Tattsbet Limited v Morrow [2015] FCAFC 62, Appeal from: Morrow v Tattsbet [2014] FCCA 1327. Judges: ALLSOP CJ, JESSUP AND WHITE JJ

Whilst I have focused on the “time delay”, this matter[1] was an appeal and cross appeal based on six main platforms:

Industrial law:

  • Independent contractor or employee.
  • General protections – whether termination of engagement occurred because the person. exercised or proposed to exercise workplace right. Noting Jessup J comment:

“The much larger question whether s 361(1) of the FW Act operates to reverse the onus of proof upon nothing more than the making of an allegation, without the maker of the allegation being under any obligation first to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action”

Sham contracting.

Statutory Interpretation: “law of the Commonwealth.”

Practice & Procedure:

  • Delay in the delivery of judgment and publication of reasons – whether excessive delay rendered judgment unsafe. [This is my commentary]
  • Alternative claim not decided by trial judge – whether unsuccessful respondent to appeal entitled to have alternative claim determined.

All judges found against the primary judge’s delay in the issuing of the decision proper. The phrasing utilised against their fellow judiciary member is interesting (YOU be the judge):

Jessup J found:

Regrettably, there is considerable substance in the complaint which the respondent makes about the delay in the delivery of judgment, and in the publication of reasons, at first instance in the present case.

On the appeal, the respondent caused to be read her own affidavit of 3 February 2015.  She said that, on 7 February 2014, more than 15 months after the filing of the last post-hearing submission in the case, she sent an email to the President of the Bar Association, Mr Peter Davis, requesting his assistance in addressing the delay in the resolution of her case.  There followed an exchange of correspondence with Mr Davis in which the respondent clarified when final submissions had been filed.  It was not until 11 June 2014 that the respondent received an email from the Bar Association, attaching a letter from the court advising that judgment was anticipated by the end of June 2014.  The respondent was next advised by the Federal Circuit Court that judgment would be delivered on 26 June 2014, but, on that date, the matter was adjourned to 4 July 2014.  On that day, the primary Judge delivered judgment, and his Honour’s written reasons were available on 7 July 2014.

 

The principles which inform the decision of an appellate court to hold that excessive delay in the delivery of judgment at first instance in the case concerned has rendered that judgment unsafe were discussed at length by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, 32-35 [66]-[83].  I would accept that, particularly where a transcript of the evidence at trial exists, mere delay need not justify a conclusion that the fact-finding process has miscarried.  There are, however, additional circumstances which give rise to concern in the present case.

In Expectation, the Full Court said (140 FCR 17, 33 [74]):

“The problem is not restricted to fading memory.  A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment.  A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure — whether from the parties, the management of the Court, the press or parliamentarians.  That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision.  The decision that is easiest to make and express will have great psychological attraction.”

Nonetheless, the pressures to which the Full Court referred in Expectation appear to have been present here.  The circumstances which surrounded the delivery of judgment bespeak an environment in which his Honour felt under considerable pressure to complete his reasons at the last minute.

Additionally, the omissions to which I have referred above, taken cumulatively, suggest that his Honour may not have given some issues in the case the attention which they deserved, notwithstanding the very long period during which he was reserved… our attention was also drawn to a number of minor errors – typographical and proofing errors, for example – in his Honour’s reasons.  While nothing would normally turn on such matters, in the circumstances of the present case it must be accepted that they provide some support for the respondent’s second ground.

…Notwithstanding the existence of transcript, that finding was inevitably based upon his Honour’s observation of Mr Fletton as a witness, and upon the advantage which a trial Judge conventionally has in such a setting.  In my view, there is a real risk that his Honour compromised his ability to use that advantage in the determination of Mr Fletton’s reasons for acting when he allowed such an inordinate period to elapse between the giving of the evidence and the making of the determination.

Allsop CJ found:

I wish only to add the following additional comments.  First, the delay in the production of the decision was, with respect to the judge, unfortunate: over 20 months from final submissions.  The practical realities of life as a judge may mean, sometimes, a degree of delay in decision-making.  Pressure and volume of other judicial work, complexity and size of the particular decision-making task at hand, a lack, sometimes, of useful assistance from litigants or the profession, and illness or incapacity are but examples of reasons for delay.  Some of the reasons may rest in point of fault; some in point of technique.  The burdens on judges in a busy trial court can be enormous.  Some reasons may be the responsibility of the Court itself, if too much work is given to a judicial officer without any, or adequate, time or facility to undertake reserved judgments.  But systems must be made to cope.  Whatever the cause of any particular delay (and there was no explanation available here), its consequences must be examined with an eye to the fair administration of justice.

White  J agreed with the above findings, adding no further comment.

Commentary:

Not once was the phrase “Justice delayed is justice denied” was mentioned in any of the decisions J

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
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