FORSYTH v Paxus Australia Pty Ltd
[2016] FCCA 1383
•8 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FORSYTH v PAXUS AUSTRALIA PTY LTD & ANOR | [2016] FCCA 1383 |
| Catchwords: INDUSTRIAL LAW – Procedural orders to file Amended Points of Claim notwithstanding many previous documents filed or provided by the Applicant – need for all parties and the Court to know precisely what claims are being made and against whom as well as relevant particulars of each claim and the evidentiary bases of the claims – in their current form there is a disjuncture between the documents filed by the Applicant and those that he otherwise relies upon – the Court and the Respondents are unable to know with sufficient certainty the detail of the Applicant’s claims |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 342, 357, 550 |
| Cases cited: Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd & Australian Competition and Consumer Commission (2011) 203 IR 411 |
| Applicant: | GUY FORSYTH |
| First Respondent: | PAXUS AUSTRALIA PTY LIMITED |
| Second Respondent: | HEWLETT-PACKARD AUSTRALIA PTY LTD |
| File Number: | CAG 57 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 9 February 2016 |
| Date of Last Submission: | 9 February 2016 |
| Delivered at: | Canberra |
| Delivered on: | 8 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Counsel for the First Respondent: | Mr Clynes |
| Solicitors for the First Respondent: | Carroll & O'Dea, Sydney |
| Solicitor/advocate for the Second Respondent: | Ms Irving |
| Solicitors for the Second Respondent: | Baker & McKenzie, Sydney |
ORDERS
The Applicant’s Application in a Case, filed 27 November 2015, be dismissed.
The Application in a Case, filed by the First Respondent, Paxus Australia Pty Ltd, on 4 February 2016, be dismissed.
By no later than 20th June 2016, the Applicant is to file and serve an Amended Points of Claim (including all relevant particulars of all claims against each Respondent, including any damages claimed and the bases for same). The Amended Points of Claim is to specify each section of any legislation relied upon and the grounds for such reliance.
By no later than 20th June 2016, the Applicant is also to file and serve an Affidavit in support of the Amended Points of Claim (unless previously filed or annexed to other material filed, annexed to the supporting affidavit are to be copies of all documents – including all relevant correspondence - to be relied upon by the Applicant). Included in the Affidavit is to be confirmation by the Applicant that any allegation of fact made in either the Amended Points of Claim or the affidavit he believes to be true and correct.
Only matters that are formally pleaded and particularised will be considered by the Court; no other matters, however raised but outside the pleadings of the parties, will be allowed or considered. Absent any other Order, only documents formally filed on the Commonwealth Courts Portal (including any annexures) will be able to be relied upon by any of the parties to the proceedings.
By no later than 30th June 2016, each Respondent is to file any Defence or Reply to the Applicant’s Amended Points of Claim, as well as any affidavit in answer to the Applicant’s affidavit.
No later than 12:00pm (midday) on 4th July 2016, the parties are to file a Case Outline of no more than 3 pages setting out the points to be argued, relevant reference to evidence relied upon, and list of authorities.
The matter be listed for a hearing, of no more than 1½ days, on 5th and 6th July 2016, commencing at 2:15pm in Canberra. This hearing is to deal with:
(a)whether the Applicant was an independent contractor or an employee of the Second Respondent (this matter to be dealt with as a thresh-hold issue); and
(b)otherwise, pursuant to the Application in a Case filed by Paxus on 23rd November 2015, whether the Application filed by the Applicant (in any of its iterations) should be dismissed either in part or in full.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 57 of 2015
| GUY FORSYTH |
Applicant
And
| PAXUS AUSTRALIA PTY LIMITED |
First Respondent
| HEWLETT-PACKARD AUSTRALIA PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons relate primarily to the making of procedural Orders to enable everyone to chart a course through a litigious quagmire created by the self-represented, but legally qualified and litigiously experienced Applicant. The procedural mess that has engulfed everyone, including the Court, is unfortunate testimony to the old adage that a little bit of knowledge is dangerous. Other comments are possible but it is otiose to make them.
As just indicated, the Applicant is legally qualified. He does not practice as a lawyer. It is unknown whether or not he has ever practiced in any area of law. He has previously been engaged in litigation in this Court (and in the Federal Court of Australia); perhaps curiously, in a dispute not unlike the current matter – a contest over the characterisation of a contract of services/employment.[1]
[1] See Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd & Australian Competition and Consumer Commission (2011) 203 IR 411; Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd [2011] FCA 696. The appeal was only in relation to a costs order, as opposed to any substantive issue raised in the primary proceedings.
In essence, the substantive claim currently before the Court is a contractual dispute as to whether the Applicant was an independent contractor for the purposes of the Independent Contractors Act 2006 (Cth) (“the IC Act”) and the Fair Work Act 2009 (Cth) (“FW Act”).
In the original Application, the Applicant contended, among other things, that there have been various contraventions arising out of his “contract”, which lead him now to claim relief under ss.340, 342, and 357 of the FW Act. A copy of a contract between the Applicant (as consultant) and his company, Alignity Consulting as trustee for Endure Trust (“Alignity”) and the First Respondent (“Paxus”), dated 7th May 2015, is annexure D to the Applicant’s Form 4. The contract just referred to is styled “Contract with Contractor for Consultant Services (Trust) Contract Details”. The Applicant signed this contract both “for [the] contractor” (Alignity), and “for the consultant.”
This contract was later terminated on the basis that the Applicant’s services were no longer required because the relevant project undertaken by Australian Tax Office (the client for whom the Applicant was engaged to work) was no longer being pursued.
Leaving to one side the original Application (and Form 4), currently there are three, discrete Applications before the Court:
(a)An Application in a Case, filed 23rd November 2015, by which Paxus seeks relief by way of a summary dismissal of the Application, pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth), and or dismissing the proceeding as against the First Respondent, on the bases (to speak somewhat generally) that no reasonable cause of action is disclosed, or the proceedings are frivolous and or vexatious. Unsurprisingly, this Application is opposed by the Applicant;
(b)An Application in a Case, filed by the Applicant on 27th November 2015, in which the Applicant seeks to file an Amended Points of Claim, and an Amended Form 4. This is in circumstances where the parties attended mediation on 30th October 2015. This Application is opposed generally by the Respondents, among other things, on the ground that some of the matters sought to be raised by the Applicant had only been raised by him following various matters canvassed in the course of the mediation;
(c)An Application in a Case, filed by Paxus on 4th February 2016, by which Paxus seeks Orders, among others, deferring determination of the earlier Application (filed 23rd November 2015) until after the Applicant has re-filed his Points of Claim and properly particularised the claims made.
The matter was listed for an interlocutory hearing on 9th February 2016. It quickly became apparent on that occasion that, procedurally and otherwise, there were very significant problems with the matter, primarily because of the Applicant’s actions and general conduct of the proceeding, not least being (a) the confusion over what documents had or had not been filed, (b) differences between documents filed and other documents on which the Applicant relied but not all of which had been provided to the other parties and or to the Court, and (c) his insistence that he still had other matters to plead that were not originally pleaded, such as in relation to a claim under s.550 FW Act.[2]
[2] See Transcript (9th February 2016) p.45.
In the light of this evidentiary blancmange, the Applicant pressed his Application to amend his points of claim, while Paxus pressed the Application to require the Applicant properly and fully to particularise his claim(s), noting that it would ultimately seek to press its earlier Application to have the Applicant’s Application summarily dismissed. In the midst of all this, the Second Respondent ultimately opposed the procedural Applications before the Court and simply sought to have the matter set down for hearing.
As earlier observed, in large measure, much of the procedural and other difficulty that arises in the matter is simply because there has been a welter of documents produced or provided by the Applicant, but not all Respondents (or the Court) have received all of these documents. Some indeed have been provided only to the Court, while some have been provided but never formally filed. The legally qualified Applicant explains the surfeit of documents – whether filed or not - as simply his attempt to keep the Respondents informed of draft documents, notwithstanding that few of them have ever been either filed or served.
In circumstances where no one, including the Court, can be confident of (a) the scope or detail of the current or latest claims being prosecuted by the Applicant, (b) the evidentiary basis or bases for them, (c) the particulars to support each of the claims, and (d) where the Applicant has never filed an affidavit in support of his claims, it is plainly imperative that the matters just referred be addressed, and for these matters to be addressed as quickly as possible – and prior to any hearing.
In addition to the procedural matters already noted, there is the further issue, raised by the Second Respondent, where it is said that (a) the Applicant has already pleaded his case, and therefore he should be required to lay in the bed he has made (so to speak) and not be permitted to amend his Application, and (b) the parties have already been to mediation where certain matters were discussed and which, according to the Second Respondent, the Applicant should not now be able to use such information so disclosed and rely upon it in any Amended Application.
There is significant force of the Second Respondent’s argument in relation to material used or relied upon by the Applicant that can be traced to matters considered in the mediation. In saying this, I note that such matters could be dealt with, inter alia, by way of objections to evidence. In making the following Orders, I am acutely conscious of the High Court’s instruction in Banque Commerciale S.A en Liquidation v Akhil Holdings Ltd, which confirmed the longstanding role and requirement that pleadings are required “to state with sufficient clarity the case that must be met.”[3] Certainly, by way of observation only at this stage, the lack of clarity and lack of relevant detail is an unfortunate feature of the documents filed thus far by the Applicant.
[3] See Banque Commerciale S.A en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ & Gaudron J), with whom Brennan J agreed (at 287 – 290).
It may be that the Applicant is of a view that he can keep some aspect of his case, in certain respects, secret from the Respondents and the Court. If this be the case, clearly it is incorrect. As already noted, the High Court (and others) has consistently stated that clarity of all aspects of a party’s claim must be accurately and completely disclosed.
In all of the circumstances, formally I dismiss the Applicant’s Application in a Case, filed 27th November 2015, and the Application in a Case, filed by Paxus on 4th February 2016, and in their stead, in order to expedite the resolution of the matter, on the Court’s own motion, the Court makes the following procedural Orders with a view to ensuring that all parties, and the Court, know precisely what claims are being made against whom, the relevant and necessary particulars of each claim, and the evidentiary bases for each claim. Thus, the Court Orders that:
(i)By no later than 20th June 2016, the Applicant is to file and serve an Amended Points of Claim (including all relevant particulars of all claims against each Respondent, including any damages claimed and the bases for same). The Amended Points of Claim is to specify each section of any legislation relied upon and the grounds for such reliance;
(ii)By no later than 20th June 2016, the Applicant is also to file and serve an Affidavit in support of the Amended Points of Claim (unless previously filed or annexed to other material filed, annexed to the supporting affidavit are to be copies of all documents – including correspondence of all kinds - to be relied upon by the Applicant). Included in the Affidavit is to be confirmation by the Applicant that any allegation of fact made in either the Amended Points of Claim or the affidavit he believes to be true and correct;
(iii)Only matters that are formally pleaded and particularised will be considered by the Court; no other matters, however raised but outside the pleadings of the parties, will be allowed. Absent any other Order, only documents formally filed on the Commonwealth Courts Portal (including any annexures) will be able to be relied upon by any of the parties to the proceedings;
(iv)By no later than 30th June 2016, each Respondent is to file any Defence or Reply to the Applicant’s Amended Points of Claim, as well as any affidavit in answer to the Applicant’s affidavit;
(v)The matter be listed for a hearing, of no more than 1½ days, on 5th and 6th July 2016, commencing at 2:15pm on 5th July. This hearing is to deal with (a) whether the Applicant was an independent contractor or an employee of the Second Respondent (this matter to be dealt with as a thresh-hold issue); and (b) otherwise, pursuant to the Application in a Case filed by Paxus on 23rd November 2015, whether the Application filed by the Applicant (in any of its iterations) should be dismissed either in part or in full.
(vi)No later than 12 noon on 4th July 2016, the parties are to file a Case Outline of no more than 3 pages setting out the points to be argued, relevant reference to evidence relied upon, and list of authorities.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 8 June 2016
0
2
2