Findley v MSS Security Pty Ltd

Case [2020] FCA 952

FEDERAL COURT OF AUSTRALIA

Findley v MSS Security Pty Ltd [2020] FCA 952

Appeal from: Findley v MSS Security Pty Ltd [2019] FCCA 2291
File number: VID 1027 of 2019
Judge: ANASTASSIOU J
Date of judgment: 6 August 2020
Catchwords: PRACTICE AND PROCEDURE – application for extension of time to seek leave to appeal from decision of Federal Circuit Court of Australia – Circuit Court dismissed application as abuse of process – 27 grounds of appeal in draft notice of appeal – no utility in appeal as claimed underpayment repaid – appellant’s chance of success insufficient to justify grant of leave – application dismissed
Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2011 (Cth)

Federal Court Rules 2011 (Cth), r 35.13
Cases cited:

AVN20 v Federal Circuit Court of Australia [2020] FCA 584

Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559

Findley v MSS Security Pty Ltd [2019] FCCA 2291

Miller v University of NSW [2003] FCAFC 180; 132 FCR 147

Rogers v The Queen (1994) 181 CLR 251

Date of hearing: Determined on the papers
Date of last submission:  17 July 2020
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 18
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondents: Mills Oakley

ORDERS

VID 1027 of 2019
BETWEEN:

JOSHUA FINDLEY

Applicant
AND:

MSS SECURITY PTY LTD

First Respondent

MARGARET STINSON

Second Respondent

MATTHEW LUDDINGTON

Third Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

6 AUGUST 2020

THE COURT ORDERS THAT:

1.The application for extension of time in which to seek leave to appeal is dismissed.

2.The applicant pay the first respondent’s costs of and incidental to the application to be agreed and in default of agreement assessed.

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


REASONS FOR JUDGMENT

ANASTASSIOU J:

  1. The applicant seeks an extension of time in which to seek leave to appeal from orders of the Federal Circuit Court of Australia: Findley v MSS Security Pty Ltd [2019] FCCA 2291 (Reasons).  The primary judge stayed the applicant’s application to that Court as an abuse of process.  The application before the Circuit Court was heard on 27 March and 30 April 2019. Judgment was reserved and delivered on 2 September 2019.  

  2. The applicant has requested that the present application for an extension of time in which to seek leave be determined on the papers.  The respondents requested an opportunity to make oral submissions.  However, as I have decided that the application should be refused for the reasons below, I have concluded that it is appropriate to determine the application on the basis of the parties’ written submissions.

    Background

  3. The applicant was employed by the first respondent, MSS Security Pty Ltd, between February and November 2016 (Reasons at [8]). Since that time the applicant has brought several proceedings against MSS. On 30 December 2016 the applicant commenced a…

Continue reading Findley v MSS Security Pty Ltd

Sign in free to access the full text

Details
AGLC
Findley v MSS Security Pty Ltd [2020] FCA 952
Case
[2020] FCA 952
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Findley v MSS Security Pty Ltd involved an application for an extension of time to seek leave to appeal from a decision of the Federal Circuit Court of Australia. The Circuit Court had dismissed the application as an abuse of process, and the applicant, Findley, sought leave to appeal this decision. Findley had previously been employed by MSS Security Pty Ltd and had brought several proceedings against the company, including a general protections claim and other complaints. The Circuit Court had dismissed Findley's claim and also his application to seek leave to appeal, finding that the application was an abuse of process. The Federal Court was required to determine whether to grant Findley an extension of time to seek leave to appeal and, if so, whether the proposed grounds of appeal had sufficient prospects of success.

The court considered the delay in seeking leave to appeal and found that it was not significant. The court also noted that the respondents had not opposed the application on the basis of any prejudice suffered due to the delay. However, the court concluded that Findley's appeal had very little chance of success. Many of the grounds of appeal were unparticularised or untenable as a matter of law. For example, one ground alleged that the primary judge erred in finding that the application was an abuse of process, without specifying in what respect the finding was incorrect. Another ground challenged a finding of fact without stating what other evidence should be preferred. The court also noted that the underpayment claim had been paid, and the proposed appeal would be practically inutile. The court found that the proposed grounds of appeal had insufficient prospects of success and dismissed the application for an extension of time to seek leave to appeal with costs.

The final orders of the court were that the application for an extension of time in which to seek leave to appeal was dismissed, and Findley was ordered to pay the first respondent's costs of and incidental to the application to be agreed upon and, in default of agreement, assessed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for extension of time in which to seek leave to appeal is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application to be agreed and in default of agreement assessed.

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

Background

Background to the litigation

The applicant has requested that the present application for an extension of time in which to seek leave be determined on the papers. The respondents requested an opportunity to make oral submissions. However, as I have decided that the application should be refused for the reasons below, I have concluded that it is appropriate to determine the application on the basis of the parties’ written submissions. Background The applicant was employed by the first respondent, MSS Security Pty Ltd, between February and November 2016 (Reasons at [8]). Since that time the applicant has brought several proceedings against MSS. On 30 December 2016 the applicant commenced a general protections claim in the Circuit Court against MSS, alleging, among other complaints, adverse action, undue influence and discrimination. In the course of the general protections claim the applicant sought, but was denied, reinstatement. The primary judge dismissed the general protections claim on 24 November 2017. In addition to the general protections claim, the applicant has instigated eight other proceedings or complaints against MSS in either the Circuit Court or the Fair Work Commission (the previous actions). The context of the previous actions are far ranging, including, for example, the applicant opposing the approval of the MSS Enterprise Agreement for Victorian employees though not himself a relevant employee at the time (see Reasons at [11]). Circuit Court’s Reasons In the proceeding before the Circuit Court from which leave to appeal is sought, the applicant alleged MSS engaged in 15 contraventions of the MSS Security Victorian Enterprise Agreement 2011 and the Fair Work Act 2009 (Cth) (Reasons at [14]-[16]). The applicant alleged he was underpaid $3,099.43 as a result of the alleged breaches (Reasons at [17]). He sought to recover that sum. The applicant also sought certain declarations. The second and third respondents were, and appear to remain, employees of MSS. They are alleged by the applicant to have been ‘involved in’ the conduct about which the applicant complains (Reasons at [16]). The primary judge upheld the respondent’s application that the proceeding be stayed under rule 13.10(c) of the Federal Circuit Court Rules 2011 (Cth) as an abuse of process. The primary judge referred to the dictum of McHugh J at 286-287 in Rogers v The Queen (1994) 181 CLR 251 that abuses of process typically fall into three categories: invocation of the process for an illegitimate purpose, or in a way oppressive to the respondent, or in a way that would bring the administration of justice into disrepute. The respondents submitted that the applicant’s claim was an abuse of process in the first two categories in Rogers and also sought that the applicant be declared a vexatious litigant with respect to them. The primary judge did not need to decide whether to declare the applicant vexatious, as the applicant entered an undertaking not to issue further proceedings in the Circuit Court against the respondents (Reasons at [60]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On the substantive merits of the application, the respondents’ submissions identify the relationship between the grounds of appeal and claims previously made by the applicant. The respondents also provided evidence by affidavit that it had paid to the applicant the claimed underpayment. The applicant did not challenge this evidence. Consideration The delay is not significant and the applicant’s explanation for it demonstrates he was actively seeking to appeal within the prescribed time period. Further, the respondents have not sought to oppose leave on the basis of any prejudice suffered to them generally or occasioned by the delay. Accordingly, I would not refuse leave on this ground. However, in my view the applicant’s appeal has very little chance of success. Many of the grounds in the draft notice of appeal are unparticularised to the point of being meaningless. For example, ground 13 is a bare allegation that the primary judge erred in finding the application was an abuse of process. Other grounds concern challenges to findings of fact without stating in what respect the finding was incorrect, or what other evidence should be preferred. For example, ground 25, which alleges the primary judge erred in “[f]inding that [the applicant] “needlessly” analogised the conduct of the second and third respondents with guards serving in Nazi Germany in correspondence …”. Others are untenable as a matter of law. For example, ground 16 alleges the primary judge erred in considering the applicant’s complaint to the Fair Work Ombudsman as relevant. The applicant’s complaint to the Fair Work Ombudsman was plainly relevant in the context of the respondents’ contention concerning abuse of process. In my opinion the application for leave to extend time in which to seek leave to appeal should be refused because the proposed grounds of appeal have insufficient prospects of success. Further, I note that as the underpayment claim has been paid as I have referred to above, there is no material prejudice to the applicant and the proposed appeal would be practically inutile. Disposition For the reasons above, the application for an extension of time in which to seek leave to appeal is dismissed with costs.