[2014] FWC 7326

The attached document replaces the document previously issued with the above code on 21 October 2014.

Amendment to appearances.

Associate to Deputy President Gostencnik

Dated 24 October 2014

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Sharon Bowker; Annette Coombe; Stephen Zwarts
v
DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others
(AB2014/1260; AB2014/1261; AB2014/1266)

Application for an FWC order to stop bullying; application for stay; stay not granted.

Introduction

[1] Annette Coombe, Sharon Bowker and Stephen Zwarts (collectively “the Applicants”) have each applied to the Fair Work Commission (Commission) under section 789FC of the Fair Work Act 2009 (Act) for an order under s. 789FF to prevent each of the Applicants from being bullied at work. Ms Bowker and Ms Coombe each made their respective applications on 23 May 2014 while Mr Zwarts made his application on 29 May 2014. The Applicants are employed by DP World Melbourne Limited (DP World) a respondent to each application. The Maritime Union of Australia (MUA) is also a respondent to each application.

[2] On 10 February 2014 the MUA and Mr Mark Anthony Johnston, a delegate of the MUA commenced proceedings in the Federal Court of Australia 1 in which it is alleged, inter alia, that of DP World took adverse action against Mr Johnston in contravention of Part 3-1 of the Act (Federal Court proceeding). DP World filed an amended defence in the proceeding on 12 June 2014. An 11 day trial was held in the Federal Court before His Honour Justice Jessup on various dates in June and July 2014. Judgement in the Federal Court proceeding has been reserved with the prospect that judgement would at the earliest be handed down at the end of October 2014.2

[3] Pursuant to directions earlier made by me, on 9 August 2014 the Applicants filed and served points of claim. On 22 August 2014 the MUA advised that it wished to have certain threshold matters and jurisdictional objections determined 3. One of the matters concerned the question whether the applications should be stayed pending judgement in the Federal Court proceeding (MUA’s stay application). Following a brief directions hearing held on 25 August 2014 I issued amended directions which would facilitate the hearing and determination of, amongst other things, the MUA’s stay application. I heard the MUA’s stay application on 22 September 2014.4 DP World maintained a neutral position on the MUA’s stay application but indicated that its preference was to have the matters dealt with as quickly as is practicable5. I was not persuaded to grant a stay and I indicated that I would publish my reasons for that conclusion at a later date6. These are my reasons for declining to grant a stay.

Power to grant a stay and considerations applying to the exercise of the discretion to stay proceedings

[4] The MUA contended that the Commission has power to grant a stay pursuant to s. 589 of the Act which provides the Commission with the power to make decisions “as to how, when and where a matter is to be dealt with”. 7 The Applicants did not demur and it seems to me clear enough that the power in s. 589 to make a decision as to how, when and where a matter is to be dealt with is sufficiently broad to encompass a decision that the applications not be dealt with until judgement is delivered in the Federal Court proceeding. The exercise of the power to make such a decision is clearly discretionary.

[5] In considering whether to exercise the discretion to make a decision with the effect that the applications would not be dealt with until after judgement is delivered in the Federal Court proceeding, it seems to me appropriate that I have regard to the relevant considerations that are taken into account by the courts in considering applications of this kind. Conveniently, in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited 8, a case concerning an application to stay a proceeding because another proceeding involving related entities operating with a degree a common management and control, were involved in earlier commenced proceeding in New Zealand, Lockhart J set out a number of considerations his Honour said were relevant to the question whether a stay ought be granted:

“In my opinion relevant consideration is to be taken into account in the present case includes the following:

● Which proceeding was commenced first.
● Whether the termination of one proceeding is likely to have a material effect on the other.
● The public interest.
● The undesirability of two courts competing to see which of them determines common facts first.
● Consideration of circumstances relating to witnesses.
● Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
● The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
● How far advanced the proceedings are in each court.
● The law should strive against permitting multiplicity of proceedings in relation to similar issues.
● Generally balancing the advantages and disadvantages to each party”. 9

[6] The approach in Sterling Pharmaceuticals has been adopted in a number of subsequent decisions 10 but it is to be noted that the list of considerations set out in Sterling Pharmaceuticals is not exhaustive and is not intended to be applied as a strictly prescriptive checklist of preconditions11. Furthermore, considerations of case management are also relevant12, as is the fact that decisions considering whether to grant a stay are often enmeshed in the facts and circumstances of the case the subject of decision and ultimately each case must be addressed having regard to its own circumstances13.

[7] The MUA submitted that relevant matters to be considered included whether a stay of the applications is in the interests of justice 14 and the desirability of avoiding inconsistent findings and the inconvenience and embarrassment that might be caused by allowing actions involving the same questions of liability to proceed contemporaneously15. I agree that these are relevant considerations and for my part the collection of considerations identified in Sterling Pharmaceuticals speak to the more general consideration of the interests of justice, while the undesirability of inconsistent findings consideration finds expression in the non-exhaustive list.

Consideration

[8] The MUA submitted that when regard is had to the content of the statement of claim filed by the MUA and Mr Johnston in the Federal Court proceeding, the amended defence filed by DP World in that proceeding and the transcript of that proceeding, many of the issues that are to be ventilated in the applications overlap with those ventilated in the Federal Court proceeding. Consequently the MUA contends that the applications arise out of the same substratum of facts as those the subject of Federal Court proceeding. Therefore a determination of the applications will require me to make findings that are relevant to the disposition of the Federal Court proceeding. Furthermore in the Federal Court proceeding, the MUA and Mr Johnston submitted that Ms Bowker, who gave evidence in that proceeding, was not a credible witness and that she had fabricated her evidence. Any findings about Ms Bowker’s credibility will be relevant to a determination of her application.

[9] Consequently, so was submitted, there is a likelihood that the Federal Court and the Commission will make findings on the same matters. There is thus a risk that those findings might be inconsistent. Such an outcome would be contrary to the interests of justice.

[10] The grant of a stay, it was submitted, would enable the Commission to proceed with the applications at a later date with the benefit of the judgement of the Federal Court. This would have the benefit of reducing the prospect of inconsistent findings and thus embarrassing outcomes.

[11] The MUA submitted that in weighing the considerations I should take into account the fact that the Applicants consented to a timetable for the processing of the applications which meant that the applications would not be concluded until December 2014. The MUA suggested that this is not a matter in which the Applicants sought to have their applications dealt with and considered with a high degree of urgency. Furthermore, although the timing of the judgement of the Federal Court in the Federal Court proceeding is unknown, it is likely that the stay would be short lived given Justice Jessup’s indication that he would hand down a decision at the end of October 2014 at the earliest. The MUA also submitted that in relation to the applications of Ms Bowker and Ms Coombe, the allegations, or at least many of them, contained in their respective applications related to historical conduct that occurred many months previously. In the circumstances, MUA contended that there would be minimal inconvenience to the Applicants caused by any temporary stay and such inconvenience is outweighed by the above-mentioned considerations which favour the grant of a stay.

[12] The Applicants contended that the mere prospect of inconsistent findings of fact that might be made by the Federal Court and this Commission would not justify the grant of a stay, particularly insofar as the stay would prevent the MUA and DP World complying with directions already made for the filing of their respective replies and other prepatory steps necessary to ready the applications for hearing for the hearing. It is possible that, before the hearing of the applications commences, the judgement of the Federal Court will have been handed down and in any event any suggested benefit in awaiting the Court’s judgement is illusory since there is no certainty that the judgement will result in any different approach being taken to the case by the MUA or by any other party. Consequently, a stay at this point would merely extend what is already an elongated timeframe before the applications are determined.

[13] The Applicants also contested the extent to which there was a common substratum of facts. They noted that the questions for determination before the Court are fundamentally different to those that arise for determination by the Commission. Additionally rather than being historic, the conduct directed towards the Applicants is continuing and the Commission is obliged to proceed quickly in dealing with applications of this kind. Furthermore Mr Zwarts did not give evidence in the Federal Court proceedings and none of the alleged common substratum of facts concern the allegations made by Mr Zwarts.

[14] I accept that there is at least some element of common fact-finding which will arise in the Federal Court proceeding and the proceedings before me. To that extent there is at least some risk of inconsistent fact-finding. But I am not persuaded that the risk is significant or nearly as extensive as the MUA has suggested. At the time that I heard the MUA’s stay application, the applications were fixed for hearing over a two week period ending on 12 December 2014. As I indicated during the hearing the prospect of delivering a decision shortly after the conclusion of the hearing was remote. In all likelihood a decision might have been forthcoming in February 2015 at the earliest. Preparations by the parties for the hearing can continue, and if, during the conduct of the hearing or during the period in which a decision were reserved, the judgement in the Federal Court proceeding is handed down, parties could seek to make representations about the extent to which I should take account of any finding of the Court that have bearing on any matter in issue before me.

[15] Moreover even if a judgement in the Federal Court proceeding is not handed down, a party could at any time during the hearing or in the period afterwards and before I deliver a decision make an application to either stay the proceeding or delay the decision until the outcome of the Federal Court proceeding is known. The parties and I would then be better placed to make an assessment as to precisely the extent of fact finding overlap and the risk of inconsistent findings.

[16] I accept that if a stay is not granted, there might be a degree of unnecessary preparation, and there is the possibility that the outcome of the Federal Court proceeding might yield some agreement on particular facts or might alter the way in which particular facts sought to be proven. However I do not regard this factor as significant. The outcome of the Federal Court proceeding will not result in, or at least there is no indication that, the Applicants will change the way in which they put their respective cases or the evidence that they propose to lead in support of their respective applications. The case put by the Applicants so far as it affects the MUA’s interests will need to be answered by the MUA. The grant of a stay in the circumstances will simply result in a delay with little tangible benefit to the efficiency with which the case is conducted or the extent to which the MUA will be required to answer that case. The Federal Court proceeding will not answer the complaints made by the Applicants and will not crystallise the remedies that each Applicant seeks.

[17] Furthermore, the Federal Court proceeding, apart from judgement, has concluded. Such preparation as the MUA has undertaken for the Federal Court proceeding as is relevant to matters requiring determination in this proceeding can be utilised by it to more efficiently conduct this proceeding. The MUA will not be required to participate in two sets of proceedings, involving overlap in factual allegations, simultaneously.

[18] Moreover I see no real justification in granting a stay in relation to the application by Mr Zwarts, therefore absent any application by him to adjourn his application, the MUA will still need to prepare its case in response so far as it concerns Mr Zwarts. This is doubtless an inefficient way in which to progress the matters.

[19] Although there is some common factual inquiry between the Federal Court proceeding and the proceedings before me, the nature of each proceeding is substantially different. The Federal Court proceeding concerns establishing whether DP World engaged in conduct for a reason that is prohibited by Part 3 – 1 of the Act, and if so determining a remedy for Mr Johnston. The applications the subject of this proceeding are concerned with determining, inter alia, whether the conduct complained of by the Applicants is properly described as being bullied at work by an individual or group of individuals, whether that conduct occurred and if so, whether there is a risk that the Applicants will continue to be bullied at work by the individual or group. If that can be established, the question then becomes whether an appropriate order can or should be issued to prevent the Applicants being so bullied. The issues that fall for determination are not common at all. To make good that point, in my assessment the termination of one of the proceedings would have no impact or materially affect on the other, nor was any suggestion to the contrary made.

[20] Moreover, although Ms Bowker and Ms Coombe gave evidence in the Federal Court proceeding, the Applicants are not parties to that proceeding nor did any Applicant make submissions in the proceeding. Mr Zwarts did not give evidence at all. In such circumstances, there would need to be a significantly greater and relevant risk of inconsistent findings and embarrassing outcomes than that identified by the MUA, before I would be moved to deny the Applicants an expeditious resolution of their applications.

[21] I do not regard the fact that the Federal Court proceeding was commenced before the Applicants made their applications to the Commission as attracting any particular significance or weight in the present context. The Applicants had no control over the commencement of that proceeding or over the conduct of any defence to that proceeding. I also do not accept that the Applicants consented to an elongated timetable for the hearing and determination of the matters. On a proper review of the programming of these matters the timetable that was established was a product of the estimates of the duration of the hearing given by the parties and of my availability to hear the matters. Nor did the Applicants consent to the directions ultimately made. The Applicants filed their preferred directions (which contained fewer interlocutory steps than proposed by the MUA and DP World) as did the respondents on 24 July 2014. As is apparent from the correspondence attaching the proposed directions, the parties did not agree on directions and ultimately I determined the directions. In the circumstances, the elongated timetable can hardly weigh against the Applicants.

Conclusion

[22] In the circumstances for the reasons given above I was not satisfied the interests of justice are served by making the order sought by the MUA, and I declined to do so.

[23] As events have since transpired, the first week of scheduled hearings has been vacated, particular questions arising from the applications have been referred to a Full Bench of this Commission for determination, and so it is unlikely in any event that the substantive applications would be concluded this year.

DEPUTY PRESIDENT

Appearances:

M. Rinaldi and T. Lange for A.Coombe, S. Bowker, S. Zwarts

Y. Bakri for The Maritime Union of Australia

R. O’Neill for DP World Melbourne Limited

Hearing details:

Melbourne.

2014.

22 September

 1   The Maritime Union of Australia & Anor v DP World Melbourne Limited - VID 74/2014

 2   Federal Court proceedings Transcript T526.34

 3   See correspondence from the solicitors for the MUA dated 22 August 2014

 4   See transcript of proceedings held on 22 September 2014

 5   Transcript PN 312 – PN 313

 6   Transcript PN 422

 7   Section 589 (1)

 8   (1992) 34 FCR 287

 9   Ibid at 291

 10   See for example Finance Sector Union of Australia v Commonwealth Bank of Australia [2004] FCA 187 and Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal [2011] FCA 424

 11   Burrup Fertilisers at [16]

 12   J Aron Corporation v Newmont Yandal Operations Pty Ltd [2005] NSWSC 1159; Arkin v Tridon Australia Pty Ltd [2002] FCA 1629; Owners-Strata Plan No 51487 v Broadsand Pty Ltd (2001) 132 IR 361

 13   Owners-Strata Plan No 51487 v Broadsand Pty Ltd (2001) 132 IR 361 at 365

 14   See the Silberman v CGU Insurance Ltd [2003] NSWSC 1127 at [42]

 15   Union Steamship Co of New Zealand v The Ship Caradale, Her Cargo and Freight (1937) 56 CLR 277

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