Court Cases
AUSTRALIA LEGAL UPDATE
A directions hearing was held at the end of February in SYD to set court dates and determine the timetable
for the remaining steps to be completed prior to the trial. The following are excerpts from the judge's
directions:
1. All matters (including the proceedings remitted from the High Court) to be heard together;
2. That the evidence in each matter, so far as it is relevant, be evidence in each other matter;
3. That discovery in each matter, so far as it is relevant, be discovery in each other matter;
This means that contrary to the defendant’s petitions and appeals in both the Industrial Relations
Commission (IRC) and the High Court, the substantive matters (i.e. the facts surrounding the purported
dismissals) and jurisidictional matters will be heard be heard together at the same time and become a matter
of public record.
4. By 8 April 2005 the defendants must file and serve their Reply (i.e. their defence);
5. By 6 May 2005 the plaintiffs must file and serve a Response to the Reply;
6. By 13 May 2005 both parties must apply to the Commission for an order for discovery;
7. The plaintiffs must file and serve all affidavits to be relied upon in evidence by 1 August 2005;
8. The defendants must file and serve all affidavits to be relied upon in reply by 1 October 2005;
9. The plaintiffs must file and serve all affidavits in response to the defendant's affidavits by 21
October 2005;
10. Within 14 days of all affidavit material having been filed, the plaintiffs must serve a list of all
documents on which we intend to rely by way of evidence in the proceedings on all parties;
11. Within 14 days of the receipt of that list, the defendants must serve on us a list of any additional
documents on which they intend to rely by way of evidence in the proceedings;
12. Thereafter, within a further period of 14 days, both parties must advise all other parties as to which
of the documents contained in each list will be the subject of consent to become evidence in the
proceedings;
13. Within a further period of 14 days the plaintiffs must prepare, file and serve a Court Bundle of all
documents which are by consent to become evidence in the proceedings and, in another section, all
documents which both parties seek to become evidence in the proceedings but the tender of which is
opposed;
This timetable takes us to the end of December.
Four weeks has been set aside by the Commission to hear our unfair contract claims, commencing on
6 March 2006.
Whilst this date is one year away, this was necessary in order to provide an appropriate amount of time for
the procedural matters to be attended to (as above), and was the first available time in her Honour's diary
for a four week trial.
To quote our lawyers, "We are now firmly on track for determination of your unfair contract claims."
We now have a fixed timetable and a court date set for Australia. This is very positive news and belies
some predictions that this case was at least 2 years or more away from being heard. It also means that an
accurate cash flow prediction of the probable costs leading up to the case can now be prepared.
As you know, to date we have been successful in every hearing that has been held in Australia in both the
IRC and the High Court. We have also been awarded costs each time and have recovered 80% of our costs
to date.
7th March 2005
UK LEGAL UPDATE
The cases filed in the UK Employment Tribunal (ET) were originally challenged by the defendants on the
basis that the ET did not have jurisdiction to hear the cases. In the first hearing the ET ruled that it does
have jurisdiction to hear the cases filed by the Veta employees who are resident in the UK. The defendants
appealed this decision to the Employment Appeals Tribunal (EAT). Because of developments in case law
in another case (Serco vs Lawson), the EAT referred the matter back to the ET to be heard afresh. Rather
than go back to the ET, it was agreed that the matter should be passed up to the Court of Appeal.
The case was heard by a bench of three judges chaired by the Master of the Rolls, Lord Phillips, with Lord
Justices Waller and Maurice Kay in attendance at the Royal Courts of Justice in the Strand on 14th & 15th
March 2005. The fact that the case was heard by the Master of the Rolls indicates the seriousness with
which the court views these matters. Unlike the ET and/or EAT, any judgement by the Court of Appeal will
set precedent and become case law.
Another case dealing with similar matters (Botham vs Ministry of Defence) was heard alongside our own.
Rather than being subject to a full hearing, this case was passed up to the House of Lords, the highest court
in the UK, for hearing together with Serco vs Lawson. Our own case, however, was subject to a full hearing
in the Court of Appeal.
Whilst there are similarities between our own case and Serco vs Lawson & Botham vs MoD, the principal
and significant difference is that the latter 2 actions are being brought by employees wholly resident outside
the UK (Ascension Island and Germany respectively) against UK government departments. In our case, the
action is brought by UK residents against an overseas based company that has a place of business in the
UK.
The hearing commenced at 10:30 on 14th March and finished at 13:30 on 15th March. Our barrister
presented our case first, the defendant’s barrister then presented their case and our barrister then responded.
The arguments centred around whether or not the original ET had erred in its ruling. Much of the debate
was on dry legal points that do not bear amplification in this report. There were some interesting
developments, however.
The respondent’s barrister made some statements that were factually incorrect. He stated that the Veta
employees were paid in HKD, that there were no separate pay scales for the various base areas and tried to
infer that the pilots did not pay tax in the UK. These statements were refuted by our barrister and led the
bench to ask for copies of the full contracts of employment and the Basings Agreement to be provided for
reference during their deliberations. Up until this point, only certain extracts from these documents had
been entered into evidence. Our barrister was pleased with this development.
The defendant’s barrister, on advice from a member of Cathay Pacific management who was present at the
hearing, also told the court that it was illegal for any air carrier to operate an aircraft that was not registered
in its own state of registry. Her lack of knowledge in this area was brought to the court’s attention.
The bench reserved its judgement to be handed down at a later date. Our barrister is hopeful that this will
be delivered before the Easter recess.
The Court of Appeal’s decision can be further appealed by either party to the House of Lords which is the
final arbiter in all legal matters in the UK. Should this happen the process will be relatively rapid as the
case would be heard jointly with Serco vs Lawson & Botham vs MoD both have which already been listed.
Our solicitor advises that the likely cost of such an appeal would be from GBP45,000 to GBP 60,000
depending on how many counsel we were to employ. A costs order for the current appeal will be made
when the court hands down its ruling but, should the matter go to the Lords, the order may be deferred
pending the outcome in that forum.
17th March 2005