Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 3)
[2021] FCCA 2145
•4 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 3) [2021] FCCA 2145
File number(s): SYG 2599 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 4 August 2021 Catchwords: HUMAN RIGHTS – Application for leave to bring a proceeding alleging racial discrimination – relevant considerations.
PRACTICE AND PROCEDURE – Application to file statement of claim – unclear pleading refused leave.
Legislation: Racial Discrimination Act 1975 (Cth)
Australian Human Rights Commission Act 1986 (Cth), s.43PO
Cases cited: Ahmad v MPA Engineering Pty Ltd (Subsidiary Of Aquatec Maxcon Group Ltd) [2021] FCCA 801
Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 2) [2021] FCCA 1475
James v WorkPower Inc [2018] FCA 2083
Number of paragraphs: 12 Date of hearing: 4 August 2021 Counsel for the Applicant: Mr E. McMahon 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:
4 AUGUST 2021
THE COURT ORDERS THAT:
1.The applicant’s application in a case filed 31 July 2021 be dismissed.
2.The statement of claim filed on 31 July 2021 be struck out.
3.All previous costs orders be vacated.
4.The applicant pay the respondent's costs which are to be assessed in default of agreement.
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
This proceeding concerns the applicant’s allegations that the respondent contravened the Racial Discrimination Act 1975 (Cth) (“Act”). It was commenced by an application filed in this Court on 15 November 2020 and follows the 17 September 2020 termination by the Australian Human Rights Commission (“Commission”) of a complaint brought to it by the applicant. As the Commission terminated the complaint on the ground that it was misconceived and/or lacking in substance, the applicant needed leave to proceed before he could bring this proceeding: s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). He did not seek such leave before filing his application but does so now. The originating application filed on 14 November 2020 was struck out on 8 April 2021, however, the proceeding remains on foot in order that the applicant might seek leave to proceed.
Relevantly for present considerations, in this matter the Court ordered:
(a)on 11 December 2020 that the applicant file and serve an affidavit in support of leave to proceed;
(b)on 8 April 2021 that the applicant’s application for leave to proceed be dismissed; the initiating application be struck out and the applicant have leave to file and serve an application in a case for leave to proceed and to file an amended application; and
(c)on 9 June 2021 that the applicant have leave to file a further application in a case for leave proceed and to file an amended application.
The matter is before the Court today to consider the applicant's most recent application consequent upon the orders of 9 June 2021.
Judgments dealing with the applicant's earlier applications to proceed were published on 8 April 2021 and 9 June 2021. On each occasion the applicant had been unsuccessful by reason of the deficiencies in the pleadings upon which he sought to rely. In the reasons for judgment on 8 April 2021, I said:
17My 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. ...
(Ahmad v MPA Engineering Pty Ltd (Subsidiary Of Aquatec Maxcon Group Ltd) [2021] FCCA 801)
In the reasons for judgment on 9 June 2021, I said:
3The 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.
4At 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.
5The 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.
6However, 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.
7For 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.
(Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 2) [2021] FCCA 1475)
On 31 July 2021 the applicant filed his most recent application in a case. With it he filed his proposed amended application, a copy of the Commission's determination of his complaint and copies of the complaint and documents submitted to the Commission in support of it. The Court was also provided with a statement of claim. That is perhaps a document which should have been included as some form of attachment to or inclusion with the application in the case. However, it has been filed by the registry as a separate document, which I take to be a clerical error on the registry's part.
Turning to the statement of claim document which is the most relevant of the documents the applicant has filed, it pleads that the applicant entered into an engagement with the respondent on terms which are not clearly particularised. The applicant would allege that the treatment he received was different from the treatment enjoyed by the respondent’s employees with whom he interacted. The allegation would seem to be that the difference in treatment was for reasons contrary to the Act, but it depends on the circumstances of the individuals being comparable. This in turn requires the applicant to demonstrate that he was an employee rather than a contractor which is what his status ostensibly was.
The applicant would allege that he was in truth an employee rather than an independent contractor but he has not particularised the allegation in a way that makes it at all persuasive. In support of his allegation to have been an employee the applicant refers to paras.7 and 9 of the proposed statement of claim, but those paragraphs are, at best, equivocal on the subject and, as pleaded, certainly not inconsistent with the arrangement being that of head contractor and subcontractor.
The deficiency of the pleading in that regard tends to bring into focus the conclusions reached by the Commission when it said at pg.5 of the termination notice:
… It appears that your concerns about characterisation of the nature of the relationship between MPA and yourself and the terms of the Agreement are in essence a contractual dispute, rather than concerns that could be advanced under the RDA.
It went on to say at pg.7:
… overall I am of the view that there is insufficient information to support your contentions that your race and/or immigrant status were factors in MPA's actions or decisions. As noted above, in relation to the dispute around the correct characterisation of the Agreement, it is arguable that the dispute between the parties in relation to the termination of this same Agreement, is also in fact a contractual dispute, rather than a claim of unlawful racial discrimination under the RDA.
The applicant’s claims of racial discrimination depend in large part on his alleged status as an employee but the proposed pleading does not provide an adequate basis upon which the Court could consider that issue.
In submissions made on behalf of the applicant today it was also argued that the nature of the contract into which the applicant entered was affected by discriminatory motivations on the respondent’s part in that, as I understand it, it was for discriminatory reasons that he was engaged ostensibly as a contractor rather than as an employee. However, as properly conceded by counsel when the question was put to him, the statement of claim does not make that allegation. It was submitted that it was a matter which could be inferred from the proposed statement of claim but that is not an appropriate way to approach the pleading of a case.
In my reasons for judgment of 8 April 2021 I cited what Mortimer J said in James v WorkPower Inc [2018] FCA 2083 at [37], namely:
I am satisfied that 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 went on to say 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.
Although the applicant has now, in effect, been given four opportunities to plead his case the Court, even at the risk of procedural fairness to him, would not be able to embark on a detailed consideration and determination of the merits of his underlying arguments based on his proposed pleading.
One matter which the Court should take into account is the fact that, notwithstanding a number of attempts, the applicant has still not pleaded his claim in a manner such the Court can confidently deal with it. At some point a line must be drawn and on the last occasion the applicant was told that he would be given one last chance to plead his case. He has now had that chance and I am not satisfied that the pleading should be allowed to go forward. In reaching that conclusion, I have noted the inconvenience to which the respondent has been put by the number of times the matter has had to come to Court without progressing beyond a most preliminary stage.
For those reasons, the application for leave to proceed will be dismissed and the erroneously filed statement of claim will be struck out.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 13 September 2021
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