FEDERAL COURT OF AUSTRALIA Hughes v Loy Yang Power Management Pty Limited [2010] FCA 542 Citation: Hughes v Loy Yang Power Management Pty Limited [2010] FCA 542 Parties: GARRY HUGHES v LOY YANG POWER MANAGEMENT PTY LIMITED (ACN 077 985 758) File number(s): VID 928 of 2009 Judge: RYAN J Date of judgment: 28 May 2010 Date of hearing: 28 May 2010 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 5 Counsel for the Applicant: Mr H Borenstein SC with Mr M Champion Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Mr M McDonald SC with Mr M Follett Solicitor for the Respondent: Freehills IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 928 of 2009 BETWEEN: GARRY HUGHES Applicant AND: LOY YANG POWER MANAGEMENT PTY LIMITED (ACN 077 985 758) Respondent JUDGE: RYAN J DATE OF ORDER: 28 MAY 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. On or before 4.00 pm on 16 July 2010 the respondent file and serve a statement, accompanied by any documentary evidence to which it refers, of the evidence-in-chief of each witness on which it proposes to rely in defence of the applicant's claim on liability. 2. The parties attend a mediation to be conducted by a Registrar of the Court to be conducted on or before 6 August, with the result to be reported to Justice Ryan by 11 August. 3. There be a further directions hearing herein on 20 August 2010. 4. There be reserved to each party liberty to apply on not less than 3 days' notice in writing to the other party. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 928 of 2009 BETWEEN: GARRY HUGHES Applicant AND: LOY YANG POWER MANAGEMENT PTY LIMITED (ACN 077 985 758) Respondent JUDGE: RYAN J DATE: 28 MAY 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 As I have said, in the course of discussion with Counsel, the essential issue in this case is what reason actuated the decision-maker, Mr Woods, in deciding not to employ the applicant. It is apparent from the defence which has been filed in these proceedings that some of the matters which are to be advanced as constituting reasons for that decision go to the applicant's alleged lack of communication skills and inability to get along with work colleagues. 2 It would not be helpful if, as a result of an order for particulars, the respondent were to supply a catalogue of instances where those failings were alleged to have been exhibited by the applicant in the course of his previous employment by the respondent. That is because it is only Mr Woods' perception of the applicant's alleged shortcomings, whether derived from personal observation or from what has been recounted to him by others, which will have to be evaluated by the Court in determining whether the respondent has discharged the relevant reverse onus of proof. 3 In these circumstances, I consider that rather than order further and better particulars of the defence, I should order that the respondent file and serve a statement of the evidence-in-chief of each witness on which it proposes to rely in defence of the applicant's claim on liability. Each statement should be accompanied by a copy of each document or other real evidence to which the witness refers. 4 I shall leave for later consideration whether the evidence-in-chief of each witness should be given viva voce or in some other manner and also the question of whether there should be separate trials on liability and the issue of penalty and compensation. I indicate parenthetically that my present view, as emerged during the course of the hearing today, is that there should be such separate trials. 5 I shall also give a direction for mediation to occur after the filing and service of the statements of evidence-in-chief to which I have referred and there will be general liberty to either party to apply. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 28 May 2010