DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Milena Molina and Raymond Zhai
v
Brett Galloway
(U2020/4351 and U2020/4410)

Procedural decision - application to file and rely on further evidence in chief after the opposing party’s evidence has closed - evidence available to the party but not filed - the interests of justice are better served by refusing leave.

[1] Ms Molina and Mr Zhai made unfair dismissal applications against Mr Galloway in early 2020. Both applications were allocated to Deputy President Dean. In March 2021 Deputy President Dean found in favour of Ms Molina and Mr Zhai and ordered Mr Galloway to pay compensation to each applicant. 1

[2] Mr Galloway appealed and on 1 September 2021 a Full Bench upheld Mr Galloway’s appeals. Both matters were eventually remitted to me to determine.

[3] This decision deals with Mr Galloway’s application to file and rely on further evidence in chief.

Procedural History

[4] Mr Galloway’s appeals were successful on one ground: that the Deputy President miscarried her discretion in the fact-finding process when she placed little weight on Mr Galloway’s evidence filed in support of an application to re-open his evidentiary case.

[5] Shortly stated, on two occasions in the proceedings before Deputy President Dean Mr Galloway sought an adjournment to file and rely on further evidence in chief. Both adjournment applications were refused. Shortly after each refusal, and at the time Mr Galloway was due to start (and finish) his evidentiary case, an alleged medical-related misadventure befell him. 2

[6] On the occasion of the second medical-related misadventure that resulted in Mr Galloway not attending the proceedings to give evidence, Mr Galloway’s legal representative closed Mr Galloway’s evidentiary case. A few days later Mr Galloway applied to reopen his case and to lead further evidence in chief but his application was refused. Ultimately Mr Galloway did not give evidence in the proceedings before Deputy President Dean and Ms Molina and Mr Zhai’s cases were decided on the material and submissions that were in evidence.

[7] The Full Bench found the Deputy President did not properly place weight on medical evidence provided by Mr Galloway when she refused Mr Galloway’s application to reopen his evidence.

[8] The decisions of the Deputy President and the Full Bench chronicle the deeply unsatisfactory way in which Ms Molina and Mr Zhai’s claims have proceeded to date. The Full Bench summarised the history as follows 3:

“[32] The Deputy President’s decisions reveal a long list of deficiencies in the preparation and conduct of Mr Galloway’s case at first instance:

a) Mr Galloway required an extension in the timetable to file his evidence (Molina decision at [10]);

b) Mr Galloway’s material was filed after the extended filing date (Molina decision at [13]);

c) Mr Galloway filed his evidence on 10 July 2020, late, and the signed document bearing Mr Galloway’s name was in the form of a Statutory Declaration but was not witnessed by anyone. Mr Galloway’s filed evidence was described by the Deputy President as “poorly laid out, difficult to follow and many of the annexures were never filed with the Commission” (Molina Decision at [125]);

d) on Day 1 of the hearing Mr Galloway sought an adjournment because he had not engaged legal representation early enough to give his representative sufficient time to prepare (Molina decision at [16]);

e) on Day 2 of the hearing Mr Galloway purported to issue a Notice to Produce upon the Respondents, being an order that only the Commission can make (Molina decision at [18]). The documents sought by the Notice to Produce were, in the Deputy President’s view, of no apparent relevance or were already in Mr Galloway’s possession (Molina decision at [19]);

f) Mr Galloway handed up written submissions late. The submissions were filed by email on 30 July 2020, and were dated 13 July 2020 – being the date the submissions were due to be filed (Molina decision at [21]);

g) at 4:30pm on the day before the resumption of the hearing in October 2020, Mr Galloway foreshadowed by email on adjournment application and indicated that Mr Galloway intended to rely on “additional evidence discovered” by Mr Galloway.

[33]  More significantly, there was a large amount of valuable hearing time lost. None of the lost time can be attributed to Ms Molina, Mr Zhai or their representatives. Of the five hearing days allocated by the Deputy President, more than three whole days were lost:

a) the matter was initially scheduled for three days: 29, 30 and 31 July 2020;

b) on Day 1 (29 July) Mr Zhai and Ms Molina gave evidence in Mr Zhai’s case and were cross-examined by Mr McGirr. The hearing on Day 1 commenced at 10:00am and concluded at 4:13pm;

c) Day 2 (30 July) was abandoned after 7 minutes because Mr Galloway was said to have flu-like symptoms and was attempting to have a COVID test. The whole of Day 2 was effectively lost;

d) Day 3 (31 July) was vacated because of Mr Galloway’s absence. The whole of Day 3 was lost;

e) on Day 4 (15 October) Ms Molina and Mr Zhai gave evidence in Ms Molina’s case and were cross-examined by Mr McGirr. In the middle of Day 4 the Deputy President indicated that she would sit until 5:00pm because “we want to get through this – we need to get through this in the next couple of days”. However, the proceedings were adjourned at 3:07pm because none of Mr Galloway’s final three witnesses were in attendance to give evidence. The last two hours of Day 4 were therefore lost; and

f) on Day 5 (16 October) Mr Galloway did not attend to give evidence, nor did his other two witnesses. The whole of Day 5 was lost.

[34]  The Deputy President’s observation that “the manner in which the [Appellant], including through his legal representative, engaged with the Commission throughout the proceedings fell well short of the standard expected of a ‘highly experienced and well regarded lawyer’ is apt. 

[35]  On the two occasions that Mr Galloway’s application for adjournments were refused, alleged medical-related misadventure befell him shortly thereafter, preventing the hearing from continuing…”

(footnotes omitted)

[9] Mr Galloway was not diligent in prosecuting his appeal either. As the Full Bench noted at [6]-[7]:

“[6] There were procedural problems from the beginning of the appeal process. Rule 56 of the Fair Work Commission Rules 2013 requires appeals to be lodged within 21 calendar days after the date of the decision being appealed against. On 21 April 2021 Mr Galloway lodged electronically an undated, unsigned Notice of Appeal of the Molina Decision (“the Molina Appeal”). After inquiries by Commission staff Mr Galloway attended the Sydney Registry on 27 April 2021 and provided a signed copy of the Notice of Appeal for the Molina Appeal. The Appeal Books for the Molina Appeal were due on 28 April 2021 however Mr Galloway needed and was granted an extension of time to file the Appeal Books.

[7] On 27 April 2021 Mr Galloway also filed a Notice of Appeal of the Zhai Decision (“the Zhai Appeal”). This Notice of Appeal was dated 21 April 2021 but only filed on 27 April 2021. Mr Galloway therefore requires an extension of time to commence the Zhai Appeal.”

[10] On 2 September 2021 the matter was allocated to me and so far the proceedings have progressed in the same unsatisfactory manner.

[11] Nobody appeared for Mr Galloway at the first telephone directions hearing because Mr Galloway did not read or appreciate the significance of numerous emails sent to him, nor answer his phone on the many occasions the Commission and others tried to contact him. Eventually a directions hearing did take place and Mr Galloway appeared for himself and asked for leave to file additional evidence in chief ahead of a new hearing date. Directions were made and not complied with.

[12] An apparent settlement was reached between the parties on the day that Mr Galloway’s evidence and submissions were due and so the earlier procedural directions and hearing date were vacated. Several weeks later the Applicants requested that the matter be relisted and sought a renewed program for hearing because no further correspondence had been received from Mr Galloway regarding settlement.

The Interlocutory Application
[13] There are potentially significant practical consequences for the future hearing of the matter if leave is granted.

[14] Mr Galloway does not appear to have actually prepared the additional evidence, despite the observations of the Full Bench 4 said at [45]:

“Whilst the Commission must necessarily be flexible with self-represented parties who are not familiar with the dynamics and imperatives of contested litigation, the Deputy President was entitled to expect far better conduct from Mr Galloway and his legal representative. It should have been quite obvious to Mr McGirr and to Mr Galloway that if they had any hope of obtaining leave to file this late evidence, they needed to take steps to ameliorate any prejudice that the late filing would cause to Ms Molina and Mr Zhai. Elementary steps include the preparation of the evidence itself, serving the evidence on the opposing party, approaching the Commission as soon as possible to seek permission to rely on the material, and so on. In the 10 weeks between hearing dates Mr McGirr and Mr Galloway appeared to have done nothing to prepare any further evidence.”

[15] If leave is granted Mr Galloway would need time to prepare and file his materials. Mr Galloway appears to want to lead evidence of transactions as far back as July 2016. So far, Mr Galloway has not met many deadlines set by the Commission, if any, and so it cannot be assumed that his materials will be filed on time.

[16] Ms Molina and Mr Zhai would require a reasonable period of time to respond to the additional evidence before the hearing. Further, Mr Galloway might need or want to cross-examine Ms Molina or Mr Zhai about their additional evidence - which means one or both of them might be cross-examined for the third time in these proceedings.

[17] Given that more than three of five full days already allocated to these matters were lost for reasons beyond the control of Ms Molina and Mr Zhai 5, any unnecessary protraction of the final stages of these matters should be avoided unless absolutely necessary.

[18] I am also alert to the distinct possibility that Mr Galloway’s current application is an abuse of process insofar as he may well be simply reagitating the application he has put to the Commission and lost twice before.

[19] On 11 November 2021 revised directions were made as follows:

“1. Evidence before Deputy President Dean is taken to be evidence before Deputy President Easton.

2. No party is permitted to lead further evidence in chief without leave of the Commission.

3. The Respondent (Mr Brett Galloway) must file with the Commission and serve on the Applicants by no later than 9:30am on 15 November 2021:

a) A precis of the additional evidence upon he intends to rely (“the Additional Evidence”);

b) An outline of submissions in support of his application, including any submissions he wishes to make on:

i. why the interests of justice in the context of the statutory framework require that leave be granted; and

ii. whether the objects of s.381 of the Act are met if leave is granted; and

iii. if any of the Additional Evidence was the subject of Deputy President Dean’s earlier procedural rulings, why Deputy President Easton should hear and re-determine any further application for leave; and

iv. any prejudice to the Applicants including whether the additional costs incurred by the applicants would be caused by an unreasonable act or omission by the Respondent in connection with the conduct of the matter for the purposes of s.400A of the Act.

c) Any evidence, in the form of a properly executed affidavit, supporting his application for leave and addressing:

i. why the Additional Evidence was not filed on 13 July 2020 when the respondent filed his evidence in chief; and

ii. Whether or not any of the Additional Evidence was the subject of Deputy President Dean’s procedural rulings referred to above; and

iii. how or why the Respondent says the Additional Evidence was not available to him upon diligent enquiry prior to the dismissal of each applicant (to the extent that the Respondent so alleges).

4. The matter is listed for an Interlocutory Hearing by Video using Microsoft Teams at 2.00pm on 16 November 2021 for the purposes of determining whether the Respondent should be granted leave to lead additional evidence in chief.

5. The matter is further listed for a Hearing by Video using Microsoft Teams at 10.00am on 9 December 2021 for the purposes of the Respondent leading evidence from Mr Brett Galloway, cross-examination and re-examination of Mr Galloway and for closing oral submissions.”

[20] Mr Galloway did not comply with those directions and sought an extension of time to file his material. An extension was granted and Mr Galloway did not file his material by the extended deadline.

[21] On the evening of the day before the hearing Mr Galloway sent an email to the Commission once again extending his humble apologies, this time referring to a misadventure with a typist he had engaged to assist him. The typist appears to be the same landscape gardener who assisted, unsuccessfully, Mr Galloway to file the appeal papers. Mr Galloway’s email to the Commission concluded with the words “finally, the affidavit required to be filed will be in similar terms to the document provided with the added formalities by 9.30a.m.”

[22] Unbeknownst to the Commission, on the same afternoon an email was sent to the Applicants’ solicitor, Ms Barry, containing a submission (in the body of the email itself) and a PDF annexure containing some other material.

[23] Mr Galloway did not file any affidavit by 9:30am as foreshadowed.

[24] Ms Barry filed written submissions on the morning of the hearing which alerted the Commission to the existence of material that Mr Galloway possibly intended to rely upon (but had not filed). Several emails later the hearing started at 2:00pm but Mr Galloway had still not provided the materials to the Commission. Mr Galloway did provide an affidavit on the morning of the hearing, which was in addition to the material provided to the Applicants the day before. Shortly after the hearing started Ms Barry forwarded to the Commission the material she had received the day before.

[25] Mr Galloway relied upon the following documents in support of his application:

a) text in the body of an email sent to Ms Barry on 15 November 2021 which:

i. contained predominantly submissions, but also some factual assertions;

and

ii. referred to Attachments 1A, 1B, 2, 3, 4, 5, 6 and 7.

b) a PDF attachment to the email sent to Ms Barry on 15 November 2021 which included:

i. a heading “attachments” on the first page but does not otherwise contain any references to Attachments 1A, 1B, 2, 3, 4, 5, 6 or 7;

ii. one particular email said to be found in Mr Galloway’s computer system (reproduced twice);

iii. extracts from a spreadsheet;

iv. a compiled summary of transactions from a debit card account; and

v. a compiled summary of other transactions;

c) an affidavit sworn on 16 November 2021.

[26] The directions required Mr Galloway to file a précis of the evidence rather than the evidence itself. He therefore cannot be criticised for filing transaction summaries as opposed to evidence of certain transactions in admissible form.

[27] In deciding Mr Galloway’s application I must act in a judicial manner and observe procedural fairness. As the Full Bench said in Mr Galloway’s appeal:

“[23] Procedural fairness depends on a number of considerations including the statutory context, the nature of the matters in issue, and what would be a reasonable opportunity for parties to present their case in the relevant circumstance. The expression procedural fairness conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. As such, the procedural fairness required in one case may be quite different to the procedural fairness required in another.

[24] Procedural fairness requires the Commission to give each party a reasonable opportunity to present their case, however the Commission does not have to ensure that parties take the best advantage of that opportunity. That said, procedural fairness requires that the hearing be both procedurally fair and be seen to be procedurally fair. This derives from the recognition of the importance of the process of the exercise of the Commission’s power and not just the correctness of the outcome.

[25] More so, the opportunity to present a case to the Commission is not confined to giving parties the opportunity to stand up and say what they want to say; it necessarily extends to a reasonable opportunity to prepare their case before they are called on to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting their case in order and being able to present their case in the fullest sense.

…

[27] Fairness is not an abstract concept - it is essentially practical. The concern of the law is to avoid practical injustice.

[28] The Commission is a busy specialist tribunal and must deal with matters efficiently as well as fairly. The Commission is not required to grant every adjournment application that a party might make, nor agree to every application by a party to reopen their evidentiary case. The Commission is entitled to take into account the effect of procedural applications on the Commission’s resources and the competing claims by litigants in other cases awaiting hearing, as well as the interests of the parties.

…

[69] The Commission is obliged to provide the parties with a reasonable opportunity to present their case. If a party fails to take up that opportunity by, for example, failing to adequately prepare their case in the time available, or by failing to have all necessary witnesses available to give evidence, the Commission is not required to rescue that party’s case by reconvening a further hearing. The Commission might do so, particularly if no prejudice arises to other parties, but it is not required to do so.”

[28] Mr Galloway has had a reasonable opportunity to prepare and present his interlocutory case. I do not need to decide whether he has taken the best advantage of that opportunity but I have been flexible in receiving his materials late and in a forensically dishevelled state. In this context I pressed on with the interlocutory hearing because to do otherwise would have resulted in even more lost court time and even more wasted expense for the Applicants. In considering Mr Galloway’s materials, and his failure to squarely address many of the matters he was required by the Directions to address, I have also endeavoured to ensure that the Applicants are not prejudiced in their defence of the interlocutory application.

The Merits of the Interlocutory Application

[29] As best as I can understand the materials before me, Mr Galloway seeks leave to admit evidence relating to the following:

a) A spreadsheet found on Ms Molina’s computer in October 2020. The spreadsheet was apparently sent to Mr Zhai approximately two hours before the applicants were dismissed. Mr Galloway submits that the email was identified “in close proximity to the October [2020] sitting [but] nothing was said by [Mr Galloway’s previous representative at the hearing] in relation to this email” ;

b) Information of some sort about Ms Molina’s knowledge of the formation of APT Corporation Pty Ltd, which is said by Mr Galloway to go to the question of whether Ms Molina was employed by APT Corporation or by Mr Galloway and to Ms Molina’s credibility generally. Mr Galloway did not explain, let alone provide any evidence of the source of this evidence and whether this evidence was available to Mr Galloway in July 2020 when his evidence in chief was filed, or available in October 2020 when Ms Molina was cross-examined;

c) Evidence of acts of dishonesty by Ms Molina regarding alleged misuse of credit cards, regular unauthorised payments to herself and payments for storage facilities rented by her for personal use. Mr Galloway did not explain, let alone provide any evidence of the source of this evidence and whether this evidence was available to Mr Galloway in July 2020 when his evidence in chief was filed, or available in October 2020 when Ms Molina was cross-examined;

d) Evidence of Ms Molina writing to police asking whether she had a criminal record in preparation for an application to the Legal Profession Admission Board. Mr Galloway did not explain, let alone provide any evidence of the source of this evidence and whether this evidence was available to Mr Galloway in July 2020 when his evidence in chief was filed, or available in October 2020 when Ms Molina was cross-examined;

e) Evidence of alleged fraudulent conduct by Ms Molina in August and November 2020. Mr Galloway says this evidence “establishes a general disposition and it casts a shadow over her credit.”

[30] There is no barrier for the Commission to receive and consider evidence of facts not known to the employer at the time of the dismissal 6, as long as the facts existed at the time of dismissal.7 The way in which such evidence might be considered will depend on the circumstances of the case. As Von Doussa J reasoned in Lane v Arrowcrest Group Ltd (1990) 27 FCR 427 at 4568:

“… In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer's state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred…”

[Emphasis added].

[31] It may be that after-acquired knowledge/evidence improves an employer’s case in relation to establishing a valid reason for dismissal but, as the Full Bench in APS Group (Placements) Pty Ltd v Stephen O’Loughlin (2011) 209 IR 351; [2011] FWAFB 5230 found, such evidence might weaken the employer’s case in relation to procedural fairness:

“[51] Section 387(a) of the FW Act requires FWA to consider “whether there was a valid reason for the dismissal”. This language directs attention to whatever reason or reasons for dismissal emerge from the evidence and are relied upon by the employer. The tribunal is not confined to a consideration only of the reason or reasons given by the employer at the time of the dismissal. An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act).”

[32] Mr Galloway’s evidence about when he became aware of this other evidence is vague and generally unconvincing. In his affidavit he says “none of the evidentiary material had been located [prior to 13 July 2020 when his evidence in chief was filed]. Had it been located, it would have been included.”

[33] His written submission includes the following:

“Shortly after the summary dismissal of the Applicants, the Respondent found himself running a busy law practice with no assistance at all, which saw him attempting to undertake the workload of at least three lawyers and attending to all other needs of the practise, which saw him working seven days a week, often working 14 plus hours a day, in hindsight perhaps unwisely putting the needs of his clients before his own, even in the preparation and presentation of his own litigation in this unfamiliar jurisdiction. Little has changed between then and now, save that the practise of law saw him earning little and working often for free because a considerably larger proportion of his clients were unable to pay, which is still pretty much the [case].

He had the Applicant’s desktop examined by an expert to determine what documents she was attempting to take with her when she was leaving the premises on 18 March, 2020 and what documents she had tried to delete or she had deleted. There is a copy of the computer’s contents, which is available for inspection by the Applicant’s lawyers, upon request.”

[34] It seems that at least some of the materials Mr Galloway proposes to tender are his own documents – such as bank statements or other documents relating to the management of his bank accounts. Mr Galloway has provided no proper explanation, let alone sworn evidence, about why these documents were not included in his filed evidence in chief in July 2020 or were not put to the Applicants in cross-examination in July or October 2020. His evidence that these materials had not been “located” by July 2020 appears to be euphemistically suggest that even though Mr Galloway possessed this material he either didn’t look at it or he didn’t choose to file it in his evidence in chief.

[35] At the interlocutory hearing Mr Galloway conceded that the evidence relating to credit card transactions was available when Ms Molina and Mr Zhai were cross-examined and that other evidence such as bank statements and emails sent or received by Ms Molina’s work email account were available for him to access. At the interlocutory hearing in 2021 Mr Galloway indicated that he was not able to spend much time looking at these materials in 2020 and that he could only look when time permitted. He said that his knowledge and use of computers was very limited and that he did not have access to other resources to conduct proper searches.

[36] Significantly, he indicated that approximately one month after the Applicants were dismissed Mr Galloway engaged a computer expert to copy the contents of Ms Molina’s work computer. This does not actually support his argument. Firstly, this reveals that Mr Galloway had the wherewithal to secure a copy of the computer records – presumably because he thought they might be relevant and important. But secondly it reveals that before filing his evidence in chief in July 2020 Mr Galloway had failed to properly interrogate materials available to him.

Consideration

[37] Deputy President Dean made orthodox directions for the filing of evidence prior to the first scheduled hearing date. By these standard arrangements, the filed statements or affidavits form the basis of each witness’ evidence in chief. Ms Molina and Mr Zhai filed their evidence on 17 June 2020. Mr Galloway filed his evidence in reply on 14 July 2020.

[38] Both parties arrived at the first day of hearing with an understanding of their opponent’s case and of the matters in contest between them. Ms Molina and Mr Zhai have both given evidence and have been cross-examined on their evidence having already seen Mr Galloway’s filed evidence.

[39] On one view of it, Mr Galloway’s current application is to split his case: he wants leave to file and lead a second tranche of evidence in chief now that the Applicants have given their evidence in full.

[40] The general rule, which most commonly bites on applicants/plaintiffs, is that parties may not call part only of their evidence in chief, reserving some of their evidence for reply after the opposite party has given evidence. On some occasions a court or tribunal might allow a party to split their case, but the paramount objective is to best serve the interests of justice 9.

[41] Alternatively, Mr Galloway’s application could be understood as an application to re-open his evidence in chief. This is not strictly the case because Mr Galloway has filed some evidence in chief but has not actually tendered any evidence at all (save for two short witnesses). Nonetheless the principles applying to such applications are apposite.

[42] On the question of re-opening a party’s case the Full Court of the Federal Court provided the following relevant analysis in Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404, [2017] FCAFC 75:

“[168] In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (Bradshaw) Kenny J said (at [24]):

The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SAStRp 43; [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] [1992] HCA 36; (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (“UTA”) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].

(Emphasis added)

[169] Kenny J’s approach to the authorities has been approved on many occasions: see for example, Matthews v SPI Electricity Pty Ltd (Ruling No 28) [2013] VSC 523 at [20] (J Forrest J); Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 (Spotlight) at [25]-[26] (Harper and Tate JJA, Beach AJA); Blank v Commissioner of Taxation (No 2) [2014] FCA 517 at [11] (Edmonds J); Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [1903] (McKerracher J)

…

[174] Brennan, Dawson, Toohey and Gaudron JJ said in Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 266-267:

If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete... or one in which reasons for judgment have been delivered... It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side.

(Emphasis added.) (Citations omitted).

[43] In Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232  referred to above, the Victorian Court of Appeal stated (at [17]):

“Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.”

[44] Once again the primary focus is on whether the interests of justice are better served by allowing or rejecting the application for leave to re-open – albeit addressing the question from a slightly different angle.

[45] One of the Commission’s primary mandates is found in s.577 of the FW Act, viz:

“577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[46] Similarly the objections of Part 3-2 of the FW Act are stated in s.381:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.”

[47] It is also relevant to note that costs are not usually awarded in relation to matters under Part 3-2. Courts might be more amenable to applications to re-open evidence, adjournment applications and the like because the prejudice to other parties might be wholly cured by a costs order. The Commission does not generally have the same power to make such an order and therefore the Commission should be slow to grant applications that will cause another party’s costs to be thrown away. In my view a party that applies for an adjournment or for leave to re-open their case has significantly better prospects if they undertake of their own volition to pay the costs thrown away of the opposing party.

[48] In my view the interests of justice are best served by refusing Mr Galloway’s application. Mr Galloway has not established that in 2020 he was prevented in any way from filing any of the evidence he now seeks to file (save for evidence relating to Ms Molina’s alleged actions in August and November 2020).

[49] I do not need to decide whether he made a tactical decision or a mere omission when he failed to file all available evidence in July 2020. Given Mr Galloway’s chronic procedural delinquency in this matter and in the appeal proceedings, it may well be that his failure to collate and file this evidence was simply another instance of Mr Galloway failing to devote proper attention and resources to the litigation. Mr Galloway was legally represented throughout 2020 and therefore Mr Galloway’s own time limitations and lack of computer skills do not provide a complete answer.

[50] Mr Galloway does not claim to have been taken by surprise in a way that might entitle him to file new evidence.

[51] To refuse Mr Galloway’s application does not therefore cause him any practical unfairness. There are no aspects of his interlocutory application that establish that the interests of justice are better served by granting leave.

[52] Perhaps more importantly, in my view to grant Mr Galloway’s application would be to cause a practical injustice to the Applicants. Granting leave would considerably disrupt the completion of the hearing of these matters and most probably lead to further extensive cross-examination of the Applicants about the new materials. After all the dislocation, inconvenience, delays and additional expenses visited upon the Applicants, for which they are blameless, the interests of justice are better served by not opening open whole new lines of evidentiary inquiry at this late stage of the proceedings.

[53] For completeness I must indicate that the alleged incidents in August and November 2020 are not relevant to any matter in dispute and so I refuse leave in relation to evidence of those matters. Neither incident is relevant to the existence of a valid reason for dismissal because they occurred after the dismissal and neither applicant seeks reinstatement.

DEPUTY PRESIDENT

Appearances:

Ms G Barry for the Applicants

Mr B Galloway for the Respondent

Hearing details:

2021.

Sydney (By Video using Microsoft Teams)

November 16.

Printed by authority of the Commonwealth Government Printer

<PR735968>

 1   Molina v Galloway [2021] FWC 1756 “Molina Decision”, PR728257 and Zhai v Brett Galloway [2021] FWC 1785 “Zhai Decision”, PR728297.

 2   [2021] FWCFB 5419 at [35].

 3   Molina Decision at [122]-[127], Zhai Decision at [104] – [109].

 4   Brett Galloway v Milena Molina and Raymond Zhai [2021] FWCFB 5419

 5   Brett Galloway v Milena Molina and Raymond Zhai [2021] FWCFB 5419 at [35].

 6   Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989 at [71].

 7   Ibid at [64] citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ and Dawson and Toohey JJ; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14; Paech v Big W Monarto Warehouse [2007] AIRCFB 1049 at [8]; Dundovich v P&O Ports Print PR923358; Jetstar at [55]. See also Gautam v Costco Wholesale Australia Pty Ltd [2021] FWCFB 1097 at [44].

 8   Cited in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 410; 61 IR 32 at 43 and Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 9 and Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989 at [71].

 9   See Parke v Rubenstein (No 2) [2021] FCA 107 at [57]-[70] citing S, DJ v Channel Seven Adelaide Pty Ltd [2009] SASC 6 at [8].