Form 11 Rule 5.

03 FIRST RESPONDENT'S FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY: NEW SOUTH WALES DIVISION: FAIR WORK NO NSD 580 OF 2012 GENUINE STEPS STATEMENT

JAMES HUNTER ASHBY Applicant THE COMMONWEALTH First Respondent PETER SLIPPER Second Respondent OF AUSTRALIA

1.

The applicant was obliged by the Civil Disputes Resolution Act 2011: 1.1. to file a genuine steps statement in relation these proceedings to the extent that they are not proceedings under the Fair Work Act 2009 (the FW Act); and to take genuine steps to resolve the dispute.

1.2. 2.

Accordingly, the applicant was obliged to file a genuine steps statement in relation to his claim for breach of contract and to take genuine steps to resolve the breach of contract dispute.

Applicant failed to take any steps to resolve dispute 3. The applicant took no steps to try and resolve the issues in dispute between the applicant and the first respondent to the proceeding. He admits as much: see applicant's genuine steps statement. The applicant did not warn any employee of the first respondent that he intended to commence proceedings seeking damages for breach of contract by the first respondent, nor did he seek to speak to any legal representative of the first respondent before commencing proceedings.

4.

Filed on behalf of the First Respondent, of Australia Prepared by: Damien O'Donovan Australian Government Solicitor.

The Commonwealth

File ref: 12026851

Address for Service: Australian Government Solicitor, 50 Blackall St BARTON ACT 2600 sarah.wright@ags.gov.au

Telephone: 02 6253 7630 Lawyer's Email: sarah.wright@ags.gov.au Facsimile: 02 6253 7381 OX 5678 CANBERRA

5.

Instead, the applicant commenced proceedings by way of an application unsupported by either affidavit or statement of claim. This method of commencing proceedings was in breach of Rule 34.02 of the Federal Court Rules which provides that a party to proceedings to which the FW Act applies, must comply with the requirements of the Fair Work Division of the Rules and any other requirements of the Rules that are relevant and consistent with that division. Rule 8.05 (1 )(a) requires that an application for damages be accompanied by a statement of claim. Notwithstanding that the application was not supported by a statement of claim, it was filed on 20 April 2012 and an unsealed copy was served on the first respondent at the Sydney office of AGS at 4.30 pm on 20 April 2012. No sealed copy of the application has been served. The service of the unsealed originating application was the first occasion on which any employee or representative of the first respondent was given any formal notification of the applicant's complaints. No employee of the Department of Finance and Deregulation (Finance), the department responsible for administering the applicant's employment under the Members of Parliament (Staff) Act 1984 (MOPS Act), was made aware of the claim. It is possible that, through informal conversations with the applicant, employees of the first respondent engaged under the MOPS Act may have been aware of the applicant's claim, but none reported that information to Finance and the first respondent is unaware of any such informal conversations. From 1am on 21 April 2012, reports were published on the websites of various newspapers providing details of many aspects of the application. A story about the application appeared on the front page of the Daily Telegraph in Sydney on 21 April 2012. The story was picked up by all major news outlets and has subsequently received significant media exposure.

6.

7.

8.

9.

Allegations not maintained 10. The application as originally filed and as publicised in the media: 10.1. included allegations concerning alleged misuse of Cabcharge vouchers. Despite the fact that the authority of the second respondent to charge for transport through the Cabcharge system is an entitlements issue managed by the first respondent, the applicant never raised those allegations previously with the first respondent; 10.2. included allegations that the first respondent had, despite relevant prior knowledge, failed to take steps to prevent the second respondent from using his office for the purpose of fostering sexual relationships with young male staff members. These allegations had never been raised with the first respondent by the applicant. 11. On 15 May 2012 an amended application and statement of claim was filed by the applicant which did not include the allegations referred to in paragraph 10 above.

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12.

The amended application and statement of claim were available to the media before they were provided to the first respondent.

Allegations maintained 13. In the original application filed on 20 April 2012, allegations in the nature of sexual harassment of the applicant by the second respondent (but pleaded as a breach of contract) were made by the applicant. These allegations were repeated and clarified in the statement of claim filed by the applicant on 15 May 2012. The matters outlined in the application and pleaded as a breach of contract had never been raised with any Commonwealth employee in the relevant administering agency. Before the commencement of the proceedings no-one within Finance was advised by the applicant or a representative of the applicant that the conduct described was taking place, or that damage was being suffered by the applicant, or that he proposed commencing proceedings of any kind. The first respondent was never given any opportunity to address the conduct, to change the applicant's work arrangements, to take ameliorating steps or to offer compensation in relation to the conduct alleged or its effect.

14.

15.

Explanation for not raising the conduct 16. In the applicant's genuine steps statement filed on 20 April 2012, the applicant states that the reason he took no genuine steps to resolve the issue was because: 16.1. the matter is urgent; and 16.2. the matter involves aspects of victimisation. Alerting the Respondents to the matter would only increase the opportunity for victimisation. 17. The first respondent submits that neither of those statements is correct.

The "matter was urgent" 18. There is no foundation for the contention that circumstances were so urgent that proceedings had to be commenced: 18.1. before the first respondent was notified of the issue and given an opportunity to discuss before it; 18.2. before the first respondent was provided with any relevant information and documents to enable the first respondent to understand the issue and how it might be resolved; 18.3. before the first respondent was given an opportunity to consider whether the dispute could be resolved by a process facilitated by another person.

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19.

There were a number of ways for the applicant to bring the dispute to the first respondent's attention in a timely fashion and before commencing proceedings: 19.1. By following the Bullying, Harassment and Workplace Violence Policy and Procedure for MOP(S) Act Employees and reporting the incidents of harassment to Konekt Response (Finance's workplace safety manager) within 24 hours of them occurring; 19.2. By making a complaint to the Ministerial and Parliamentary Services Division of Finance - an area of Finance with which the applicant had previously communicated over the previous 5 months; 19.3. Making a complaint about the conduct to the Australian Human Rights Commission on the basis that it constituted an allegation of sexual harassment. The Human Rights Commission could have exercised its powers to conciliate the complaint; 19.4. Making an application under section 372 of the FW Act, and seeking the first respondent's consent to a conference for Fair Work Australia to deal with the issue; 19.5. Referring the matter to Finance under clause 74.4(c) of the Commonwealth Members of Parliament Staff Enterprise Agreement 2010-2012; 19.6. Initiating the issue resolution procedure under the Work Health and Safety Act 2011 (the WHS Act). Section 81 of the WHS Act states that if the matter is not resolved after discussion between the parties, the parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.

20.

If the applicant was uncomfortable or at risk in the workplace then he could have taken leave. Had Finance been notified of the applicant's position, it could have taken steps to address the behaviour. Engaging in genuine steps to resolve the dispute would have provided the first respondent with an opportunity to discuss the issues with the applicant and take steps to deal with the issue appropriately without resort to litigation.

21.

Risk of victimisation 22. The applicant claims that notifying either the first respondent or the second respondent would only increase the opportunity for victimisation. This is not correct. Had the applicant notified the first respondent through either Konekt Response or Ministerial or Parliamentary Services within Finance, the first respondent could have taken steps to ensure that the alleged conduct was not repeated. In addition the applicant would have been fully protected by the prohibition on taking adverse action because he exercised a workplace right (s 340 of the FW Act).

23.

24.

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Consequences of the applicant's failure to take steps to resolve the dispute 25. In performing functions or exercising powers in this proceeding, the Court may take account of whether the applicant took genuine steps to resolve the dispute (s 11 of the CDR Act). In exercising a discretion to award costs in this proceeding, the Court may take account of whether the applicant took genuine steps to resolve the dispute (s 12 of the CDR Act). The Court must interpret and apply the CDR Act, as an Act with respect to the practice and procedure of the Court, in a way that best promotes the overarching purpose of the civil practice and procedure provisions (s 37M(3) of the Federal Court of Australia Act 1976).1 The Court must exercise or carry out any function conferred by the CDR Act in the way that best promotes the overarching purpose of the civil practice and procedure provisions: s 37M(3). The first respondent considers that the applicant's failure to take any steps to try to resolve the dispute is inconsistent with the overarching purpose of the civil practice and procedure provisions set out in s 37M namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (s 37M(1) of the Federal Court of Australia Act 1976). The first respondent submits that the applicant has not complied with his obligation to conduct a civil proceeding in a way that is consistent with the overarching purpose (s 37N(1 )). The first respondent considers that the applicant's failure to take any steps to try to resolve the dispute is inconsistent with the following objectives of the overarching purpose (s 37M(2)): 28.1. the efficient use of the judicial and administrative resources available for the purposes of the Court 28.2. the efficient disposal of the Court's overall caseload 28.3. the disposal of all proceedings in a timely manner 28.4. the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 29. The first respondent submits that the applicant's conduct in commencing proceedings without taking any steps to resolve the dispute has resulted in all parties incurring greater legal costs, the protraction of the matter, and the loss of an opportunity to resolve or at least narrow the matters in issue. The first respondent submits it is an inefficient use of the Court's resources and an inefficient way to manage the Court's caseload to commence proceedings without taking any steps to resolve the dispute. The applicant's failure to take any steps to resolve the dispute has had significant consequences for both respondents. For example, the commencement of proceedings has generated significant media coverage, thereby consuming considerable time and

26.

27.

28.

30.

See for example Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 (23 March 2012) at [9], [39]-[44].

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resources of the first respondent These consequences are arguably a result of the applicant's decision to commence proceedings without having taken any steps to resolve the dispute or indeed notify the first respondent at all of the dispute. If the applicant had taken any steps to resolve the dispute as an alternative to, or even in advance of, commencing proceedings, the consequences for the respondents would have been less costly. Date: rfMay 2012

~."r ..• -.'.\\... ::~':\~~ Sarah Wright A lawyer employed by Australian Government Solicitor Lawyer for the First Respondent

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