Hagos v Volvo Group Australia Pty Limited (No.2)

[2013] FCCA 514

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAGOS v VOLVO GROUP AUSTRALIA PTY LIMITED (NO.2) [2013] FCCA 514

Catchwords:
PRACTICE AND PROCEDURE – Application for summary judgment – where applicant claimed respondent filed no “responding” affidavit – where judgment sought on basis of failure to comply with order for disclosure – where judgment sought because of alleged perjury and falsified evidence – where application made at close of evidence and before submissions – application dismissed.

Legislation:  

Federal Circuit Court Rules2001, rr.13.03A, 13.03A(2), 13.03B(2), 13.07

Applicant: BERHANE HAGOS

Respondent: VOLVO GROUP AUSTRALIA PTY LIMITED

File Number: BRG 1109 of 2011

Judgment of: Judge Jarrett

Hearing date: 24 May 2013

Date of Last Submission: 24 May 2013

Delivered at: Brisbane

Delivered on: 24 May 2013

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr Saunders

Solicitors for the Respondent: Clinch Long Letherbarrow Lawyers

ORDERS

1. The applicant’s application for summary judgment is dismissed.

2. The Respondent file and serve written submissions by 4.00pm on 7 June 2013.

3. The Applicant file and serve written submissions by 4.00pm on 21 June 2013.

4. The Respondent file and serve any reply by 4.00pm on 28 June 2013.

5. The application be adjourned to a date to be fixed for delivery of judgment in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1109 of 2011

BERHANE HAGOS

Applicant

And

VOLVO GROUP AUSTRALIA PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for summary judgment pursuant to rule 13.07 of the Federal Circuit Court Rules2001. Rule 13.07(1) provides that the rule applies in a proceeding in relation to the whole or part of a party’s claim where, in relation to the whole or part of a party’s claim, there is evidence of the facts in which the claim or part of the claim is based and there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part of the claim or the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part of the claim.

2. Here, the claim, as I have already indicated in some reasons I gave yesterday, was initiated by a Form 4, which is an application used to commence a proceeding under the Fair Work Act2009 wherein the applicant alleges that there has been a contravention of the general protection provisions of that Act.  There is no statement of claim in this case as that term is understood by lawyers in the pleading sense.  There has been no order for the delivery of pleadings.  To an extent, however, the Form 4 represents a statement of the applicant’s claim. 

3. He argues, however, that his affidavit, which he filed in these proceedings on 31 July last year, is indeed a statement of his claim or a Statement of Claim.  It may be the former, but not the latter.  He argues that because the respondent has not filed an affidavit or affidavits which respond to his affidavit dated 31 July, 2012 perhaps not quite line by line, but certainly allegation by allegation, the respondent has failed to comply with the requirement on it to diligently prosecute its defence in these proceedings.  He argues that the respondent has not answered his claim.  His arguments in that regard are misconceived. 

4. Affidavits deal with evidence.  For better or for worse, people who draw affidavits for use in this Court, whether they be litigants representing themselves who are not lawyers or lawyers for parties to litigation tend to forget that affidavits are meant to deal with allegations of fact.  One often sees an affidavit which not only encompasses allegations of fact, but other matters including speculation, inadmissible opinion, conclusion and submission.  This case is no different.  It is not just the applicant’s affidavits.  The respondent’s affidavits are not immune from criticism either, but they are by and large far more confined to evidence of facts rather than anything else.  Mr Hagos’ affidavit, however, whilst it does give evidence of facts, also carries with it matters of submission, assertion, conclusion and speculation. 

5. But the affidavits are essentially the means by which a party to proceedings places his or her evidence before this Court.  There is no obligation on a party to file a competing or a responding affidavit.  The obligation on the parties for the purposes of court proceedings is to file a claim, if they wish to commence a proceeding, or an initiating application, depending upon the jurisdiction which is sought to be invoked.  A respondent must file a response.  Whether a party goes on to file any affidavits in support of his or her case or his or her defence is, subject to some particular rules, a matter entirely for that party.  Indeed, it may well be the case that a respondent to proceedings chooses to file no evidence whatsoever and it may nonetheless be the case that the response made to the application succeeds.  So there is no obligation to file an affidavit or affidavits which respond to the other party’s affidavits line by line.  Indeed, in a great majority of cases, such an approach is not particularly helpful to the Court. 

6. For those reasons, the applicant’s first ground of seeking summary judgment is, in my view, misconceived. 

7. The second basis upon which he asks for summary judgment is that the respondent, has not complied with orders for disclosure.  There was an order made on 29 November, 2012 that the respondent provide to the applicant a complete copy of what is described in these proceedings as the “IHR report”.  Mr Hagos contends that the respondent has not complied with that order because it has not provided a complete copy of the report to him.  The respondent, I infer, suggests that it has.  I can make no finding about that at the moment.  There is evidence before me which might demonstrate that Mr Hagos is correct.  There is also evidence that might demonstrate that he is incorrect.  But there is no basis, it seems to me, for making an order for summary judgment against the respondents on the basis of its failure to comply with the order of 29 November, 2012. 

8. For the sake of completeness and lest there be any suggestion that there is any confusion on my part about what it is that Mr Hagos is contending, I note that in respect of the respondent’s alleged failure to comply with the relevant order, he refers to and relies upon FCCR 13.03A(2), which suggests that the respondent in this case might be said to be in default for the purposes of the rules and that accordingly, under FCCR 13.03B, the Court might give relief to him for whatever it is that he appears to be entitled to on his statement of claim. 

9. But, as I say, I do not make any findings at this point about the respondent being in default. 

10. Mr Hagos also seeks summary judgment on the basis that the respondent has “misled the court by submitting falsified testimonies and obtained three court orders against me on 16 July 2012, 9 August 2012 and 29 November 2012 by deceit.”  He also says “the respondent committed at least 12 counts of perjury by knowingly submitting false statements under oath in matters of great significance to my court application.”

11. I cannot conclude at this point without making the relevant factual findings that I need to make that either of those assertions are true.  There is no doubt, it seems to me, that Mr Hagos is entirely convinced that the respondent has misled the Court by submitting false evidence and false affidavits and has obtained orders against him as a result of the respondent’s deceit, but I am in no position to make those findings without the opportunity to properly consider the evidence. 

12. Which brings me to the main and most significant reason why the summary judgment application must be dismissed, and that is that the trial has all but concluded.  The evidence has now closed.  The only thing left to occur is the delivery of submissions by each of the parties.  To leave a summary judgment application such as this to the conclusion of the evidence in the trial really defeats the purpose.  Certainly, there will be occasions where such an application is appropriate, but this is not one of those occasions.  Mr Hagos says, of course, that he applied for summary judgment by an application on 4 February this year.  That application came on for hearing before me together with some other applications.  It was not overshadowed by the other applications as he suggests.  I determined it.  I determined it on the basis that the relief sought by Mr Hagos was really the relief that he was asking for in the trial and that until such time as the evidence was before me and I could make the relevant findings of fact, there was no point in considering any application for judgment.  It was certainly not the case and it is still certainly not the case that his claim is so strong and the respondent’s evidence is so bereft of merit that the only conclusion open to the Court is that he will win. 

13. For all of those reasons, the application for summary judgment is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 May 2013

Associate: 

Date:  12 June 2013