Gambaro v Tshopbiz Pty Ltd

[2020] FCCA 122

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMBARO v TSHOPBIZ PTY LTD & ORS [2020] FCCA 122

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application to restrain lawyers from acting in proceedings.

Applicant: MICHAEL ALEXANDER GAMBARO

Seventh Respondent: TSHOPBIZ PTY LTD (ACN 603 604 066)

Ninth Respondent: MIMEVIC PTY LTD (ACN 121 325 442) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Eleventh Respondent: DEBORAH NARELLE WILIAMS

Twelfth Respondent: TELVIC HOLDINGS PTY LTD (ACN 118 541 361) AS TRUSTEE FOR THE
TELVIC DISCRETIONARY TRUST

File Number: BRG 1020 of 2016

Judgment of: Judge Jarrett

Hearing date: 15 October 2019

Date of Last Submission: 15 October 2019

Delivered at: Brisbane

Delivered on: 17 January 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondents: Mr R.A. Perry QC

Solicitors for the Respondents: Aitken Legal

ORDERS

1. The respondents are to file and serve an outline of submissions relating to costs within five (5) days of the publication of the written reasons for the judgment delivered on 17 January, 2020.

2. Within twenty-eight (28) days of receipt of the respondents’ outline of submissions, the applicant is to file and serve a response.

3. The application is adjourned to 9 April, 2020 at 9:30am for directions.

THE COURT NOTES THAT:

1. Parties may seek there be an oral hearing on the question of costs at the next sitting date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1020 of 2016

MICHAEL ALEXANDER GAMBARO

Applicant

And

TSHOPBIZ PTY LTD (ACN 603 604 066)

Seventh Respondent

MIMEVIC PTY LTD (ACN 121 325 442) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Ninth Respondent

DEBORAH NARELLE WILIAMS

Eleventh Respondent

TELVIC HOLDINGS PTY LTD (ACN 118 541 361) AS TRUSTEE FOR THE TELVIC DISCRETIONARY TRUST

Twelfth Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. In his response to an application in a case filed on 29 July, 2019, the applicant in the principal proceedings opposed some relief sought by the respondents in the principal proceedings in an application in a case that they filed on 17 July.  In their application the respondents sought a raft of orders, some of which included an enforcement hearing with a view to enforcing an order for costs that had been made sometime earlier against the applicant.

2. In his response, the applicant seeks a range of relief, not the least of which is that the respondents’ solicitors Aitken Legal and “their entire defence legal counsel” be removed from the matter “for perjury and misleading the court”.

3. These reasons relate to that prayer for relief.  It was determined by me at an earlier point that that application should be dealt with first before any of the others set out in the respondents’ application in a case or the balance of the orders sought by the applicant in his response.

4. The basis for the application for the lawyers to be removed from the case in terms of principle was not identified by the applicant.  I think I can proceed on the basis, however, that I have the power to make an order that requires legal practitioners to cease to act in a particular proceeding.  It is not a common order, but it is an order which is occasionally – very occasionally – made.

5. Here it is said that the reasons that the legal representatives ought to be removed from the case is because they have lied and misled the court; they have been guilty of perjury.  These are serious matters.  It is a serious thing to accuse anybody of criminal conduct, which essentially is what the applicant now accuses the respondents’ lawyers of; perjury and breaching their duty to the Court; misleading the Court. 

6. And so, because of the seriousness of those charges, I went to some trouble to ensure that the applicant in the principal proceedings had the opportunity to put before me all of the instances of perjury or misleading conduct or anything else about which he complained arising out of the conduct of the respondents’ lawyers before me.  He did that.  He filed a document on 8 October, 2019, which purports to set out further and better particulars of the perjury and misleading conduct by the respondents’ lawyers and the defence legal counsel.  It is a complex document and the applicant has plainly put an enormous amount of work into it.

7. It suggests that there are no less than 1174 instances which might be characterised as perjury by the solicitors, misleading conduct by the solicitors, perjury by counsel, misleading conduct by counsel.  There is also another document that was filed on the same day which includes some more particulars.  It is different in its scope but its purport is the same.  It seeks to establish instances of behaviour by the lawyers about which the applicant complains and which he says is sufficient to ground an order that they be removed from the proceedings.

8. When one looks at the very first affidavit filed by the applicant in support of his application, it becomes apparent that something which has been an issue for him in these proceedings for a very long time now continues to be an issue.  The issue is the identity of his employer.  The proceedings, more generally, arise out of an employment relationship that the applicant alleges he had with someone.  The respondents say that there were employment contracts with the seventh respondent most recently but also the 11^th and 12^th, I think.  There were two employment contracts with them.  One that covered the period 22 August, 2014 to 19 January, 2015 and one that covered a period after that that ended on 30 June, 2015.  The particulars are not important for the present purposes.  What is important is the identity of the employers. 

9. The applicant contends that he has never been given proper details of the trustee of the Fountvic Discretionary Trust and that the pleading by the defendants – the amended defence filed on 21 March, 2017 is not a sufficient disclosure, for want of a better word, of whom his employer was.  The defendants’ case is that, in respect of the first two employment contracts, there was a partnership that employed him.  The partnership was between two companies who acted as trustees for trusts.  Mimevic Pty Ltd as trustee for the Fountvic Discretionary Trust.  And Telvic Holdings Proprietary Limited as trustee for the Telvic Discretionary Trust.  So much is pleaded in paragraph 2 of the amended defence.

10. And despite that nomination by the respondents of the identity of the employer, the applicant has never been content with that.  He suggests that they have not disclosed or they are hiding the identity of the true employer and the lawyers are complicit in that.  His stance is curious because, on his own case, he was employed by the trustee of the Fountvic Trust or words to that effect. 

11. The issue came before Judge Vasta in December of last year.  His Honour purported to make a ruling about that, but the ruling, as far as I can tell – though I do not pretend to be certain about this – the ruling did not find its way into any particular order.  There was no leave given to deliver a particular statement of claim and, perhaps, in some indirect way, the relevant ruling is wound up in that.  But it is not at all clear.  In any event, whatever is the case, that ruling seems to me not to be likely to be binding on the parties in this case.  I have not heard argument about that.  I might be wrong, and if it becomes an issue, I will hear argument about it.

12. The misleading conduct and perjury is said to arise out of the way in which the defendants have prosecuted their defence and the way in which the defendants’ solicitors and lawyers and barristers have made representations to the court about the identity of the employer.  All that the argument made on behalf of the applicant demonstrates is that there are two cases here that are being presented.  The applicant has his own view of his employment relationship.  The respondents have a different one.  That the respondents, through their lawyers, have been promoting a view which is different to that of the applicant does not mean that they are engaged in misleading the Court, nor does it mean that they are committing perjury.  Perjury, of course, is the swearing of a false oath, giving evidence that one knows to be untrue under oath.

13. There is none of that here.  I have been through the applicant’s schedule very carefully.  There is no perjury.  There is nothing that even looks like perjury.  At best, there are statements made under oath by solicitors on instructions about the nature of the respondents’ case.  That is not perjury.  The announcing of appearances – another matter which has caught the attention of the applicant – is not misleading the Court.  In that respect, his argument seems to be that, because the relevant partnership ceased to have an ABN on 1 July 2017 and because trusts are not legal entities, the respondents in this case can have no representation.  That is, each time the lawyers purport to appear for the respondents, they are misleading the court because the respondents – or at least some of them – are not legal entities and therefore cannot give instructions or be represented.  None of that is correct.  The companies exist.  The existence of an ABN is neither here nor there for the purposes of these proceedings and whether the partnership continues to have an ABN is, again, neither here nor there.  Indeed, the partnership probably does not continue to exist.  It may have been dissolved some time ago.  But that does not mean that the respective partners are unable to be represented in court proceedings that concern partnership business.

14. The applicant also seems to be of the view that a partnership cannot employ a person.  A partnership can, of course, employ a person, and the partners in the partnership will, according to the usual tenets of partnership law, be liable for anything that arises out of that arrangement.  But a partnership can enter into contracts via its partners and, according to the respondents’ defence, that is what has occurred here.

15. The applicant also complains that the lawyers for the respondents have, on many occasions, misled the court because they have suggested that the applicant’s employment contracts – there are three written documents, apparently – have never been produced.  But yet, the respondents say that that they have because they have produced the documents that are the subject of their pleadings.  And that highlights the issue – or one of the issues – in the case.  The significant issue, at the moment, at least, for the applicant, and that is the identity of the employer.  The documents carry particular notations as to the identity of the employer and those notations are different to the identity of the employer pleaded by the respondents.  He says therefore, there must be some misleading or perjury going on or, alternatively, there must be some withholding of documents – documents that truly reflect his true employer which are being hidden or retained or held back by the respondents’ lawyers.  Of course, none of that is necessarily true.  It might well be the case that the only employment contracts that exist are those that are pleaded by the respondents and that, notwithstanding the description of the employer on those contracts, the true employer is found to be another entity or, alternatively, styled in a different way.

16. The applicant makes a case that in the absence of documents that truly reflect in terms the pleadings of the respondent, the respondents must be in breach of the Fair Work Act. The argument is circular because he says that they cannot be in breach of the Fair Work Act because they are obliged to keep documents that meet a relevant description.

17. All of these matters are simply matters of dispute between the parties that arise from the pleadings.  They arise from the way in which each of the parties have put their respective cases.  There is no misleading involved in any of that nor is there any perjury.

18. There are also representations about the provision of other documents like personnel files and the like.  None of those matters, either, amount to misleading or perjury.  They might represent a difference of opinion and it is hardly rare for a court to see a contest between parties involved in litigation like this about whether a particular document exists and, if it does exist, whether it has been provided by one to the other.  Those matters are ordinarily dealt with, to the extent that they need to be dealt with, during the course of the trial.  But often they do not need to be dealt with at all.

19. There is no basis here demonstrated in the material that has been advanced by the applicant to make the orders requiring the respondents’ legal advisors – solicitors or counsel – to be restrained from acting in the proceedings any further.  All that is demonstrated is that the applicant, who is not a lawyer and represents himself, has formed a misunderstanding, it seems to me, of a great many number of matters arising out of the pleadings in this case.

RECORDED : NOT TRANSCRIBED

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 January 2020

Associate: 

Date:  23 January 2020