Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 2)
[2021] FCCA 1475
•1 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 2) [2021] FCCA 1475
File number(s): SYG 2599 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 1 July 2021 Catchwords: PRACTICE AND PROCEDURE – application for leave to amend application Legislation: Racial Discrimination Act 1975 (Cth)
Australian Human Rights Commission Act 1986 (Cth), s 46PO
Number of paragraphs: 7 Date of hearing: 9 June 2021 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr D. Miller (Ai Group Workplace Lawyers) 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:
9 JUNE 2021
THE COURT ORDERS THAT:
1.The applicant’s application in a case filed 1 June 2021 be dismissed.
2.The applicant have leave to file and serve a further application in a case seeking leave to file an amended application and leave to proceed under s.46PO(3)(a) of the Australian Human Rights Commission Act 1986 (Cth).
3.The applicant pay the respondent’s costs of and incidental to today assessed in accordance with the Court’s scale.
4.The applicant’s further application in a case be listed for hearing on 14 July 2021 at 2.15pm.
5.The parties have liberty to apply on 3 days’ notice.
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
In this proceeding the applicant alleges that the respondent dealt with him in the course of their business arrangements in a manner which contravened the Racial Discrimination Act 1975 (Cth) (“Act”). The applicant requires leave of the Court in order to proceed with his action, although the application has already been filed. That is to say, in the circumstances the applicant needs leave now, rather than having sought and obtained it earlier, before the matter can proceed further.
BACKGROUND FACTS
The matter was last before the Court on 8 April 2021 when I directed the applicant to file and serve any application in a case seeking leave to file an amended application and leave to proceed under section 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) by 3 June 2021. The applicant has endeavoured to do that in the form of an application in a case which he filed on 1 June 2021. That document is 16 pages in length and has 36 numbered paragraphs of which various have numerous subparagraphs.
CONSIDERATION
The applicant has today spoken passionately in support of the complaint which he wishes to prosecute against the respondent and, I must say, during the course of his address to the Court the nature of his complaints became clearer to me than they had been previously. In that connection, the respondent has submitted that the pleading of the applicant's complaints in the application in a case is, in substance, no better or clearer than the allegation made in the originating application and, with all respect to the applicant, I must agree. Going over the application in a case, it is fair to say that many of the paragraphs are in the nature of argument or submission, rather than allegation of fact. Some which do contain potentially relevant allegations of fact go potentially only to the issue of damages. In paras.16, 19, 20, 21, 22, 24, 28 and 29, there are allegations which point to a claim that the Court could consider. The difficulty is, however, that the document is characterised by rhetorical flourish and hyperbole. It is clear from the submissions made by the applicant in Court today that he is very upset by the way the relationship with the respondent developed and ultimately concluded. That upset is very plain in the document which he has filed.
At this point it should be noted that it seems to be agreed that the contracting parties to the business relationship in question were the applicant’s company and the respondent company and that it was the applicant's company that provided his services as its human actor. In his address to the Court the applicant argued that, notwithstanding the apparent nature of the contractual relationship and the contracting parties, the relationship should properly be seen, not as one of contracting between two corporate entities, but rather as some form of sham contracting in which he should have been treated as an employee.
The case that the applicant appears to wish to make is that the nature of the engagement, the terms of the engagement and the treatment he received during the course of and after the engagement concluded, in some way engaged the Act and amounted to contraventions of it. Those allegations do not obviously lack reasonable prospects of success, as that term is understood in the authorities. That is to say it appears that what the applicant would like to argue, if only it could be made clear, presents to the Court some matters of fact which deserve consideration and raise arguable issues of law.
However, the way the issues are presented makes it impossible for the Court to be certain exactly how the applicant wishes to present his case and what it is he is alleging. The Court cannot distil his case for him, although in substance, that is what I have just done in part. It is certainly not reasonable to expect the respondent to answer a case which is not sufficiently clear.
CONCLUSION
For that reason, the application in a case filed on 1 June 2021 will be dismissed. However, I will give the applicant one last chance to plead his case in a way such that the Court can properly deal with it.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 1 July 2021
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