Evans v SAE Institute Pty Limited
[2024] FedCFamC2G 675
•22 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Evans v SAE Institute Pty Limited [2024] FedCFamC2G 675
File number(s): BRG 436 of 2023 Judgment of: JUDGE VASTA Date of judgment: 22 July 2024 Catchwords: INDUSTRIAL LAW – general protections – application which was deficient – order to file an amended application which established a cause of action – amended application still deficient – order to file a statement of claim – applicant did not file statement of claim – application by respondents for dismissal because of default by applicant where applicant claims that previous amended application was sufficient – applicant in default – application dismissed. Legislation: Fair Work Act 2009 (Cth) – ss 340, 344, 433, 550
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 – r 13.04, r 13.05
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 22 July 2024 Date of hearing: 22 July 2024 Place: Brisbane Counsel for the Applicant: the Applicant appearing on his own behalf Counsel for the Respondents: Ms Willoughby Solicitor for the Respondents: Citation Legal ORDERS
BRG 436 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTIAN PAUL EVANS
Applicant
AND: SAE INSTITUTE PTY LIMITED
First Respondent
LUKE MCMILLAN
Second Respondent
WENDY STONE
Third Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
22 JULY 2024
THE COURT ORDERS THAT:
1.The application filed on 11 September 2023 as amended on 24 February 2024 be dismissed.
2.There be no order as to costs.
IT IS NOTED THAT
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex tempore)JUDGE VASTA
On 11 September 2023 the applicant, Christian Paul Evans, brought proceedings alleging that the first respondent company, SAE Institute Pty Ltd, had engaged in contraventions of the Fair Work Act. Namely, section 340, which is the General Protections section, section 433, Coercion, and section 344, Undue Influence or Pressure.
He asked for compensation and a pecuniary penalty and had quantified those damages in the sum of $66,987.36, which would seem, rather than it being for the contraventions of those three sections, being underpayments in that he was not paid overtime, though he does also claim a loss of opportunity damage.
When the matter came before me as a first court date on 4 December 2023, the applicant represented himself, and Ms Byrne, who was a solicitor, appeared on behalf of the respondent.
I explained to the applicant, as I do with all persons who are representing themselves, that these matters are extremely difficult, that many lawyers do not understand the niceties of the “general protections” legislation and that, whilst it is not an impossible road to hoe for an unrepresented litigant, it is certainly going to be very difficult.
I also explained to the applicant that, whilst he is not disadvantaged at all in representing himself, he is not advantaged either. By that, as I explained to the applicant, he is responsible for complying with Court protocols and Court orders. I told him that the Court will explain what it is that a Court orders him to do but, if he does not do it, he cannot simply say, "Well, I'm unrepresented, so I didn't know." I told him that sort of excuse does not wash and, if it is that he is going to take on the mantle of representing himself, he is deemed to be able to do so.
The applicant accepted those matters. I then explained to the applicant that his application fell very much short of explaining how it was that there had been any contraventions of the Fair Work Act. I explained to him that he had given no detail whatsoever and, having regard to that, the respondent did not know at all what it was that the applicant was alleging against the company.
After giving the applicant a very thorough explanation of what he needed to show in the application to justify what I said we lawyers call a cause of action, I made an order that he file and serve an amended application that detailed the cause of action and I ordered that he do so by 11 January.
I adjourned the matter until 15 January 2024. I made a note that, in the event the amended application did not disclose the cause of action, the respondent was likely to ask the Court to dismiss the proceedings on 15 January 2024. This made it very clear to all and sundry, and especially to the applicant, Mr Evans, that he needed to do something to show to the Court that he was going to comply with that order for him to file a proper amended application.
The applicant did not file an amended application but, instead, filed an affidavit on 8 January 2024. In that affidavit, the applicant tried to give the factual scenario that caused him to bring the application in the first place. The respondent filed an application for summary dismissal on 12 January 2024. The matter then came before me on 15 January.
What I explained to the applicant was that this affidavit still did not truly particularise what it was that he was arguing. He had put matters under headings of Exercise of Workplace Right, Adverse Actions, Undue Influence or Pressure, Coercion, Dismissal, Fair Work Application and Case. I explained to him that it still needed to be put into an amended application or, more properly, what may be a statement of claim, but I left it as an amended application.
Having explained in greater detail what it was that was needed, the order I made on 15 January was that he file and serve an amended application by 4 pm, 26 February 2024. I ordered that, in the event the respondent wishes to pursue their application for summary dismissal, they had to file and serve an outline of their submissions by 11 March, and that the matter be adjourned to 18 March.
The applicant did file an amended application. What he annexed to that amended application was titled “Statement of Claim”. In that “statement of claim”, the applicant added two persons as the second respondent and the third respondent respectively (but there was no application made by the applicant to add parties to the original claim). Whilst the statement of claim was written in the proper form, it was still very light on particularity such that it was very difficult for me, as the judge, to understand what it was that the applicant was claiming.
The respondent still submitted that the matter should be dismissed because they had no idea as to what case they needed to meet. What I did on that day was I went through the statement of claim with the applicant and explained to him what needed to be added into the statement of claim so that they were particulars.
I had explained to the applicant that he needed to tell me what his duties were, how it was that he was being asked to perform other duties, how those other duties were different to the duties that he was undertaking, why it was that they could not be classified as being within the duties that he was already undertaking, and why it would be that they would cause him to have to spend more time at work.
I spoke to him about his claim for underpayment. I said that he needed to properly outline what that was. I gave an example that a person may claim “I worked on this day according to my contract and should have been paid this amount but was only paid a lesser amount; therefore, I have been underpaid by X amount”.
I told the applicant that when he has to particularise what relief he is seeking, he needed to properly specify that he wished for X dollars as rectification for underpayments, Y dollars for lost earnings (and how he has calculated this). I told the applicant that he had to show what he had done to mitigate the loss.
I told the applicant he needed to specify how it was that he had been hurt or humiliated and why it went beyond the normal level of hurt, humiliation and distress that one might expect.
I noted that the applicant had claimed compensation for breach of contract, and I asked the applicant how this amount was different from compensation for lost earnings. I told the applicant that these things needed to be ironed out before the respondent could reply to his claims.
I said that he needed to flesh out what, if any, conversations and/or directions were had so that one could understand whether what it was that he was saying could be actually construed as being a workplace right; that is a complaint about his employment.
I told the applicant that, after he files his proper statement of claim, the respondent would file a defence. I said that affidavits would be filed after that and then the parties could enter into a mediation.
Having told the applicant that these were the deficiencies in the “statement of claim” - which was still, at that time, part of the amended application - the applicant told the Court that he understood why it was, and he appreciated that the Court was going to give him a third chance to properly plead his case. This was done despite the gentle protestations of the respondent. I say “gentle”, because the respondent was not wanting to deny an unrepresented applicant justice, but they were being prejudiced further and further by having to wait for the applicant to get his case right.
Convinced by what the applicant had said, I did not feel the need for any further mention because he knew what it was that he had to do with regard to the statement of claim.
What I ordered then was that the respondents file an amended response by 16 April but that the applicant file and serve a statement of claim by no later than 4pm on 14 May 2024.
The respondents would then file a defence, the applicant would file any reply by a certain date and the parties would file affidavit material, and then the matter would be referred to a registrar of the Court. If the matter did not settle before the Registrar, the matter was to come back before me on 21 October. I have been told that the Registrar has since set 10 September down as a mediation date.
The respondent did file their amended response, but the applicant did not file a statement of claim in accordance with those orders.
The respondent had correspondence with the applicant in this regard and the response, in effect, was that the applicant was not going to file a statement of claim.
On 12 June, the respondents filed an application in a case seeking that orders 3 to 10 of those orders on 18 March be vacated; that the application of the applicant be dismissed pursuant to rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (“the Rules”) because the applicant was in default. As an alternative, that the amended application of 24 February would be dismissed pursuant to rule 13.13 of the Rules on the basis that the applicant has no reasonable prospect of prosecuting the application; and, in the alternative to those two orders, that the statement of claim filed on 24 February would be struck out in its entirety on the basis that it fails to disclose a reasonable cause of action.
The applicant filed an affidavit then on 12 July of this year. In that affidavit, the applicant said that the claim by the respondent (that the applicant had failed to comply with the second order, that is, the order that he file a statement of claim) was egregious insofar as it failed to disclose in what way he had failed to comply with my orders of 18 March 2024. The applicant wrote, in this regard:
[5] I note my Amended Statement of Claim and Application (ASOC) was served on the Respondent on 26 February 2024.
[6] I consider the Respondent's Application fails to have regard to the content of the ASOC, which particularises:
(a) workplace rights;
(b) contraventions of the FW Act;
(c) the causal connection between the exercise of workplace rights and contraventions of the FW Act, Part 3-1;
(d) the knowing involvement of others by reference to the FW Act, section 550;
(e) other contraventions involving a Modern Award; and
(f) putting the Respondent on notice of my intention to further amend the ASOC by repleading following sufficient information being provided regarding underpayment under a Modern Award [sic].
The applicant wrote, in respect of the respondent's contention inferred from the matters:
[7] …I note the respondent, while maintaining that the ASOC does not “disclose a “reasonable cause of action” (which is rejected), has not written to me on this point.
[8] Effectively, if it were the case the ASOC had no reasonable prospects of success, or otherwise lacked a reasonable cause of action, I consider it would be appropriate to write to me in respect of same and put me on notice as to its deficiencies.
The applicant also filed an outline of submissions. In those “outline of submissions”, the applicant wrote:
[2]Orders of the Court are subject to ordinary rules of construction. in [sic] this regard, orders of the Court should be read on the whole and as a view to give positive emphasis towards the aims of the Court contemplated when giving such orders.
[3]It is not the position that the Court’s orders should be considered as to be otiose and therefore lack requirement to be followed. Instead, parties before the Court should be viewed as proactively engaging with their obligations to the Court and other parties in litigation in progressing their matter in a considered and appropriate way, which is consistent with the philosophical and overarching policies which require expedient and effective resolution of matters..
[4]In this matter, the Applicant has filed and served the ASOC on 26 February 2024. Notwithstanding, the 18 March 2024 Orders oblige the Applicant to file and serve, what may very well be, the same ASOC.
[5]The Respondent contends the Applicant has failed to comply with the 18 March 2024 orders, insofar as the Applicant has not re-filed or re-served the same ASOC. In the circumstances, it appears the Respondent has construed the 18 March 2024 orders so narrowly as to impermissibly oblige the Applicant to engage in a redundant process which, objectively, the Court very well likely did not consider would befall the Applicant.
What is clear is that someone else wrote these submissions, and the applicant has simply put his name to them. That became very clear when I asked the applicant, "What does the word "otiose" mean?" He said it means "difficult". It, in fact, means, in effect, "unnecessary", or “serving no practical purpose”; it does not mean that it is difficult.
It was also, obviously, written by someone who was not present on 18 March where it was that I specifically went through what the failings were with regard to the statement of claim.
The matter was heard before me today in relation to the respondent's application for dismissal by default. The respondent pointed to the fact that the applicant has had three chances given to him by the Court and still has not progressed this matter. This is especially so since 18 March 2024, which has led the Court to be in exactly the same position it was in March, notwithstanding that four months have now passed, and that the Court had put in train a very tight timetable so as to promote the speedy resolution of this matter.
When I asked the applicant about what he wanted to say, he said that he had already put in a statement of claim on 24 February, and so following the orders of 18 March would have been unnecessary because the applicant had already filed an application. Therefore, it was unnecessary to file the exact same document (although it had been filed as an attachment to an amended application and not filed as a “statement of claim”).
What I did was I went through, again, with the applicant exactly what I had said four months previously. There were other deficiencies in the “statement of claim” which I pointed out to the applicant today. The statement of claim has a number of assertions without any factual particularity.
The best example of this at paragraph 5 where the particulars given were that he and the third respondent had a conversation, and this is the whole of the conversation particularised:
Applicant: From September 2021, all the extra tasks that have been allocated to me are forcing me to work overtime.
Third Respondent: I will speak to Luke (General manager) to discuss the possibility to approve Time Off In-Lieu.
It was claimed that what it was that was said was an inquiry about the applicant's pay. It was also claimed that this conversation was the exercising of a workplace right - that the applicant had a right under the Clerks Award to be paid overtime - and that workplace right was an inquiry or a complaint in relation to the applicant's employment. It was claimed that the conversation was a communication that expressly conveyed a genuine complaint or inquiry by the applicant capable of being remedied by the first respondent.
As I said to the applicant, that conversation fell a long way short of those claims - and yet there was obviously more to the context of that conversation which, if it were properly pleaded, there may very well be a conversation, or a factual circumstance, that could actually amount to an inquiry or, alternatively, a complaint in relation to the employment. But, as it stood, it did not do that.
The same can be said with regard to aspects of what the applicant claimed as workplace right number 2, workplace right number 3 and workplace right number 4.
The “statement of claim” then identified adverse action number 1, being suspension. There is no doubt that a suspension from employment is adverse action, but it does not become a contravention of section 340 unless there is some connection between the exercise of the workplace right and the adverse action. There was no such connection pleaded at all.
Section 550 was pleaded - that the “second respondent” and the “third respondent” were involved in the procuring of a contravention of section 340. There had not been any pleading as to how section 340 had been actually contravened, let alone anything that would cause the Court to understand how it is that the second respondent, or the third respondent, were involved.
The statement of claim then spoke of underpayments but did not have any true specificity. Paragraph 25 of that statement of claim said:
[25]The Applicant cannot plead, with specific fact, matters within paragraph 24(a),(c) – (h) as the Applicant has not been provided sufficient material to do so. However, the Applicant will replead following discovery.
The discovery was sought - and I will get onto that - but, clearly, that only pertained to claims of underpayment.
Again, as he did on 18 March, the applicant told me that he now understood; that he realised that he had done the wrong thing and that he should have put in a new statement of claim, as I had ordered.
What he said to me was that he realised that he was somewhat out of his depth and having regard to things that I had said to him, he went and spoke to a solicitor. It was the solicitor who gave him advice that there was no need for him to put in another statement of claim because he had already put in a statement of claim, and it was the solicitor who drafted these matters, though the solicitor did not become a solicitor on the record, and the solicitor did not put their name to this documentation.
Be that as it may, the applicant himself is the one responsible. He put his name to the material that ended up being in Court, and it was he who was physically in Court and who heard everything that I had said on 18 March.
I asked the applicant on, it would seem, nine or ten occasions why it was that he did not comply with the order. Eventually, I got the response that he was following the legal advice, and he felt that this was a battle between two legal firms: the firm that he was getting advice from and the other, the firm that was representing the respondent company. He said he felt that the firm of the respondent was saying that he needed to do something, and his legal firm was saying that he did not need to do something.
This is not a proper characterisation of what went on. The Court had ordered him to do something, and he simply did not do it. He is in exactly the position that he was back in March 2024, telling the Court that he now realises his mistake, and he will fix it up.
The problem with the present situation is that the Court has no guarantee that this is what will happen. The applicant gave those self - same assurances back in March 2024.
The respondent has been severely prejudiced by having to carry this matter on; having to wait for the applicant to get his own house in order, when it is that the respondent has, on the three previous occasions (that is, 4 December 2023, 15 January 2024, and 18 March 2024) said that there is no cause of action that has been identified on the pleadings, and had previously brought an application to strike out the action, which the Court did not entertain because it gave the applicant another chance.
This is a matter where the applicant has candidly admitted that he is totally confused with what is happening. The applicant himself has a general feeling that he has been hard done by, but “being hard done by” does not amount to a contravention of the Fair Work Act.
The applicant has, to my mind, not shown sufficient reason why it is that he is in default of my orders, especially when regard is had as to what I had said to him on 18 March. He is in default of these orders.
The Rules, specifically rule 13.04 and rule 13.05, allow this Court to take action in relation to applicants being in default of Court orders. As I said to the applicant, if it were that I had seen that he had actually attempted to comply with the Court orders, things may be different.
But there is a belligerence in the way in which the applicant has acted over the past four months, and that belligerence was still present at the beginning of this hearing today until it was that the applicant listened to what I was saying, again, about the shortfalls in his statement of claim filed in February, even though all I was doing was repeating what I had said on 18 March 2024.
The respondent should not be disadvantaged any longer by the applicant's failure to comply with the Court's order.
Given all of those matters, pursuant to rule 13.05, I dismiss the application that was filed on 11 September 2023 and amended on 24 February 2024.
It is a Fair Work matter. Section 570 of the Act is apposite. I make no order as to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 6 August 2024
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