Buksh v Holmesglen Institute

[2021] FedCFamC2G 380

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Buksh v Holmesglen Institute [2021] FedCFamC2G 380

File number(s):	MLG 1802 of 2020
Judgment of:	JUDGE BURCHARDT
Date of judgment:	23 December 2021
Catchwords:	INDUSTRIAL LAW – Ruling on extensive evidentiary objections taken by respondent- applicant seeking to re-agitate matters previously struck out – some of applicant’s assertions scandalous – rulings made as indicated in the copy of the affidavit on the court file.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	39
Date of last submission/s:	22 December 2021
Date of hearing:	22 December 2021
Place:	Melbourne
Solicitor for the Applicant:	The Applicant is self-represented
Solicitor for the Respondent:	MinterEllison
Counsel for the Respondent:	Ms Duthie

ORDERS

MLG 1802 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BUKSH

Applicant

AND:

HOLMESGLEN INSTITUTE

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	23 DECEMBER 2021

THE COURT ORDERS THAT:

1.The Respondent’s application to strike out portions of the Applicant’s response affidavit is granted in the terms indicated in the copy of the affidavit annexed to these orders.

2.The Respondent’s costs are reserved.

3.The matter remain listed for trial as fixed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Revised from Transcript

JUDGE BURCHARDT:

1. By way of introduction I would say this.  Even with the helpful table of objections filed by the respondent, it’s no small matter to work through all this material of which there is a lot.  Trying to, as it were, gauge the impugned passages in Mr Buksh’s affidavit against the material to which he responds and bearing in mind also in an overarching sense the very important sub issue of what the issues in the case really are.  I have wrestled with it as best I may, and I will give you the results shortly.  It’s relevant to commence with a short historical narrative.

2. On 25 October 2021, I made orders for the filing of materials which included the applicant to file a responsive affidavit on or before 1 November 2021. On 2 November, one day late, the applicant filed an affidavit which has 24 pages of text and 42 in total. That then led on 16 December 2021 to an application in a case filed by the respondent which seeks, first, that some paragraphs of the applicant’s affidavit be struck out as they repeat matters previously struck out by the court and, secondly, seeks other paragraphs to be struck out as involving serious allegations against the respondents, its employees and lawyers that are irrelevant to the matters pleaded.

3. The application in a case also sought costs.  The matter was listed urgently as a failure to deal with the matter now before Christmas would mean this application in a case would not be disposed of before late January, bearing in mind that the trial is due in February 2022.  It is important that the parties know where they stand in a reasonable period of time before the trial and, for that reason, the matter was brought on.  The applicant’s solicitors sought an adjournment, but I did not grant it for the reason I have just given.  The applicant appeared to suggest at the hearing of the matter that he might be, in a sense, seeking an adjournment.

4. He made remarks to the effect that if he had had more time he would be able to say further things by way of submission.  But, in my view, that would not be either necessary or appropriate.  Also on 16 December 2021 there was an affidavit filed in support of the application in a case.  Annexure JD1 to that affidavit is my decision of 7 July 2021 in which I ruled, in effect, that only what were described as the three queries were relevant to the matter presently before the court and inter alia I expressed a measure of concern that the applicant and his advisors seemed to have a view that the claim was, as it were, ambulatory and might be the subject of change either up to or even at trial, something I am not prepared to permit. 

5. On 26 July 2021, I struck paragraphs of the applicant’s further affidavit out, and on 23 November 2021, obviously following the filing of the affidavit in reply on 2 November 2021, MinterEllison, solicitors for the respondent, wrote to the applicant’s lawyers setting out the complaints that are now embodied in the application in a case.  The response from the applicant’s solicitors was dilatory or non-existent, and that provoked the application in a case.  Late on, I think, 21 December 2021, the respondents filed the table of objections to which I have referred and written submissions. 

6. I have been informed that the applicant’s solicitor was served with the application in a case and affidavit in support on or about 16 December 2021.  Obviously, the submissions and table were served late, but these do no more than flesh out the application in a case.  As I indicated earlier, I was not minded to adjourn the matter, even if Mr Buksh had actually formally asked for such an adjournment for those reasons.  It appears that the applicant now consents to some paragraphs being struck out, and those are contained in a document described as an order prepared by Mr Buksh himself and the document appears to indicate a measure of agreement to some of the paragraphs that are impugned being struck out. 

7. The only way, sensibly, to deal with this matter is to go through the affidavit, pausing in the order set out in the table of objections, which has, as it were, two parts. The first part dealing with matters that are said largely to be irrelevant and second part which is more concentrated on what are described as the scandalous nature of the allegations. If we turn, therefore, first to paragraphs 20 to 22, it is suggested that in the table of objections that these matters are irrelevant and deposed to material already struck out. The matter can be expressed shortly. The respondent is correct. These matters are irrelevant to the three queries and do repeat matters already struck out.

8. What I have done is penned through them myself on the court’s copy so that it’s clear they’re all deleted.  Paragraph 42 is very much the same objection and, once again, the respondents, in my view, are correct.  It is irrelevant to the cause of action before the court and has been previously been struck out.  Subparagraph 44(e) is agreed to be struck out and, once again, for the same reasons.  Paragraph 50 is irrelevant.  In my view, it does not relate to the three queries as the respondent submits.  Paragraph 55 purports to be a response to – in part to the affidavit of Ms Hood.  In my view, a substantial portion of it is irrelevant but if I could take the – Ms Duthie, perhaps, to paragraph 55, the words in response to paragraph 51:

   I do contest the information provided as false and an attempt to mislead the court.

9. I’m going to strike out the words “and an attempt to mislead the court.”  They’re scandalous.  He’s entitled to say they’re false but he’s not entitled to say that.  The paragraph goes on:

   The conversation was not as Ms Hood has described and was essentially, a very brief meeting of around five minutes or less,  I was provided no explanation as to why the termination was being performed and only told to read the letter and pack my belongings.

10. That passage of the paragraph is, in my view, directly responsive to paragraph 51 of the respondent’s affidavit and is, in my view, admissible.  The remainder of the paragraph is plainly irrelevant and should be struck out as scandalous in any event.  Paragraph 56 is agreed to be struck out and the respondent is, in any event, correct in its objection.  Paragraph 68, once again, the first sentence:

    I did not have the discussion with Ms Pillay as described in paragraphs 31 to 32 –

    is, in my view, responsive and should stay in.  The rest of the paragraph should be struck out.  It is either irrelevant or non-responsive or scandalous as the case may be.  Paragraph 71, the respondent is, in my view, correct.  This is not part of the pleaded case and is irrelevant.  Paragraph 72 commences in response to section F paragraphs 35 to 53.  I will leave that in.  The next sentence:

    Ms Pillay is using rumours made and circulated by another new employee to discredit me.

11. I’m striking that out as being objectionable.  The next sentence:

    Ms Reynolds did over hear me make a joke about taking 40 minutes to mark a very badly written long answer assignment.

    will stay in.  It is directly responsive.  The rest of the paragraph is objectionable as opinion and irrelevant in any event and will be struck out.  Paragraph 79(b)_the respondent is quite correct in its objections and, in any event, this matter is agreed.  Paragraph 87(h) commences – and once again this is purporting to be responsive to the affidavit:

    Ms Pillay did state that 6.4 hours was to be allocated to each fortnight as work of campus time.  When I asked for this information in writing, Ms Pillay refused to provide her statement in writing.

12. In my view, that amount of the paragraph is responsive and admissible.  The rest of it is not.  Once again, the respondent’s objections in that sense are upheld. 

13. Paragraph 88(d) is agreed to be removed and in any event the respondent’s objections are valid. 

14. Paragraph 88(f) should be struck in its entirety.  The respondent’s objections are correct.  The matter has not been pleaded and the allegation in substance has already previously been struck out for that reason. 

15. Once again, paragraph 88(g) for the same reasons is going to be struck out in its entirety.  That brings us to paragraph 93 which commences:

    In response to paragraph 69, I did leave the workplace early due to being unwell on the 11th December.  There were no classes’ to teach in the afternoon, as there was a staff party scheduled after lunch. 

16. Those sentences, in my view, are responsive and admissible.  The rest of the paragraph is not and is in any event scandalous.  It is irrelevant, it is opinion, it is hearsay, it offends almost every possible level of evidentiary transgression.

17. That brings us to paragraph 94(b).  Once again, the respondent’s objection is correct.  It is irrelevant.

18. Paragraph 110 is the next one. Once again, the respondent’s objections, in my view, are entirely accurate. It is irrelevant, it consists of opinion and is scandalous and will be struck out in its entirety.

19. Now, there are a number of other matters in the schedule which are objected to, as is said on this basis, on the basis that they contain serious allegations against the respondent, its employees and respondent’s legal representatives, which have no proper basis and are irrelevant to the matters pleaded in the proceeding. That brings us back to paragraph 6 which says as follows:

    The document provided as evidence MAH1 is a fabrication of evidence to support the Respondent. 

20. The respondent is correct to say that that assertion is scandalous on its face, that in the end if Mr Buksh is wishing to say that this is a forgery, then it is a matter for him to prove it at the trial.  Should he fail to do so, it is going to be an obvious and significant evidentiary matter against him.  This is a serious matter to assert, but it is not nonetheless, in my view, capable of being struck out at this stage. 

21. I note that it is agreed that paragraph 33, 36 and 37 be struck out.  The objections taken by the respondent in any event are entirely correct. 

22. Paragraph 43 is also the subject of objection.  In my view, once again the respondent is correct.  It is irrelevant to the three queries. 

23. Paragraph 45 is objected to.  It reads as follows:

    In regards to paragraph 31 to 33 and the evidence used to support those claims I do contest the information. 

24. Then it goes on for being misleading.  I am striking out the words “for being misleading”.  They should not be there, they are scandalous.  But he is entitled to contest it.  And the rest of the paragraph, the email provided in evidence KLH5 does not clearly identify him as the persons referred to in the email, is a matter that Mr Buksh can press at a trial. 

25. Paragraph 48.  The respondent is clearly correct in his objections.  Those matters are irrelevant and consist of opinion that is scandalous and there is no proper basis for them.

26. Paragraph 51.  Some parts of this should be struck out and others not.  I will read out paragraph and indicate as I go which are in and which are out.  The paragraph reads:

    In response to paragraph 41 to 43 in evidence KHL-12. I do contest that the emails and information are false and misleading. 

    That is a matter for him to make out or not.

27. The next sentence, “the respondent has been implanting further false information whilst circulating their chain letters between staff” is plainly objectionable, scandalous and will be struck out.  He goes on to say:

    I have never contacted George Dus but was told to by the respondent.  This was after I asked why the workplace was requesting more than 50 per cent of ‘Work off campus’ time was to be performed at the workplace. 

28. I suspect that may turn out to be irrelevant, but I am not in a position to say so at this stage.  That will stay in.  The rest of the paragraph is plainly irrelevant. 

29. That brings us to paragraph 66.  In my view, the first part of that paragraph is responsive and should stay in.  But if one goes to the bottom line which commences with the words, “The workplace” and continues “Ms Pillay does have a written diary”.  All of the paragraph from the words “Ms Pillay does have a written diary…” should be struck out on the basis articulated by the respondent. 

30. Paragraph 69 is plainly scandalous and should be struck out.

31. Paragraph 76 commences, “In response to paragraph 9, Ms Pillay is attempting to deceive the Court and did have knowledge.”  I am going to strike out the words “Ms Pillay is attempting to deceive the Court and did have knowledge”.  They are scandalous and objectionable.  Otherwise, however, it is a responsive paragraph to the affidavit and should stay in.

32. Paragraph 79(a) is undoubtedly scandalous and should be struck out.

33. Paragraph 87. In response to paragraph 51 to 56, and he goes on to say, “I do contest the submissions as false and an attempt to mislead the courts.” I am striking the words, “I do contest the submissions as false and an attempt to mislead the courts”. They are scandalous. He goes on to say, “Conversations did not occur as Ms Pillay has stated.” That is an assertion as to fact which can stay in. The rest of the paragraph is plainly to be struck out for the reasons given by the respondent.

34. That brings us to paragraph 108 to 111.  Paragraph 108 is plainly hearsay and irrelevant and must be struck out.

35. Paragraph 109 is scandalous and should be struck out.

36. I have already dealt with paragraph 110 which is being struck out anyway but is also scandalous.

37. And certainly, paragraph 111 scandalous and objectionable on all the fronts alleged by the respondent. 

38. That just leaves the question of the application for costs.  Certainly the respondent has been largely successful. It is hard to avoid the impression that the reason that the respondent was provoked into having the necessity to bring an application in case is the dilatory and unsatisfactory responses contained from the respondent’s solicitor who, in my view, should never have permitted an affidavit with some of these allegations in it to be sworn and filed with the Court.  However, that is ultimately a matter of professional practice. In the circumstances, bearing in mind that the respondent was not wholly successful and the unrepresented circumstances of the applicant at the present time, I am going to reserve the respondent’s costs of the application in the case. And I am going to order the applicant’s affidavit to be struck out in part.

39. I will adjourn the matter for trial.  Adjourn to trial as fixed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Dated:       23 December 2021