CHRISTIE v WOOLWORTHS Limited
[2015] FCCA 2211
•17 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHRISTIE v WOOLWORTHS LIMITED | [2015] FCCA 2211 |
| Catchwords: INDUSTRIAL LAW – Application by respondent to strike out applicant’s amended statement of claim and to summarily dismiss the proceedings – duty of Court where litigant self-represented. |
| Legislation: Fair Work Act 2009, ss.369, 340, 343, 351, 345, 341(1) Federal Circuit Court Rules 2001, ss.45.06, 45.08, 43(2) |
| Jones (Bankrupt), in the matter of Jones v Porter (Trustee) [2015] FCA 644 Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 |
| Applicant: | JUSTIN CHRISTIE |
| Respondent: | WOOLWORTHS LIMITED |
| File Number: | MLG 1627 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 6 July 2015 |
| Date of Last Submission: | 6 July 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 17 August 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Mr Connolly |
| Solicitors for the Respondent: | Workplace Law & Consulting |
ORDERS
Paragraphs 1, 2, 3, 4, 6, 12.1 and 13.1 of the applicant’s Amended Statement of Claim filed on 13 February 2105 be struck out.
Otherwise, the respondent’s Application in a Case filed on 27 February 2015 be dismissed.
The applicant file and serve an affidavit on or before 14 September 2015.
The respondent file its defence on or before 5 October 2015.
The parties attend mediation to be conducted by a Registrar of this Court as soon as practicable.
The proceeding is adjourned for Mention on 4 February 2016 at 9.30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1627 of 2014
| JUSTIN CHRISTIE |
Applicant
And
| WOOLWORTHS LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in a Case filed on 27 February 2015, the respondent seeks orders that:
(1)Pursuant to rule 16.21(1) of the Federal Court Rules 2001 the entire pleadings filed by the applicant on 13 February 2015 be struck out and removed from the Court file on the grounds identified in the correspondence attached and to be further submitted to the Court at the hearing of this application.
(2)Pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 the proceeding be summarily dismissed in its entirety.
The applicant claims, by his Amended Application and Form 2 claim filed on 13 February 2015, that the respondent contravened provisions under Part 3-1 – General Protections, of the Fair Work Act 2009 (“the Act”).
Procedural History
The applicant is self-represented. He filed his Application and Form 2 Claim alleging dismissal in contravention of a general protection on 8 August 2014. As the applicant alleged dismissal in contravention of the general protections provisions, he was precluded by s.369 of the Act (as it then applied) from making an application to this Court, until the dispute was dealt with by the Fair Work Commission (“FWC”) and a certificate issued. The FWC issued a Certificate on 28 July 2015.
On 26 September 2014, Registrar Luxton made orders, inter alia, ordering that the applicant file and serve a Statement of Claim by 17 October 2014, the respondent file and serve its response and defence by 31 October 2014 and the parties attend mediation before a registrar on 19 December 2014. The applicant filed and served a Statement of Claim on 17 October 2014.
The applicant filed and served an Amended Application and Statement of Claim on 18 November 2014. This step appears to have occurred following correspondence by the respondent dated 23 October 2014 to the applicant asserting that the applicant failed to comply with the orders made on 26 September 2014.[1] The respondent, through their solicitor, required the applicant to file an Amended Statement of Claim.
[1] Application in a Case, Attachment C
On 19 November 2014, the respondent filed an Application in a Case seeking orders that the Amended Statement of Claim be struck out. On 28 November 2014, Registrar Luxton made orders striking out the Amended Statement of Claim. The orders provided that the applicant file an Amended Application and Further Amended Statement of Claim by 7 February 2015. The mediation was adjourned to 18 March 2015.
The applicant filed an Amended Statement of Claim on 13 February 2015. This document will be referred to in this decision as the Amended Statement of Claim. On 27 February 2015, the respondent filed an Application in a Case, which is the subject of these proceedings. By orders made on 6 March 2015, this matter was listed for hearing (on 6 July 2015) and the mediation date vacated.
The applicant filed a Further Amended Form 2 and a further further amended Statement of Claim on 3 July 2015. The applicant sought leave to rely on this document at the hearing. The respondent opposed this on the basis that this document was received by the respondent on the morning of the hearing and the hearing of the Application in a Case was listed in respect of the further Amended Statement of Claim filed on 18 February 2015. I refused the applicant’s request and the strike out and dismissal application was heard in respect of the applicant’s amended Statement of Claim filed on 13 February 2015.
Approach to Self-represented Litigants
The applicant is self-represented. He describes his position with the respondent during his employment as a Stores Assistant. Following a question from the Court, he stated that as at 2014, he has had a provisional diagnosis of a recurrent depressive condition and generalised anxiety disorder. He says that he attends counselling but is not prescribed medication. There are no medical expert opinions before the Court regarding the applicant’s mental health issues (if any). However, I note that the applicant was, on his material, referred for psychiatric assessment and report by the respondent during the latter part of his employment.
Without being critical of the applicant, I am satisfied that he struggles to represent himself competently in prosecuting his allegations of contraventions of the General Protection provisions of the Act. I note that these provisions are not necessarily readily comprehensible to the lay person.
The superior Courts have dealt with the manner in which proceedings should be conducted by this Court, where litigants are representing themselves. In a bankruptcy appeal from this Court, Katzman J relevantly stated in Jones (Bankrupt), in the matter of Jones v Porter (Trustee) [2015] FCA 644 at [21], [33] to [34]:
“21.It is true, as the trustees submitted, that the application does not adequately state the grounds. It is true, too, that the orders Mr Jones would seek on the appeal are inappropriate. But the applicant is unrepresented. It may be expected that he might not know how to express his grievances in a way that conforms to the Court’s requirements…….
33. The FCCR are designed to assist the just, efficient and economical resolution of proceedings: r 1.03(1). But the right balance needs to be struck. It is no accident that the Rules give pre-eminent position to the adjective “just”. The just resolution of proceedings includes adherence to due process. Sometimes applications appear to be baseless but, upon close examination, there is a good point. The good point might easily be overlooked when efficiency becomes the overriding consideration. In this case, having reached a preliminary view that there were no reasonable prospects of the applicant succeeding, the primary judge should have listed for hearing the question of whether the proceeding should be summarily dismissed. That would have given each party, but most importantly Mr Jones, a fair opportunity to marshal his evidence and make his submissions and to do so in person and through a lawyer if he so chose.
34. It is salutary to recall what was said in Wentworth v Rogers (No 5) (1996) 6 NSWLR 534 at 536:
[T]he appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of Action which, with appropriate amendment of the pleading and a little assistance from the Court, could be put into proper form...”
In Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150, the High Court observed that a “frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”. In Glew v Jasper [2010] WASCA 87 at [10], Newnes JA and Murphy J referred to this observation and continued:
“[The Court] must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the Court.”
In SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, Robertsom J (with whom Allsop and Mortimer JJ concurred) stated at [37]:
“In Hamod v State of New South Wales and Anor [2011] NSWCA 375 the Court, Beazley, Giles and Whealy JJA, said:
Courts’ duty to unrepresented litigants
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95. In MacPherson Mason J, at [31] 534, noted that:
A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.
[310] However, the Court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]–[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the Court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v New South Wales (No 2) [2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
But the Court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a Court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant.
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the Court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
In determining these proceedings I have had regard to the guidance provided by the superior Courts regarding the approach to be adopted by the Court to self- represented litigants.
Strike Out of Proceedings
Rule 45.06 and 45.08 of the Federal Circuit Court Rules 2001 (“the Rules”) deal with contraventions of the General Protections provisions of the Act. They provide that an application must be in accordance with the approved form and accompanied by a claim in accordance with the approved form. Note 3 to each of these Rules provides that:
Note 3: An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.
These Rules make it clear that an application claiming contravention of the General Protection provisions of the Act does not require the filing of an affidavit, statement of claim or point of claim as prescribed by rule 4.05 of the Rules. It is in this context that it can be said that, so far as applications alleging contraventions of the general protection provisions of the Act, this Court is not a Court of strict pleadings.[2]
[2] Leske v Trinity Lutheran College Mildura [2015] FCCA 572 at [13].
The applicant complied with rule 45.06, in that he filed an Application in accordance with the approved form together with a claim in accordance with the approved form (Form 2).
Although he was not required to do so under the Rules, Registrar Luxton, following a directions hearing, subsequently ordered the applicant file a Statement of Claim. As can be seen from the history of these proceedings (see above) this set in train a series of return dates before the Registrar, following Applications in a Case made by the respondent seeking orders that the pleadings be struck out. The consequence is that, at the date of this hearing, the respondent has not yet filed a response and the parties have yet to attend alternative dispute resolution by way of mediation.
Although the Rules of this Court do not provide for pleadings, s.43(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r 1.05 of the Rules provide that if the Rules are insufficient or inappropriate the Court may apply the Federal Court Rules 2011 (Cth) with necessary modifications to the practice and procedure of this Court.
The respondent seeks an order that the applicant’s pleadings, by which I take them to mean the amended Statement of Claim, be struck out, pursuant to rule 16.21(1) of the Federal Court Rules 2011.
Rule 16.21(1) of the Federal Court Rules 2011 provides that:
Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
These general rules concerning pleadings need to be considered in the context of the FCCA Act. Sub-section 3(2) and (b) provides that the objects of the Court are:
(a)to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and
(b)to enable the Federal Circuit Court of Australia to use streamlined procedures
Rule 1.03 of the Rules relevantly provides that:
(1)The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2)In accordance with the objects of the Act, the Rules aim to help the Court:
· to operate as informally as possible
· to use streamlined processes
· to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their object.
There is also an obligation on the parties to avoid “undue delay, expense and technicality”: r.1.03(4).
In Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at [21] this Court observed, in relation to the FCCA Act and the Rules, that:
“21.Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.”
The Federal Court dealt with the issue and nature of pleadings required in this Court in Sterling Commerce v Iliff (2008) 173 IR 378 (“Iliff”).
In Iliff it was alleged that an issue determined by this Court was not raised by the pleadings, evidence or submissions before it. The Federal Court (on an appeal heard by a single Judge) said as follows at [21]:
“21. In considering this ground of appeal, “the philosophy of the Federal Magistrates Act and the intention of the Attorney-General at the time of the introduction of the Federal Magistrates Bill” in establishing the Federal Magistrates Court cannot be ignored (per Lander J in Rana v University of South Australia (2004) 136 FCR 344 at [34]): see also Granada Tavern v Smith [2008] FCA 646; (2008) 173 IR 328 at [106]. As Lander J stated in Rana at [37]:
The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice. It is a Court which should proceed without undue formality and should ensure that the proceedings are not protracted: s.42. It has abandoned the formal procedures of superior Courts. That course is consistent with the Act and the FMC Rules.
See also O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455 where the Full Court of the Federal Court (Carr, Moore and Marshall JJ) said at [16]:
We are prepared to accept that in a case such as the present MBF was entitled to know, as a matter of procedural fairness, that s.51A was relied on either expressly or by clear implication. It is unnecessary to address the question of whether it needed to be pleaded in this case particularly having regard to the comparative informality created by the legislative scheme governing the Federal Magistrates Court including its Rules.
In considering a strike out application this Court stated in Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546 at [20]:
“20.The Court recognises that in determining to strike out all or part of a pleading it must exercise a discretion, and that that discretion is one to be exercised with caution having regard to the objects of the Federal Magistrates Act 1999 (Cth) and FMC Rules, and modern case management techniques.”
Submissions
The respondent relies on correspondence sent by its solicitor to the applicant over the period 23 October 2014 to 17 February 2015. Copies of this correspondence are contained in attachments to the respondent’s Application in a Case filed 27 February 2015. The gist of this correspondence is that applicant’s Statement of Claim and the two Amended Statement of Claims fail to comply with the Orders of the Court and the Court’s rules.
The defects the respondent identifies in the correspondence are that the Statement of Claims:
a)are a lengthy narrative bearing no resemblance to a proper pleading in accordance with the Federal Court Rules: r16.02;
b)fail to disclose a proper or reasonable cause of action or specify the relief the applicant seeks;
c)is unintelligible and embarrassing in its form and substance so that the respondent is unable to sensibly respond in a Defence;
d)is evasive and ambiguous and fails to identify the alleged contravention of Act and “how, when where, who or why” it is said the provision of the Act were contravened;[3]
e)contains irrelevant scandalous frivolous and vexatious material unconnected to any breaches of the Act;
[3] Attachment I
The general thrust of the respondent’s objection are captured in the following extracts from the correspondence dated 17 February 2015:[4]
“We are in a strict Court of law with strict Court Rules and processes in place to manage a very busy Court…………
…..this is now your third attempt at a SOC and again your attempt fails appallingly short of what is required by the Court……………………
….your latest attempt at an ASOC….does not follow the Court Orders or the Rules of the Court in any shape or form. You have again failed to heed the comments of the Court or comments by me in my earlier correspondence to you. Despite being on clear notice, you have again failed to provide a document that my client can properly and sensibly address and answer in a Defence.
…Your latest attempt …is replete with nonsensical diatribe, making it virtually impossible for my clients to sensibly identify the alleged breach of the FW Act and what lucid alleged facts are behind the alleged breach….”
[4] Attachment A.
In oral submission, Mr Connolly for the respondent, submitted that the amended Statement of Claim is defective because it contains a “lot of ramble”, no workplace rights or adverse actions are identified which are linked to particular facts or circumstances so as to enable his client to reasonably formulate a defence.
The respondent submits that the applicant has had ample opportunity to plead a reasonable cause of action and has not yet done so. The respondent relies a decision of Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511(White Industries) at [47] which was referred to in the joint judgment of French CJ and Gummow J decision of the High Court in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 (“Spencer”), for the proposition that the failure, after ample opportunity has been given, to plead a reasonable cause of action may suggest that none exists.
The applicant says that he has approached organisations, such as Law Connect, to enable him to prepare an acceptable Statement of Claim. He believes that, given an opportunity, by continuing to access pro bono legal assistance, he will be able to produce a Statement of Claim that meets the requirements of the rules. He submits that he can see now, with the benefit of further advice from Law Connect, that the Amended Statement of Claim is deficient in many respects. He said that he does not press paragraphs 1 to 4 of the Amended Statement of Claim. Accordingly, I will make an order striking out paragraphs 1 to 4 of the Amended Statement of Claim.
Consideration
It is manifestly clear to me that, notwithstanding the effort the applicant has made in redrafting his original Statement of Claim, he does not have the capacity to prepare a Statement of Claim that conforms in all respects with the requirement of Rule 16.02 of the Federal Court Rules 2011. This is not intended to be a criticism of him but an acceptance of the applicant’s particular circumstances.
The Amended Statement of Claim is not expressed clearly. I suspect the applicant has difficulty connecting the facts and circumstances that he relies on with the elements of the contraventions of the General Protection provisions of the Act that he alleges. I have no doubt that the issue the applicant wishes to identify are obfuscated by the density of his narrative and somewhat clumsy English expression. I observe that the applicant tends to become somewhat distracted by unnecessary and unrelated references when making submissions. I am satisfied that this is not deliberate but rather reflects his own idiosyncratic style.
I do not agree with the respondent’s unfortunate view that the applicant’s Amended Statement of Claim “is replete with nonsensical diatribe.” It seems to me that the respondent has focused on the form and expression of the contents of the Amended Statement of Claim, largely based on its misconceived view that this is a Court of strict pleadings, rather than make the effort (and I accept this would require a deal of effort) to identify from the body of the Amended Statement of Claim, the issues the applicant wants the Court to resolve and the facts the applicant relies on to support his claim. I must say, having heard from the applicant and observed him during these proceedings, I am at a loss to understand why the applicant was ordered to file and serve a Statement of Claim.
Rule 1.03(3) provides that this Court should apply the rules in accordance with the objects of the Rules. Those objects (which reflect the objects of the FCCA Act) provide that the Court should operate as informally as possible with the purpose of providing just and economic resolution of issues in dispute.
No doubt where litigants are corporate bodies or legally represented, the application of the Federal Court Rules (including those rules relating to the content of the statement of claim and strike out) may well be appropriate where this Court’s Rules are silent.
In the present circumstances, the applicant is self- represented and, in my view, is not capable unaided of drawing up a pleading that necessarily identifies with precision the elements of his cause of action (contraventions of the General Protections provisions of the Act). I am satisfied that to require the applicant to produce a Statement of Claim that is in conformity with the relevant rules of the Federal Court Rules 2011, may well deprive the applicant of the opportunity to have his claims determined in accordance with the law: Wentworth v Rogers.
Consequently, I find that, in accordance with s.43(2) of the FCCA Act, rule 16.21(1) Federal Court Rules 2011, can only be applied with significant modification so that the pleading in question must, on a fair reading, identify in general terms the issues that the party wants the Court to resolve, the material facts on which the applicant relies disclose a reasonable cause of action.
In accordance with the relevant authorities, during the course of proceedings, I took the applicant through his Amended Statement of Claim (from paragraph 5 onwards), and asked him to identify the particular provision of the General Protection provisions of the Act he alleged had been contravened and to identify the relevant elements that constitute that contravention. Having gone through that process I am satisfied that the applicant has identified the following issues he wants resolved, the elements of the contraventions he alleges and the material facts he relies on.
By reason of paragraphs 5, 10 and 11 of his Amended Statement of Claim and paragraphs 10 and 11 of the attachment to his Form 2, the applicant alleges the respondent contravened section 340 of the Act in that:
a)He exercised a workplace right by making a bullying complaint at a meeting held in or around 16 May 2013 to Ms Nella Bennett, Regional Human Resource Manager and, in or around 24 September 2013, by making a bullying complaint to his store manager (who was the perpetrator);
b)the respondent took adverse action against the applicant because he exercised this workplace right by:
i)suspending him from his employment on 16 May 2013 (or shortly thereafter);
ii)issuing the applicant with a notice of formal counselling on or around 2 October 2013;
iii)issuing the applicant with a final written warning on 5 December 2013; and
iv)dismissing him on 13 December 2013.
By reason of paragraph 6 of his Amended Statement of Claim, the applicant alleges the respondent contravened section 343 of the Act in that:
a)The applicant exercised or proposed to exercise a workplace right; namely, his right to work in an environment which is safe and without risk to his health by returning to work to suitable duties;
b)The respondent took action to coerce the applicant because he exercised this workplace right by:
i)Threatening him, in correspondence dated 14 June 2013, that his employment was at risk unless he attended a further medical assessment with Dr Jaegar, when he had already been assessed by Dr Shan; and
ii)Refusing to release the psychiatric assessment report of Dr Shan to the applicant.
By reason of paragraph 7 and 9 of his Amended Statement of Claim and paragraph 7 and 9 of the attachment to his Form 2, the applicant alleges the respondent contravened section 351 of the Act in that:
a)The respondent required the applicant, during the period 14 June 2013 to 4 July 2013, to attend a further medical assessment with Dr Jaegar, when he had already been assessed by Dr Shan;
b)The respondent required him to undertake the further psychiatric assessment to ascertain whether he could perform the inherent requirements of his position; and
c)The respondent required him to undertake the further psychiatric assessment because of his sexual orientation;
d)The applicant was assessed by Dr Shan as incapacitated for normal work because of his mental disability;
e)The respondent, at an interview conducted with the applicant on 18 July 2013, told the applicant that he was required to return to work in his normal fulltime position and undergo performance management;
f)The respondent’s requirement that he return to work in his normal fulltime position and undergo performance management discriminated against him because of his mental disability.
By reason of paragraph 8 of his Amended Statement of Claim and paragraph 8 of the attachment to his Form 2, the applicant alleges the respondent contravened section 345 of the Act in that:
a)The applicant was entitled to the benefit of a workplace right; namely, his right to work in an environment which is safe and without risk to his health by returning to work to suitable duties;
b)The respondent knew or was reckless about its duties under relevant occupational, health and safety law;
c)The respondent, at an interview conducted with the applicant on 18 July 2013, told the applicant that he was required to return to work in his normal fulltime position and would be subject to performance management; and
d)This requirement was misleading.
By reason of paragraph 12.1 of his Amended Statement of Claim and paragraph 12 of the attachment to his Form 2, the applicant alleges the respondent contravened section 352 of the Act. I am not able to identify any issue or the material facts relied on by the applicant in order to be satisfied that it is reasonably arguable that the applicant was dismissed because he was temporarily absent from work because of illness or injury: see s.352.
Accordingly I would strike out paragraph 12.1 of the applicant’s amended Statement of Claim.
I am also unable to understand at all the contravention of the Act alleged by the applicant under his paragraph 13.1 of his amended Statement of Claim.
Accordingly I would strike out paragraph 13.1 of the applicant’s amended Statement of Claim.
The relief the applicant seeks is set out at paragraph 14 of the amended Statement of Claim. He seeks general damages, in the amount of $45,00.00 as compensation for economic loss and for psychiatric injury, pecuniary penalties and exemplary damages
Turning to the question of whether the applicant has disclosed a reasonable cause of action. Bearing in mind that the respondent is yet to file its defence, I have taken the applicant’s case at its highest: namely, that the facts he relies on (for example, that he made a bullying complaint, that he was suspended, that he had a mental disability) are proven.
I am satisfied that the applicant has a reasonable cause of action with respect to his alleged contravention of s.340 of the Act. The meaning of workplace right is set out in s.341(1) of the Act which provides:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
I am satisfied it is reasonably arguable that the applicant was at all material times during his employment with the respondent entitled to the benefit of the Occupational Health and Safety Act 2004 (Vic) which places a duty on an employer to maintain a work environment that is safe and without risk to health: s.21. Assuming the applicant communicated his grievance about being bullied to the respondent’s Human Resources Manager and to his supervisor, then the applicant can have said to have made a complaint: Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271, Dodds-Streeton J at [39]. In Ratnayake v Greenwood Manor Pty Ltd[2012] FMCA 350, Riley FM held, correctly in my view, that “an implicit but clear complaint is sufficient for the purposes of s 341(1)(c)(ii) of the Act” (at [117]). Further the making of a complaint about bullying and harassment by an employee of the employer is most likely a complaint in relation to the applicant’s employment: Construction, Forestry, Mining and Energy Union (CFMEU) v Pilbara Iron Co (Services) Pty Ltd (No.3) [2012] FCA 697 (“CFMEU v Pilbara”) Katzmann J at [61] to [64] Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456 Bromberg J at [41] to [42].
The applicant claims that the adverse action the employer took against him was suspension from employment, the issuing a notice of formal counselling and final warning and his dismissal from this employment. Section 342(1) of the Act sets out the meaning of adverse Action and relevantly provides:
(1) The following table sets out circumstances in which a person takes adverse Action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
Having regard to the authorities, reviewed by Mortimer J in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [133] to [137], it can be said that in certain circumstances, the initiation of an investigation into an employee may fall within the scope of the phrases “injures the employee in his or her employment” and “alter the employee’s position to his/her prejudice”. I am satisfied that it is arguable that the suspension from employment, the issuing a notice of formal counselling and a final warning falls within the scope of action which alters the position of the employee to his prejudice.
Accordingly, I am satisfied paragraphs 5, 10 and 11 disclose a reasonable cause of action.
The applicant alleges the respondent contravened section 343 of the Act. Section 343 relevantly provides:
(1) A person must not organise or take, or threaten to organise or take, any Action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
As I have earlier stated, it is reasonably arguable that the applicant was at all material times during his employment with the respondent entitled to the benefit of the Occupational Health and Safety Act 2004 (Vic). I am unable, however, to understand, as a matter of logic, how a requirement by the respondent to attend a further medical assessment, even if accompanied by a threat that his employment was at risk, can be said to be action intended to coerce the applicant to exercise or not exercise a workplace right. Nor am I able to understand, as a matter of logic, how the refusal by the respondent to release a medical assessment of the applicant can be said to be action intended to coerce the applicant to exercise or not exercise a workplace right.
Consequently, I find that the applicant’s alleged contravention of s.343 is not reasonably arguable and, accordingly paragraph 6 of his Amended Statement of Claim should be struck out.
The applicant alleges the respondent contravened section 351 of the Act. Section 351 relevantly provides:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law :
……………………………..
(ab) the Disability Discrimination Act 1992 ;
………………………………
(ad) the Sex Discrimination Act 1984 ;
……………………………………
(b) the Equal Opportunity Act 2010 of Victoria;
………………………………………………
The issue of the applicant’s alleged sexual orientation and mental disability is primarily a question of fact to be determined at trial (if it is disputed). This is also true of the applicant’s allegation that he was required by the respondent to undertake a further psychiatric assessment and that this was for the purpose of ascertaining whether he could perform the inherent requirements of his position.
The next issue would the determination of whether there was adverse action. In all probability the focus would be on s.342(1) Item (c) and (d). In Sayed, Her Honour Mortimer J stated at [133] that, “an investigation which threatens the possibility of dismissal (as in the present case) will operate to reduce the security of future employment of the employee concerned.” It may well be, in my view, reasonably arguable that a medical assessment to ascertain the capacity of an employee to perform the inherent requirements of a position, operates to reduce the security of the applicant’s future employment. Consequently, this action may fall within s.342(1) Item (c) and (d).
Whether the action of requiring the applicant to attend for a further medical assessment was because of his sexual preference is a matter to determine at trial.
By the same reasoning as [62] above, the requirement by the respondent to undergo performance management may fall within the scope s.342(1) Item (c) and (d).
The applicant’s allegation that the requirement that he return to work on normal duties discriminated against him because of his mental disabilities seems, on its face, to fall within the vice identified by Perry J in RailPro Services Pty Ltd v Flavel (RailPro) [2015] FCA 504, in that the applicant’s allegations may be characterised as an allegation that the requirement to undergo performance management whilst performing his normal duties discriminates (indirectly) against him because of his mental disability: s.6(1) Disability Discrimination Act 1992 (Cth). On Perry J’s reasoning at [110] to [114], unless the respondent can be said to have taken action to require the applicant to undergo performance management whilst performing his normal duties “because of” his mental disability, s.351 is not contravened. The resolution of this necessitates in my view legal argument and determination at trial.
Consequently, I am satisfied that paragraphs 7 and 9 disclose a reasonable cause of action.
The applicant alleges the respondent contravened section 345 of the Act. Section 345 provides:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
As I have earlier stated, it is reasonably arguable that the applicant was at all material times during his employment with the respondent entitled to the benefit of the Occupational Health and Safety Act 2004 (Vic).
In my view, it is reasonably arguable that a requirement that an employee perform his normal duties when he is unfit to return to work other than in modified or suitable duties would be inconsistent with those duties. Whether the applicant was incapacitated for his normal duties and was fit to perform modified or suitable duties is a question of fact to be determined after the testing of evidence.
The question whether the respondent knew or was reckless about its duties under relevant occupational, health and safety law is largely a question of fact, guided by the authorities regarding the meaning of the concepts “reckless” and “knowingly,” to be determined after final hearing.
Accordingly I am satisfied that paragraph 8 discloses a reasonable cause of action.
Conclusion
For the reasons set out above I would make an order striking out paragraphs 1, 2, 3, 4, 6, 12.1 and 13.1 of the applicant’s amended Statement of Claim.
Summary Dismissal
Rule 13.10 of the Rules, under which these interlocutory proceedings are brought, provides as follows:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Note:For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.
These provisions are not concerned with defects in the pleadings but with the substance of the substantive application.
In Spencer, French CJ and Gummow J said at [23] to [25] of their joint judgment:
“Accepting that there are a number of ways in which s.31A may be applied to empower the Federal Court to dismiss a proceeding, it is to be distinguished, in its application to deficient pleadings, from rules (such as O 11, r 16 of the Federal Court Rules) which provide for the striking out of pleadings. As Lindgren J said in White Industries Australia Ltd v Federal Commissioner of Taxation:
“[E]vidence may disclose that a person has or may have a ‘reasonable cause of Action’ or ‘reasonable prospects of success’, yet the person’s pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but … s.31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of Action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of Action and the pleading of a reasonable cause of Action remain distinct concepts.”
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of Action or on the basis that the Action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in FanCourt v Mercantile Credits Ltd said:
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
More recently, in Batistatos v Roads and Traffıc Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s.31A. That proposition, however, is not inconsistent with the proposition that the criterion in s.31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the Court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success (footnotes omitted).
Likewise, having considered the authorities in relation to the application of s.31A of the FC Act, Reeves J in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 (Cassimatis) at [47] to [50] concluded:
“47.Accepting there can be no “hard and fast” rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.
48.Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.
49.Then there are proceedings involving questions of fact and law, or mixed questions of fact and law. Because this combination or mixing of factual and legal questions usually gives rise to the sort of complexity that traditionally requires a trial, where the Court is satisfied that this combination or mixing exists in the proceedings, it should, as a general principle, be particularly cautious about ordering summary determination. In other words, the moving party on an application for summary dismissal would, as a general principle need to show a substantial absence of merit on either of the question of fact or law concerned, or where the two questions are mixed, on the mixed question, before having any chance of success in persuading the Court that questions of these kinds should be resolved summarily.
50.Finally, these authorities show that there are at least two other factors that need to be borne in mind on a summary judgment application such as this. The first is that, in all the situations outlined above, the Court has a discretion as to whether to determine the proceedings summarily, or to refer them to trial. Of course, as with any such discretion, it has to be exercised judicially: see Latoudis v Casey (1990) 170 CLR 534 at 569 per McHugh J, quoting Donald Campbell & Company v Pollak [1927] AC 732 at 811-812 per Viscount Cave LC. Secondly, while s 31A sets a lower bar, or a softened test, for the summary determination of proceedings, any such summary determination still has to be approached with caution. This is so because a trial is the usual and accepted means by which disputed questions of fact are determined in this country.[5]”
[5] [2013] FCA 641 at pp.18-19.
Although the respondent sought an order that the proceedings be summarily dismissed, its submissions focused almost entirely on the defects in the pleadings and not the matters which the Court is required be satisfied of in exercising its discretion under r. 13.10 of the Rules.
No submissions were made that:
a)Any question of fact was fanciful, trifling, implausible, improbable, tenuous; or
b)A question of law is well settled and can be dealt with summarily without the necessity for trial.
(see Cassimatis)
To be fair, the respondent would no doubt argue that the Amended Statement of Claim was so defective that it was unable to identify the facts relied on by the applicant nor a question of law which arose from the pleadings.
Nevertheless, on the submissions before the Court and having regard to my findings at [53] to [72] above, I am not satisfied that the applicant has no reasonable prospect of successfully prosecuting his case.
Conclusion
Consequently, I would dismiss the respondent’s application that the proceedings be summarily dismissed.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 17 August 2015
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