Burt v Commonwealth of Australia

Link copied
Case Copied 39 min read

FEDERAL COURT OF AUSTRALIA

Burt v Commonwealth of Australia [2023] FCA 55

File number: NSD 987 of 2021
Judgment of: KATZMANN J
Date of judgment: 7 February 2023
Catchwords: PRACTICE AND PROCEDURE – representative action brought by litigant in person – where respondent complained about deficiencies in the pleading and then filed an interlocutory application seeking orders to strike out and summarily dismiss the proceeding and applicant responded by filing an interlocutory application to strike out the respondent’s interlocutory application and for declarations that respondents’ lawyers had engaged in professional misconduct – whether respondent’s interlocutory application an abuse of process – whether any of the orders sought by applicant should be made
Legislation:

Evidence Act 1995 (Cth) s 140

Fair Work Act 2009 (Cth) ss 87, 90, 550

Federal Court of Australia Act 1976 (Cth) Pt IVA

Income Tax Assessment Act 1997 (Cth) s 51-10

Parliamentary Privileges Act 1987 (Cth) s 16(3)

Federal Court Rules2011 (Cth) rr 16.02, 16.21(1), 16.43(1), 16.51(1)

Legal Profession Act 1987 (NSW)

Legal Profession Uniform Law (NSW) s 296
Cases cited:

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Briginshaw v Briginshaw (1938) 60 CLR 336

British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524

Bruce v Odhams Press Ltd [1936] 1 KB 697

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421

Construction, Forestry, Mining and Energy Union v BHP Coal Ltd (2015) 230 FCR 298

Deputy Commissioner of Taxation v Huang [2021] HCA 43; 96 ALJR 43; 395 ALR 616; 113 ATR 831

Fair Work Ombudsman v Hu [2019] FCAFC 133; (2019) 289 IR 240

Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456

Farah Custodians Pty Limited v Commissioner of Taxation [2018] FCA 1185

Flint v Richard Busuttil & Co Pty Limited (2013) 216 FCR 375

Gould v The Mount Oxide Mines Ltd (in liquidation) (1916) 22 CLR 490

Jackson v Sterling Industries Limited (1987) 162 CLR 612

Lamont v University of Queensland (No 2) [2020] FCA 720

McCabe v British American TobaccoAustralia Services Ltd [2002] VSC 73

Rogers v The Queen (1994) 181 CLR 251

Sabapathy v Jetstar Airways (2021) 283 FCR 348

Walton v Gardiner (1993) 177 CLR 378

Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161

Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 69
Date of last submission/s: 2 September 2022
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr M Seck
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 987 of 2021
BETWEEN:

TRISTAN BURT

Applicant
AND:

COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

7 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The interlocutory application filed by…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Burt v Commonwealth of Australia and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FCA 55
Decision Date

CaseChat Overview and Summary

The case of Burt v Commonwealth of Australia involved a dispute brought by Dr Burt against the Commonwealth of Australia. Dr Burt, acting as a litigant in person, filed a representative action, which the Commonwealth sought to dismiss on procedural grounds. The Commonwealth's interlocutory application raised issues regarding the deficiencies in Dr Burt's pleadings and sought orders to strike out and summarily dismiss the proceeding. In response, Dr Burt filed an interlocutory application to strike out the Commonwealth's application and for declarations of professional misconduct against the Commonwealth's lawyers. The court was required to determine whether the Commonwealth's interlocutory application constituted an abuse of process and whether any of the orders sought by Dr Burt should be made.

The court considered Dr Burt's contention that the Commonwealth's application fell within the categories of abuse of process mentioned by McHugh J in Rogers. Dr Burt argued that the application was brought for the illegitimate purpose of causing confusion and delay, causing undue oppression, and bringing the administration of justice into disrepute. However, the court found that the Commonwealth's application was brought for a legitimate purpose, as its arguments were not unintelligible and had reasonable prospects of success. The court also found that the application was not unjustifiably oppressive to Dr Burt and would not bring the administration of justice into disrepute. Therefore, the court determined that it was in the interests of the administration of justice to allow the Commonwealth's application to proceed.

The court dismissed Dr Burt's interlocutory application to strike out the Commonwealth's application and for declarations of professional misconduct. The court also found that Dr Burt did not need a court order to file an amended statement of claim, as the pleadings had not yet closed. However, the court noted that the Commonwealth would continue to pursue the remedies it sought in its application if the matters raised were not appropriately addressed in the amended pleading. The Commonwealth submitted that the proposed amended statement of claim had numerous deficiencies, including failure to comply with certain rules and ambiguity in the allegations against unnamed individuals.

The court made several orders to facilitate the progress of the case. The interlocutory application filed by Dr Burt was dismissed, and costs were reserved. The parties were directed to confer and agree on a timetable for filing and serving submissions, evidence, and reply submissions. Any agreed or competing timetables were to be forwarded to the Court within seven days. Finally, the Commonwealth's interlocutory application was listed for hearing on a date to be fixed.

Orders

Orders of the court

1. The interlocutory application filed by the applicant on 4 August 2022 be dismissed.

2. Costs be reserved.

3. The parties confer with a view to agreeing on a timetable for:

(a) the respondent to file and serve submissions in support of its interlocutory application;

(b) the applicant to file and serve:

(i) any evidence in response to the respondent’s interlocutory application and/or give notice to the respondent of his intention to rely on evidence already filed; and

(ii) his submissions on the respondent’s interlocutory application;

(c) the respondent to file and serve any evidence and submissions in reply and to provide the Court with soft copies of authorities raised in all the submissions; and

(d) the listing of the respondent’s interlocutory application.

4. Any agreed or competing timetables be forwarded to the Court by email to the Registry within seven (7) days.

5. The respondent’s interlocutory application be listed for hearing on a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In their submissions on the present application, the Commonwealth foreshadowed that it intends to argue that the fact that Dr Burt is unrepresented is relevant to whether the Court should exercise its discretion to summarily dismiss the proceeding. That remains to be seen. If Dr Burt’s own case is reasonably arguable, there are less draconian steps that can be taken, like staying the proceeding until legal representation is obtained or ordering that the proceeding no longer continue as a representative proceeding. If the Commonwealth fails in its interlocutory application, it will be necessary to consider such matters.Conclusion Dr Burt submitted, in effect, that the Commonwealth’s application fell within all three of the categories mentioned by McHugh J in Rogers. He contended that it was brought for the illegitimate purpose of causing confusion and delay by advancing unintelligible arguments with no reasonable prospects of success, causing undue oppression to a self-represented litigant, and, having regard to the fact that the Commonwealth is a model litigant, bringing the administration of justice into disrepute. I cannot accept the submission. The evidence does not support the contention that the Commonwealth’s application was brought in order to cause confusion and delay. The lawyers for the Commonwealth have not acted improperly. The Commonwealth’s application is brought for an entirely legitimate purpose. The Commonwealth’s arguments are far from unintelligible. Moreover, I am not persuaded that they have no prospects of success, although some may be weaker than others. The filing of the application is not unjustifiably oppressive to Dr Burt. Nor would it bring the administration of justice into disrepute. To the contrary, it is in the interests of the administration of justice to allow it to proceed. It will be necessary to make orders to enable it to proceed to hearing. Finally, I am not minded to make the order Dr Burt seeks with respect to the so-called revised statement of claim. In any case, as the pleadings have not closed, Dr Burt does not need a court order to file an amended statement of claim: FCR r 16.51(1). As he recognises, however, even if he does file his amended statement of claim that does not mean that the Commonwealth will not pursue the remedies it seeks in the present application if the matters it has raised are not appropriately addressed in the amended pleading. The Commonwealth submitted that the proposed amended statement of claim has numerous deficiencies. They include:(1)the failure to comply with r 16.43(1), which requires a party who pleads a condition of mind to state in the pleading particulars of the facts on which the party relies;(2)ambiguity in the allegations against unnamed individuals; and(3)the failure to plead the material facts to support the allegation that the unnamed individuals knew the essential elements of the contraventions. In addition, the Commonwealth submitted that the allegations about the conduct of ATO employees proceeded on the incorrect premise that receipt of money taxable as income is determinative of whether the graduate researchers were employees.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.