FEDERAL COURT OF AUSTRALIA Australian Postal Corporation v Stephens (No 2) [2011] FCA 992 Citation: Australian Postal Corporation v Stephens (No 2) [2011] FCA 992 Parties: AUSTRALIAN POSTAL CORPORATION v LARRY STEPHENS File number: NSD 1248 of 2011 Judge: RARES J Date of judgment: 19 August 2011 Legislation: Crimes Act 1914 (Cth) s 4AA(1) Fair Work Act 2009 (Cth) ss 340(1), 351(1), 361(1), 539(2) s 546(2)(b), 570(1), 570(2)(a), 570(2)(b) Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) Cases cited: Australian Postal Corporation v Stephens [2011] FCA 947 referred to Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 applied Bienstein v Bienstein (2003) 195 ALR 225 applied Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition Consumer Commission (2007) 162 FCR 466 referred to Stephens v Australian Postal Corporation [2011] FMCA 448 referred to Date of hearing: 19 August 2011 Place: Sydney Division: FAIR WORK DIVISION Category: No catchwords Number of paragraphs: 19 Counsel for the Applicant: Mr S R Meehan Solicitor for the Applicant: Blake Dawson Counsel for the Respondent: Ms J Keys IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1248 of 2011 BETWEEN: AUSTRALIAN POSTAL CORPORATION Applicant AND: LARRY STEPHENS Respondent JUDGE: RARES J DATE OF ORDER: 19 AUGUST 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1248 of 2011 BETWEEN: AUSTRALIAN POSTAL CORPORATION Applicant AND: LARRY STEPHENS Respondent JUDGE: RARES J DATE: 19 AUGUST 2011 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application by Australian Postal Corporation (Australia Post) for leave to appeal from a decision of the Federal Magistrates Court that declared Australia Post had contravened ss 340(1) and 351(1) of the Fair Work Act 2009 (Cth) (the Act) when dismissing the respondent, Mr Larry Stephens, from his employment on 7 January 2010: Stephens v Australian Postal Corporation [2011] FMCA 448. The trial judge ordered that Australia Post reinstate Mr Stephens. I dealt with an application for a stay of that order brought by Australia Post in Australian Postal Corporation v Stephens [2011] FCA 947. Australia Post no longer wishes to pursue its application for leave to appeal against the reinstatement order. 2 His Honour also ordered that the proceedings be re-listed for further hearing in relation to the issue of pecuniary penalties under Pt 4.1 of the Act for the contraventions his Honour found. The maximum penalty for each contravention, in the case of a corporation, is five times the maximum number of penalty units referred to in a table in s 539(2) (s 546(2)(b)). In this case, each of the two sections attracts a maximum penalty of 60 penalty units in the case of an individual, and accordingly 300 in the case of a corporation. A penalty unit is $110: s 4AA(1) of the Crimes Act 1914 (Cth) incorporated by the definition in s 12 of the Act. The background facts 3 The two findings of contravention made by his Honour arose out of the one incident, namely, the summary dismissal of Mr Stephens by Australia Post on 7 January 2010. Counsel for Australia Post accepted that a hearing on penalty is likely to occupy the Federal Magistrates Court for a relatively short hearing time of approximately an hour although he had not sought to bind Australia Post to any particular hearing time. That sensible concession suggests that a full hearing to finalise the proceedings will be able to be achieved within a relatively short time frame at which point Australia Post would be able to exercise all its rights to appeal from all of the orders made by the Federal Magistrates Court which it would seek to challenge. 4 Australia Post seeks to challenge, in the draft notice of appeal that it has proffered, a considerable number of factual findings by his Honour. But, in essence, its challenge is based on the assertion that the trial judge failed to accept the evidence of its officer who was the decision-maker, Mr Brennan, as a witness upon whom his Honour could rely to negative the presumption in s 361(1) of the Fair Work Act which provides: "361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise." 5 Australia Post argued that by making each of the two findings of contravention against it, his Honour erred in effectively erecting an hypothesis that it claimed was, first, not supported by the evidence and, secondly, speculative. 6 The principles for the application of the presumption in s 361(1) were elaborated in the joint judgment of Gray and Bromberg JJ in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 particularly at 221-222 [28]-[34]. These principles were applied by the primary judge. The principles for leave to appeal 7 The principles applicable to the decision to grant leave to appeal are well established as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29]. They are: "An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal." The applicant's argument in support of leave to appeal 8 Leave to appeal is not sought in this matter in respect of a matter of practice and procedure. Rather, it is sought on a substantive basis. Australia Post seeks to challenge a liability finding arising out of the conduct of one supervisor occurring on one day in January 2010. 9 During the course of his cogent and helpful submissions, counsel for Australia Post suggested that his Honour made a number of arguable factual errors. The way in which his Honour reasoned and the application of the presumption in s 361 would necessarily be at the centre of the proposed appeal. 10 Given the stage at which the proceedings currently are, I do not consider it necessary or desirable to canvas the various arguments which Australia Post advanced to challenge his Honour's findings of fact. Nor do I consider it necessary to determine whether his Honour's decision is attended with sufficient doubt to warrant the grant of leave, because I am not satisfied that any substantial injustice will result from a refusal of leave to appeal in the circumstances of this particular case. 11 Decisions concerning the application of civil or pecuniary penalties are always civil proceedings conducted in the civil jurisdiction of the courts. They have been so for centuries: see the analysis by Weinberg, Bennett JJ and myself in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition Consumer Commission (2007) 162 FCR 466 at 477-479 [19]-[28]. 12 Australia Post argued that it would suffer substantial injustice if it were made to face a hearing on penalty in circumstances where it may ultimately succeed in demonstrating that his Honour erred in fact finding leading to his decision to find one or both of the contraventions. It also argued that contrition was a relevant factor in the determination of what, if any, penalty ought be imposed upon it and that it was appropriate for the appeal to be instituted prior to the determination of penalty in circumstances where it anticipated Mr Stephens would argue that, because Australia Post wished to challenge his Honour's findings against it, it showed a lack of contrition. Consideration 13 I reject those arguments. A parallel situation in relation to fixing penalty after determining liability exists every day in the criminal courts and courts of criminal appeal of this nation. Very often it is the case that persons found guilty of criminal offences contend that the trial judge or jury got the facts wrong. However, no substantial injustice ordinarily will result, warranting an interruption of the ordinary criminal process to delay a trial judge making a decision on the penalty to be imposed on a convicted person found guilty of a criminal offence. In this case, I am unable to see why any substantial injustice would result if Australia Post were made to face a penalty hearing that will take a relatively short time to determine, after which it will have all its rights of appeal. 14 One of the imperatives to which the Court must have regard in determining its approach to the civil practice and procedure provisions, such as those in the Federal Court Rules 2011 (Cth), and in exercising its discretion to grant leave to appeal, is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. That reflects the overarching purpose of the Court's civil practice and procedure provisions in the Rules: s 37M of the Federal Court of Australia Act 1976 (Cth). In the circumstances of this case, a relatively uncomplicated hearing on penalty can take place within a short time. Australia Post will then have its full rights to challenge so much of the decision below as it may be advised. I do not think it will suffer substantial injustice by being made to follow the ordinary course of litigation by not being allowed to pursue an interlocutory appeal. Of course, there will be circumstances in which it is appropriate to grant leave to appeal where contraventions of civil penalty provisions and legislation have been established by trial judges and penalty is yet to be imposed, but in my opinion this is not one of them. 15 The relatively small amount of the penalty concerned and the fact that in proceedings in the Fair Work Division of the Court successful parties, ordinarily, are not entitled to receive an award of costs, are also factors that have influenced the opinion at which I have arrived, that no substantial injustice will be done by refusing leave to appeal. If a grant of leave to appeal were made, Mr Stephens would have to prepare for a full appeal. That would be expensive. It may or may not be that the matter is then remitted to the trial judge to determine penalty. After that, there may be a further appeal, potentially on penalty. Again, all of the costs of this excessive amount of litigation would have to be met by Mr Stephens or Australia Post, without either being able to look to the unsuccessful party in the litigation to pay costs, in the ordinary course of affairs. That does not appear to be an efficient and inexpensive way to manage these proceedings. Conclusion 16 In all of the circumstances I am not satisfied that substantial injustice would result from the refusal of grant of leave. Indeed, I consider that the balance of the justice of the case lies heavily in favour of refusing leave to appeal. Interlocutory appeals of this nature should be discouraged where there can be expeditious and prompt determination of penalty at a short hearing so that this Court will be able to appreciate, on the appeal, the whole of the factual circumstances, and all of the findings made by the trial judge both on the merits and on penalty. This is preferable to a bifurcated, trilogy of proceedings, which would result were leave granted. In these circumstances, I am of opinion that I should order that the application for leave to appeal be dismissed. Costs 17 Mr Stephens applied for costs under s 570(2)(b) of the Act. Relevantly, s 570(1) provides that there is a presumption that a party to proceedings in a Court exercising jurisdiction under the Act, may be ordered by that Court to pay costs incurred by another party to the proceedings where, under s 570(2)(b), the Court is satisfied that one party's unreasonable act or omission caused the other party to incur the costs. The institution of proceedings vexatiously or without reasonable cause is a separate ground for the award of costs under s 570(2)(a) and is not the basis of Mr Stephens' current application. In essence, Mr Stephens argued that the application for leave to appeal failed for the reasons that I gave and this established a case that Australia Post acted unreasonably within the meaning of the section. 18 I reject that argument. First, the parties had a real and ongoing controversy concerning the operation of the reinstatement order that they were unable themselves to resolve. That order was originally part of the application for leave to appeal, but no longer is because that controversy was resolved by my earlier decision: Stephens [2011] FCA 947. 19 It is not suggested that Australia Post acted otherwise than in good faith in seeking, albeit unsuccessfully, to pursue its entitlement to seek leave to appeal in respect of the interlocutory judgment, effectively, on liability. That is often the consequence of an order for separate trials. I am not satisfied that in all the circumstances, having regard to the presumption in s 570(1), it can be said that Australia Post acted unreasonably. I am conscious that the Parliament has made a legislative choice to require the ordinary course of litigation under the Act not to attract the imposition of costs orders against unsuccessful parties. I am not satisfied that, in all of the circumstances, any sufficient basis has been made out to establish that Australia Post acted unreasonably in pursuing its application for leave to appeal, so as to disentitle it to the benefit of the presumption. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 29 August 2011