Carey v Commonwealth of Australia

[2024] FedCFamC2G 389

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Carey v Commonwealth of Australia [2024] FedCFamC2G 389

File number(s):

SYG 1563 of 2023

Judgment of:

JUDGE STREET

Date of judgment:

22 April 2024

Catchwords:

HUMAN RIGHTS – no reasonable prospect of success – application dismissed

Legislation:

Age Discrimination Act 2004 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth)

Cases cited:

Spencer v Commonwealth of Australia [2010] HCA 28

Division:

Division 2 General Federal Law

Number of paragraphs:

6

Date of hearing:

22 April 2024

Place:

Sydney

Applicant:

Self-represented

Solicitor for the Respondent: 

Ms S Gonski of Norton Rose Fullbright Australia

ORDERS

SYG 1563 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GEORGE GORDON CAREY

Applicant

AND:

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE AUSTRALIAN ELECTORAL COMMISSION)

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	22 APRIL 2024

THE COURT ORDERS THAT:

1.Order 1 of the orders dated 6 November 2023 is vacated.

2.The proceedings are summarily dismissed under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

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

JUDGE STREET

1. These proceedings were commenced on 4 October 2023 by the applicant seeking to allege that the respondent was his employer as a result of work for, allegedly, the Australian Electoral Commission and alleged a contravention of section 18 of the Age Discrimination Act 2004 (Cth) (“the Act”) and relying upon section 20 of the Act to contend that the respondent was the principal in respect of the applicant being a contract worker. The respondent filed a response identifying that the respondent was not the employer or a principal of the applicant, and identifying an entity that may have been a potential employer of the applicant.

2. No doubt with good intention, on 6 November 2023, a judge of the Court made an order pursuant to rule 12.01 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) (“the GFL Rules”) seeking to provide pro bono advice for the applicant so that he could consider his options. The Court did take steps to try and endeavour to obtain a legal practitioner willing to assist the applicant. Ordinarily, such an order should not be made where the proceedings have no reasonable prospect of success. In the circumstances of this case, no lawyer has been willing to step forward to assist or advise the applicant.

3. The Court is firmly satisfied that these proceedings have no reasonable prospect of success under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and, sadly, that is no doubt the reason why no lawyer has been willing to provide assistance or advice under rule 12.01 of the GFL Rules. In any event, the proceedings have been before the Court now on five occasions. On the last occasion, the Court made orders giving the applicant a further opportunity to file an amended application and statement of claim and join any additional party if he wishes to do so. The applicant has not done so.

4. The Court raised why the proceeding should not be the subject of an order vacating the order made by the judge of the Court on 6 November 2023 under rule 12.01 of the GFL Rules and dismissing the proceedings on the basis of having no reasonable prospect of success. The applicant indicated that he had endeavoured to engage with the entity that he might have joined but did not put any other submissions as to why the proceeding should not be dismissed. The Court has taken into account the principles in Spencer v Commonwealth of Australia [2010] HCA 28 and is alive to the caution in exercising the Court’s summary powers in terms of dismissal.

5. The facts identified by the applicant in the statement of claim fall short of identifying any basis upon which the respondent could be said to be the employer or that there could be said to be employment within the meaning of the definition in section 5 of the Act, nor do the facts support the respondent being a principal of the applicant and the applicant being a contract worker within section 20 of the Act. There is, on the face the statement of claim, no arguable case in terms of the alleged contravention of section 18 of the Act. This is the type of case where the Court is clearly satisfied that it has no reasonable prospects of success and that the proceedings should accordingly be summarily dismissed.

6. For these reasons, the Court makes the above orders.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street.

Associate:

Dated:       3 May 2024