Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd)
[2021] FCCA 801
•8 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ahmad v MPA Engineering Pty Ltd (Subsidiary Of Aquatec Maxcon Group Ltd) [2021] FCCA 801
File number(s): SYG 2599 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 8 April 2021 Catchwords: HUMAN RIGHTS – Application requiring leave.
PRACTICE & PROCEDURE – Application struck out with leave to re-plead.
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO
Racial Discrimination Act 1975 (Cth) ss 9, 15, 17, 18, 20
Commercial Arbitration Act 2013 (Qld)
Cases cited: James v WorkPower Inc [2018] FCA 2083 Number of paragraphs: 18 Date of hearing: 8 April 2021 Place: Sydney Counsel for the Applicant: The Applicant appeared in person by telephone Solicitor for the Respondent: Mr Miller (Ai Group Workplace Lawyers) by telephone ORDERS
SYG 2599 of 2020 BETWEEN: WAQQAS AHMAD
Applicant
AND: MPA ENGINEERING PTY LTD (SUBSIDIARY OF AQUATEC MAXCON GROUP LTD)
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
8 APRIL 2021
THE COURT ORDERS THAT:
1.The applicant file and serve, within eight weeks, an application in a case seeking leave to file an amended application and leave to proceed under s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth).
2.The applicant pay the respondent’s costs thrown away by reason of the leave granted to the applicant to re-plead his case.
3.The costs up to today of and incidental to the application for leave be reserved.
4.The parties have liberty to apply on three days’ notice.
5.The return date of the subpoena issued at the request of the applicant on 8 March 2021 be extended to a date to be fixed.
REASONS FOR JUDGMENT
Judge Cameron
The applicant filed an application on 16 November 2020 alleging contraventions by the respondent of the Racial Discrimination Act 1975 (Cth) (“RD Act”) and seeking relief under the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). Attached to that application was a copy of a notice of termination issued by the Australian Human Rights Commission (“Commission”) in respect of a complaint involving the parties to the present proceeding.
The matter is before the Court today on the applicant’s application for leave to bring the proceeding, which was ostensibly commenced by the filing of the application on 16 November 2020.
Section 46PH of the AHRC Act relevantly provides:
46PH Termination of complaint
…
(1B) The President must terminate a complaint if the President is satisfied that:
(a) the complaint is trivial, vexatious, misconceived or lacking in substance; or
(b) there is no reasonable prospect of the matter being settled by conciliation.
…
Section 46PO relevantly provides:
46PO Application to court if complaint is terminated
(1) If:
(a)a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
…
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(1)(h); or
(c) the complaint was terminated under paragraph 46PH(1B)(b).
…
The Commission’s notice of termination states that the complaint was terminated under s.46PH(1B)(a) of the AHRC Act on the ground that the Commission was satisfied that the complaint was misconceived and lacking in substance, or was one or the other. Consequently, the present application cannot proceed further without a grant of leave under s.46PO(3A).
In his application, the applicant seeks the following relief:
(a)a declaration that the respondent has committed unlawful discrimination and a direction that it not repeat or continue such unlawful discrimination;
(b)the imposition of penalties on the respondent;
(c)an order that the respondent tender an apology and circulate it within its organisation, within Charters Towers Regional Council and to all parties involved in the project associated with the applicant’s engagement with the respondent, along with its consultants;
(d)compensation for emotional distress, mental health suffering, loss of income, other financial loss, for trapping him in commercial arbitral proceedings, costs and reputational damage; and
(e)compensation for abuse and neglect of rights.
In seeking relief the applicant relies on the following provisions of the RD Act:
9 Racial discrimination to be unlawful
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a)a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b)the other person does not or cannot comply with the term, condition or requirement; and
(c)the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.
…
15 Employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a)to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b)to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c)to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
…
17 Unlawful to incite doing of unlawful acts
It is unlawful for a person:
(a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or
(b) to assist or promote whether by financial assistance or otherwise the doing of such an act.
18 Acts done for 2 or more reasons
Where:
(a) an act is done for 2 or more reasons; and
(b)one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done for that reason.
…
20 Functions of Commission
The following functions are hereby conferred on the Commission:
(b)to promote an understanding and acceptance of, and compliance with, this Act;
(c)to develop, conduct and foster research and educational programs and other programs for the purpose of:
(i)combating racial discrimination and prejudices that lead to racial discrimination;
(ii)promoting understanding, tolerance and friendship among racial and ethnic groups; and
(iii)propagating the purposes and principles of the Convention;
(d)to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of infringements of Part II or Part IIA;
(e)where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve racial discrimination issues;
(f)to inquire into, and make determinations on, matters referred to it by the Minister or the Commissioner.
In his application of 16 November 2020, the applicant made a number of claims set out in 23 numbered paragraphs. Paragraph number 1 states as follows:
1. Before the working relationship start on 16.08.2019 between me and the respondent, the project manager (Mr. JAMES JACKSON) of the respondent committed an unconscionable conduct, misled me in a deceptive manner about the status of its internal project work, pursuaded [sic] me that his project task would be fully outsourced to me, and he would not employ me in response to my job application rather I would have to work with the ABN, got my email based acceptance of his offered work opportunity in a deceptive and misleading manner, which is even against Australian contracting standards. The respondent did so with the motivation: because I am a migrant worker having non-native English accent with a background from Pakistan and I do not know much about the Australian laws, contracting standards, employment rights, conditions of work and opportunities over here. The respondent deliberately chosed [sic] me to also cover its internal project related mistakes, poor project management, internal project related mistakes, poor project management, internal politics & issues, financial losses or whathever [sic] and deliberately employed me with discriminatory terms of work, discriminatory conditions of work and did not offer the opportunities which the respondent offered to other sub-contractors/employees. During the working relationship between me & the respondent (from 16.08.2019 to 12.11.2019) and even during the respondent initiated commercial arbitral proceedings (from 04.03.2020 to 19.05.2020) against me to potentially claim around A$700,000 with a bluffed, frivolous & vexatious statement of claim; the respondent continued his discriminatory behaviour against me inside the closed doors of the commercial arbitral proceedings and even in front of the commercial arbitrator. The respondent is motivated from the fact that I as a poor migrant worker cannot afford an expensive legal battle against him/his company and would not be able to unveil his injustice, wages theft, bullying, intimidation and discriminatory behaviour. On 12.11.2019, the respondent after creating some deliberate excuses out of my work dismissed me from the work with unpaid wages & entitlements to date. Later when I was going to take legal action, the respondent deliberately sued me by confining and limiting my rights under QLD Commercial Arbitration ACT 2013 and kept me sued with frivolous & vexatious statement of claim engineered to bluff with me. The respondent continued his commercial arbitral proceedings against me till 19.05.2020 and continued discriminatory behaviour during the proceedings, and even had an intention to keep delaying the arbitral proceedings on an on-going basis and was having a prejudice against me that I as a migrant worker would not be able to defend myself and would be intimidated to leave Australia. The respondent also tried to teach me about bankruptcy in front of the commercial arbitrator. The respondent unprofessionally kept giving different “fee offers” to the commercial arbitraor [sic] to buy her honesty and demanded from her to write a commercial arbitral award of around A$700,000/- against me, which she refused to do so.
I summarise that ground as follows:
(a)the respondent engaged the applicant to handle its internal projects and he was subsequently blamed for project related mistakes, poor project management, internal policies and issues as well as financial losses;
(b)he was engaged on discriminatory terms and working conditions;
(c)he was not offered the same opportunities as other subcontractors or employees engaged by the respondent;
(d)the respondent manufactured claims of poor performance when ending the working relationship on 12 November 2019 and failed to pay wages and entitlements for the employment period;
(e)when it was made clear to the respondent that the applicant was pursuing legal action, the respondent “deliberately sued” the applicant by “confining and limiting” his rights to the Commercial Arbitration Act 2013 (Qld). This was allegedly done through the filing of a “frivolous and vexatious” statement of claim. The applicant also contends that the respondent deliberately stalled the arbitration process and attempted to bribe the arbitrator by giving “different fee offers” in order to secure an arbitral award of around $700,000; and
(f)the respondent was motivated by the applicant’s Pakistani background and status as a non-native English speaker.
It is not necessary, for present purposes, to set out or summarise the other grounds in the application.
As Mortimer J said in James v WorkPower Inc [2018] FCA 2083 at [37]:
…the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.
Her Honour continued at [38]:
There may be a range of other permissible considerations including:
(1)the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2)the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4)whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8)other factors that are often considered in leave applications – such as prejudice to a party.
Her Honour also said at [39]:
It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination.
One additional consideration which can usefully be taken into consideration today is whether the applicant’s case appears to lack reasonable prospects of success. As Mortimer J said, it is not appropriate for the Court to embark on a detailed consideration and determination of the merits of the arguments underlying an application and thus, to the extent that the parties have today engaged, as they did at some length, in the merits of the application for final relief, that approach was misconceived. It seems to me that a Court should limit its consideration of the merits of the application to whether there is a real question of law or fact to be decided at a trial.
The difficulty that is presented to the Court today is that, based on – as no more than an example - my summary of [1] of the application, were the application to be pleaded in a clearer manner than it has been, it might be that there is a claim which merits the Court’s consideration and which could be considered by reference to the wider list of criteria articulated by Mortimer J. However, that is not presently possible. For instance, it is not clear to me, without a very detailed analysis of the application against the complaint made to the Commission whether, and if so the extent to which, the complaints which the applicant now wishes to make to the Court are the same as the ones that he brought to the Commission.
Without intending any disrespect to the applicant, his application strikes me as a jumble of interconnected thoughts and complaints which lack the identification of any specific contraventions of the RD Act. It is not sufficiently clear to me from the application how it is said that the RD Act was breached. The respondent is entitled to and the Court needs greater clarity than is found in the application. For this reason, leave to proceed based on the present application will not be granted.
My unwillingness to grant leave stems from my concerns regarding the pleading and should not to be interpreted as a critique of the claims which the applicant seeks to make. What I propose to do is to adjourn further consideration of the application for leave to proceed, strike out the present application and grant the applicant leave to apply to file an amended application which articulates in a sufficiently clear manner the claims which he seeks to make, does so by reference to specific comparators and makes allegations of contravention that are linked to specific provisions of the RD Act. There will be orders accordingly.
Once the application is struck out, there will be no allegations on foot against the respondent. In the context of the subpoenas that the applicant has issued, the significance of that situation is that the relevance of the material of which the applicant seeks production cannot be determined. Without an initiating application there is no touchstone against which the appropriateness and relevance of the subpoenas can be judged. There is no way for the Court to decide whether the respondent should be required to produce documents or whether the subpoenas should be struck out. Consequently, the return date of the subpoena issued at the request of the applicant on 8 March 2021 will be extended to a date to be fixed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 21 April 2021
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