Hebashy v SGS Australia Pty Ltd

Case [2024] FCA 28

FEDERAL COURT OF AUSTRALIA

Hebashy v SGS Australia Pty Ltd [2024] FCA 28  

File number(s): QUD 482 of 2022
Judgment of: SARAH C DERRINGTON J
Date of judgment: 30 January 2024
Catchwords:

PRACTICE AND PROCEDURE – application for summary dismissal of the proceedings – whether the pleadings are vague, ambiguous and do not disclose a cause of action – insufficient and deficient pleadings – insufficient and deficient amended pleadings – no reasonable prospect of success – application for summary dismissal granted

EMPLOYMENT AND INDUSTRIAL RELATIONS – allegation of contraventions of ss 97, 340, 344, 345 and 355 of the Fair Work Act 2009 (Cth) – failure to establish contravention of the Act – failure to satisfy conditions for costs order under s 570 of the Act
Legislation:

Fair Work Act 2009 (Cth) ss 97, 340, 341, 342, 344, 345, 355, 361, 570

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules 2011 (Cth) rr 16.02, 26.01

Cases cited:

Altintas v O’Dea Lawyers (No 2) [2018] FCAFC 187

Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629

Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; 156 FCR 275

Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; 245 FCR 39

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257

Leach v Burston [2022] FCA 87

Monash Health v Singh [2023] FCAFC 166

Ryan v Primesafe [2015] FCA 8; 323 ALR 107

Spencer v Commonwealth [2010] HCA 28; 241 CLR 118

Division: General Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 53
Date of hearing: 21 December 2023
Counsel for the Applicant: The Applicant appeared in person.
Counsel for the Respondent: Mr A Denton
Solicitor for the Respondent: KHQ Lawyers

ORDERS

QUD 482 of 2022
BETWEEN:

AHMED HEBASHY

Applicant
AND:

SGS AUSTRALIA PTY LTD
ABN 44 000 964 278

Respondent

ORDER MADE BY:

SARAH C DERRINGTON J

DATE OF ORDER:

30 JANUARY 2024

THE COURT ORDERS THAT:

1.Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth), judgment be entered for the Respondent.

2.Proceeding QUD 482 of 2022 commenced by the Applicant be dismissed.

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


REASONS FOR JUDGMENT

SARAH C DERRINGTON J

INTRODUCTION

  1. For over 7 years, Mr Ahmed Hebashy was employed by the Respondent, SGS Australia Pty Ltd (ABN 44 000 964 278) in various positions as a Marine Surveyor/Inspector by a series of written contracts of employment, the first dated 17 July 2015. Prior to this, Mr Hebashy was employed by SGS Egypt Limited LLC from about July 2008 to 2 November 2015. On 15 November 2022, Mr Hebashy’s employment with SGS was terminated. He was told that his then position as Supervisor – Operations QLD & LNG was made redundant.

  2. After such a long period of employment with SGS, Mr Hebashy is, quite…

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Details
AGLC
Hebashy v SGS Australia Pty Ltd [2024] FCA 28
Case
[2024] FCA 28
Decision Date

CaseChat Overview and Summary

The applicant, Mr Hebashy, brought proceedings against SGS Australia Pty Ltd in the Federal Circuit Court of Australia, alleging contraventions of various sections of the Fair Work Act 2009 (Cth). The dispute centred on claims that the respondent had failed to comply with certain employment-related provisions under the Act. The court was tasked with determining whether the respondent had indeed contravened the Act and, if so, whether the applicant's pleadings were sufficient to allow the case to proceed.

The primary legal issues for the court to decide were whether Mr Hebashy's pleadings were vague, ambiguous, or deficient in disclosing a reasonable cause of action. Additionally, the court had to assess whether Mr Hebashy had any reasonable prospect of successfully defending the proceedings, given the deficiencies in his pleadings. The court also needed to consider whether the applicant could establish the necessary contraventions of the Fair Work Act to merit a costs order under section 570 of the Act.

In rendering its decision, the court found that Mr Hebashy's initial and amended pleadings were insufficient and deficient, failing to adequately disclose a reasonable cause of action. The court concluded that there was no reasonable prospect of Mr Hebashy successfully defending the proceedings due to these deficiencies. The court further noted that the applicant had not established the necessary contraventions of the Fair Work Act to warrant a costs order. Consequently, the application for summary dismissal was granted, and the proceedings were dismissed.

Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth), judgment was entered for the respondent. The court ordered that the proceedings, QUD 482 of 2022, commenced by the applicant be dismissed. The entry of orders was in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth), judgment be entered for the Respondent.

2. Proceeding QUD 482 of 2022 commenced by the Applicant be dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This Court may grant summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA), which provides relevantly as follows:31A Summary judgment(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is prosecuting the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.…(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success. ... That section is supplemented by r 26.01 of the Federal Court Rules 2011 (Cth), by which a party may apply for summary judgment. That rule provides relevantly as follows:26.01 Summary judgment(1) A party may apply to the Court for an order that judgment be given against another party because:…(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.…(4) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order. It is important to distinguish the principles relating to the grant of summary judgment from the application of rules concerning deficient pleadings. Rule 16.02(1) of the Federal Court Rules provides that a pleading must: (a)be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and (b) be as brief as the nature of the case permits; and (c)identify the issues that the party wants the Court to resolve; and(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and(e)state the provisions of any statute relied upon; and(f)state the specific relief sought or claimed. As Wigney J explained in Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [96]:Where the evidence shows that a person may have a reasonable cause of action or reasonable prospects of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Australia Ltd v FCT (2007) 160 FCR 298 at [47] , referred to in Spencer at [23]. That said, a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries at [47].(Emphasis omitted.) The High Court has emphasised that s 31A of the FCA should be applied in accordance with the statutory language; that is, summary judgment should be granted if, and only if, the Court is satisfied that the party against whom the claim is brought has “no reasonable prospect” of success: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [56]-[60] per Hayne, Crennan, Kiefel and Bell JJ.

Ratio Decidendi

Legal Principle Established

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