Findley v MSS Security Pty Ltd
[2019] FCCA 2291
•2 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINDLEY v MSS SECURITY PTY LTD & ORS | [2019] FCCA 2291 |
| Catchwords: INDUSTRIAL LAW –Abuse of process – vexatious proceedings – issue estoppel – anshun estoppel – whether the matters raised in this proceeding could have and should have been raised in previous proceedings – Federal Circuit Court Rules rule.13.10(c) – MSS Security Victorian Enterprise Agreement 2011 – proceeding stayed as an abuse of process. |
| Legislation: Fair Work Act 2009 (Cth), ss.90, 117, 323, 325, 536, 540, 550 Federal Circuit Court Act 1999 (Cth), s.88Q |
| Cases cited: Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 Findley v MSS Security Pty Ltd [2017] FCCA 466 Joshua Findley v MSS Security Pty Ltd T/A MSS Security [2018] FWC 4714 |
| Applicant: | JOSHUA DONALD FINDLEY |
| First Respondent: | MSS SECURITY PTY LTD |
| Second Respondent: | MATTHEW LUDDINGTON |
| Third Respondent: | MARGARET STIMSON |
| File Number: | MLG 2411 of 2018 |
| Judgment of: | Judge McNab |
| Hearing dates: | 27 March and 30 April 2019 |
| Date of Last Submission: | 30 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 2 September 2019 |
REPRESENTATION
| The Applicant: | Appearing in person |
| Counsel for the Respondents: | Mr Champion |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed 13 August 2018 be stayed as an abuse of process pursuant to r 13.10(c) of the Federal Circuit Court Rules 2001 (Cth).
In the event that the Respondents wish to make an application for costs, they shall file a submission of no more than 2 A4 pages in length (1.5 spacing) by 4pm 16 September 2019 with any response to be filed by the Applicant by 4pm 23 September 2019, with this application being conducted on the papers.
AND THE COURT NOTES THAT:
The Applicant has given an undertaking that:
1. I will not institute any proceeding in the Federal Circuit Court of Australia against any of the Respondents, or any employees of the First Respondent, in relation to my employment with MSS Security Pty Ltd, save:
a. Any application (subpoena or alike) or appeal in connection with this proceeding – MLG2411/2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLG 2411 of 2018
| Joshua Donald Findley |
Applicant
And
| Mss Security Pty Ltd |
First Respondent
| Matthew Luddington |
Second Respondent
| mARGARET STIMSON |
Third Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant filed a claim in this Court on 13 August 2018 alleging, amongst other things, that the First Respondent (‘MSS Security’) contravened the Fair Work Act 2009 (Cth) (‘the Act’) and the MSS Security Victorian Enterprise Agreement 2011 (‘the 2011 Agreement’).
The Applicant further alleges that the Second and Third Respondents, being employees of the First Respondent (collectively, ‘the Respondents’), were ‘involved in’ MSS Security’s contraventions and therefore personally liable pursuant to s 550 of the Act.
The Respondents filed a defence on 24 August 2018.
At a directions hearing before Judge Hartnett on 1 October 2018, orders were made allowing the Respondents to file and serve an amended defence and an interim application to strike out and/or dismiss the Applicant’s application.
The Respondents filed their amended defence on 15 October 2018.
The Respondents filed their Application in a Case on 26 October 2018 seeking to have the matter stayed or dismissed as an abuse of process and further, that the Applicant be declared a vexatious litigant pursuant to Part 6B of the Federal Circuit Court of Australia Act 1999 (Cth). The orders sought were:
1. Pursuant to rule 13.10(c) of the Federal Circuit Court Rules 2001 (Cth), the proceeding be stayed or generally dismissed on the grounds that the proceeding is an abuse of the process of the Court;
2. Pursuant to section 88Q(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) the proceeding be stayed or dismissed;
3. Pursuant to section 88Q(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth), an order that the Applicant be prohibited from instituting proceedings against Mr Matthew Luddington, Ms Margaret Stinson and MSS Security Pty Ltd (including its related entities) and its former and current officers and employees;
4. The Applicant pay the First, Second and Third Respondents’ costs of the proceeding on an indemnity basis;
5. Such other relief as the Court sees fit.
The matter came before me for hearing on 27 March 2019 where it adjourned part-heard, returning 30 April 2019.
Background
The Applicant was employed by MSS Security as a security officer from February 2016 until his dismissal on 14 November 2016.
On 30 December 2016, the Applicant commenced a general protections claim in this Court with respect to his dismissal (‘General Protections Claim’). In this General Protections Claim, the Applicant alleged adverse action in the form of coercion, undue influence and pressure, and discrimination. This matter was heard before me and was dismissed on 24 November 2017.[1]
[1] Findley v MSS Security Pty Ltd [2017] FCCA 2898.
In the course of the General Protections Claim, the Applicant applied for an interlocutory injunction. By this application, the Applicant sought reinstatement into his former role in order that he may appear and make submissions to the Fair Work Commission (‘FWC’) in relation to the approval of the MSS Security Victorian Enterprise Agreement 2016. That application was refused and reasons were given on 10 March 2017: Findley v MSS Security Pty Ltd [2017] FCCA 466.
The Applicant and MSS Security have been involved in, on the Respondents’ reckoning, 8 proceedings (including the General Protections Claim) and one complaint. The Applicant instigated these applications. A summary of these matters are set out in the Respondents’ supplementary submissions:
(1) The Current Proceeding: this proceeding: MLG2411/2018;
(2) The Gregory FWC Proceeding: a FWC proceeding commenced on or about 3 November 2016 under the dispute resolution procedure under the 2011 EA. Gregory C's final reasons are reported as Findley v. MSS Security [2018] FWC 4714 (Gregory C) (10 August 2018) (the Gregory FWC Proceeding).
(3) The GP Proceeding: a proceeding in this Court commenced on or about 30 December 2016 in which Mr Findley, among other matters, made allegations that MSS had dismissed him in breach of Part 3.1 of the FW Act. McNab J dismissed the proceeding. The decisions is reported as Findley v. MSS Security Pty Ltd [2017] FCCA 2898 (24 November 2017) (McNab J);
(4) The 2016 EA Cribb proceeding: an intervention in a FWC proceeding on or about 25 July 2016 in which Mr Findley opposed the approval of the MSS 2016 EA before Cribb C;
(5) The FWO Complaint: a FWO complaint (not a proceeding) made on or about 15 July 2017 that MSS and Mr Luddington had breached s 678 of the FW Act by providing false or misleading information to Cribb C in the application for the approval of MSS 2016 EA. On 3 October 2017 the FWO dismissed the complaint;
(6) The 2017 EA Cribb proceeding: From on or about 9 October 2017 Mr Findley opposed the approval of MSS 2017 EA for Victorian employees.
(7) The 2017 WA EA Proceedings: on or about 3 December 2017 Mr Findley objected to the approval of MSS' 2017 EA for its Western Australia employees. By 3 December 2017 Mr Findley had not been an employee of MSS for more than a year. He had never been employed in WA;
(8) The proceeding to terminate the 2011 EA before Harper-Greenwell C: from on or about 6 July 2016 Mr Findley applied to terminate the 2011 EA. In the course of the proceeding, Mr Findley made application for production of documents by MSS. On 22 December 2017 Harper Greenwell C dismissed Mr Findley's application for the production of documents;
(9) The FWC Appeal proceeding: on 2 January 2018 Mr Findley appealed against Harper Greenwell C's decision to refuse the production of documents. On 19 February 2018 a Full Bench dismissed the appeal.
The Applicant agrees that the parties have been involved in 8 proceedings and a complaint. He says, however, that he was involved in or instigated each proceeding or complaint for a proper purpose and on occasions achieved what he considers to be favourable outcomes.
The Respondents submit that the Applicant is making 15 separate claims by this proceeding. The Respondents further assert at [26] of their Reply, that of these 15 claims, 7 were the subject of the Gregory FWC Proceeding (‘Gregory FWC Proceeding’).[2]
Litigation history
[2] Joshua Findley v MSS Security Pty Ltd T/A MSS Security [2018] FWC 4714.
The current proceeding
The Applicant alleges that MSS Security was covered by the 2011 Agreement at all relevant times during his employment and that he is owed entitlements afforded to him according to the 2011 Agreement.
The Applicant alleges contravention of:
Claim Contravention 1. clause 22.3.1.1 and Schedule A of the 2011 Agreement – failure to pay first aid allowance. 2. clause 22.10.1 and Schedule A of the 2011 Agreement – failure to pay laundry allowance. 3. clause 22.3 of the 2011 Agreement – failure to pay night time loading. 4. clause 10.1.3 of the 2011 Agreement and section 117(2) of the Act – failure to make a payment in lieu of notice. 5. clause 29.3.2 of the 2011 Agreement and section 90(2) of the Act – failure to pay annual leave. 6. clause 9.4.1 of the 2011 Agreement – failure to pay for training. 7. clause 27.1 of the 2011 Agreement – failure to pay minimum payment. 8. clause 25.2.2 of the 2011 Agreement – failure to pay minimum overtime rate. 9. clause 24.1 of the 2011 Agreement and section 323(1) of the Act – failure to pay an amount in full and on time. 10. section 325 of the Act – unreasonable requirements spend an amount. 11. clause 17.1.2 of the 2011 Agreement– failure to provide uniform. 12. clause 9.3.1 of the 2011 Agreement – failure to give seven days notice of roster. 13. section 536(1) of the Act – failure to provide a pay slips 14. sections 536(2) of the Act – giving payslip without mandatory information. 15. section 536(3) of the Act – giving a payslip that is false and misleading.
The Applicant also seeks declarations that MSS Security breached provisions of the Act, a finding that the Second and Third Respondents were ‘involved in’ those contraventions, and orders that the Respondents pay penalties for these breaches.
The Applicant alleges that by reason of the contraventions he was underpaid $3,099.43 in less than 10 months of employment.
The General Protections Claim
The General Protections Claim was commenced in this Court on 30 December 2016. By that proceeding, the Applicant alleged his employment had been terminated in breach of Part 3.1 of the Act.
The Respondents assert that the Applicant’s current claims arise from the same set of circumstances as the General Protections Claim and are closely related to the claim. The Respondents urge the Court to infer that the Applicant is re-raising claim 7 (that he was not paid to attend a disciplinary meeting), that he is raising claims concerned with his dismissal being claim 4 and 5 (non-payment of entitlements consequential upon dismissal) and claims 13 to 15 (errors in his payslips) and otherwise, the claims arise from the same factual scenario because the Applicant ‘has decided to have another go’.[3]
[3] Respondent’s submissions 26 October 2018, [27].
The Applicant made a claim – which was expanded on during the hearing – that by virtue of the General Protections Claim being about his general protection claim, that this necessarily meant that the proceeding ‘was only in relation to contraventions of the general protections provisions of the’ the Act.[4] Due to this, the Applicant asserted that he ‘could not have pursued non-general protection claims and the Court could not decide non-general protection claims, in a general protection application’.[5] At trial, the Applicant stated he was unaware that he could make both claims.
[4] Applicant’s submission, 15 January 2019, [34].
[5] Applicant’s submission, 15 January 2019, [36].
The Gregory FWC Proceeding
The claims made in the current proceedings must be viewed against the background of the proceedings commenced by the Applicant in the Gregory FWC Proceeding. The Applicant described this dispute as ‘a rostering dispute, compulsory meeting dispute, training dispute and allowance dispute’. 7 of the 15 claims made in the current proceeding were made in the Gregory FWC Proceeding.
The Gregory FWC proceeding was commenced by an application supported by Form F10 on 3 November 2016.
Final reasons were given on 10 August 2018 in the Gregory FWC Proceeding. In that decision, Commissioner Gregory summarised the claims raised by the Applicant and concluded that the FWC had jurisdiction to deal with the application as it related to a rostering dispute, an allowances dispute and a dispute about the nature of first aid training and the appropriate rate of pay to be paid when undertaking the first aid training.
At [7] of the Gregory FWC Proceeding, Commissioner Gregory noted that the Applicant was seeking payments of $61.98 and $318.90, ‘being amounts outstanding in respect of the so-called “disciplinary meeting dispute” and the “compulsory training dispute”’. The First Respondent indicated during the Gregory FWC Proceeding that it was prepared to pay those amounts to the Applicant to resolve those claims without any admission of liability.
At [8], Commissioner Gregory referred to an indication given by MSS Security that it was prepared to pay $65 in respect of an amount claimed by the Applicant in respect of the ‘disciplinary meeting dispute’, noting also that the Commissioner had previously found that it did not have jurisdiction to deal with the matter.
At [9], Commissioner Gregory referred to an item referred to as allowances dispute which was a claim that the Applicant had not been paid on time. Commissioner Gregory stated:
I am satisfied in response that the offers that have been made by MSS during the course of the proceedings in response to the claims made by Mr Findley resolve the matters that remain in dispute. I am also satisfied that in these circumstances it is no longer appropriate for the Commission to continue to deal further with the application. I have come to this conclusion because the actual remedies sought by Mr Findley, as set out at paragraph 54 of his written submissions, have been agreed to by MSS. It is accordingly not appropriate for the matter to proceed as part of some theoretical exercise when the issues in dispute have been resolved.
Commissioner Gregory declined to make declarations sought by the Applicant on the basis that the FWC did not have the power to grant declaratory relief as they are powers that can only be exercised by a Court.[6]
[6] Joshua Findley v MSS Security Pty Ltd T/A MSS Security [2018] FWC 4714, [11].
The First Respondent, via their submissions before the Court, provided a summary table of each of the claims made by the Applicant in this proceeding comparing it to claims made in the Gregory FWC Proceedings. I accept the submission that the claims in relation to underpayments under the 2011 Agreement were raised in the Gregory FWC Proceeding and that those claims have been resolved through the payment of sums referred to by Commissioner Gregory.
The Respondents submit that the Applicant’s 15 separate claims could have been made during the General Protections Claim, the claims were based on similar factual issues as that proceeding, and that many of the claims were otherwise raised in the Gregory FWC Proceedings. The Respondents also assert that the monetary amount is ‘theoretical’ and that they have paid the sums claimed by the Applicant on the basis of it being economically rational to pay these amounts rather than defend the matter. In effect, it is said that because the money claims have been paid, the Applicant is now seeking declarations in relation to claims that have been satisfied.
The Respondents submit that there is a significant overlap between the current claim and the General Protections Claim and that the Applicant had made a forensic decision to pursue his claims in the FWC.
The Respondents assert that it is an abuse of process for the Applicant to re-litigate the same issues where he had accepted that a decision of the FWC would bind the parties and would limit the right of appeal to the Full Bench of the FWC.
The Applicant responds by saying that he initiated this proceeding:
[…] predominantly for three reasons:
a. So that MSS pay him what he is entitled to (now remedied post-application);
b. So that MSS pay his ex-colleagues what they are entitled to;
c. to deter MSS from underpaying their employees in the future.[7]
(citations omitted)
[7] Applicant’s submission, 15 January 2019, [19].
Further it is said by the Applicant that:
a)Commissioner Gregory did not interpret the 2011 Agreement as the Applicant sought;
b)Commissioner Gregory did not have the power to grant declaratory relief sought by the Applicant; and
c)the Applicant was not seeking penalties against MSS Security.
Consideration
Abuse of process
In Rogers v The Queen (1994) 181 CLR 251 (‘Rogers’) at 286, McHugh J referred to 3 main categories of abuse of process:
Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
(citations omitted)
The Respondents rely on each of the three categories of abuse identified by Justice McHugh in support of its claim that the present proceeding is an abuse of process.
The Respondents assert that re-litigating matters that were previously litigated in the Gregory FWC Proceeding is unjustifiably oppressive: ‘the fact that [the] parties may not be identical, or the relief different, does not necessarily disentitle relief under abuse of process principles’.[8]
[8] Respondent’s reply, 15 February 2019, [13].
In Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [152], Bromberg J referred to 14 guiding principles applicable to establishing an abuse of process as identified by Robson AJA in Kermani v Westpac Banking Corporation [2012] VSCA 42 at [97].
Relevant to this application are principles 2 and 9-12. As extracted:
2. The jurisdiction should only be exercised in exceptional cases or sparingly with the utmost caution;
9. It is prima facie vexatious to bring two extant civil actions where one will lie;
10. This prima facie rule applies whether or not the two proceedings are in separate courts or one;
11. The prima facie rule applies where the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings
12. The fact that the parties may not be identical, or the relief different, does not necessarily disentitle relief under this principle.
The Respondents submit that to the extent there are any new claims, they should have been brought in either the Gregory FWC Proceeding or in the General Protections Claim.
The Respondents also submit that the predominant purpose which the Applicant has identified (being to bring claims in support of others) is an improper purpose and not one for which the Court processes were designed. This submission is made in circumstances where the Applicant is neither an employee of MSS Security, a regulator or acting as an agent for others. It is also submitted that the Applicant is bringing proceedings for the purpose of then referring to his experience as an individual advocate in a website maintained by him to advertise his services as an industrial advocate.
The Applicant’s position is that although the monetary claims have been paid, there is a legislative right to obtain declarations and he seeks penalties in relation to breaches that have been admitted.
The Applicant referred to the decision of Meade v PW Glass Services Pty Ltd [2016] FCCA 829 (‘Meade’). The Applicant states that Meade supports the Applicant’s claim that while he could have brought the present claims in an earlier case, a finding that the current proceeding should be stayed as an abuse of process is not inevitable.
In Meade, the applicant filed proceedings in the Federal Court of Australia (‘FCA’) alleging various breaches of the Act relating to the termination of his employment. The applicant sought leave prior to the trial to join a second respondent. The applicant also sought leave to amend the statement of claim to allege breaches of the Act during the six years of his employment relating to overtime, meal, and tool allowances. Leave was granted to allow the joinder of a second respondent but the Court did not allow the amendment of the statement of claim.
Meade settled on terms set out in a deed which included a release which discharged the employer against:
all liabilities relating to, arising out of or in connection with the Employment and the Cessation (other than those liabilities excepted under this Deed and arising pursuant to any workers’ compensation legislation and any claim for an overtime payment under an industrial instrument).[9]
The deed also expressly reserved each party’s position on any claim that the Applicant might make for alleged underpayments during the employment.
[9] Meade v PW Glass Services Pty Ltd [2016] FCCA 829, [9] (Riley J).
Riley J considered that, at [32], the Applicant should have bought the overtime and meal allowance claims in the FCA proceedings but that it was not unreasonable for him not to do so. She pointed to the circumstances which included the Applicant’s financial difficulties and the fact that bringing a claim for overtime meal allowance in the FCA would have lengthened the proceeding and increased costs.
Riley J also found that there was a sufficient difference between the claims relating to the termination of employment and the underpayment claims to warrant the conclusion that it was not unreasonable to issue proceedings in the Federal Circuit Court (‘FCC’) of Australia. For those reasons, Riley J held that there had been no abuse of process by the Applicant bringing the FCC proceeding.
Meade can be distinguished from the present proceeding. In the present case, the Applicant raised many of the claims that are the subject of this proceeding in the Gregory FWC Proceeding. Further, the cost consequences as they apply to bringing a claim in the FCA as against the FCC do not arise. Further, the Applicant was representing himself in the early proceeding both in this Court and in the Gregory FWC Proceeding. I note also that the release that was agreed between the parties did not include a release in relation to overtime claims.
I accept the Respondents’ submissions that the bringing of these proceedings by the Applicant is an abuse of process. It is such that it fits within both category one and two as identified by McHugh J in Rogers, being that the Court’s procedures are invoked for an illegitimate purpose and the use of the Court’s procedure is unjustifiably oppressive to one of the parties.
Category one – an illegitimate purpose
The Applicant is bringing the application for an improper purpose as he is seeking to use the proceeding to advocate for others when he has no standing to do so. I also accept that the Applicant is bringing this proceeding in order to exert pressure on the MSS Security to change its industrial practices when he is no longer an employee. Section 540 of the Act places a limitation on those who may apply for a civil remedy in relation to a contravention or a proposed contravention to persons who are affected by the contravention or will be affected by the contravention. The applicant’s standing to bring an application is limited to those contraventions that affect him. He has no status as a representative for others.
I also accept that the Applicant is using proceedings issued in this Court to promote his services as an industrial advocate on a website. However, I do not regard this as being determinative of the application. The website points to his experience of appearing in this Court and the FWC as a basis for claiming that he is a successful and experienced advocate. Whilst the Applicant disclaimed that this was a reason for bringing the current proceedings, it is clear that the Applicant sees that there may be a collateral benefit in bringing these proceedings and advertising that fact as a means of attracting business.
Category two – unjustifiably oppressive
The proceeding is unjustifiably oppressive on the First Respondent given the Applicant has previously issued the General Protections Claim where he alleged adverse action arising from the termination of his employment. That proceeding ran to judgement, and he could have raised any of his underpayment claims relating to notice, payslips or failure to pay entitlements that he now raises in the General Protections Claim. This includes whether those claims arose from the 2011 Agreement, the National Employment Standards or arose otherwise. He could have also sought declarations and penalties in relation to matters that were civil penalty provisions under the Act.
The Applicant gave evidence in the course of this proceeding that he was unaware that he could have made his current claims in the General Protections Claim. The Applicant’s knowledge (or lack thereof) of the Court process and of Court forms do not make this current proceeding any less oppressive. His knowledge does, however, go to whether this claim can be considered vexatious.
By way of example, the Applicant could have brought claim 4 (failure to pay payment in lieu of notice), claim 5 (failure to pay annual leave), claim 13 (failure to provide payslips), claim 14 (giving payslip without mandatory information) and claim 15 (giving a payslip that is false and misleading) in the General Protections Claim. Moreover, there is a close connection between these matters and the claims in relation to the dismissal.
Claim 3 (being a failure to pay night time loading) arises from MSS Security allegedly underpaying the Applicant $4.40 for working one hour on one shift at a different loading rate. In my view, it is not in the interests of justice for this matter to proceed to a hearing in relation to penalties in relation to that claimed underpayment.
The Applicant made a forensic decision to raise the underpayment claims in the Gregory FWC Proceeding and those matters were determined in the course of that proceeding. There is a close connection between the subject matter of the litigation in the Gregory FWC Proceeding and the General Protections Claim. The claims being raised by the Applicant in the current proceeding in respect of breaches of the 2011 Agreement and the Act could reasonably have been raised in the General Protections Claim. It is oppressive and unfair to the Respondents or those matters to be now re-litigated.
I find that it was unreasonable for the Applicant not to run the underpayments claim as part of the General Protections Claim. The Applicant was aware of the existence of the claims and served a notice to admit facts in the General Protections Claim which included facts relevant only to a claim of underpayment of entitlements.
For those reasons, orders will be made staying the current proceeding as an abuse of process.
Vexatious proceeding
The parties put on a significant amount of evidence and lengthy submissions in relation to the Respondents’ claim that the Applicant is a vexatious litigant.
The Respondents do not seek for such an order to be made generally but only as it applied as between the Applicant and the Respondents and the Respondents’ servants and agents and in relation to proceedings brought in this Court. Each of the proceedings or complaints that have been brought by the Applicant were the subject of lengthy evidence and submissions with the Applicant asserting that each of the proceedings he brought, and the complaints he made, were justified and reasonable.
In the course of the hearing this proceeding, the Applicant gave an undertaking that he would not institute further proceedings against the Respondents or its servants and agents. This undertaking states:
1. I will not institute any proceeding in the Federal Circuit Court of Australia against any of the Respondents, or any employees of the First Respondent, in relation to my employment with MSS Security Pty Ltd, save:
a. Any application (subpoena or alike) or appeal in connection with this proceeding – MLG2411/2018.
Section 88Q of the Federal Circuit Court Act 1999 (Cth) relevantly provides:
(1) This section applies if the Federal Circuit Court of Australia is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
(2) The Federal Circuit Court of Australia may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the Federal Circuit Court of Australia already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;
(c) any other order the Federal Circuit Court of Australia considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
The undertaking, largely, disposes of the application as it prevents the Applicant from instituting further proceedings against MSS Security and its servants and agents in this Court. The undertaking delivers, in effect, what the Respondents seek by making an application for orders pursuant to s 88Q(2)(b).[10] If the Applicant issues further proceedings involving MSS Security or its employees in relation to his employment, the undertaking may be raised as a basis for staying that proceeding.
[10] Federal Circuit Court Act 1999 (Cth).
The Respondents complain of the Applicant’s conduct during this and previous proceedings. Particular note was made of the Applicant’s conduct during the Gregory FWC Proceeding. The Applicant has acknowledged that he improperly impugned members of the FWC by accusing them of behaving corruptly during the course of the Gregory FWC Proceeding and appeals in the FWC. He has apologised for that conduct in this Court.
The Applicant has needlessly analogised the conduct of the Second and Third Respondents with guards serving in Nazi Germany in correspondence relevant to the General Protections Claim and failed to acknowledge that such conduct may be deeply offensive.
Lengthy submissions were also made raising concerns about the Applicant’s motives in purporting to act as representatives for the employees of MSS Security in the FWC without authority.
Given the Applicant’s undertaking, it is unnecessary for me to make findings in relation to those matters or to make the orders sought by the Respondents. The written undertaking will be recorded as a notation to the orders issued by this Court.
Conclusion
The Court will make orders staying the proceeding on the grounds that the proceeding is an abuse of process, pursuant to rule 13.10(c) of the Federal Circuit Court Rules 2001 (Cth).
The Respondents sought costs of the application. In the event that any party wishes to press any application for costs, they should file a submission of no more than two A4 pages in length (1.5 spacing) by 4pm 16 September 2019 and that application will be considered on the papers.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 2 September 2019
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