified that there was a reasonably arguable case on the basis of an oral fact that did not exist. That is, that he was being made redundant. That paragraph 17 of your statement of claim had no evidentiary foundation. There’s no affidavit evidence that has been adduced in support of that. It was obvious at the time of the drawing of the pleading that that was a critical fact that had to exist and there was no evidence in support of it. I’m deeply troubled as to whether in fact what the court should be doing is standing the matter down so it considers whether an order should be made against the solicitor personally because the certification that the proceedings had a proper basis seems to me to be an improper certification. Is there any reason why I shouldn’t take that course?

MS KUMAR: Your Honour, again, my submission is simply that Mr Grunsell had formed the view that on the basis of what he had been orally told, he had been made - - -

HIS HONOUR: It has got nothing to do with Mr Grunsell. It has to do with a solicitor who is a lawyer certifying a pleading in respect of which there is no fact to support paragraph 17, and without that, these proceedings patently had no prospect of success…

38    His Honour also stated:

HIS HONOUR: Mr Fesel, the court is troubled by the nature of the case that has been brought and, in particular, the certification. Mr Grunsell isn’t a lawyer. It clearly identified facts that he thought might or might not give rise to an allegation, and the pleader who has certified it pleaded something as to be orally being that his employment was being terminated by reason of redundancy, a material and critical fact for which there was no basis. Mr Grunsell shouldn’t bear the consequences of that at first instance. It would seem to me his lawyer should. Is there anything you want to say in that regard?

39    I note that the statement of claim is in the following terms at [17]:

The Second Respondent notified the Applicant orally that his employment was being terminated by reason of redundancy.

40    The primary judge also had an exchange with the applicant’s solicitor which confirmed that the pleading was drafted by a solicitor. The primary judge then returned to address counsel and said:

HIS HONOUR: Ms Kumar, I am troubled about the bringing of these proceedings but I do understand how it is that you have characterised them and how you’ve sought to advance them. And obviously you, no doubt, have heard what I’ve said in respect of circumstances by reason of which you say the criteria, if satisfied, should be pleaded in a different way. I do not regard that as anything for which you are responsible but what I’m minded to raise with you is the need for – if one does identify a defect with the pleading, please fix it.

41    The primary judge then ruled ex tempore against the costs application. Relevantly, in the later published judgment, the primary judge concluded at [22]:

The proceedings were run competently and diligently by counsel. The facts identified in the statement of claim could have been articulated with a greater clarity to reflect the argument developed by Ms Kumar. Whilst on one view, going beyond the pleaded case the submissions were lucid and confined. The respondents did persuade the Court that the applicant’s arguments should be rejected but that does not mean that the arguments were hopeless. This is not a case where the Court can be satisfied the proceedings were instituted vexatiously or without reasonable cause. Nor is the Court satisfied that the rejection of the offer, which was, with all respect, on the minimal side of any endeavour to compromise, is one in which it was an unreasonable act to reject the offer in respect of proceedings in which ordinarily no order as to costs is made.

42    A number of observations from those passages recited above can be made at this stage.

43    First, it was accepted during the hearing that in the applicant’s affidavit filed in support of his claim, it was not alleged that any of the respondents used the terms “redundant” or “redundancy” in the conversation they had with the applicant on 25 August 2020, but rather his case was advanced on the basis that is what was to be inferred from the conversation. It can be inferred that before the hearing the parties understood that the applicant was not suggesting the terms “redundant” or “redundancy” were used by any of the respondents.

44    Second, the applicant was legally represented throughout the proceedings, and the drafting of documents, including the statement of claim, reflect that they were legally drafted. The same can be said in respect to the application in the Fair Work Commission, at which time the applicant was also legally represented. It can also be taken, in that context, that the applicant in advancing his case had legal advice. The statement of claim is certified by his lawyer as having a proper basis for each allegation made in it.

45    Third, the applicant’s cross-examination was very short. It commences at the bottom of page 6 of the transcript. The passage recited above at [32] commences at the bottom of page 7. The primary judge’s interventions were protracted in respect to the limited cross-examination that occurred, and were critical of the applicant. In addition, it was accepted by the respondents in oral submissions in this Court that the proposition put by the primary judge to the applicant in cross-examination at [32] above (regarding the legal position of what is necessary to establish redundancy) is incorrect as to his assertion that the company must communicate to the employee that they are redundant.

46    Fourth, the primary judge’s conclusion in rejecting the costs application reflects, inter alia, that the only criticism of the statement of claim is that the facts identified within it could have been “articulated with more clarity”, in circumstances where the arguments in support were not “hopeless” and it had not been established the proceedings were instituted without reasonable cause.

47    As the respondents submitted, ordinarily, when a ground of appeal alleges procedural unfairness or bias on the part of the primary judge, that ground is to be addressed first: see, for example, Concrete Pty Ltd v Parramatta Design & Development Pty Ltd [2006] HCA 55; (2006) CLR 577 at [117] (Concrete) and Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 271 FCR 461 at [93] (Jorgensen). This is because, if the ground is upheld, it would strike at the validity and acceptability of the trial itself: Concrete at [117] and Jorgensen at [93]. As a matter of logic that must generally be so, because if that ground is established, the result is necessarily a re-trial. However, in this case, as referred to above, grounds 2 and 3 overlap and the result of either being established would be that the matter be remitted for re-trial. The finding challenged in ground 2 relates, inter alia, to questioning by the primary judge of the applicant, which is also complained of in ground 3. In that circumstance, it is most convenient to first consider ground 2, as it forms part of the factual context of ground 3.

Ground 2: credit findings

48    The applicant’s submissions in respect of the primary judge’s findings as to his credibility is focussed on [10] and [11] of the Primary Judgment. Those paragraphs are said to reflect that his Honour made adverse credit findings on the basis that Mr Grunsell had deposed to an oral conversation between himself and representatives of Ceerose, to the effect that he was to be made redundant, or from which it could be inferred that he was to be made redundant, in circumstances where an oral conversation of that description had not occurred.

49    The applicant submitted that simply because the primary judge considered that the oral conversation of 25 August 2020 did not permit the inference for which Mr Grunsell contended, it did not logically follow that Mr Grunsell must have been dishonest in his evidence and/or did not honestly believe that the redundancy of his position had been communicated to him in the oral conversation in question. Rather, it was submitted that the applicant did genuinely hold this belief and accordingly it was both illogical and unreasonable for the primary judge to make adverse credit findings.

50    The applicant also submitted that the primary judge made positive credit findings about the respondents’ witnesses without providing any reasons for such findings.

51    The respondents submitted in writing that this ground is based on an erroneous premise, as the primary judge did not find the applicant was dishonest. Rather, the primary judge was said to have relied on prior inconsistent statements regarding the conversation of 25 August 2020 to impugn the applicant’s credibility. The respondents also submitted that an appellate court will not interfere with credit findings unless they are glaringly improbable or cannot rationally be reconciled with incontrovertible facts or compelling inferences. This was said to be because the primary judge has had “the advantages of seeing ... witnesses in assessing their credit and reliability” and “the opportunity to consider all of the evidence in its totality and to reflect at length upon its interaction”, citing Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [57]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 at [3]. It was submitted that no basis exists to interfere with the primary judge’s credit findings.

52    It is appropriate to recite [10] of the Primary Judgment in full:

The applicant, in his pleading, asserted a verbal conversation with the second respondent to the effect that he was made redundant. There was no evidence of such a verbal conversation. No such conversation with the second respondent or any other officer of the first respondent took place. The second respondent was not present at the meeting on 25 August 2020. The applicant asserted the same thing in that he was told verbally that he was being made redundant in another document being an application for relief form for unfair dismissal filed in the Fair Work Commission that was clearly not correct. In oral evidence, the applicant indicated that his only basis for asserting he was made redundant was the reference to being given his entitlements. This was not a proper basis, as a matter of credibility of the applicant, to assert an oral conversation that the applicant was to be made redundant or that it was inferred that he was being made redundant. The willingness of the applicant to assert that he was verbally told he was being made redundant, when that did not occur, means that the applicant is not a reliable witness.

53    His Honour’s reasoning in that paragraph was reiterated at [11]:

… The applicant was willing to advance in his pleading and in the document filed in the Fair Work Commission, an allegation of an oral redundancy that was not supported and which was the core issue in his case. This undermines the applicant’s credit. In these circumstances, the Court finds that the applicant is not a reliable and credible witness and prefers the evidence of the respondents as to what was said at the meeting as referred to above, and that the applicant resigned at the meeting at which he was told he would be temporarily stood down. The Court prefers the accuracy of the respondents’ versions of the conversation at the meeting on 25 August 2020, albeit there was no affidavit challenge to the substance of what was said by the applicant at the meeting.

54    As the applicant submitted, this is not a case where any of the credit findings in question appear to be based on the primary judge’s observation of the witnesses or where the primary judge has reflected at length upon all of the evidence. His Honour delivered an ex tempore judgment immediately following the hearing, without adjourning.

55    The respondents’ contention that his Honour’s finding was based on inconsistent statements cannot be accepted. Rather, the reasoning by the primary judge is based on a perceived inconsistency between what was asserted in the statement of claim filed on behalf of the applicant (and application in the Fair Work Commission), and the applicant’s oral evidence in cross-examination. That is, the primary judge made the adverse credit findings because in his statement of claim the applicant asserted that he had been notified during a conversation with the second respondent that he was made redundant, when, on his evidence, no such conversation had taken place with any respondent. The primary judge reasoned that the applicant’s evidence (putting to one side the issue of which respondent took part in the conversation in question) was not a proper basis to assert that he had been told (explicitly or by inference) that he was being made redundant, and his willingness to assert otherwise in his pleading founded the conclusion that he was not a credible or reliable witness.

56    The applicant was legally represented throughout the proceedings (including in his application in the Fair Work Commission) and the statement of claim was plainly drafted by his lawyer. Given the pleading was drafted by his lawyer, there is no proper basis to suggest the language in it was language used by the applicant to describe what had occurred. Further, it was also the applicant’s lawyer who certified that the factual and legal material available provided a proper basis for each allegation made in the statement of claim. It is also to be recalled that, as explained above at [43], the applicant’s position in respect to the basis of his claim was apparent from his affidavit and consistent with his evidence in cross-examination. Namely, the applicant did not allege that any of the respondents used the terms “redundant” or “redundancy” in the conversation in question, but rather that is what was to be inferred from it. These are all uncontested facts.

57    It is clear from the primary judge’s statements during the costs application, extracted above at [37], [38] and [40] that his Honour was aware of each of those circumstances: the applicant was legally represented; his lawyer had drafted the statement of claim filed on his behalf; his lawyer had certified there was a proper basis for the allegations made within that pleading; and his claim was based on a conversation from which it could be inferred that he was made redundant. Further, the primary judge, in refusing the respondents’ application for costs, was not satisfied the proceedings were instituted without reasonable cause and only criticised the statement of claim on the basis that it could have been “articulated with greater clarity”: Primary Judgment at [22]. It is also significant that his Honour’s statements indicate an acceptance that in the circumstances any deficiency in the pleadings, including as to the factual basis of the applicant’s claim and the identification of which respondents took part in the conversation in question, should not be attributed to the applicant. His Honour repeatedly stated that the applicant should not bear the consequences of conduct by his lawyer. However, despite these statements having been made proximate to his Honour’s ruling rejecting the applicant’s claim, the primary judge had done just that to found adverse credit findings against the applicant.

58    The perceived difference between the pleading on one hand and the applicant’s evidence as to the basis of his claim and preparedness to advance his case that he was made redundant on the other hand, was the only basis on which the primary judge found that the applicant was not a credible or reliable witness. It was a critical finding in his Honour’s analysis. The reasoning underpinning that finding is directly inconsistent with his Honour’s statements made shortly thereafter during the costs argument that it was the applicant’s lawyer who was responsible for any drafting deficiencies and who had certified there was a case. It is also inconsistent with the conclusion in the Primary Judgment at [22], which only made limited criticism of the statement of claim and accepted that it was not a case which was instituted without reasonable cause. The adverse finding as to the applicant’s credibility and reliability cannot be reconciled with those facts and conclusions. In those circumstances, the adverse finding is illogical: see, for example, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43].

59    During the course of the hearing the respondents accepted there were deficiencies (of the nature described in these reasons) in the primary judge’s findings as to the applicant’s credibility and reliability at [10] and [11] of the Primary Judgment. Nonetheless, the respondents submitted that the issue then became whether an inference of redundancy could be drawn from the conversation, which the respondents contended was properly addressed at [12] of the Primary Judgment. This submission suggests the impugned finding did not impact his Honour’s conclusion. However, that fails to recognise the consequences of the adverse credit finding.

60    Before the primary judge was a live issue as to whether during the relevant conversation, the applicant resigned. The applicant’s evidence was that he did not say that he was resigning. The respondents’ witnesses gave contrary evidence. Which version of the conversation was accepted necessarily affects the meaning to be attributed to the statement made during it about the respondents paying the applicant’s entitlements. The primary judge, at [11] of the Primary Judgment, having made the findings referred to above in respect to the applicant’s credit, concluded that he preferred the evidence of the respondents as to the conversation, and found that the applicant had resigned. A fair reading of what follows at [12]-[14], is that the consideration of related issues, including whether constructive dismissal could be established, is conducted on the basis of the respondents’ version of the conversation. It is not a consideration of the applicant’s case on the basis of his evidence. The flawed credit findings which resulted in the rejection of the applicant’s evidence therefore infected the primary judge’s consideration of the issues to be resolved.

61    I am satisfied that ground 2 is established.

Conclusion

62    In light of my finding that ground 2 is established, it is not necessary to consider ground 3 because, as indicated above at [47], the appropriate order regardless is that the matter be remitted for rehearing before another judge. That it be remitted to another judge is appropriate given the nature of the ground established. In those circumstances where ground 2 is dispositive of the appeal it is also unnecessary to consider grounds 1, 4 or 5: see Boensch v Pasco [2019] HCA 49; (2019) 268 CLR 593 at [8].

63    It follows that the application for an extension of time is to be granted and the appeal is to be allowed.

64    I note that the applicant has indicated that he will seek an order as to costs and the respondents have indicated that they wish to be heard on the issue. If a costs application is to be made, the parties should inform chambers within 7 days, to arrange for the matter to be listed for case management.

Associate:

Dated:    27 September 2022