Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2)

• Jurisdiction: Australia Federal only
• Judge: LEE J
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] FCA 1093
• Date: 31 July 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1093

File numbers:	NSD 596 of 2017 NSD 1594 of 2017
Judge:	LEE J
Date of judgment:	31 July 2020
Catchwords:	PRACTICE AND PROCEDURE – quantification of statutory compensation following finding of contravening conduct – significant number of contested issues – utility in ordering a reference – unsustainability of courts deciding all issues of fact and law that arise in any litigation – potential for loss of forensic advantage and hearsay objections largely ameliorated or without substance – reference ordered
Legislation:	Federal Court of Australia Act 1976 (Cth) Pt VB Fair Work Act 2009 (Cth) ss 545, 570 Federal Court Rules 2011 (Cth) r 28.65
Cases cited:	Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451; (2019) 286 IR 52 Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340; (2017) 19 ANZ Ins Cas ¶62–158 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Date of hearing:	24 July 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	31
Counsel for the Applicants in NSD 596 of 2017:	Mr J Fernon SC
Counsel for the Applicants in NSD 1594 of 2017:	Mr J Darams
Solicitor for the Applicants in NSD 596 of 2017 and NSD 1594 of 2017:	Seyfarth Shaw Australia
Counsel for the Respondents in NSD 596 of 2017 and NSD 1594 of 2017:	Ms L Doust
Solicitor for the Respondents in NSD 596 of 2017 and NSD 1594 of 2017:	Slater and Gordon Lawyers

ORDERS

		NSD 596 of 2017
BETWEEN:	PATRICK STEVEDORES HOLDINGS PTY LIMITED ABN 63 060 462 919 First Applicant PATRICK STEVEDORES OPERATIONS PTY LTD Second Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MR PAUL MCALEER Second Respondent ; MR PAUL KEATING Third Respondent

JUDGE:	LEE J
DATE OF ORDER:	31 July 2020

THE COURT ORDERS THAT:

1. The parties are to provide to the Associate to Justice Lee within 14 days an agreed minute or competing minutes of order reflecting these reasons.

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

ORDERS

		NSD 1594 of 2017
BETWEEN:	QUBE LOGISTICS (NSW) PTY LTD ACN 123 022 588 First Applicant ; QUBE LOGISTICS (SB) PTY LTD ACN 003 307 310 Second Applicant ; QUBE LOGISTICS (RAIL) PTY LTD ACN 082 313 415 Third Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MR PAUL MCALEER Second Respondent ; MR PAUL KEATING Third Respondent

JUDGE:	LEE J
DATE OF ORDER:	31 July 2020

THE COURT ORDERS THAT:

1. The parties are to provide to the Associate to Justice Lee within 14 days an agreed minute or competing minutes of order reflecting these reasons.

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

REASONS FOR JUDGMENT

LEE J:

A INTRODUCTION AND BACKGROUND

1. The relevant facts relating to these proceedings are set out comprehensively in Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451; (2019) 286 IR 52 (Principal Judgment). These reasons assume a familiarity with the Principal Judgment. For simplicity, the defined terms are as set out in that judgment.

2. As I said in the Principal Judgment (at 58 [9]) when explaining the relief sought:

A bewildering and complex range of relief is sought, but it is unnecessary to deal with it all in this judgment. Following complaints made about the tardy service of material going to issues of loss said to have been occasioned by the alleged contravening conduct, on 20 July 2018, I made orders pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), which, in effect, provided for the deferral of all issues of pecuniary penalty, injunctive relief and compensation. Accordingly, the initial hearing was directed to the issue of whether the applicants had established that the respondents engaged in the contraventions of the FW Act alleged.

3. Contravening conduct was established for the reasons set out in the Principal Judgment and hence now two issues remain to be determined in relation to the dispute between the parties: (1) the identification and quantification of any entitlement to statutory compensation; and (2) whether the Court should impose any pecuniary penalty. As I said in the Principal Judgment (at 114–5 [236]), I do not understand why injunctive relief would be pressed in all the circumstances. Given that the issue of whether a pecuniary penalty should be imposed and, if so, the quantum of any penalty would need to take into account any payment of compensation, it is common ground that the issue of statutory compensation should be determined separately and before any issue as to penalties.

4. Following delivery of the Principal Judgment on 2 April 2019, and the making of final orders on 18 April 2019, the parties were directed to attend a mediation. The mediation was unsuccessful and by an order dated 8 July 2019, the applicants, Patricks and Qube, were required to file a document titled “Factual Contentions in Relation to Claim for Statutory Compensation”, which was to set out, with particularity, each asserted fact relied upon by the applicants in their claim for statutory compensation (other than any asserted fact going only to the issue of quantification). A further order was made on 11 October 2019, extending to 18 October 2019 the deadline for Patricks and Qube to file any further evidence on which they intended to rely in relation to, inter alia, compensation. The time by which the respondents were to serve any evidence upon which they intended to rely was also extended to 29 November 2019.

5. The matter next came before the Court on 20 December 2019, when an order was made that the applicants file and serve any evidence in reply to the evidence filed by the respondents in both matters.

6. By the time the matter next came before the Court on 25 February 2020, because of the demands of a large number of cases on my docket listed for hearing (or about to be listed for hearing), it became evident that there would be significant difficulty in relisting these proceedings for a hearing as to quantum until late next year. In my estimate, it is likely that the hearing required to resolve the anticipated significant number of contested factual issues, together with submissions, would likely exceed one hearing week. As a consequence, I raised with the parties whether it would be consistent with the overarching purpose for various facts relevant to the question of statutory compensation...