Blight v NLC Linehaul Pty Ltd ATF NLC Linehaul Trust
[2016] FCCA 1667
•7 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLIGHT v NLC LINEHAUL PTY LTD ATF NLC LINEHAUL TRUST | [2016] FCCA 1667 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a Case for summary dismissal – principles for grant of application for summary dismissal. PRACTICE AND PROCEDURE – Discontinuance – effect of a notice of discontinuance filed in proceedings in another court – whether discontinuance and settlement of other proceedings agreed. WORDS AND PHRASES – “compromise”. |
| Legislation: Fair Work Act 2009 (Cth), s.548 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450 Bray v F. Hoffman-La Roche Ltd [2003] FCA 1505; (2003) 155 ALR 454 Butler v Fairclough & Anor (1917) 23 CLR 78 Cole v Austin Distributors Ltd [1953] VLR 155 Ex parte Richards (1934) 51 CLR 190; (1934) 7 ALJ 466 Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; (2012) 218 IR 436 B C Cairns, Australian Civil Procedure (10th Edn) (Sydney: Thomson Reuters (Professional) Australia Limited, 2014) |
| Applicant: | STEPHEN NEVILLE BLIGHT |
| Respondent: | NLC LINEHAUL PTY LTD ATF NLC LINEHAUL TRUST |
| File Number: | PEG 13 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 August 2014 |
| Date of Last Submission: | 8 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 7 July 2016 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | Mr N Cridge (a director) |
ORDERS
That pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) the application filed by the applicant on 20 January 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 13 of 2014
| STEPHEN NEVILLE BLIGHT |
Applicant
And
| NLC LINEHAUL PTY LTD ATF NLC LINEHAUL TRUST |
Respondent
REASONS FOR JUDGMENT
Application in a Case
Before the Court is an Application in a Case by the respondent, NLC Linehaul Pty Ltd ATF NLC Linehaul Trust (“NLC Linehaul”) to dismiss these proceedings pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”). The Application in a Case is opposed by the applicant, Stephen Neville Blight (“Mr Blight”).
Application
The Application is a small claim under s.548 of the Fair Work Act 2009 (Cth) (“FW Act”) which seeks payment of allegedly non-paid wages in the sum of $5526.00. The Application was filed together with a “Form 5 Small claim under the Fair Work Act 2009” (“Form 5”).
The evidence in support of the Application in a Case
The evidence in support of the Application in a Case is provided by an affidavit from Neville Laurance Cridge, affirmed 23 July 2014 (“Mr Cridge’s Affidavit”). Mr Cridge is a company director who is a director of NLC Linehaul, which is a transport contractor: Mr Cridge’s Affidavit at [1]-[2].
Mr Cridge’s evidence is principally directed to two issues:
a)firstly, the time worked by, and payments made to, Mr Blight: Mr Cridge’s Affidavit at [3]-[11] and Annexures NLC1-6; and
b)secondly, the settlement of a claim made by Mr Blight in the Western Australian Industrial Magistrate’s Court (“WAIM Court Claim” and “WAIM Court” respectively) for work allegedly performed by him for NLC Linehaul: Mr Cridge’s Affidavit at [12]-[15] and Annexures NLC7-9, and the filing of a Notice of Discontinuance in relation to the WAIM Court Claim.
Time worked by, and payments made to, Mr Blight
Mr Cridge’s Affidavit indicates that:
a)Mr Blight was initially engaged by NLC Linehaul in December 2008 for a 10 week trial period involving shunting work at night for Kings Transport and Logistics Pty Ltd (“Kings Transport”) which involved the movement of trailers for the purposes of loading and getting them ready for the next day’s deliveries. The work was a trial and ceased at the end of February 2009 after which NLC Linehaul had no work for Mr Blight and he ceased working for them: Mr Cridge’s Affidavit at [3];
b)the period at Kings Transport was a trial period of 10 weeks which was terminated upon the expiration of that period, and is corroborated by a letter annexed to Mr Cridge’s Affidavit from a Mr Guy Milsom, said to be the WA OneSteel Transport Manager, seemingly responsible for Kings Transport, and writing under the letterhead of Kings Administration (WA) Pty Ltd: Mr Cridge’s Affidavit at [5] and Annexure NLC1 (“Milsom Letter”) (admissible under s.548(3) of the FW Act because under the small claims procedure the Court is not bound by any rules of evidence or procedure);
c)Mr Blight was paid 12 weeks’ pay for the 10 weeks work at Kings Transport, the additional weeks being a week for each of holiday pay and pay in lieu of notice: Mr Cridge’s Affidavit at [4];
d)Mr Blight was subsequently re-engaged by NLC Linehaul on a casual basis from April 2009 onwards, but did not work during the period from 5 March 2009 to 6 May 2009, save for 2, 4 and 6 April 2009 for which he was paid $614.25 on 22 April 2009: Mr Cridge’s Affidavit at [6] and [8];
e)NLC Linehaul’s wage book (“NLC Linehaul Wage Book”) entries, said by Mr Cridge to have been filled out by Mr Blight in his own handwriting, contain consecutive entries, and show that Mr Blight did not work during the period 5 March 2009 to 6 May 2009 except for 2, 4 and 6 April 2009 for which he was paid the sum referred to above: Mr Cridge’s Affidavit at [10] and Annexure NLC3; and
f)a complaint made by Mr Blight to the Fair Work Ombudsman (“FWO”) was dismissed, and NLC Linehaul were advised of this in a letter dated 22 November 2011, addressed to Mr Cridge as a director of NLC Linehaul and headed “Unsustained Complaint”, and said to be in relation to a complaint by Mr Blight with respect to, amongst other things, “non-payment for time worked”. The FWO advised Mr Cridge that on the basis of the evidence provided by all parties concerned it had been unable to sustain the complaint lodged by Mr Blight and had contacted him and advised him accordingly, and that they would not be taking the matter any further: Mr Cridge’s Affidavit at [11] and Annexure NLC 6.
WAIM Court Claim
Mr Cridge’s Affidavit indicates that the WAIM Court Claim was made on 16 November 2012 by Mr Blight under the small claims procedure under the FW Act, (which must be a reference to s.548 of the FW Act) as follows:
a)alleging a failure by “NLC Nev Cridge” to comply with the Road Transport and Distribution Award 2010; and
b)alleging that “NLC Nev Cridge” had failed to pay Mr Blight:
Pay entitement of 136.69 hour of annual leave + missing 10 weeks pay 2009.
and sought an order for payment of an amount of $10,476.40 being:
Feb 2009 to 1 July 2010 40 hrs per week, 10 weeks $20.21 per hour
Mr Cridge’s Affidavit at [12] and Annexure NLC7 (quotes transcribed verbatim).
Mr Cridge says that the WAIM Court Claim was settled at a pre-trial conference presided over by the Clerk of the WAIM Court, and that what occurred was as follows:
a.I and NLC were represented by solicitor Alex Atkinson of CGL Legal;
b.Documents were shown to the applicant which showed that the applicant was paid in full by NLC.
c.The Clerk of Court who presided over the pre-trial conference explained that the claimant did not appear to have a valid claim and may lose if the matter proceeded to trial.
d.The applicant justified his claim by stating that he had phone records which showed that he made or received calls at night. The applicant alleged that this was proof of the fact that he was working.
e.I on behalf of NLC transport offered $2,000 to the applicant in full and final settlement of the applicant’s claims which offer was accepted by the applicant. Payment was made by cheque drawn on an account of Powerhouse Holdings Pty Ltd which is another company of mine. I do not now recall why I did not draw the cheque on the account of NLC.
f.The Clerk of Court asked the applicant to complete a notice of discontinuance.
g.The applicant was hesitant to discontinue the proceedings until the cheque for $2,000 cleared.
h.The Clerk of Court proposed that the applicant sign the notice of discontinuance and that it would be held by the Clerk of Court until she received notice from the applicant that the cheque had cleared an[d] then it would be filed with the court by the Clerk of Court. The applicant agreed to that and took the cheque for $2,000 and provided the signed notice of discontinuance to the Clerk of the Court.
Mr Cridge’s Affidavit at [13].
The Notice of Discontinuance in the WAIM Court Claim dated 8 February 2013 attached to Mr Cridge’s Affidavit, is headed “Notice of Discontinuance – Whole of claim”, lists “Nev Cridge” as the respondent and under the heading “Discontinuance” says that:
Take notice that the Claimant shall not proceed further in the whole of this claim and hereby withdraws from the same.
Mr Cridge’s Affidavit, Annexure NLC7.
Submissions in support of the Application in a Case
NLC Linehaul submits that:
a)the evidence clearly establishes that Mr Blight did not work for NLC Linehaul during the period for which he claims, save for 2, 4 and 6 April 2009 for which Mr Blight was paid;
b)it is inconceivable that an employee would work week in and week out and not raise a complaint for non-payment;
c)the WAIM Court Claim was for a larger payment in respect to a larger period of time, including the period of time now claimed for as having been worked, and that the Application can be said to be a “sub-set” of the WAIM Court Claim;
d)NLC Linehaul was also the respondent to the WAIM Court Claim, and that the claim made in the Application was effectively compromised in the WAIM Court; and
e)the Application ought to be dismissed on the grounds that:
i)it has no reasonable prospects of success; and
ii)it was previously compromised.
Basis for the Application
In the Application under the heading “Grounds of application”, although Mr Blight says that the grounds of application are set out in the claim filed with the Application, he proceeds to include the following under that heading:
1.Broken sleep phone records.
2.Job turned down Mal.
3.Timesheet: payslips no true. Reords.
(transcribed verbatim).
Mr Blight alleges that he was employed by NLC Linehaul from 21 November 2008 to 20 July 2011 as a truck driver. The Form 5 in which the claim is set out makes provision for a classification level under an applicable Modern Award, enterprise agreement, workplace determination or contract to be set out. In response to that part of the Form 5, Mr Blight has written:
Transport Workers (General) Award No 10
Road Transport and Distribution Award 2010.
Workplace Determination.
Mr Blight says that his place of work during his employment with NLC Linehaul was at Onesteel at Lot 302 Spearwood Avenue in the suburb of Bibra Lake, south of Perth.
On the Form 5 Mr Blight indicates that his employment status was full-time, but then adds “In the begining” (sic). Mr Blight indicates that he worked regular hours from 10.00pm to 6.00am on Monday to Thursday and Sunday.
The contravention alleged is said to be of a workplace determination, and not one of the two awards referred to above. The details of the determination are set out in the Form 5 as follows:
$25.00 per hr $1600.00 per fortnight
….
The remedy sought is payment of wages of $5,526.00, and the basis for that claim is said to be “nine weeks wages missing” from 5 March 2009, and calculated as follows:
38 hrs x 2021 = $6911.00 - $1382.00 = $5526.00
The Court presumes that “2021” is meant to be $20.21 as it correlates to the hourly amount in the WAIM Court Claim. No explanation is given for the figure of $20.21 or for the deduction of $1382.
Various documents are annexed to the Form 5, relevantly:
a)correspondence from the FWO (“FWO Correspondence”);
b)a letter from Mr Blight to Mr Cridge dated 26 July 2011 (“July 2011 Letter”);
c)a document setting out Mr Blight’s claims headed “SMALL CLAIMS INDUSTRIAL MAGISTRATE’S COURT” signed by Mr Blight (“Mr Blight’s WAIM Court Claim Document”);
d)a summary dated 3 September 2012 which appears to be a list of alleged times worked and a list of evening sleep times said to be “drawn from phone records 2009” (“September 2012 Summary”);
e)NLC Linehaul Trust payslips for Mr Blight (“NLC Linehaul Payslips”);
f)a dentist’s tax invoice dated 1 March 2013 (“Dentist’s Invoice”);
g)a single page (being page 3 of 4) from a document headed “Confidential medical report – medical examiner use only” (“Medical Report”);
h)two pages of documents said to be time records made by OneSteel for Kings Transport (“Kings Transport Time Records”);
i)two pages of Kings Transport Daily Driver Activity sheets for OneSteel and Tube Perth Metropolitan sites (“Kings Transport Driver Activity Sheets”);
j)the Milsom Letter;
k)a facsimile dated 3 December 2013 from OneSteel Metal Centre to Mr Blight concerning a request for timesheets dating back to 2009 (“OneSteel 2013 Facsimile”);
l)WAIM Court documents, including the WAIM Court Application, Response (in which the respondent is said to be “NLC”), Notice of Discontinuance and a cheque for $2,000 from Powerhouse Holdings Pty Ltd made out to Mr Blight (“WAIM Court Documents”);
m)what appear to be various proforma requests for assistance from employees or former employees of OneSteel dating from 2012 (“Assistance Requests”);
n)copies of letters from the Australian Taxation Office (“ATO”) concerning the transfer of payments to Mr Blight’s WestScheme and Australian Super accounts from the Trustee for NLC Linehaul Trust, the transfers being dated 11 May 2012 and 12 April 2013 (“Superannuation Transfer Letters”);
o)a document headed “All Events Overtime”, being a report dated 28 December 2012 (“All Events Report”);
p)what appears to be an internet banking statement dated 15 May 2009 (being statement No. 77) (“Banking Statement 77”);
q)what appears to be an internet banking statement dated 17 November 2009 (being statement No. 78) (“Banking Statement 78”);
r)a page from a Westpac Classic Account in Mr Blight’s name for the period 20 November 2009 to 3 December 2009 (“Westpac Account Statement”); and
s)Mr Blight’s mobile telephone accounts issued on 16 December 2008, 16 January 2009, 16 February 2009, 16 March 2009, 16 April 2009, 16 May 2009 and 16 June 2009 (“Mobile Telephone Accounts”).
A more detailed analysis of the content, and relevance, of the documents annexed to the Form 5, is set out below: see [43]-[61] below.
Mr Blight’s submissions in opposition to the Application in a Case
Mr Blight submits that:
a)the NLC Linehaul Wage Book is a fabrication;
b)stressors in his private life meant that he did not realise he had been underpaid;
c)there are factual disputes between NLC Linehaul’s account and his account, and the Court should only dismiss an application in the clearest cases and should avoid causing injustice;
d)there is evidence that he was not paid properly by NLC Linehaul, and it is therefore not at all clear that he does not have a case;
e)the matter has not been compromised between him and NLC Linehaul;
f)the WAIM Court Claim was for holiday pay and sick pay and was brought against Mr Cridge individually;
g)the WAIM Court Claim mentions 10 weeks that he was not paid for, which are “the same weeks” referred to in the Application, but says that that was not the main part of the WAIM Court Claim and it was never properly discussed, and says (as did NLC Linehaul) that the claim brought in the WAIM Court was different to the one that is now being brought;
h)when the WAIM Court Claim was settled, he did not understand what he was agreeing to and felt pushed into it, and although the Clerk of the WAIM Court told him that he needed a lawyer he could not find one who was able to help him;
i)no deed of settlement was signed showing that any claim for the weeks that he was not paid for had been given up; and
j)the Application should only be dismissed if it is “very clear” on the evidence taken at its highest for Mr Blight that the claim now made in the Application has previously been settled, and taking his case at its highest it has been demonstrated that the merit of the claim for the non-payment of wages for nine weeks was not fully and finally determined by the WAIM Court Claim.
Summary dismissal – the law
Section 17A of the FCCA Act relevantly provides as follows:
(1) …
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
In Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) the High Court dealt with the meaning of the phrase “no reasonable prospect” in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) which is relevantly in the same terms as s.17A of the FCCA Act, and where it was observed in the primary majority judgment that:
a)the inquiry required is as to whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry as to whether a certain concluded determination could be made that the proceeding would necessarily fail: Spencer at [52] per Hayne, Crennan, Kiefel and Bell JJ;
b)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
e)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
g)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
h)full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In the other joint judgment of the majority in Spencer it was observed that:
a)summary disposition of proceedings may include a case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case, and any case which might be propounded by permissible amendment: Spencer at [22] per French CJ and Gummow J;
b)the exercise of powers to summarily terminate proceedings must always be attended with caution, and should not be exercised unless it is clear that there is no real question to be tried: Spencer at [24] per French CJ and Gummow J; and
c)it is sufficient if the case to be prosecuted is not fanciful, and therefore is not a case which has no reasonable prospect of being successfully prosecuted: Spencer at [34] per French CJ and Gummow J.
The Federal Court has observed in relation to the phrase “no reasonable prospect of success” in s.31A of the FC Act, that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505; [2008] ATPR 42-231 at [45] per Rares J, and see Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [25]-[45] per Reeves J (“Cassimatis”) where numerous Federal Court authorities are analysed.
The Court’s power to summarily dismiss an application is discretionary, and NLC Linehaul in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Cassimatis at [46] per Reeves J, and thus the ultimate and critical question is whether the moving party, here NLC Linehaul, has persuaded the Court that the opposing party, here Mr Blight, has no reasonable prospect of success on the Application: Cassimatis at [25] per Reeves J, citing Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No. 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17] per Kenny J, affirmed on appeal in Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325.
Whether the claim has a reasonable prospect of success
In assessing whether the claim in the Application has a reasonable prospect of success two issues require consideration:
a)firstly, whether the claim for nine weeks’ wages in the Application has been compromised by the settlement and discontinuance of the WAIM Court Claim; and
b)secondly, whether there is any reasonable prospect of Mr Blight persuading the Court that he worked for the nine weeks claimed in the Application.
If, of course, the claim for nine weeks’ wages in the Application has been compromised by the settlement and discontinuance of the WAIM Court Claim then it would follow that the Application has no reasonable prospect of success as a case which has previously been compromised must be a case which has no reasonable prospect of success, or put differently, the compromise is fatal to the success of the Application.
Whether the claim in this Application has previously been compromised
The nature of a compromise
The nature of a compromise is essentially a settlement of a dispute by way of a contract whereby the compromise of a disputed claim made in good faith is consideration for a promise to pay a sum of money, even though it may be that the claim was wholly unfounded: see Butler v Fairclough & Anor (1917) 23 CLR 78 at 96 per Isaacs J (“Butler”) where it was said that:
A promise to abandon a suit in whole or part already commenced is a valuable consideration where there is a bona fide claim…
In Ex parte Richards (1934) 51 CLR 190; (1934) 7 ALJ 466 (“Richards”) money was paid into court with a denial of liability in satisfaction of the whole of the claim (other than a specified exception) and accepted by the plaintiff in satisfaction of the claims in respect of which the money was paid into court. The High Court refused special leave to appeal a judgment of the New South Wales Supreme Court because of the small amount involved, but was of the opinion that when the plaintiff company took the money out of court the acceptance of that money operated as a complete satisfaction of all causes of action in respect of which it had been paid in: Richards at 195-196 per Dixon J.
In Cole v Austin Distributors Ltd [1953] VLR 155 (“Cole”) payment of money was made into court by a defendant pursuant to provisions in the Rules of the Victorian Supreme Court, and the money was accepted by the plaintiff. An issue arose as to whether those facts constituted in law any defence to the plaintiff’s claim for recovery of the money pursuant to legislation concerning hire purchase agreements. The Victorian Supreme Court having held that it was not a case of res judicata, and having made observations as to the difficulties in finding a category of estoppel, went on to observe as follows:
The plaintiff says the money was accepted not as a repayment, but at most merely as the consideration for giving up the particular cause of action, but the fact remains that what he claimed, what he was offered and what he took was the full amount of the purchase money that he had paid. In these circumstances, it would shock the sense of justice that the plaintiff should now be allowed to recover any part of the 1,500l.
I do not think I am obliged to disregard the substance because of form; the law, I trust, is not so blindfolded that it cannot see what in truth has happened or so feeble that it must allow the plaintiff to succeed in being paid twice over.
The Victorian Supreme Court went on to find that the facts constituted in law a defence to the plaintiff’s claim: Cole at 160 per Gavan Duffy J.
In Hercules Motors Pty Ltd v Schubert (1953) 53 SR (NSW) 301 (“Hercules Motors”) an agreement to refrain from enforcing rights in respect of a motor vehicle purchase in return for the carrying out of certain repairs in a good and workmanlike manner and with proper materials, was held by the New South Wales Supreme Court to constitute the settlement of a genuine dispute between the parties, and that the arrangement was in compromise of the dispute: Hercules Motors at 305 per Street CJ.
It has been said that “Compromise connotes that a party gives something away”: Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 368 per Giles J (“Hobartville Stud”).
One learned commentator observed that:
Policy favours the effecting of compromises bringing, as they do, an end to litigation.
I J Hardingham “Setting Aside Agreements of Compromise” (1971) 8 MULR 151 at 151.
Compromises can be effected in different ways: often they arise by reason of an offer of compromise and payment of monies into court pursuant to court rules. The objects of such rules, encouraging:
a)the saving of private costs and the avoidance of inherent risks, delays and uncertainties of litigation by promoting compromise;
b)the saving of public cost necessarily incurred in litigation which events demonstrate to have been unnecessary; and
c)the indemnification of a party who has made the offer of compromise, later found to have been reasonable, against the cost thereafter incurred,
have however been accepted as relevant to informal offers of compromise: Grbavac v Hart [1997] 1 VR 154 at 165 per Hayne JA; Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344 at [7] per Basten JA.
Was this case compromised?
The claim in the WAIM Court Claim was for, amongst other things, 10 weeks’ wages, which Mr Blight now admits are “the same weeks” as the nine weeks in the Application. This admission can be taken as the nine weeks in the Application being part of the 10 weeks in the WAIM Court Claim. Therefore, the claim in the Application is in respect of the same weeks which form part of the WAIM Court Claim.
Ordinarily, a mere discontinuance does not operate as a dismissal of a claim, and does not therefore necessarily mean that the same claim cannot be brought a second time: that is a discontinuance does not ordinarily give rise to a res judicata: Lower v Comcare [2002] FCA 1394; (2002) 124 FCR 498; (2002) 36 AAR 220 at [11] per Tamberlin J; Bray v F. Hoffman-La Roche Ltd [2003] FCA 1505; (2003) 155 ALR 454 at [37] per Merkel J. Indeed, discontinuance has been recognised as an appropriate means of reserving rights to bring, at a later stage, proceedings which a party does not wish to continue at the time of discontinuance: Wotton v State of Queensland [2009] FCA 758; (2009) 109 ALD 534 at [44] per Rares J.
The discontinuance of the WAIM Court Claim in this case was not just a discontinuance. It was a discontinuance in return for a benefit: namely, the sum of $2,000 paid to Mr Blight on behalf of Mr Cridge and NLC Linehaul. That sum was to settle the WAIM Court Claim which included the nine weeks’ wages now claimed in the Application. Insofar as the settlement reached in the WAIM Court Claim constituted a payment of monies for the nine weeks’ wages, albeit only part thereof, Mr Blight cannot now claim monies for a second time having previously settled and discontinued the WAIM Court Claim and taken the money offered to him by Mr Cridge and NLC Linehaul in return for the settlement and discontinuance of the WAIM Court Claim. And thus there was, in the Court’s view, a contractual settlement of a dispute which included the nine weeks’ wages now claimed in the Application, which had, and has, effect as a complete satisfaction of the claim then made which included the claim now made in the Application: Butler at 96 per Isaacs J; Richards at 195-196 per Dixon J. Both parties clearly gave away something: Hobartville Stud at 368 per Giles J, that something being the $2,000 paid by NLC Linehaul in respect of a claim in which they considered they had no liability, and in Mr Blight’s case being the balance of the WAIM Court Claim.
There was therefore a compromise of the WAIM Court Claim, and therefore of the claim now made in the Application for nine weeks’ wages. That claim being compromised, it follows that the Application has no reasonable prospect of success, and the Court is so satisfied.
Mr Cridge made various submissions which sought to avoid the effect of a compromise. Firstly, he said that there were factual disputes between NLC Linehaul’s account and his account, and that therefore the Court should only dismiss the Application if the case was clear. This submission cannot be sustained, because any factual disputes are only relevant if the claim in the Application had not already been compromised. The claim having been compromised, any factual disputes are irrelevant.
Secondly, Mr Blight argued that the matter had not been compromised between him and NLC Linehaul. This submission is clearly incorrect: the “respondent” in the WAIM Court Claim was described as “Nev Cridge/NLC”, and the Response was filed by “NLC”, and even though the Notice of Discontinuance cited “Nev Cridge” as the respondent, it is plain from the other documents in the proceedings that if there were an employer during this period it would have been NLC Linehaul. The Court is therefore satisfied that the compromise was between Mr Blight and NLC Linehaul, or at the very least between Mr Blight and Mr Cridge and NLC Linehaul.
Thirdly, Mr Blight claims that the WAIM Court Claim was for holiday pay and sick pay and was brought against Mr Cridge individually. That is clearly incorrect for reasons set out above in relation to the claim in the WAIM Court Claim being for 10 weeks’ wages and the claim in the Application being for nine weeks’ wages, being part of the 10 weeks’ wages in the WAIM Court Claim, and, further, that NLC Linehaul was a respondent to the WAIM Court Claim, not just Mr Cridge individually. In any event, Mr Blight admits in his submissions that the 10 weeks and the nine weeks claimed for wages are “the same weeks”.
Fourthly, Mr Blight claims that he did not understand what he was agreeing to and felt pushed into a settlement of the WAIM Court Claim, and did not have the services of a lawyer to help him in that claim. In order for the settlement to be avoided, Mr Blight would have to show that there was at least some element of duress in what occurred before the WAIM Court and in the settlement of the WAIM Court Claim. Even taken at the very highest, the claims that he now makes do not involve duress of a kind liable to vitiate the Notice of Discontinuance by reason of a negating of choice or the application of pressure by unlawful, illegitimate or unconscionable means: see Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; (2012) 218 IR 436 at [12], and the authorities discussed at [13]-[41], per Buchanan J, which are generally applicable notwithstanding that the discussion in that case took place against the context of a statutory background. Furthermore, there is some evidence, to which the Court can have regard, which indicates that Mr Blight knew what he was doing, particularly insofar as he agreed to a suggestion by the Clerk of the WAIM Court that the Clerk hold the Notice of Discontinuance and not file it until such time as Mr Blight advised that the proceeds of the settlement cheque had been cleared into Mr Blight’s account. The Court notes the fact that that cheque was not a cheque from either Mr Cridge or NLC Linehaul is not relevant to the question of whether or not the WAIM Court Claim was settled as such.
Fifthly, Mr Blight says that there is no deed of settlement showing that he gave up his claim for the weeks that he says he was not paid wages. The question of whether or not any such claim was compromised, or that something was given up in the compromise: Hobartville Stud at 368 per Giles J, is a question of fact for the Court to determine on the evidence before it. As indicated above, the Court is satisfied that there was a compromise, and the fact that there is no deed of settlement does not alter the facts as found by the Court.
It follows from the above that the Court is not satisfied that any of the submissions put by Mr Blight to the effect that there was not a compromise of the WAIM Court Claim, and therefore not a compromise of the claim in the Application, have been made out. It further follows that the Court is therefore satisfied that the Application has no reasonable prospect of success, for reasons otherwise set out above: see [35]-[41] above.
Was the nine weeks claimed worked?
Mr Blight asserts that the NLC Linehaul Wage Book is a “fabrication”. In essence, this is an allegation of fraud, and “[g]eneral allegations of fraud are not enough”: B C Cairns, Australian Civil Procedure (10th Edn) (Sydney: Thomson Reuters (Professional) Australia Limited, 2014) at page 253 at [6.570], and an allegation of fraud or misrepresentation must be distinctly alleged and distinctly proved: Davy v Garrett [1877] 7 ChD 473 at 489 per Thesiger LJ. Hence, allegations of fraud and misrepresentation should not be pleaded at all unless there is clear and sufficient evidence to support them: Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450 at 456 per Lord Denning MR. The use of the word “fraud” in a pleading is not sufficient where it is nothing more than a bald assertion pleaded without particulars, or reasonable particularity, of the circumstances said to constitute the fraud: The Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199 at 219-220 per Isaacs J. In this case the allegation of fraud is not properly pleaded or particularised.
On the basis of Mr Blight’s bare assertion it is not reasonable to draw an inference that the NLC Linehaul Wage Book is a fabrication. Further, the NLC Linehaul Wage Book record showing that Mr Blight did not work the nine weeks in issue (except for three days on 2, 4 and 6 April 2009) is to varying degrees corroborated by:
a)the Kings Transport Time Records which do not show Mr Blight having worked during the nine week period;
b)the OneSteel 2013 Facsimile which indicates that OneSteel had searched its records, seemingly more than once, at Mr Blight’s request, and had not been able to find the “timesheet information dating back to 2009”;
c)no employee or former employee coming forward in response to Mr Blight’s Assistance Requests to confirm that he had worked during the nine week period;
d)the fact that there was no contemporaneous complaint, not just about underpayment (which is what Mr Blight put in his submissions), but about actual non-payment for a period of nine complete weeks, in circumstances where Mr Blight had just completed, and been paid, fortnightly, for ten weeks’ work for NLC Linehaul; and
e)the fact that NLC Linehaul paid for the three days that it says Mr Blight did work on 2, 4 and 6 April 2009: a fact inconsistent with an assertion that they were not prepared to pay for time worked, and otherwise almost inexplicable: why would NLC Linehaul if they were endeavouring not to pay for the nine week period bother to pay for three separate days during that period?
Mr Blight’s claim rests heavily on an assertion that the Mobile Telephone Records suggest that he had a broken sleeping pattern consistent with his having worked for NLC Linehaul during the nine week period. The Mobile Telephone Records, over which Mr Blight has made various annotations, do not assist the Court to determine, either at all, or for any particular day or particular period, what hours Mr Blight might or might not have worked as alleged. The relationship between an alleged broken sleeping pattern, hours worked and the Mobile Telephone Records is seemingly incomprehensible, and hence the Court’s view is that is offers no support to the suggestion that Mr Blight worked, or worked particular hours or days, for NLC Linehaul in the nine week period.
The other documents produced by Mr Blight do not assist his claim.
The FWO Correspondence indicates that there was an investigation, and review (and seemingly more than one review), by the FWO, and that after a thorough investigation, the FWO found Mr Blight’s complaint to the FWO, which included the nine week period the subject of the Application, to be not able to be sustained.
The July 2011 Letter from Mr Blight to Mr Cridge is unsigned (which may be accounted for by the fact that it is a copy), but does not in any event take the matter further as it simply reiterates claims otherwise made by Mr Blight, but notably does not make any mention, specifically, of the nine week period.
Mr Blight’s WAIM Court Claim Document does no more than allege that he did fill out timesheets, which is not corroborated by the OneSteel 2013 Facsimile which indicates that no time records were located by OneSteel, nor by the NLC Linehaul Wage Book, nor the Kings Transport Time Records.
The September 2012 Summary which simply appears to be a list of times allegedly worked and a list of evening sleep times said to be drawn from 2009 phone records is, like the Mobile Telephone Records incomprehensible in terms of the alleged relationship between working hours, sleeping patterns, and the Mobile Telephone Records.
The NLC Linehaul Payslips do not support Mr Blight’s case, as they are generally consistent with the NLC Linehaul Wage Book.
The relevance of the Dentist’s Invoice, dating as it does from 1 March 2013 is not apparent. Like most of the other documents produced by Mr Blight it contains his own handwritten annotations and in this case it refers to “[f]or the grief and pain in my mind sleeping grinding teeth and kick wall”. What the relevance of that claim, and the visit to the dentist seemingly evidenced by the Dentist’s Invoice, is to whether or not he worked during the nine week period, is not evident to the Court. Likewise with respect to the single page (being page 3 of 4) of the Medical Report which seemingly indicates that Mr Blight has hypertension, and in respect of which Mr Blight has noted that “me totaly stress out” (transcribed verbatim). There is a handwritten date of “11.12.07” in the bottom right of the document. Again, what the relationship of the document is to the hours allegedly worked in the nine week period in 2009 with NLC Linehaul is not evident.
For reasons otherwise set out above the Kings Transport Time Records otherwise arguably support NLC Linehaul’s case. The Kings Transport Driver Activity Sheets relate to two days in July 2009, and are therefore not relevant to the nine week period from 5 March 2009 the subject of the Application.
The Milsom Letter supports NLC Linehaul’s case that Mr Blight’s initial period of employment with NLC Linehaul came to an end at the end of the 10 week trial period in February 2009.
The OneSteel 2013 Facsimile, the WAIM Court Documents and the Assistance Requests are all dealt with above, and do not lend any support to Mr Blight’s case.
The relevance of the Superannuation Transfer Letters is again not evident: there is no information in those letters which would enable the Court to draw any conclusion with respect to hours allegedly worked in the nine week period from 5 March 2009.
The All Events Report, being a report dated 28 December 2012, would appear to indicate that on 7, 8 and 24 April 2009 Mr Blight accessed some premises or place. What premises or place is not specified in the All Events Report. Otherwise, there is no indication of what Mr Blight did when he accessed whatever premises the All Events Report relates to. Further, the All Events Report relates to only three days in April 2009, and in the circumstances where there is no specification of the place or purpose for which access occurred, the All Events Report does not provide any evidence of his having worked for NLC Linehaul on those or any other days during the nine week period.
Banking Statement 77 shows a number of deposits marked “NLC Linehaul” or “NLC Linehaul PL Wages Transfer” prior to 5 March 2009. Thereafter there is but one payment on 22 April 2009 of $614.25 which is consistent with the NLC Linehaul Wage Book, being payment for the three days worked on 2, 4 and 6 April 2009.
Banking Statement 78 does not relate to the period in question and is therefore irrelevant for the purposes of the Application. Likewise the Westpac Account Statement.
Therefore, as indicated above, there is nothing in these other records submitted by Mr Blight which contains any evidence which assists him in proving that he worked during the nine week period, other than the bank deposit on 22 April 2009, which is entirely consistent with NLC Linehaul’s assertion that he was employed as a casual for three days only on 2, 4 and 6 April 2009, and was paid accordingly on 22 April 2009.
In all of the above circumstances, the Court has concluded that apart from the three days on 2, 4 and 6 April 2009 which NLC Linehaul admits that Mr Blight worked, there is no evidence before the Court which can sustain Mr Blight’s allegation that he worked for a nine week period from 5 March 2009 for NLC Linehaul, and was not paid by them during that period. It follows that, even if the claim now made in the Application had not been compromised, as the Court has found it to be above, it would not have been made out in any event because there was no, or at the least, no sufficient evidence, to satisfy the Court that the claim in the Application had a reasonable prospect of success.
Other matters
The parties did not address a number of matters which might also have caused the Court to consider whether it was appropriate to dismiss the Application, including the fact that there was no evidence of any “workplace determination” upon which the claim in the Application was said to rest. Further, the Court notes that the Road Transport and Distribution Award 2010, being a federal award, was not in effect at the time of the alleged non-payment in the Application, that alleged non-payment relating to a period in 2009. The effect of there being no workplace determination and no applicable federal award would then have been to see Mr Blight possibly relying upon the terms of the Transport Workers’ (General) Award No. 10, which is seemingly a State award. Mr Blight would therefore be prosecuting on the terms of a State award for a period prior to the enactment of the FW Act on 1 July 2009. Whether the Court has jurisdiction to deal with an alleged contravention of a State award, either at all, or for a period preceding the enactment of the FW Act in 2009, might give rise to interesting questions concerning the Court’s jurisdiction under the FW Act and its ancillary jurisdiction. It is not, however, in the circumstances necessary to further pursue those issues.
Conclusion and order
The Court is satisfied that Mr Blight’s claim in the Application has no reasonable prospect of success because:
a)the claim that he makes in the Application was compromised as a consequence of the settlement and discontinuance arising in respect to the WAIM Court Claim; and
b)there is, apart from Mr Blight’s bare assertions, no evidence to support his claim that he worked for a nine week period from 5 March 2009 for NLC Linehaul, save for the three days admitted by NLC Linehaul on 2, 4 and 6 April 2009.
The Court has borne in mind that a decision to dismiss a matter summarily is not one to be reached lightly, but the fact of the compromise is evidence fatal to the prospects of success of the Application, and otherwise the Court has found that, in effect, there is no, or no sufficient, evidence which would allow it to find that Mr Blight had worked at any time during the nine week period from 5 March 2009, other than for the three days admitted by NLC Linehaul.
The Court has therefore concluded that the Application has no reasonable prospect of success. It follows that there must be an order that, pursuant to s.17A(2) of the FCCA Act, the Application be dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 7 July 2016
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