Buksh v Ramsay Health Care trading as Peninsula Private Hospital
[2021] FCCA 915
•12 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Buksh v Ramsay Health Care trading as Peninsula Private Hospital [2021] FCCA 915
File number(s): MLG 3215 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 12 May 2021 Catchwords: INDUSTRIAL LAW – ruling on application for summary dismissal – applicant executing comprehensive release but asserting this was executed through coercion and/or at a time when his health vitiated his purported agreement – Court accepting that release prohibits the applicants claim Legislation: Federal Circuit Court Act 1999 (Cth) ss 17A
Fair Work Act2009 (Cth) ss 50, 341(c)(ll), 342, 365, 368
Federal Court Act 1976 (Cth) ss 31A
Cases cited: Abela v Minister for Home Affairs [2021] FCA 96
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; [2008] 167 FCCR 372
Number of paragraphs: 29 Date of hearing: 15 April 2021 Place: Dandenong Advocate for the Applicant: Mr Hawkins Solicitor for the Applicant: Cogent Legal Pty Ltd Counsel for the Respondent: Mr Tracey Solicitor for the Respondent: Rigby Cooke Lawyers ORDERS
MLG 3215 of 2020 BETWEEN: BEN BUKSH
Applicant
AND: RAMSAY HEALTH CARE T/A PENINSULA PRIVATE HOSPITAL
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1.The applicant’s application filed on 2 September 2020 be dismissed pursuant to s17A of the Federal Circuit Court Act 1999 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
REASONS FOR JUDGMENT
JUDGE BURCHARDT:
INTRODUCTORY
By an application in a case filed on 18 December 2020, the respondent seeks the summary dismissal of the applicant’s substantive application. The application for summary dismissal is made pursuant to section 17A of the Federal Circuit Court Act, on the basis that the application has no reasonable prospects of success. For the reasons that follow, I accept that the application has no reasonable prospects of success and will be dismissed accordingly.
BACKGROUND FACTS
On 2 September 2020 the applicant filed his original application in the Fair Work division of this Court. He sought as interim relief relevantly:
An Intrem order is requested to set aside the current settlement agreement and Notice of discontinuance to matter no U2018/3939 & To allow the dispute between the respondent and applicant to be mediated and/or a decision be provided by hearing by court order.
The accompanying form 2 is voluminous and sought relief across a wide range. I heard the application for interim injunctive relief on 2 December 2020 and gave an extempore ruling dismissing that application. I also made orders designed to process the foreshadowed section 17A application that had been indicated by the respondent during that hearing.
The applicant had in the meantime filed an affidavit affirmed 10 October 2020 which like his original form 2 is voluminous and not easy to construe. He had also filed a notice to admit facts directed to one Karen Venner, apparently an officer or employee of the respondent. Since Ms Venner is not a party to the proceedings, of course, that notice to admit is of no moment.
It should be noted that the original form 2 claim had raised in paragraph 1, an assertion that the applicant was dismissed after he had raised an issue relating to workplace injury, asserted defamation on the part of the respondent against him and interference with contractual relations with subsequent employers. It also raised complaints of what was described as ‘wage theft’ in 2014 and 2015 and a breach of the relevant EBA (as it was described) in the dismissal process.
In the affidavit filed in support of his application in a case (formalising his application for interlocutory relief) on 13 October 2020, the applicant asserted at paragraph 20 that he had been provided with incorrect time slips, at paragraph 21 that his pay had been withheld and at paragraph 37 that his termination was forced. The voluminous document went on to quote at length by reference to the various statutes and industrial instruments and inter alia pleaded non est factum.
The respondent’s written submissions in opposition to the application for injunctive relief observed that there had been no claim made to the Fair Work Commission pursuant to section 365 of the Fair Work Act2009 (Cth) (“FW Act”), and accordingly, no certificate issued pursuant to section 368. It was submitted accordingly that the application was deficient on that ground as well as otherwise.
On 18 December 2020 the respondent filed an application of Helen Lesirge which sets out the history of the matter in some detail, to which I shall return. On 28 January the applicant filed his response to the respondent’s application in a case which for the first time, so far as I can see, articulated in terms a purported exercise of workplace rights at paragraph 1 as follows:
1.The Applicant had exercised his workplace rights as defined in 341(c)(ll) of the Fair Work Act when he requested his pay level and professional experience be advanced as specified in the Respondent's Enterprise Agreement both in 2018 upon settlement in the Fair Work Commission and during employment with the Respondent
2. The Respondent engaged in adverse action as defined in section 342 Fair Work Act, when they altered the hours of service and/or underpaid the Applicant for work performed and when terminating the Applicant's employment
3. The Respondent has failed to pay the Applicant his wages in accordance with the Enterprise Agreement was a breach of section 50 Fair Work Act including correct superannuation
The applicant has filed an outline of submissions opposing the respondent’s application in a case and a further affidavit affirmed 12 April 2021 but it is sufficient to say that these do not, in my view, take the matter further.
THE AFFIDAVIT OF MS LESIRGE
The affidavit of Ms Lesirge noted that on 13 April 2018 the applicant filed his unfair dismissal application (exhibit “HL-1”) and on 20 April 2018 the respondent filed its objection. The objection took issue with the late filing of the application and asserted that the applicant was not dismissed (exhibit “HL-2”). On 29 July 2018 the FWC granted the applicant an extension of time in which to bring his application (exhibit “HL-3”) and on 17 September 2018 a conciliation conference took place by phone. Ms Lesirge deposed at paragraph 8:
I attended that Conciliation. At the Conciliation, an in principle agreement was reached between the parties.
Given the march of events it is appropriate to set out the text of the affidavit which follows in full:
On 17 September 2018 the Fair Work Commission advised the parties by email that the merits hearing listed for 24 and 25 September 2018 (in respect of the unfair dismissal application) was to be vacated and the Fair Work Commission’s Terms of Settlement, which included a mutual release clause, were attached for the parties to execute.
On 19 September 2018 the Applicant provided the Fair Work Commission with a signed and executed version of the Terms of Settlement, which contained additional handwritten notes made by the Applicant and which requested an amendment to the Terms. Annexed and marked HL4 is a copy of that version of the Terms.
On 20 September 2018 the Commission advised the parties by email that the Applicant’s signed and executed version of the Terms of Settlement which included the proposed amendment (that is, the document annexed as HL4) could not be accepted and a clean version of the Terms was to be provided by no later than 10 am on 21 September 2018.
The Applicant then signed and returned Terms of Settlement dated 20 September 2018 which included handwritten notes, but his proposed amendment had now been removed. Annexed and marked HL5 is a copy of these Terms, as signed and executed by the Applicant. Annexed and marked HL6 is a copy of the Applicant’s email to the Commission attaching those Terms.
The Terms of Settlement (HL5) were signed and executed for and on behalf of the Respondent by Michelle Henderson (Chief Executive Officer), on 17 September 2018, and that signed and executed document was emailed at 6.40 pm on 17 September 2018 to the Commission. Annexed and marked HL7 is a copy of those Terms, as signed and executed by the Respondent. Annexed and marked HL8 is a copy of the Respondent’s email to the Commission attaching those terms.
On 5 October 2018, the Applicant filed a form F50 – Notice of Discontinuance in the Commission. Annexed and marked HL9 is a copy of that form.
On 20 July 2020 the Applicant filed a notice of appeal in the Commission seeking that the decision by Commissioner Harper-Greenwell be set aside, which stated that he was appealing the provisions of the Terms of Settlement. Annexed and marked HL10 is a copy of that notice of appeal.
A Full Bench of the Fair Work Commission handed down a decision on 18 August 2020, by which it dismissed the Applicant’s appeal (or application for permission to appeal) on the basis that there was no decision from which to appeal. Annexed and marked HL11 is a copy of that decision of the Full Bench of the Commission.
It is relevant to note that the terms of settlement inter alia and relevantly included a release in the following terms:
The Applicant releases and forever discharges and releases the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the applicant’s employment with the respondent, including but not limited to the cessation of the employment.
The version first executed by the applicant (“HL-4”) has a number of additional matters recorded on it to which I shall return, but it is sufficient to say that the amendment that the applicant purported to make was not repeated in the second version of the document that he signed and returned, albeit that it appears to have been repeated as a request.
The notice of discontinuance (“HL-9”) relevantly asserts that the applicant “wholly discontinues this matter as part of a settlement agreement” and is dated 5 October 2018.
The decision of the Full Bench of the Commission which dismissed Mr Buksh’s subsequent appeal in 2020 sets out the circumstances in which the settlement was reached in some detail at paragraphs 6 to 13. I do not propose to set them out in full as they are relatively lengthy, but they set out in considerable detail the way in which the settlement was completed and the notice of discontinuance signed. Perhaps most relevantly for these purposes at paragraph 7 the Full Bench quoted an email sent to Mr Buksh by the Commissioner’s chambers on 20 September 2018 which asserted:
The Commissioner notes that the parties reached a concluded agreement at the Member Assisted Conciliation on Monday 17 September 2018 and as such it is not open to yourself to unilaterally vary the terms of the Agreement. Accordingly the Commissioner does not accept your amendment and declines to alter the Terms of Settlement. Please forward a signed clean copy of the agreed Terms of Settlement to chambers and the Respondent by no later than 10 am tomorrow, Friday 21 September 2018.
In relation to your request for an amended Statement of Service and copies of certificates, the Respondent is in receipt of your request and will advise whether they will accommodate it in due course. However please note that as these items were not discussed at the conciliation and were not agreed between the parties the Respondent is under no obligation to provide this documentation.
The two statements of evidence that you have requested the Respondent retain on your file (attached) have been forwarded to the Respondent and it is at their discretion as to whether or not they will be placed on your file.
The Full Bench’s decision notes correspondence passing between the Commissioner and Mr Buksh about the completion of the notice of discontinuance, during the course of which, the Commissioner’s chambers observed (paragraph 13):
The Commissioner notes that you do not require the permission of the Commission to proceed to the Courts should you believe that the Respondent is in breach of the Terms of Settlement. We encourage you to seek independent legal advice in this regard, however as, by failing to file a Form 50 in accordance with clause 9 of the Terms, you may also be considered to be in breach.
The Full Bench quotes further correspondence from the Commissioners chambers to Mr Buksh:
The Commissioner reiterates our previous correspondence that the parties reached a concluded agreement at the Member-Assisted Conciliation on Monday 17 September 2018 which did not involve any request from yourself or obligation to the Respondent to provide you with the documentation you now appear to be requesting. Accordingly, any discussions regarding these materials is a matter between the parties and the Commission cannot intervene.
The Commission’s role in this matter is at an end and our file has been closed. If you have concerns regarding compliance with the Terms of Settlement you may wish to seek independent legal advice regarding the enforcement of the terms.
The Full Bench also observed of its own motion at paragraph 21:
To the extent that Mr Buksh contends that he entered into the settlement agreement, and discontinued his application, under duress and at a time when (as he now states) that he suffered from incapacitating mental health difficulties, then the proper course for him is to make an application to a court to have the agreement and discontinuance set aside. However, that is not a matter capable of being dealt with in proceedings brought under section 604 of the Fair Work Act.
The Relevant Test
The Court has been provided with a copy of the recent decision of Abraham J in Abela v Minister for Home Affairs [2021] FCA 96. I have regard, of course, to the matters set out at [8] - [15] of that judgment which was, of course, an application brought pursuant to section 31A of the Federal Court Act 1976 (Cth) which is relevantly indistinguishable from section 17A of the Federal Circuit Court Act 1999 (Cth). That section relevantly provides:
(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.
I respectfully adopt the observations of Abraham J as referred to above and would add only one additional matter which is taken from the judgment of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; [2008] 167 FCCR 372 at [132] where her Honour said relevantly:
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences – but only reasonable inferences – in favour of the non-moving party: [authority references omitted]. I emphasize “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.
THE SUBMISSIONS MADE AT COURT
Counsel for the respondent (the substantive applicant before the Court) addressed the Court only briefly. Counsel pointed to the application for dismissal arising out of the asserted dismissal on 8 March 2018 and the terms of settlement including the release that I have already set out above. Counsel submitted that the applicant seeks to raise claims under the FW Act and seeks to set aside the terms of settlement, but submitted that the release covered all claims in this court. Accordingly, there were no reasonable prospects of success. Counsel further submitted that this Court had no jurisdiction to entertain any application to set the terms of settlement aside.
Counsel for Mr Buksh, took the Court to “HL-5”, noting that the applicant had signed the terms of settlement with modifications. He submitted that it was apparent that the applicant needed legal advice whereas the other side had legal counsel. It was submitted that it was obvious that the applicant was not clearly agreeing, and this invalidated this as an agreement. The bar for summary dismissal is a high one. The applicant should be granted leave to draft something appropriate. But it would be necessary to narrow the context first. It was submitted that there are allegations on underpayment which stem back to the settlement agreement.
CONSIDERATION
The materials filed from time to time by Mr Buksh are, as I have already said more than once, difficult to construe. It does seem to be the case, however, doing the best I can, and as beneficently to him as I can properly be, that he articulates a failure to progress his pay properly in accordance with the relevant enterprise agreement in the years leading up to 2018. But on one occasion, at least, it is said that this arose because he had made a complaint of an injury.
More particularly, it is asserted in the response dated 28 January 2021, that the respondent failed to pay him his wages in accordance with the Enterprise Agreement. Ordinarily, of course, those matters, provided they were appropriately articulated, would be matters capable of giving rise to a claim in this court. The difficulty, however, is that they all predate the terms of settlement. The terms of settlement, which have a familiar ring to them, contain a release in a form often entered into in these circumstances, and they provide a complete bar to the bringing of any application of the sort that Mr Buksh now desires to bring. This, of course, leaves aside the fact that in 2018 Mr Buksh pursued his unfair dismissal claim and did not, as section 365 required, elect within the relevant timeframe, following a receipt of a certificate pursuant to section 368, to bring a claim in this court.
The applicant asserts that the settlement terms were the subject of coercion and duress and they were entered into at a time when he did not have the proper mental capacity to do so.
The objective evidence shows that the Commissioner was of the very clear view that a concluded agreement was reached at the conciliation conference that took place on 17 September 2018. The contemporaneous correspondence shows that the Commissioner felt that the matters upon which Mr Buksh’s counsel now seeks to rely, represented an impermissible endeavour on his part to change the terms of settlement that had previously been freely agreed. Mr Buksh, in conformity with the terms of settlement, ultimately filed his notice of discontinuance which expressly asserted that it was filed pursuant to a concluded agreement.
In the face of these terms of settlement and the release in such clear terms, although this puts the matter shortly, it is immediately apparent that Mr Buksh’s case does not have any reasonable prospects of success. While it does not have to be hopeless or doomed to fail to come within the operation of section 17A, I regret to say that I think it would attract both those descriptors as well.
It has been pointed out, both by the chambers of the Commissioner, and indeed in the Full Bench decision, that if Mr Buksh wishes to as it were set aside the terms of settlement as being on the basis that there is some vitiating quality to them, he is, of course, entitled to make such application as he may be advised. Like the Fair Work Commission, this Court is not a court which can entertain this claim. Counsel for Peninsula Health is correct to submit that this Court simply does not have jurisdiction to entertain it. The endeavour by Mr Buksh to, as it were, put his possible wages claim first and to attach the application to set the terms aside is to put the cart before the horse. If he wishes to bring any application, his first step is to set aside the terms of settlement. While, obviously, it is not this Court’s business to grant Mr Buksh legal advice, any action he may bring in contract or otherwise would plainly be a common law action and not one arising under any statute with which this Court has jurisdiction.
Accordingly, I find that the applicant’s case has no reasonable prospects of success and should be dismissed accordingly.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 12 May 2021
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