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

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

A reference should be ordered because the efficiency, timeliness and cost-effectiveness factors strongly favoured it over a full quantum hearing likely to exceed one week and occur much later, and the justice-based objections raised by the respondents could be ameliorated or were of insignificant weight. The reference could be confined to material already filed, with any non-reply material excluded by ruling, and the referee could assess the weight of hearsay material even though the rules of evidence would not apply.

Jurisdiction
Australia
Judgment Date
31 July 2020
Procedural Posture
Practice and Procedure Concerning Quantification of Statutory Compensation Following Findings of Contravening Conduct Under the Fair Work Act 2009 (cth) / Case Management Hearing on Whether to Order a Reference for Inquiry and Report in Relation to Statutory Compensation
Outcome
The Court determined that a reference should be made and directed the parties to provide minutes of order reflecting the reasons.
Legal Topics
['reference to Referee' 'statutory Compensation' 'quantification of Loss' 'overarching Purpose' 'forensic Disadvantage' 'hearsay Evidence' 'pecuniary Penalties']
['practice and Procedure' 'employment and Industrial Relations' 'fair Work'] ['reference to Referee' 'statutory Compensation' 'quantification of Loss' 'overarching Purpose' 'forensic Disadvantage' 'hearsay Evidence' 'pecuniary Penalties']

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Procedural Posture

Practice and Procedure Concerning Quantification of Statutory Compensation Following Findings of Contravening Conduct Under the Fair Work Act 2009 (cth) / Case Management Hearing on Whether to Order a Reference for Inquiry and Report in Relation to Statutory Compensation

Legal Issues

  1. 1 ['Whether factual questions relevant to the quantification of statutory compensation should be referred to a referee for inquiry and report.' 'Whether ordering a reference would cause the respondents forensic disadvantage by allowing the applicants to fill perceived gaps in their evidence.' 'Whether ordering a reference would unfairly deprive the respondents of the ability to exclude affidavit evidence said to be inadmissible hearsay.' 'What scope the reference should have, including whether questions of legal causation should remain for the Court.']

Ratio Decidendi

A reference should be ordered because the efficiency, timeliness and cost-effectiveness factors strongly favoured it over a full quantum hearing likely to exceed one week and occur much later, and the justice-based objections raised by the respondents could be ameliorated or were of insignificant weight. The reference could be confined to material already filed, with any non-reply material excluded by ruling, and the referee could assess the weight of hearsay material even though the rules of evidence would not apply.

Court Disposition

The Court determined that a reference should be made and directed the parties to provide minutes of order reflecting the reasons.

Orders

  • ['In NSD 596 of 2017, 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.' 'In NSD 1594 of 2017, the parties are to provide to the Associate to Justice Lee within 14 days an agreed minute or competing minutes of order...