Haque v Jabella Group Pty Ltd
[2016] FCCA 147
•4 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAQUE v JABELLA GROUP PTY LTD & ANOR | [2016] FCCA 147 |
| Catchwords: INDUSTRIAL LAW – Application for summary dismissal pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) – whether frivolous or vexatious – whether abuse of process – substantive application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.26, 41, 43, 61, 62, 87, 104, 129, 293, 344, 357, 545 Federal Circuit Court of Australia Act 1999 (Cth) |
| EdSonic Pty Ltd v Cassidy [2010] FCA 1008 Department of Education and Training AND Nicolaas Hart (B/2010/31) [2011] QIRComm 8 |
| Applicant: | AKM AZMERUL HAQUE |
| First Respondent: | JABELLA GROUP PTY LTD |
| Second Respondent: | JASON BAKER |
| File Number: | SYG 3246 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 22 July 2015 |
| Date of Last Submission: | 9 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2016 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Mr J Mattson of Bartier Perry |
ORDERS
The application made on 21 November 2014 and amended on 13 January 2015 is dismissed pursuant to r.13.10(b) and (c) of the Federal Circuit Court Rules 2001 (Cth).
“S1” lodged with the Court’s Registry on 24 April 2015 is to be returned to the applicant, Mr AKM Azmerul Haque.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3246 of 2014
| AKM AZMERUL HAQUE |
Applicant
And
| JABELLA GROUP PTY LTD |
First Respondent
| JASON BAKER |
Second Respondent
REASONS FOR JUDGMENT
On 21 November 2014 Mr AKM Azmerul Haque (“the applicant”) made an application to this Court pursuant to the Fair Work Act 2009 (Cth) (“the FWA”) alleging that his former employer, Jabella Group Pty Ltd (“the first respondent”), and Mr Jason Baker as director of the first respondent (“the second respondent”) had breached a number of sections of the FWA, the Industrial Relations Act 1996 (NSW) (“the IR Act”) and the Independent Contractors Act 2006 (Cth) (“the ICA”).
Application in a Case
The respondents filed an Application in a Case (“AIC”) on 14 May 2015, as foreshadowed at the directions listings on 11 March 2015 and 13 May 2015 (see [6] below). The respondents sought summary dismissal of the application pursuant to r.13.10(b) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), on the basis that the applicant’s substantive application was frivolous or vexatious. The respondents also sought summary dismissal, in the alternative, on the ground that the applicant’s claim was an abuse of the process of the Court (r.13.10(c) of the FCC Rules).
Background
This matter first came before the Court on 10 December 2014. The applicant appeared in person. There was no appearance by, or for, the respondents. It became clear that the applicant had not served the respondents. Leave was granted to the applicant to amend his application “in relation to the identification of the respondents in these proceedings”. The applicant filed an amended application on 13 January 2015 which identified Jabella Group Pty Ltd as the first respondent and Mr Jason Baker as the second respondent. The grounds of the amended application remained the same as those provided in the substantive application. Mr Mattson filed a notice of appearance for the respondents on 10 March 2015.
All parties appeared before the Court on 11 March 2015. The matter was set down for mediation. The matter remained unresolved at mediation.
A Registrar of the Federal Court of Australia made the following procedural orders in relation to evidence tendered during the mediation process on 24 April 2015:
“1. The Laptop, Dell Inspiron 1545, produced by the Applicant will be held by the Court and referenced as S1.
2. No access will be granted to any Party to this Laptop without a further Order of the Court.”
The parties appeared before the Court on 13 May 2015. At this time the respondents indicated through their legal representative their intention to file an AIC to have the proceedings dismissed pursuant to r.13.10 of the FCC Rules. The respondents filed such an application on 14 May 2015.
The Substantive Application
Pursuant to the Orders made on 10 December 2014, the applicant filed an amended application on 13 January 2015. The applicant sought the following orders in his amended application:
“…applicant advised company has confiscated his websites and SEO developement without having any legal contractual agreement. He also claimed it was personal contribution of his asset to the company.
1. Please provide legal documents against his claim or give his asset back to him as he offered.
please provide legal documents and explanations to proof applicant was employed with the company under
2. fair employment agreement complying with fairwork act 2006 with a full discloser of his salary/income.
Please also determine if any amount of money stolen from him under influence or unfair manner of employment agreement”
[Errors in the original.]
The grounds of the application, as amended, are in the following terms:
“1. Industrial Relations Act 1996 no 17, Chapter 1 Section 5, Section 9B Chapter 2 Part 2 Division 1 Section 28A, Part 9
2. FAIR WORK ACT 2009 (no. 28, 2009) - SECT 41, SECT 43, SECT 293, SECT 344, SECT 357, Professional Employees Award 2010
3. Independent Contractors Act 2006-- Par 1-Section 9, Part 3- Section 15”
The grounds of the application made reference to a number of sections of the FWA, the IR Act and the ICA. No particulars were provided. Attached to the amended application was a document titled “Notice of offer to compromise”.
A second further amended application was marked as “received” by the Court’s Registry on 5 May 2015 (referred to as “(AMENDED) version 2”). The applicant did not seek leave in Court to further amend his application. The Court proceeded on his amended application of 13 January 2015 (see also further below).
Application in a Case
As set out above, the respondents filed an AIC on 14 May 2015 seeking summary dismissal of the application, on the basis that the applicant’s application was frivolous or vexatious, or an abuse of process.
Rule 13.10 of the FCC Rules is in the following terms:
“13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.”
The AIC was supported by the affidavit of James Bernard Mattson, Solicitor, of 12 May 2015 (“the Mattson affidavit”). This affidavit was read into evidence with no objections from the applicant.
The parties were provided the opportunity to file written submissions. The respondents filed an outline of submissions on 4 June 2015, and the applicant filed an affidavit in support of his application on 8 July 2015. The applicant did not file any written submissions, although the affidavit could be read as being in the nature of submissions (see further below).
At the hearing of the AIC the applicant appeared in person. Mr J Mattson appeared for the respondents.
Applicant’s Evidence before the Court
The applicant has sought to put the following affidavits before the Court (see below (a) – (m)). None (other than the affidavits of service) were formally read into evidence. However, the parties agreed that the Court should have regard to them for the purposes of the AIC. In having that regard, and given what was stated in these documents, I treated the affidavits as being in the nature of submissions.
a)The affidavit of AKM Azmerul Haque of 21 November 2014 “in support of Final order 1 for Claim- 1” with annexures “AKMAH -1” and “AKMAH -2” (“A1”).
b)The affidavit of AKM Azmerul Haque of 21 November 2014 “in support of Final order 2 for Claim -2” with annexures “AKMAH -3” and “AKMAH -4” (“A2”).
c)Affidavit of AKM Azmerul Haque of 21 November 2014 “in support of Final order 2 for Claim -2” with annexures “AKMAH -4” and “AKMAH -5” (“A3”).
d)Affidavit of Service (General) of 21 November 2014 filed at the Court’s Registry on 13 January 2015. In evidence before the Court.
e)Affidavit of Service (General) of 13 January 2015 filed at the Court’s Registry on 13 January 2015. In evidence before the Court.
f)Affidavit of Service (General) of 27 January 2015 filed at the Court’s Registry on 20 February 2015. In evidence before the Court.
g)Affidavit of AKM Azmerul Haque of 20 February 2015 with Annexure “AKMAH -10 – Confirmation of Delivery of Documents including email sent to Respondent”.
h)Affidavit of AKM Azmerul Haque of 20 February 2015 with Annexures “AKMAH 7 – 9” (“A4”).
i)
Affidavit of AKM Azmerul Haque of 4 May 2015 with annexures “AKMAH -10”, “AKMAH -11”, “AKMAH -12” and
“AKMAH -13”. This affidavit was marked “received” by the Court’s registry on 6 May 2015 (“A5’).
j)Affidavit of AKM Azmerul Haque of 6 July 2015 with annexures “AKMAH -14”, “AKMAH -15” and “AKMAH –16” (“A6”).
k)Affidavit of AKM Azmerul Haque of 8 July 2015 with annexure “AKMAH -17” (“A7”).
l)Affidavit of AKM Azmerul Haque of 7 August 2015 with annexure “AKMAH -14”. [I note that this is the second affidavit that has an annexure with that name and number.] This affidavit was received by the Court’s Registry in late August 2015 (“A8”). Leave was not granted for the filing of this document.
m)Affidavit of AKM Azmerul Haque of 7 September 2015 with annexure “AKMAH -17” with an accompanying letter (“A9”). This affidavit was received by the Court’s Registry on 9 September 2015. Leave was not granted for the filing of this document. [I note that this is the second affidavit provided with the applicant which has an annexure named “AKMAH -17”.]
The Applicant’s Complaint and Submissions
In his amended application, the applicant appears to claim, through “final order sought”, variously, that the company “confiscated his websites and SEO development” without any “legal contractual agreement”. The applicant claims that it was a “personal contribution of his asset to the company”. The applicant seeks “legal documents against his claim” or that the company “give his asset back”. The applicant seeks “legal explanations and documents” to prove he was employed under a “fair employment agreement complying with” the FWA. The applicant also seeks a determination from the Court as to whether any “money stolen from him under influence of unfair manner of employment agreement”.
The applicant filed three affidavits on 21 November 2014 in support of the orders sought in his substantive application. I understood that the applicant provided affidavit A1 in support of “final order 1 for claim 1” and affidavits A2 and A3 were provided in support of “final order 2 for claim 2”.
The applicant sets out in A1 that this claim is “aroused from [his] past 4 years employment history” and that he is seeking to “get back [his] complete SEO developments, web developments, web pages, web contents, marketing strategy developments”. The affidavit further outlines his personal circumstances, a “proposed scenario”, his application before the “immigration minister” and his actions undertaken to purchase a “domain name”.
The applicant provides “evidence against above claim”. This appears to be an assertion that the company “has not paid a single dollar for any of the web development works”, that he undertook online research for “SEO development” which was “generated” from his knowledge and was not connected to his employment as a “finance broker” (page 2 of A1 at (1) – (2)). The applicant claims that he no longer works for the company and that his “work is not for sell”, has received no compensation, and that he wants them to “delete all pages” from their system (page 3 of A1 at (4) – (7)).
The applicant’s second affidavit (A2) articulates a further complaint, “Claim 2” over some six pages. The applicant sets out the background to his claim, the legal context and provides further details of the matter before the immigration department. He requests a confirmation of a “fair industrial wage and other entitlements” so he is able to calculate the sum “stolen” from him “with their unfair decision/ unfair manner of contract” (page 1 to page 5 of A2). The applicant claims that he is “not after any amount of recover money from the company”, and that he has reported the “illegal activities” to ASIC (relevantly, the Australian Securities and Investments Commission) (page 6 of A2).
The applicant’s third affidavit attaches a “Tax Evasion reporting form” (page 1 of A3) and other information relating to his claim lodged with the Australian Taxation Office (“ATO”). He also attaches emails and information which appear to be related to a claim before the Department of Immigration and Border Protection (“DIBP”).
The applicant sought to put before the Court another affidavit made on 20 February 2015 which annexed a six page document “Descriptions of Dell Laptop as Evidence of Employment” (“AKMAH-7”). This annexure appears to provide descriptions as to the software on his laptop and submissions on the relevance of his laptop and software to his job. The affidavit further annexes documents related to the applicant’s complaint before the Mortgage & Finance Association of Australia (“the MFAA”) (“AKMAH-8”). The affidavit also seeks to annex a “Dell Laptop” (“AKMAH -9”). The use, or relevance, of the physical Dell laptop to the applicant’s claim is not made clear.
The applicant’s sixth affidavit (A6) before the Court was made on 6 July 2015. This affidavit was made in response to the AIC. Large parts of this affidavit appear to take the form of written submissions.
The applicant claims that he makes “two very precise claims”, the first being “[r]eposession of intellectual property of an independent contractor” (page 1 of 17 of A6). He further claims that he was discriminated against, “tortured, robbed blindly by his employer for a 4 year period of time, where employer intentionally never created any employment agreement complying with” the FWA (page 2 of 17 of A6). The applicant claims that “huge” sections of the FWA have been breached by his former employer. The applicant demands an “injection” (presumably, “injunction”) for those breaches ((C) at page 1 of 17 of A6). The terms of this injunction are not further explained.
The applicant also “proposes” that the “amount of compensation” that is awarded to the applicant be included in the “penalty” amount. This proposition was also not further explained ((C) at page 1 of 17 of A6).
The applicant’s affidavit further outlines the steps he has undertaken with numerous bodies, including with the respondents, to have his matter “resolved” ((D) – (E) at page 1 of 17 of A6).
Affidavit A6 has three annexures. The second annexure is an “extract from ASIC licensing regulations to confirm the sanction of his employment by licensee Jason Baker was unlawful” ((G) at page 2 of 17 of A6 and annexure “AKMAH-15”).
The first annexure (“AKMAH-14”) is the applicant’s summary of “case references provided by lawyer of respondents”. The applicant claims that he “does not wish to entertain any ghost protocol from their cases references on this submission”, and further, that the “dump of information” did not “fit with his case from any legal perspective” ((I) at page 2 of 17 at A6). This was not further clarified in the annexure, or satisfactorily explained before the Court.
The applicant also submitted a “Reinterpretation of claim 1 Final order sought 1” by annexing a copy of a document titled “Employee or Contractor?” which is a 6 page document, which appears to set out what he says are the relevant tests for the identification of each role. A relevant conclusion as to whether he was an employee or a contractor is not articulated. The applicant then refers to s.9(1)(a)-(c) of the ICA. This is not further explained (page 2 of 17 of A6 and Annexure “AKMAH -16”))
The affidavit then simply states ss.30, 35, 132AA, 132AC and 132AG of the Copyright Act 1968 (Cth) (“the CA”) and refers to a case, EdSonic Pty Ltd v Cassidy [2010] FCA 1008 at [4].
The applicant submitted that in relation to s.30 of the ICA that his “job was done as an independent contractor that implies the right [of] [his] ownership” (page 4 of 17 of A6). The applicant then refers to a number of emails he has sent, and work completed over this period, in support of the relief he seeks, to have his “asset” given back to him (page 6 of 17 of A6).
The applicant refers to the definition of “copyright” in the Intellectual Property Laws Amendment (Raising The Bar) Act 2012 (Cth) and to s.13 of the Designs Act 2003 (Cth) (page 7 of 17 of A6).
The applicant submits, in his “Reinterpretation of claim 2 Final order sought -2”, that the payments made to him did not meet the National Employment Standards under the FWA “if proven” (at ss.61, 62, 87, 104 and 129). The applicant then submits that it is the “[C]ourt’s decision” to make a determination as to whether (page 8 of 17 of A6):
“1.if [the applicant] was an employee?
2. if [the applicant] was a full time employee?
3. What should be [the applicant’s] hourly rate? With an approved registered agreement.
4. Why [the second respondent] did not apply for a registered agreement to determine [the applicant’s] salary in 4 years period of time?...”
The applicant provides his “opinion about salary” and an extract of “Modern award wages” for a clerical job (page 8 of 17 of A6). He then states that the “Court will have to leave the matter up to the [F]air [W]ork [C]omission” (page 8 of 17 of A6).
The applicant requests that, “as per the requirement of ‘Common Law’” the respondents present proof as to how the applicant was a contractor, on what basis they think the “commission only payment was fair”, and to provide a reason as to why no “written agreement” existed for the commission payments (page 9 of 17 of A6).
The applicant, under the heading “Matters related to Remedy”, asserts that the second respondent was using this “MFAA membership and credit licence” in a manner which was “[f]rivolous, vexatious, abuse of process, personal attack” (page 14 of 17 of A6). The applicant further sought to rely on s.545 of the FWA and Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151. The applicant submits that the “stealing” of his “asset” and “salary” is “mental harassment and discrimination” to him (pages 15 and 16 of 17 of A6).
Annexure “AKMAH -14” of A6 is in the form of written submissions. The annexure sets out his “opinions” about the respondents’ AIC and his “understand[ing]” of the claim before the Court ((3) and (12) of pages 1 and 3 of 13 of annexure “AKMAH -14” of A6). The applicant provides various submissions under the heading “Original Application”, “Amended Application”, “Mediation” and “Further correspondence”.
These submissions appear to refer to the procedural history of this matter before the Court and cover the applicant’s Affidavits of Service (see [16] above), the separation of “two entities” on his amended application, and that the respondents wish to undertake mediation “to avoid all possible penalties” that could be imposed by the Court (pages 2 and 3 of 13 of annexure “AKMAH-14” of A6).
The applicant provides a number of case references and argues that the respondents’ interpretation of his claims is “extremely discriminating and abusing”. The applicant relies on Re Sea Culture International Pty Ltd v John Allibon Scoles; Gayleen Morea Meehan; Ocean Foods International Pty Ltd and Vapac Limited (In Receivership) [1991] FCA 523; (1991) 32 FCR 275 (“Re Sea Culture International”) to argue that (page 4 of 13 of annexure “AKMAH -14” of A6):
“The matter of the case reference became obscure with the situation where subsidiary company (Sea culture pty ltd) is claiming for damage or loss from whole bunch of related entities. Situation seems to be the subsidiary company (Sea culture pty ltd) who was trying to claim a loss though there was no loss practically identifiable because the subsidiary was running their business at that time in a fair competitive market. My context is in a reverse situation comparing to this case, where the respondents have been taking benefit out of my property and income for 4 years and still not giving me back my property after formal notice provided more than 1 year ago.”
In relation to “Ground 1 identified by lawyer: Failure to disclose any reasonable cause of action” of the AIC, the applicant asserts that “the cause is I am the owner of the asset/property and the action is I want my property back” (pages 4 and 5 of 13 of annexure “AKMAH-14” of A6). The applicant provides further submissions on his role as an independent contractor and his communications with “ASIC and MFAA” (page 5 of 13 of annexure “AKMAH-14” of A6).
The applicant makes a number of written submissions on the various cases relied on by the respondents in their written submissions. He argues that the respondents’ case references are a “dump of information to mislead the judge to a completely different direction astray from the actual case of employment law” (page 9 of 13 of Annexure
“AKMAH-14” of A6). The applicant makes the following submissions in regards to these cases:
a)The applicant refers to Department of Education and Training AND Nicolaas Hart (B/2010/31), with the word “Decision”. This is not further explained.
b)The applicant relies on Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85 at (11) (“Minogue”) to argue that the problem with this case was that “the appellant was not entitled to any of the relief sought by him” and that “the fellow lawyer and defendants will have to build muscles together to fit my claims inside this case reference” (page 5 of 13 of annexure “AKMAH-14” of A6).
c)The applicant also refers to Rajski v Scitec Corporation Pty Ltd (1986) unreported, NSWCA, No 146 of 1986, 16 June 1986 (“Rajski”) to argue that the respondents’ reference to this case is “completely irrelevant” and proceeds to “point out some words” from this case.
d)The applicant argues that Tinkler v Elliott [2012] ALL ER (D) 94; [2012] EWCA Civ 1289 (“Tinkler”) is a repetition of the “urge the lawyer of the defendant represented at the Court on 11th of March” (page 7 of 13 of annexure “AKMAH-14” of A6).
e)The applicant did not find Ejueyitsi v Bond University [2012] FCA 1514 (“Ejueyitsi”) to be relevant to his matter (page 7 of 13 of annexure “AKMAH-14” of A6).
f)The applicant refers to Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189 at [19] (“Paramasivam”) to “justify the legal context” of his case (page 8 of 13 of annexure “AKMAH -14” of A6).
g)Further that the reference to Attorney-General v Wentworth (1988) 14 NSWLR 481 (“Wentworth”) is a “meaningless reference” used to “mentally harass a self-represented applicant” (page 10 of 13 of annexure “AKMAH -14” of A6).
h)
The applicant argues that the respondents’ “lack of understanding” of Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425; (2006) 80 ALJR 1100 (“Batistatos”) demonstrates their intention to “avoid all legal claims” (page 11 of 13 of annexure
“AKMAH-14” of A6).
i)The applicant could not find any “ground or basis [for] the case reference” for Ridgeway v R [1995] HCA 66; (1995) 129 ALR 41 (“Ridgeway”) (page 11 of 13 of annexure “AKMAH -14” of A6).
j)
The applicant submits that Rogers v R (1994) 181 CLR 251 at 255 (“Rogers”) “gives some insights of their understanding about abuse of process”. It is not clear whose understanding the applicant is referring to (page 12 of 13 of annexure
“AKMAH-14” of A6).
k)The applicant refers to Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (“Spautz”) and submits that the case does “not give a respondent any right to claim ‘I do not understand the case so the purpose is abuse of process” (page 12 of 13 of annexure “AKMAH -14” of A6).
The applicant referred to his “amended application” and made further submissions on his claim before the Court and about the process of mediation (page 8 of 13 of annexure “AKMAH -14” of A6):
“It was court’s duty to refer for mediation as a viable process only, it is not mandatory to settle the matter via that process. It was waste of my time because I already know what they will offer as compensation. As I have mentioned compensation does not compensate anything. So I am not claiming it.”
The applicant provides a “summary of legal principles” (pages 12 -13 of 13 of annexure” AKMAH-14” of A6).
Annexure “AKMAH-15” of A6 provides submissions on why the “ASIC and MFAA misconduct reports” are relevant to this matter. Annexure “AKMAH-16” is a document generated by CPA Australia, referred to at [27] above.
Respondents’ Evidence and Submissions
The respondents submit that the substantive application, and the applicant’s affidavits of 21 November 2014 (A1, A2 and A3), are “difficult to follow” (respondents’ submissions at [6] – [8] and [15]).
While the respondents submit that it is possible to identify the general “nature” of the grievance, they argue that that “no material facts are disclosed or pleaded…with any sufficient degree of specificity to convey” the case that needs to be met, and as such, it is an abuse of process, or frivolous or vexatious (respondents’ submissions at [19], and see the reference there to Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 (“Charlie Carter”). However, they argue that “it is not easy to distil, with the exactness that the practice and procedure of the Court requires” what is the cause of action (Paramasivam at [34]).
The respondents rely on Northam v Favelle Favco Holdings Pty Ltd (1995) unreported, Supreme Court, NSW, Bryson J, No 6301 of 19927, March 1995 at [5] – [6] (see also McGuirk v The University of New South Wales [2009] NSWSC 1424):
“…It is not fair to require a defendant to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts’ reports. He might get it wrong, and the greater the complexities are, the more probable it is that he will understand what is alleged in some different way…”
The respondents’ claim that affidavit A1 does not identify any “meaningful” basis for a claim, that the claim lacks “appreciable particularity” and that the Court, and respondents “should not be required to guess” what the claim is (respondents’ submissions at
[6] – [8]). The respondents argue that the expectation that the Court is to guess what is alleged in the applicant’s claim is “unfair and an abuse of the [C]ourt’s processes” (Paramasivam at [22] – [24] and see respondents’ submissions at [12]).
The respondents submit that affidavit A2 is “in the nature of submissions” and is “rambling”. The respondents refer to the following statement from A2 to argue that the proceedings have been brought for a “improper or ulterior purpose”, and, as such, are an abuse of process (respondents’ submissions at [9]):
“…I am not after any amount of recovery money from this company…I need to submit the court decision to ASIC that they can cease their credit licence immediately.”
The respondents submitted that the applicant is not seeking financial compensation in these proceedings and that he wishes to “close down their fraud and spam business” for five years (the Mattson affidavit at annexure “E”) and to “send [the second respondent] to 2 Years jail time” (see annexures “E”, “G”, “H” and “K” to the Mattson affidavit). In addition to the above they rely on further statements made by the applicant in various communications, “I’m not after any amount of money” (annexure “G” to the Mattson affidavit), and “I am not seeking any compensation from [the second respondent] so I did not exactly calculate the amount of unpaid salary” (at annexure “K” to the Mattson affidavit). The respondents submit that the Court does not have power to make such orders in these proceedings (respondents’ submissions at [24]). The respondents argue that these statements are examples of the applicant’s “improper” purpose in making his application to the Court.
The respondents also argue that the applicant’s failure to properly partake in Court ordered mediation (see, for example, “I do not negotiate with thieves” (annexure “E” to the Mattson affidavit)), and other various communications between the parties, manifests his intention to not “properly articulate his claim” and that the applicant believes it is the Court’s responsibility to “review his story and determine if there have been any breaches of legislation”, effectively asking the Court to argue or discover the legal elements of his case for him (respondents’ submissions at [27]).
The respondents further submit that the references in A2 to “issues with immigration”, and documents attached to affidavit A3, do not appear to be part of the application (respondents’ submissions at [10]). The respondents argue that the ASIC and ATO documents attached to affidavit A3 further support their argument that the proceedings have been brought for an improper purpose (respondents’ submissions at [11] – [12]).
The respondents argue that “the fact that the [a]pplicant does not have legal representation is not a matter that should be relied on to produce an unfair consequence for the [r]espondents” (see Minogue at [28], Rajski, Tinkler at [32], Ejueyits at [16] and the respondents’ submissions at [4] - [5]).
Frivolous and Vexatious
As stated above, the respondents claim that these proceedings are frivolous and vexatious and/or are an abuse of process, and for this reason, should be dismissed pursuant to r.13.10(b) or (c) of the FCC Rules.
The respondents’ rely on the test set out in Wentworth at 491 as to whether proceedings are “vexatious” (see [149] below).
The respondents’ further rely on Paramasivam at [72] to argue that there “is no satisfactory exposition of the difference between frivolous and vexatious” and that it cannot be restricted to “defined and closed categories” (respondents’ submissions at [53], [54] and [56]).
The respondents’ argue that the applicant’s claims are “clearly vexatious” as they; do not identify or clarify, in a fair and meaningful manner, the claim brought against the respondents; do not identify the basis of a cause of action or provide necessary particulars; “dumps” a story on the Court and expects the parties to “guess” the claim; contains “irrelevant matter[s]”; does not seek “relief” that the Court is capable of granting and “has no reasonable prospects of success”. The respondents point to specific examples to support this submission. The respondents submit that because of this, the proceedings “appear to be futile” and are a waste of “Court time and resources” and that the proceedings should be dismissed.
Abuse of Process
The respondents’ rely on Batistatos at [9] (see [158] below) to submit that the possible varieties of abuse of process “are not closed”. Further, as Gaudron J articulated in Ridgeway at [32] (see also respondents’ written submissions at [55] – [56]):
“The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose (182), as well as proceedings that are ‘frivolous, vexatious or oppressive’ (183). This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard (184). That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’(185) because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case (186). That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose (187) and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ (188) or ‘productive of serious and unjustified trouble and harassment’ (189).”
Further, that although the categories remain open, “abuses of procedure usually fall into three categories” (Rogers at 286):
“(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.”
Proceedings will be an abuse of process if they can be seen to be “foredoomed to fail or brought without reasonable grounds” (Batistatos at [10], Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393 and Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 at [46]).
It is claimed that proceedings will amount to an “abuse of process” if they are brought for an “improper purpose” (Spautz). The respondents rely on Spautz at [42] to establish that an “improper purpose” is one where “the predominant purpose of the other party in using the legal process has been one other than that for which it was designed” (respondents’ submissions at [58] – [59]). The respondents claim that the “predominant purpose” for the applicant filing his application is to “agitate complaints with other authorities”, to “close down the business” of the respondents and to “jail” the second respondent. The respondents’ argue that this “improper purpose” is also supported by the fact that the applicant does not use these proceedings to “obtain the relief properly available” under the ICA or the FWA (respondents’ submissions at [60]).
The respondents rely on Ridgeway to argue that the “amended application is vexatious because the proceedings are an abuse of process” (respondents’ submissions at [54.5]).
The respondents argue that, in addition to the reasons set out at [58] above, his claim amounts to an abuse of process, and are “harassing and oppressive”, because the applicant has brought his claim for an “ulterior purpose”, has failed to properly engage with the Court’s processes (such as mediation), his refusal to clarify his claim or seek appropriate relief. The respondents claim that, therefore, because these proceedings are an “abuse of process”, they should be accordingly dismissed.
Consideration
There is no doubt that the applicant has a deeply felt grievance against the second respondent and, by extension, the first respondent. From the material he has put before the Court that grievance extends to others, including the DIBP (his material before the Court makes references to suing the DIBP), and to the broader Australian community (see, for example, page 3 of “AKMAH-8”, annexed to A4).
As set out above, the applicant has put a large volume of material before the Court both in relation to his substantive application, and what purports to be in answer to the respondents’ AIC. I have made extensive reference to this above to illustrate the difficulty, if not, it must be said, impossibility, of establishing a coherent case, let alone one that is amenable to recognition as a case at law.
While the material is submitted in the form of affidavits, and annexures to affidavits, it cannot, on even a generous view, be said to be recognisable as an attempt to put evidence before the Court. Rather, the material consists, in large part, of narrative expressions of his grievances.
As indicated above, it must be stressed that the material presented by the applicant is for the most part, impenetrable, and in part, incoherent. It is, even on a number of close readings, immune from conveying meaning relevant to progressing what is, after all, a legal proceeding.
The applicant is plainly not legally trained or a lawyer in this, or any other, country. His attempts at explaining, or ostensibly relying on, legal authority are not helpful in understanding the case he is seeking to raise.
However, I do note that as an unrepresented litigant before the Court the applicant seeks to confront respondents who have legal representatives, who are experienced in matters of this type. This is the context within which the questions must be asked of the Court’s role and approach, in dealing with an unrepresented applicant, who has no understanding of the law, or its litigation requirements.
The applicant’s mistaken, and unhelpful, approach to this matter is to present lengthy, confused and confusing narratives to the Court about perceived wrongs, with a request, in effect, that the Court find the relevant cause, or causes of action, or make declarations as to the alleged unlawfulness, if not criminal conduct, of the second respondent and possibly others.
In his material put before the Court, the applicant makes reference to the respondents’ failure to provide details of their case in response. Further, in relation to the AIC, the applicant states “Applicant respectfully affirms that respondents are completely failure to articulate any particular cause of action in legal manner in their present submission” (see annexure “AKMAH-17” to A7).
Two matters are of note. First, the respondents’ submissions and evidence, in relation to the AIC, made quite clear the legal principles and facts on which they rely in seeking summary dismissal. The applicant’s contention in this regard must be rejected.
Second, and however, this illustrates the applicant’s failure to understand that he bears the responsibility to identify and present his complaints in a coherent fashion, such that the respondents (and the Court) are able to understand the case he is seeking to raise, and for the respondents be able to meaningfully respond.
It would appear from his “submissions” that the applicant expected the respondents to respond to his application with full particulars and details in their AIC, if not in some other way. The difficulty for the applicant is that his failure to articulate his case (even to a standard commensurate with his lay status) provides part of the basis for the respondents’ application for summary dismissal.
The applicant commenced the current proceedings on 21 November 2014. He appeared before the Court on 10 December 2014. As stated above, it appeared the respondents, at that time, had not been served with relevant documents, and therefore, there was no appearance on their behalf. Nonetheless, an order was made, given the state of the original application, that the applicant amend his application. The amended application was filed on 13 January 2015 and listed two respondents. That matter was named for further directions on 11 March 2015 to enable the applicant to properly serve the respondent.
On that date, both parties appeared. An order was made referring the matter to a Registrar of this Court for mediation. There was no indication that either party opposed the making of this order.
There is evidence before the Court to indicate that the applicant did not approach the opportunity for mediation with a view to resolution of his dispute. However, the applicant saw the respondents’ concurrent requests for details, or particulars, of his case as leading to “a complete waste of time” (see annexure “K” to the Mattson affidavit).
The applicant’s approach to the substantive proceedings has been to seek to shift the burden of articulating a coherent case both as to facts, and the law, to the Court. In his “submissions”, the applicant makes repeated references to his having provided clear details and particulars of his case. However, at the same time, he seeks to task the Court with making sense of his case and to, in effect, articulate, and then decide on, the legal issues arising.
As stated above, the respondents seek summary dismissal of the substantive application, as amended on 13 January 2015. The bases of the AIC are the assertions that the proceedings, and the claims for the relief sought, are frivolous or vexatious or are an abuse of process. The respondents ask that the Court proceed pursuant to r.13.10(b) and (c) of the FCC Rules.
The respondents refer to Re Sea Culture International per French J (as he then was) at [12]:
“…The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. An unmeritorious claim brought merely in order to put pressure on a respondent for commercial or other reasons would no doubt be treated as an abuse. Such a claim might also be attacked as frivolous or vexatious or as disclosing no reasonable cause of action. Those designations are not mutually exclusive….”
Nonetheless, the power to dismiss an application summarily should be exercised with great caution (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24] per French CJ and Gummow J, Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 at [6], Burrup Fertilisers Pty Ltd v Oswal (No 2) [2011] FCA 731 at [21] per McKerracher J and Morton v Mitchell Products [1996] FCA 828; (1996) 21 ACSR 497 at 513 per Sackville J). Further, I note what was, relevant to the current circumstances, said in State of New South Wales v Williams [2014] NSWCA 177 at [71] per Emmett JA:
“…the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases…”
As set out above, the problem in the current case is that the presentation of the applicant’s case, despite the opportunity to address this issue, leads to a difficulty in describing the relevant facts upon which a cause of action, and any legally triable issue, may be said to arise.
This is not a case where the consideration can proceed to the question of whether the application raises an arguable case for the relief sought. The respondent does not rely on r.13.10(a) of the FCC Rules, in consideration of whether the claim for relief has any reasonable prospects of success. In part, this is because the relief sought by the applicant and the presentation of facts is so unclear that it is not possible to properly evaluate any prospects of success.
In these circumstances, it may have been open to the respondents to have developed an argument that there was no reasonable prospect of success because the difficulty, set out above, leaves the case as hopeless and bound to fail. Nonetheless, the respondent sought summary dismissal of the substantive application due to the fact that the proceeding was frivolous, vexatious or an abuse of process.
As also set out above, the applicant was not legally represented in these proceedings. This raises the question as to how much “leeway” can be given to such an applicant in the articulation of his case, and the capacity of the Court to “assist” him.
The respondents submit that this matter should not lead to an “unfair consequence” for them. As set out above, they rely on the explanation as to the Court’s relevant obligation, provided by the Full Court in Minogue at [28]:
“The general principles governing the role of the Judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSW CA. Samuels JA said this (at 14):
‘in my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ...At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.’
Mahoney JA made the following observation (at 27):
‘Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.’
These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC), at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497, at 513-514, per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation.”
Further, the respondents’ note what was said in Tinkler at [32]:
“An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person.”
It must be said that the applicant’s “response” to the respondents’ submissions, in this regard, suffers from the same difficulties of comprehension as the bulk of his “submissions” (see, in particular, page 6 of 13 of annexure “AKMAH -14” of affidavit A6).
At best, I understood the applicant to say that Minogue is of no assistance to the respondents because, in that case, “the appellant” was said “not [to be] entitled to any of the relief sought by him”, which the applicant says does not apply to his case. He believes his case is so weighty that the “fellow lawyer” and respondents “…will have to build muscles together to fit my claims inside this case reference”.
Again, the applicant has misunderstood the respondents’ argument and the reliance on the authority of Minogue. The applicant obviously believes in the merits of his case. With respect, his submissions here, again, demonstrate his lack of understanding of the argument raised at this time against him concerning the character of his claims in support of his application to the Court. The applicant’s submissions on Tinkler are of a similar nature (see page 7 of 13 of annexure “AKMAH -14” to A6).
Notwithstanding the respondents’ submissions, there is some authority of this Court for the proposition that where an applicant is
self-represented the Court should “independently” consider whether an arguable case on the material could be made out by the applicant (see Chung v University of Sydney [2001] FMCA 94 at [14] (“Chung”) which was not disturbed on appeal in Yo Han Chung v University of Sydney & Ors [2002] FCA 186 (“Chung FCA”), and see further, Kosi v Minister for Immigration [2003] FMCA 340 (“Kosi”)).
There may be cause, in some circumstances, for observing conflict between the two sets of authorities referred to above. However, there is a plain distinction between the circumstances in Chung and Kosi, with the current case, which makes any such characterisation unnecessary.
In Chung and Kosi there was at least some intelligible presentation of the grievances in the context of a set of relatively clear facts in the materials presented, which enabled the Courts to consider the question of whether an arguable case arose. Although not expressed in terms that a lawyer would have employed, the materials presented were nonetheless of sufficient character to enable proper consideration by the Court.
In the current case, the absence of any such articulation leaves the Court in a position of having to speculate, to a significant degree, as to the real nature of the grievances, the relief sought, and the relevance, or otherwise, of the various statements and assertions to any identifiable causes of action.
In short, the Court would be acting with “excessive indulgence” in seeking to make out a case for the applicant which is not apparent, even in lay terms, from what he has put before the Court. Nonetheless, it is appropriate to attempt to comprehensively assess all the material before the Court from the applicant, as follows.
As set out above, the applicant commenced these proceedings on 21 November 2014. On its face, the application does not identify which jurisdiction of this Court the applicant seeks to invoke. What is clear is that he did not want the proceedings to be dealt with under the National Consumer Credit Claims (small claims) procedures.
The orders sought by the applicant (see [7] above) are not in any recognisable form but appear to be expressions of grievance by the applicant against the respondents. These appear to be allegations concerning, what is described as, “confiscation” of his property by the respondents and seeking return of his “assets”. He seeks that the Court determine if any money was “stolen” from him.
As set out at [8] above, the grounds of the application are simply a list of sections from the FWA, the IR Act and the ICA. [I note parts of this immediately raise questions of the Court’s jurisdiction.]
As set out above, the applicant also filed three affidavits at that time (see above at [16](a), (b) and (c)). As also referred to above, the applicant’s affidavits cannot be said to be a proper attempt to put evidence before the Court. They appear to be long narratives attempting to express grievances. For current purposes, as stated above, I have considered the affidavits in the nature of submissions.
The important points to note from those documents are that, again, there is no meaningful expression, or even identification, of the basis of the applicant’s claims. While, references are made to “claim 1” and “claim 2” (as stated, without explanation in the application), the lack of particularity and clarity leave these documents in the state of an expression of his discontent with the respondents, but provide no idea of what he is actually claiming.
References to wanting “my works back” and “my websites back” and the “proposed scenario” which refer to a “self-employed contractor”, in the third person, leaves the respondents in the position of having to “guess” at the applicant’s case.
The other two affidavits refer to “claim 2”. One provides long narratives without a clear focus. Nor is it in any way clear why correspondence the applicant has had with the Minister for Immigration and Border Protection, and his department, has any relevance to his current application.
The third affidavit, again, is unclear. As stated above, this appears to relate to the complaints made by the applicant to the ATO and to ASIC in relation to the respondents.
It was clear when the matter first came before the Court (10 December 2014), and subsequently, that the applicant’s cause would be assisted by the filing of an amended application.
The applicant did file such an application on 13 January 2015. It must be said that the applicant has made no satisfactory attempt to clarify his causes of action, his claim, or for that matter, his arguments in support.
The “grounds” of the amended application make reference to the IR Act. The applicant has not explained the relevance of this, given s.26 of the FWA, which excludes State or Territory industrial laws to the extent that they would otherwise apply to, relevantly, matters dealt with by the FWA.
The grounds also make reference to the FWA and the ICA. A clear assertion of a complaint, or complaints, under any part of either Act may have provided some basis to assert the cause, or causes of action, for the Court to consider at a final hearing (see further below).
However, the state of the amended application cannot be said to assist the applicant in this way. Having regard to the totality of the material filed by the applicant to that date, his approach appears to be that the respondents have engaged in a series of, often unlawful and criminal, acts, and that their conduct has negatively affected him.
The difficulty is that it is unclear what conduct engaged in by the respondents has been unlawful, let alone the legal basis for such charges. At its highest, the applicant’s submissions attempt to put a large volume of narrative written questions, and proposed answers before the Court, and ask the Court to not only make sense of it, but also to discern exactly what he seeks by way of relief.
That latter point can be illustrated by the “relief” that he says he seeks by way of the amended application. He asserts that he wants return of certain assets said to be held by the respondents. That request appears to be predicated on the basis that he was an independent contractor. Although that must be seen with a number of other statements provided by the applicant which vacillated between asserting his relationship with the respondents was that of employee or an independent contractor. Ultimately, he appears not to know, and asks the Court to make some declaration as to his status.
One example of these contradictory statements is that he seeks a “fair employment agreement”. It is not clear whether this was a request for the Court to determine whether he had been dealt with “unfairly” by the respondents, or wanted the Court to ensure that for the future he was to be dealt with fairly. In any event, this appears to assert that he was not an independent contractor, but an employee of the respondents.
The applicant’s grievances about the claimed conduct of the respondents, and its impact on him, is also exemplified by his asking the Court to “determine if any amount of money [was] stolen from him under influence or unfair manner” (whatever “influence” may mean here is not explained).
I agree with the respondents that here, again, no material facts are described or pleaded, let alone with any sufficient degree of specificity, such that the respondents (and for that matter the Court) can know the case to be answered (Charlie Carter at 417).
In all, as stated variously above, there is a general sense of grievance arising from the totality of the material submitted by the applicant up to, and including, the amended application. It is also clear that that grievance is directed to the respondents, particularly the second respondent. However, I agree with the respondents’ submission, and with specific reference to Paramasivam at [34] (see above at [47]), and find that what is put forward by the applicant such exactness as to the cause or causes of action, such that it is difficult to ascertain the applicant’s case.
In his “submissions” the applicant states that he seeks to draw specific and “particular” notice to Paramasivam at [19]:
“The operative word in that statement is, however, ‘properly’, for it must be clearly understood, even by self-represented litigants, that whether or not they like or approve of the fact, the fact is that there are some things that a Judge cannot do. One of them is to give such favoured treatment to a litigant in person as will excite an understandable suspicion on the part of the opposing party or parties that their own rights to a fair and unbiased hearing are coming into question.”
The reason is said to be (page 8 of 13 of annexure “AKMAH -14” of A6):
“- The reason for pointing paragraph 19 of the above case to justify the legal context of my case that ‘an unlawful and spam business is asking for a little favor I will repeat it seems like a little favor to the respondents to let them continue their spam business to steal people’s property and income whenever they are found in vulnerability. I will request the court to count 5 years worth of time from my own life.’
- They will employ people illegally because they know court will give them favor with the help of their lawyer as they won’t be litigating in person with the help of stolen money from the same people.
- I would also wish to response against their summary (point 13 on outline of submission on 14th may 2015) where they mentioned my application has ‘little insight’, ‘general sense about subject matter’, respondent might have to guess anything‘. With due respect to the claim of lawyer, I have provided more insights of the case on my present affidavit to reduce their confusions. I cannot actually help the defendants with the fact that most common laws are made from general sense about subject matter, respondent only will have to guess something if he does not have any legal backgrounds.”
This extract is indicative of the many difficulties with the applicant’s presentation. Of particular note is that the applicant has plainly not understood what the Court said in Paramasivam at [22] – [24]:
“[22] It is not only litigants in person, it must sadly be acknowledged, who have a tendency these days to ‘dump’ upon a Judge a huge mass of more or less undifferentiated documentary material assuming, more or less as a matter of course, that the Judge will simply read through it, no matter how voluminous it is or how complex are its contents.
[23] Once again there is no point in being other-worldly about the matter. It is simply not possible to conduct a case in modern conditions upon such a footing. The more voluminous the material, the more essential it is that there be found some method, whether by way of indexes, summaries, pagination or the like, that will bring the material into some kind of useful and disciplined form which can be understood sensibly by the making of a reasonable effort in that behalf.
[24] I say again, and say it with emphasis, it is time that all litigants understood that it is no part of the judicial duty to accept an undifferentiated mass of documentary material as though it were a matter of course that the Judge will simply wade through it hoping that, after hours or, in a case of the present kind, days, of reading at large, he will somehow manage to identify correctly what the parties thought they were putting before him in the first place.”
Second, and relevant also to a matter to which I will return to below, the extract reveals part of the applicant’s motivation for commencing and prosecuting these proceedings, which is to “close down”, what he said, is the respondents’ “spam business”. That is, it gives rise to the question of whether the proceedings were brought for an improper purpose.
In that light, the respondents’ submissions drew attention to the following parts of the affidavit of Mr Mattson (respondents’ submissions at [21] and [23]):
“[21] The Applicant has made various statements in communications that he is not seeking any financial compensation in these proceedings, including:
[21.1]‘I am giving away $100,000 worth of unpaid salary to the hands of Australian legal system just to close down their fraud and spam business’;
[21.2] ‘...I'm not after any amount of money’ and
[21.3] ‘As I am not seeking any compensation from Jason Baker so I did not exactly calculate the amount of underpaid salary’.
…
[23] The Applicant in various communications appears to have disclosed his 'true' intentions in bringing these proceedings:
[23.1] ‘I am giving away $100,000 worth of unpaid salary to the hands of Australian legal system just to close down their fraud and spam business’,
[23.2] ‘ ...I want their business to be closed, I'm not after any amount of money’,
[23.3]...that I can send him to 2 Years jail time to invade my privacy or personal life’,
and
[23.4] ‘When I am claiming to a legal system to shut down a business for approximately 5 years...’.”
Before the Court on 11 March 2015, the applicant’s oral submissions made reference to wanting to tender into evidence a laptop which had, he said, “8 gigabytes” of documents that supported his claim. He asked the Court to view this material again without specificity as to what was being alleged.
At the same directions hearing, the applicant submitted that he relied on the entirety of the FWA because all of its sections had been breached by the respondents. Even allowing for some lay person’s hyperbole, the thrust of the applicant’s submissions was, unhelpfully, that he wanted the Court to examine each section of that Act and to determine how it had been breached by the respondents.
The applicant’s intentions in commencing, and his approach to pursuing, his application can also, to some extent, be derived from the following email from him to an employee of the first respondent (see respondents’ submissions at [27.3] and annexure “K” to the Mattson affidavit):
“The matter will be decided at the court, this is not my job to determine what [the second respondent] was doing legal or illegal, my job was to explain the full details of employment situation with relevant employment law. As you are informed I'm not a lawyer so court can not insist me to change wording of my claims to facilitate your clients fraudulent intention. Court must look at the matter from legal context other than juggling with language of representation or wording of an apparent fact. This is just mater of hearing to reduce the difficulty of your client other than wasting time for mediation.”
The evidence before the Court reveals that prior to the filing of the AIC, the respondents sought to obtain a better understanding of the case from the applicant. The applicant’s initial response was said to be a refusal to further amend the amended application. The applicant’s position, consistent with his approach to the litigation generally, was that he had made his position clear and that attempts by the respondents to seek clarification were designed to impede the progress of his case (annexure “K” to the Mattson affidavit).
The applicant made no attempt to seek leave to further amend his application. In any event, and however, he has sent the Court’s Registry a proposal for just such a further amended application. That document is headed “(AMENDED) Version 2” dated 1 May 2015. It was received by the Registry on 5 May 2015.
It is illuminating to set out the claims in the applicant’s own words:
“Final orders sought by applicant/s…
Claim 1: applicant affirmed that he was hired to work as an independent contractor to do web development for ‘the finance group Parramatta’ websites as per advice from Jason baker. Jason baker confiscated his asset without paying any compensation for his works. Please provide a written employment agreement to evident the compensation of his works. Final relief sought by applicant is to delete all his works from the system as per his previous written communications via email with Jason Baker. Applicant is not interested to sell his asset.
Claim 2: applicant affirmed that, Jason baker had been stealing his salary for an agreed full time job for ‘loan processing and finance advice with a job title of Finance Solution Analyst’ in a form of unfair manner of employment agreement or no employment contract under an apparent context of duress. Applicant also affirmed the consequence as a conspiracy of Jason baker with an agreement with department of immigration to be his sponsor for ENS visa application. Applicant is not seeking any compensation for no payment or under payment of his salary. Final relief sought by applicant is forwarding the final judgment of the court to MFAA and ASIC to cancel his membership and license to stop alleged fraud and spam business. Applicant also supplied copies of his misconduct reports to ATO, ASIC and MFAA in relation to his final relief claim. Please provide legal employment agreement complying with fair work act 2009 or any other relevant employment law against the claim of applicant.
…
Grounds of application:
1. FAIR WORK ACT 2009 (NO. 28, 2009) - SECT 41, 43, 293, 344, 357,
2. Professional Employees Award 2010
3. Independent Contractors Act 2006- Part 3- Section 15, Par 1 -Section 9[.]”
It may be allowed that by this document the applicant seeks to enhance the understanding of his amended application. The difficulty, however, is that it does nothing to assist him, given that it exhibits the same characteristics, as set out above, of the material previously put before the Court.
Some illustrations are as follows. In the proposed further amended application, the applicant states that he was “hired” to work as an “independent contractor”, but then asks that he be provided with a “written employment agreement to evident the compensation of his words”.
In relation to “claim 2” of the proposed further amended application, the applicant makes allegations of criminal conduct about the second respondent. This includes that he had entered into a “conspiracy” with the “department of Immigration” to, in effect, defraud the applicant. Such allegations are serious. However, the applicant has made no satisfactory, or it must be said, reasonable, attempt to identify the basis for these claims (Chan v Harris (No. 2) [2011] FCA 143 at [66] – [67]).
Relevant to the purpose of these proceedings, the applicant stated that he does not seek “…any compensation for no payment or under payment of his salary…”. Rather, the purpose of this litigation, the “final relief” which the applicant seeks, is said to be the procurement of a judgment from this Court so that the applicant can send it to the MFAA and ASIC “…to cancel [the second respondent’s] membership and licence to stop alleged fraud and spam business” (the first respondent).
As stated above, the applicant lists certain sections of the FWA, ss.41, 43, 293, 344 and 357, as the “grounds” of his application. None of this can be said to provide any rational basis for the amended application, even when the applicant’s other material filed in this matter is taken into account, to the extent that it can be understood.
Section 41 of the FWA is a “guide” to that part of the Act dealing with “Terms and Conditions of Employment”. Section 43 of the FWA seeks to identify the “main” terms and conditions provided for in the Act. The bare reference to those sections in the application does nothing to explain the applicant’s cause, or causes of action, or indeed to give any clear notion of his claims.
Section 293 of the FWA is a civil penalty provision dealing with the National Minimum Wage. While the applicant makes unparticularised and, it must be said, vague references to underemployment or
non-payment by the respondents, the lack of any coherent details to explain those assertions leaves the reliance on this section unexplained. I note the respondents’ submissions that, in any event, the lack of particularity may be explained by the applicant’s other statement that he is not seeking compensation from the respondents.
In his submissions, the applicant makes various references to “undue influence”. It may be that his inclusion of s.344 of the FWA in his list in the amended application was an attempt to invoke this civil penalty provision dealing with “undue influence” or “undue pressure” in employment situations.
However, there is nothing in the applicant’s material to indicate, let alone form any basis to substantiate, that any of the elements set out at s.344 of the FWA can be identified as relevant to the applicant’s circumstances.
Section 357 of the FWA deals with general protection available under the Act which prohibits an employer from misrepresenting a term of employment as an independent contracting arrangement.
As set out variously above, the applicant’s submissions appear to ask the Court to determine whether his former relationship with the respondents was one of an employee or an independent contractor, or given some of the applicant’s submissions, both. However, beyond mere references, the submissions do not articulate any basis, let alone coherent basis, as to how this section is relevant to the applicant’s circumstances.
In all, therefore, no reasonable argument can be discerned from the applicant’s list of sections from the FWA in his amended application.
The amended application also lists s.9 and s.15 of the ICA. Section 9 of the ICA provides definitions. Section 15 of the ICA addresses the matters to which the Court may have regard in reviewing a services contract which has been the subject of an application to the Court, made pursuant to s.12 of the ICA.
Section 12 of the ICA, which is not listed by the applicant, provides the grounds for such a review. These are where the contract is said to be unfair or harsh. Section 16 of the ICA, which is not also listed by the applicant, provides for relevant orders that may be made by the Court.
Again, it is difficult from the applicant’s material to discern, with the requisite degree of clarity, the nature of the applicant’s claim with reference to this Act, or the reason for the reference. As the respondents submit, it is not for the respondents to guess, or speculate, and not for the Court to speculate, as to what may be available to the applicant, and to then make out his claims for him.
I note that the amended application also lists sections from the IR Act. As set out above, pursuant to s.26 of the FWA, this cannot assist the applicant.
Rule 13.10 of the FCC Rules is set out above at [12]. As also set out above, the respondents’ rely on r.13.10(b) and (c) of the FCC Rules in their AIC.
In r.13.10(b) of the FCC Rules, the terms “frivolous” and “vexatious” are used in the alternative (“or”), suggesting that either, if made out, is sufficient to grant summary dismissal. Subject of course, to the caution concerning the care to be taken in ordering that a proceeding be summarily dismissed.
In Pickering v Centrelink [2008] FCA 561 (“Pickering”), McKerracher J, relevantly explained, at [27]:
“In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119; (2005) 143 FCR 434, although the majority (Allsop and Conti JJ) reached a different ultimate conclusion, there is, with respect, a helpful collection of authorities by Gray J on ‘frivolous’ at [16]-[22] from which it may be concluded that if, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, it is frivolous. A matter is also frivolous when it is without substance or groundless or fanciful: Bullen & Leake Precedents of Pleadings (1975) 12th ed, p 145. However such matters will only be struck out when it is so obviously frivolous that to put it forward, would be an abuse of the process of the court: Young v Holloway [1895] P 87. The words ‘frivolous’ or ‘vexatious’ are used either separately or in conjunction, or interchangeably with the expression ‘abuse of the process of the court’: Young v Holloway [1895] P 87 at 90-91.”
The paragraphs referred to there are in the following terms (NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 (“NBGZ”) at [16] – [22]):
“Summary dismissal and the meaning of ‘frivolous’
[16] In Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, the High Court allowed an appeal from the summary dismissal of an action by the Supreme Court of Victoria, pursuant to a rule similar to O 20 r 2(1)(a) of the Federal Court Rules. At 92, O’Connor J said:
‘Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.’
[17] At [99] – [100], Higgins J referred to the same rule of court and said:
‘This rule applies to a wider area of cases than the general power; and yet it has been held not to apply except in plain or obvious cases; and if there is a point of law that requires any serious discussion, it should be set down for argument: Hubbuck v. Wilkinson. The pleading must be ‘obviously frivolous or vexatious, or obviously unsustainable, ‘if it is to be struck out (per Lindley L.J. in Attorney-General of the Duchy of Lancaster v. London and North Western Railway Co.). The pleading must be ‘so clearly frivolous that to put it forward would be an abuse of the process of the Court’ Young v. Holloway.’ [Citations omitted]
[18] In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91, Dixon J said:
‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’
[19] In General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 – 129, Barwick CJ said:
‘The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed,’ ‘manifestly groundless’, ‘so manifestly faulty that it does not admit of argument,’ ‘discloses a case which the Court is satisfied cannot succeed,’ ‘under no possibility can there be a good cause of action,’ ‘be manifest that to allow them’(the pleadings) ‘to stand would involve useless expense.’
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument,’ ‘so to speak apparent at a glance’.’
[20] At 130, his Honour said:
‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.’
[21] In Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152 (1999) 161 ALR 458, Nicholson J referred to O 20 r 2 of the Federal Court Rules and said at [24]:
‘A ‘reasonable cause of action’ means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone. The terms ‘vexatious’ and ‘frivolous’ have been used interchangeably: The Atlantic Star [1974] AC 436 at 464-8. ‘Frivolous’ has been held to be apt to describe proceedings in which the plaintiff’s claim is so obviously untenable that it cannot possibly succeed: Burton v Bairnsdale Shire [1908] HCA 57; (1908) 7 CLR 76 at 92. ‘Vexatious’ has been held to be apt to describe an action which is a sham and which cannot possibly succeed: Willis v Earl Beauchamp (1886) 11 PD 59 at 63.’
[22] In McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 (1999) 165 ALR 409 at [12] – [19], Weinberg J referred to a number of authorities on the subject. In his Honour’s view, the authorities from the United Kingdom:
‘confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.’”
At [23] of NBGZ, Gray J concluded on this issue:
“These authorities make it clear that, in any case in which summary dismissal of a proceeding is sought, the focus must be on whether the case is arguable, and not upon whether it is likely to succeed. Without an opportunity for full argument, the Court cannot determine properly that an argument open to the initiating party in the proceeding should fail. So long as the argument is open, a person bringing a case to court is entitled to have his or her day in court, and to a proper consideration of that case. For this reason, as the authorities show, a case cannot be dismissed as ‘frivolous’ if, on its face, there may be a cause of action disclosed (as his Honour suggested in the present case). There is no suggestion in any of the authorities that a proceeding can be termed ‘frivolous’ on a consideration of its ‘background’, whatever that may mean.”
The respondents submit that there does not seem to be any “satisfactory exposition” of the difference between the terms “frivolous” and “vexatious”. They rely on Paramasivam at [72]:
“It seems to me that there are several bases upon which it would be proper in the present case to make an order for the summary dismissal of the proceedings. I raised during the course of submissions and, in particular, with learned counsel for the second defendant, the differentiation between the concepts of ‘frivolous’ and ‘vexatious,’ which concepts are normally joined together in the rules under the rubric ‘frivolous or vexatious.’ It seems to be intended that there will be recognised some difference between the two, but there does not seem to be any satisfactory exposition by relevant authority of what that difference might be. “
The respondents also rely on Wentworth at 491:
“…I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”
It may well be, with respect, that such an “exposition” does not exist. However, it is of assistance in the current case to consider these authorities.
Drawing on Pickering and NBGZ (per Gray J), a proceeding can be said to be frivolous where it is without substance, groundless or fanciful, even where the Court attempts to discern some cause of action that may be disclosed.
In relation to vexatious proceedings, Rana v Commonwealth of Australia [2013] FCA 189 at [42] – [43] per Mansfield J is of assistance:
“[42] Proceedings have been held to be ‘vexatious’ in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.
[43] It has also been pointed out that ‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention so that the ‘question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious’: Re Vernazza [1960] 1 QB 197 at 208.”
As set out above, the applicant’s attempts to explain his case by way of his amended application (and proposed “version 2” of the amended application), and his “submissions”, do not disclose a cause of action and are vexatious because, on the applicant’s own repeated statements, they have been brought for a collateral purpose.
As set out above, the amended application does not identify the cause of action. What are said by the applicant to be his claims are of such character as to lack meaning. The application does not provide any particulars. Nor, as set out above, is it possible to derive relevant particulars to explain the “grounds” from the material put before the Court by the applicant.
In all, the applicant’s affidavits, which seek to put submissions and other material before the Court, in support of the amended application, can only be fairly characterised as long, incoherent and incomprehensible narratives. They contain large amounts of unexplained, and irrelevant matters. The applicant’s position is that the respondents should discern a cause of action in what he has put before the Court. I agree with the respondents, and find that the circumstances are such that they are left to speculate as to meaning, let alone whether there is any case to answer or what that case might be. The applicant’s approach to the Court is to request the Court to assist him in deciding what his case could, or may, be. This too is frivolous in the sense explained by the authorities set out above.
The respondents have succeeded in showing that both elements of r.13.10(b) of the FCC Rules are made out. That is sufficient to dismiss the substantive application, as amended. However, these proceedings are also to be struck out, pursuant to r.13.10(c) of the FCC Rules, as an abuse of process.
A proceeding can be found to be an abuse of process where it is brought for collateral purposes. In Spalla v St George Motor Finance Ltd (No. 6) [2004] FCA 1699 at [69] per French J:
“The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts – Sea Culture International v Scoles [1991] FCA 523; (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas [1994] FCA 951; (1994) 48 FCR 535 (at 545 Carr J).”
In referring to this, it must be noted that, as the respondents submit, the categories of abuse are not closed (Batistatos at [9]):
“What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum. Again, in Cardile v LED Builders Pty Ltd, Gaudron, McHugh, Gummow and Callinan JJ referred to the passage in the joint judgment in CSR Ltd v Cigna Insurance Australia Ltd where it was said of the grant of an anti-suit injunction that the counterpart of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion. Their Honours in Cardile were dealing with the doctrinal foundation of asset preservation orders, and continued:
‘The integrity of those processes extends to preserving the efficacy of the execution which would lie against the actual or prospective judgment debtor. The protection of the administration of justice which this involves may, in a proper case, extend to asset preservation orders against third parties to the principal litigation.’”
[Footnotes omitted.]
In explaining the link between an abuse of process, and frivolous or vexatious proceedings, I note, with respect, what Gaudron J said in Ridgeway at [32] (see above at [59]).
Proceedings will also be an abuse of the Court’s process where they are brought for an improper purpose (Spautz). The onus, described as a heavy onus, rests with the respondents in the current case to make out this proposition (Spautz at [42]).
I agree, on what the applicant himself has put before the Court, a dominant purpose in the applicant bringing these proceedings is to then be able to use a Court judgment to progress his complaints with other bodies (ATO, ASIC and MFAA), and to close down the business of the first respondent and obtain the imprisonment of the second respondent.
It is also the case that, as the respondents submit, proceedings will constitute an abuse of process if they are brought without reasonable grounds and are “doomed” to failure, including because an arguable case is not discernible or made available by the applicant. In that light, the proceedings are also an abuse of process for all the reasons set out above in relation to frivolous or vexatious proceedings.
As also set out above, the applicant has made very serious allegations about the second respondent. I cannot see, even on a fair or beneficial reading of his material, that he has properly identified the basis of these claims.
In a number of significant ways, the applicant has not attempted to seek relief from this Court that is within the Court’s power to grant. The seeking of orders to close the business of the first respondent, and the gaoling of the second respondent, stand as illustrations of this.
The respondents, therefore, have discharged the heavy burden of making out the matters in r.13.10(c) of the FCC Rules.
As stated above, the Court made an order on 11 March 2015 that the matter be the subject to mediation before a Registrar of the Court. On 24 April 2015 the applicant handed up to the Registrar at mediation a Dell laptop. From various references in the material he has put before the Court the applicant appears to claim that certain information in the laptop was generated by him while engaged in work either, for, on or behalf of, the respondents. At best, I understood references to the respondents having “stolen his property” to include a claim to the intellectual property of work stored on the laptop.
While the applicant has made various references to this information in his “submissions” to the Court, I understood these references to be part of the broader, and serious, allegations of fraud and theft made against the respondent. The issue of ownership of the information itself did not appear to be the focus of these submissions.
As to the laptop itself, neither party provided satisfactory evidence, or for that matter, arguments as to ownership of it. Given the order I propose to make in this matter, the physical disposition of the laptop needs to be addressed.
I understood the applicant to seek to put the laptop, and the information contained on it, before the Court. I understood the laptop to have been given to the Court in the nature of an exhibit. Consistent with standard procedures of this Court, exhibits are returned to the person who lodged them at the finalisation of proceedings. In the current circumstances, therefore, I take the view that the Registrar should return the laptop to Mr Haque, given that he lodged it with Registrar. This should occur following the making of the order dismissing the substantive application.
Conclusion
The respondents are successful in their AIC. The substantive application, as amended, made by the applicant, is to be dismissed pursuant to r.13.10(b) and (c) of the FCC Rules. I will make an order accordingly.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 4 February 2016
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