Higgins v Oscars Hotels Pty Ltd
[2025] FedCFamC2G 436
•18 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Higgins v Oscars Hotels Pty Ltd [2025] FedCFamC2G 436
File number(s): SYG 258 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 18 March 2025 Catchwords: INDUSTRIAL LAW – Applications for summary dismissal – where applicant joined multiple, unrelated parties to proceedings brought under Fair Work Act 2009 – where Court issued certificate for pro bono legal assistance which applicant ultimately resisted – where additional documents filed seemingly making claims under the Fair Work (Registered Organisations) Act 2009 alleging reprisal – applications dismissed on basis that claims for relief have no reasonable prospect of success Legislation: Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Act 2009 (Cth) ss 351, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Royal Commissions Act 1902 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 9.01, 13.13, 17.02, 30.08
Federal Court Rules 2011 (Cth) r 35.14
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Brandon v Commonwealth of Australia [2005] FCA 109
Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104
Division: General Federal Law Number of paragraphs: 79 Date of hearing: 18 March 2025 Place: Sydney The Applicant: In person Counsel for the first and third Respondents: Ms E ten Kate Solicitor for the first and third Respondents: HTA Legal Pty Limited Solicitor for the second Respondent: Mr B Gower, Dejure Commercial Lawyers Pty Ltd Solicitor for the fourth Respondent: Ms E Petrie, Moray & Agnew Lawyers Solicitor for the fifth Respondent: Ms J Tye, Wotton & Kearney Lawyers ORDERS
SYG 258 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GLEN HIGGINS
Applicant
AND: OSCARS HOTELS PTY LTD
First Respondent
P21 PROPERTY NOMINEES PTY LTD
Second Respondent
AUSTRALIAN HOTELS ASSOCIATION (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
18 MARCH 2025
THE COURT ORDERS THAT:
1.Leave is granted to the second respondent to make an oral application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules).
2.The application referred to in order 1 be returnable instanter.
3.Pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13(a) of the Rules, the following applications (together with any relevant prayers for relief contained therein) are dismissed:
(a)the originating application filed pursuant to s 351 of the Fair Work Act 2009 (Cth) on 15 February 2024 in respect of all respondents;
(b)the application filed pursuant to r 30.08 of the Rules and the Fair Work (Registered Organisations) Act 2009 (Cth) in respect of the State of NSW/NSW Police Force filed on 19 December 2024;
(c)the application filed pursuant to r 30.08 of the Rules and the Fair Work (Registered Organisations) Act 2009 (Cth) in respect of the Commonwealth of Australia/Australian Federal Police filed on 19 December 2024; and
(d)the application filed pursuant to r 30.08 of the Rules and the Fair Work (Registered Organisations) Act 2009 (Cth) in respect of Oscars Hotels Pty Ltd and Australian Hotels Association filed on 19 December 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before the Court are a number of Applications in a Proceeding filed for each of the first and third respondents, the fourth respondent, and the fifth respondent, together with an oral application that was made today (P21 application) on behalf of the second respondent. In respect of the P21 application, I granted leave for the making of it orally, and made an order that it be returnable instanter.
In summary, each of the respondents brings the aforementioned applications to seek that the proceedings be summarily dismissed on the basis that the claims for relief against each of them lacks a reasonable prospect of success, that they are frivolous or vexatious and/or that they are an abuse of process.
PROCEDURAL HISTORY
The applicant commenced these proceedings by an application which were filed on 15 February 2024 within this Court's Fair Work jurisdiction pursuant to s 351 of the Fair Work Act 2009 (Cth) (Act) on the basis of the applicant’s alleged employment (which is disputed) by Oscars Hotels Pty Limited (Oscars), at the Plantation Hotel in Coffs Harbour. The additional respondents to the proceedings were initially:
(a)P21 Property Nominees Pty Limited (P21);
(b)The Australian Hotels Association (AHA);
(c)the Australian Federal Police (AFP); and
(d)the NSW Police Force (NSWPF).
As will become clear, the involvement of the second to fifth respondents (inclusive) in the proceedings appears inapposite.
Annexed to the originating application was a legal advice rendered by a law firm to the applicant. Apprehending that there may not have been an intention to waive privilege, I directed the Registry to suppress the legal advice on the Court file. The Court has not had regard to the legal advice.
The proceedings were returned for a first court date on 23 May 2024, on which occasion the applicant was unrepresented. There was no appearance by, or for, any of the respondents because they had not been served. The applicant explained that he was homeless and had difficulty accessing legal services. It was apparent from submissions made on that (and later) occasions that the applicant was of the view that there may be a conspiracy between certain of the respondents, that he was mistrustful of those respondents and was even reticent to serve them with documents. The first Court date adjourned to 13 June 2024.
On 13 June 2024, the applicant again appeared before the Court at the directions hearing. Again the applicant was unrepresented and there was no appearance for the respondents because they had still not been served. On that occasion, in light of the fact that the proceedings had failed to progress and given the applicant’s personal circumstances, I issued a certificate pursuant to Part 12 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), in order that he might receive pro bono legal assistance in the preparation and prosecution of his case. The proceedings were adjourned for further directions on 1 August 2024, which was later rescheduled to 15 August 2024.
On 15 August 2024, the Part 12 certificate having been taken up by a particular solicitor, the applicant attended with that solicitor. However, no Notice of Address for Service had been filed by the solicitor pursuant to r 9.01(1) of the Rules to indicate that he was acting for the applicant. It was explained to the Court by the solicitor that while he was willing to assist the applicant, the applicant had not yet formally engaged his services. The proceedings were next adjourned to 19 September 2024 in order that the applicant might consult with the solicitor to take advice, and that the proceedings could now progress.
On 19 September 2024, the applicant and the solicitor appeared before the Court again. No Notice of Address for Service had since been filed for the applicant appointing the solicitor, and again the respondents did not appear. The applicant made submissions to the effect that what he really required was, not the solicitor in question but rather, significant “paralegal help”.[1] The applicant said that he did not “feel exactly 100 per cent comfortable” having the solicitor represent him.[2] The applicant asked that he be given a different pro bono lawyer. The applicant made submissions to the effect that the respondents are “a unique set of organisations” and that he had “been through no end of crap” with them.[3] The applicant told the Court that it was “about time someone took it seriously” because it was having an effect on his mental health, and he was “tired of being gamed by the respondents in this incident”.[4]
[1] Transcript dated 19 September 2024 at T03.05
[2] Transcript dated 19 September 2024 at T03.06 to 03.07
[3] Transcript dated 19 September 2024 at T03.10 to 03.11
[4] Transcript dated 19 September 2024 at T03.11 to 03.15
The Court observed that (from those comments and those made on previous occasions), there was an inference available that the applicant may not have been satisfied with the legal advice he was receiving because it did not accord with his subjective views about the strength of his case, and may not have been what he wanted to hear. The Court sought to impress upon the applicant that procedural fairness required that the respondents be served so that they could also be given a chance to be heard in the proceedings. The Court emphasised that this could not occur until the respondents were served such that all parties had opportunity to come to Court and understand the case to be met (including by amendment of the pleading if necessary). The applicant sought to lay blame on the pro bono solicitor for the fact the originating application had not been served. However, in circumstances where the applicant was refusing to formally engage his services, this was largely unsurprising. The applicant told the Court “it is quite difficult just to serve the respondents myself, considering the fear that I have of the respondents, just to post it.”[5] and made submissions that he was:[6]
aware of the Court’s time, and I am also aware of my time. I have had two years of homelessness, six months of being in hospital directly, three months indirectly. Been misdiagnosed, I have been overprescribed. I have had years, basically, of being monitored by doctors to get off the medication because I have been misdiagnosed. Because I was admitted to hospital describing the repercussions of my employers and I wasn’t believed. Now, I am finding the irony overwhelming that I am in a courtroom, and I won’t be believed just like I was when I was admitted to hospital because of these employers. And, you know, I’m on the pension. I can’t work. These are all the factors that, basically, I would love to have – it’s hard for me to engage with the summons because I’m being engaged, literally, multiple times a day from some of the respondents. And I think it’s high – and also, too, is it – it’s a political aspect to this list[7] that I wasn’t quite aware of. I am acutely aware that now, and I hope others are too.
[5] Transcript dated 19 September 2024 at T05.3 to 5.04
[6] Transcript dated 19 September 2024 at T05.4 to 5.16
[7] Of respondents: see Transcript 19 September 2024 at T05.18 to 05.25
The solicitor informed the Court that the submissions made that morning were the first time he had been made aware that the applicant would not be willing to be represented by him. The solicitor indicated that there may be utility in a further adjournment to enable them to confer again. The Court explored with the applicant and the solicitor whether a sensible way forward might be to grant leave to the applicant to amend his pleadings, such that if in the interim the applicant was content to proceed with the solicitor, then assistance with that amendment might take place. In the event that the applicant did not wish to amend, the Court enquired as to whether the solicitor could at least assist by serving the originating application, given the fears the applicant had expressed about even posting documents to the respondents. The applicant and the solicitor agreed that this was a sensible way forward.[8] The directions hearing concluded with the applicant making submissions to the effect that he would find the proceedings easier if he could have private conversations with my Associate and with me, directly and in private. It was explained to the applicant that this was not appropriate, and would not occur. The following orders were made at the conclusion of that directions hearing, with the proceedings adjourned for further directions on 14 November 2024:
[8] Transcript 19 September 2024 at T06.14 to 07.33
1.The applicant has leave to file an Amended Application and an Amended Statement of Claim by 4:00pm on 17 October 2024.
2.The applicant must serve either:
a.the Amended Application and Amended Statement of Claim filed in accordance with order 1; or
b.failing that, the original applications filed on 15 February 2024; on the respondents by 4:00pm on 31 October 2024.
3.The applicant must file Affidavits of Service by 4:00pm on 8 November 2024.
On 8 November 2024, a number of Affidavits of Service were filed for the applicant, evidencing service of the originating application on the respondents.
On 14 November 2024, the applicant appeared before the Court, again accompanied by the pro bono solicitor. There were also appearances on that occasion for all respondents other than the second respondent. On that occasion, the respondents who appeared made submissions to the effect that the originating application did not properly disclose to them the case they were required to meet. The fourth and fifth respondents, being the AFP and the NSWPF also each indicated that they had also been improperly named insofar as the correct respondents should be the Commonwealth of Australia and the State of New South Wales (respectively). Despite the fourth respondent having ultimately filed a Notice of Address for Service, the Commonwealth of Australia formally disputes having been properly served in the proceedings. I accept that is so.[9]
[9] Petrie Affidavit at [9] (see [31(b)]) below
At the outset of the directions hearing on 14 November 2024, the Court addressed the question of the applicant’s representation, my Associate having received a telephone call the day previously from Justice Connect on behalf of the applicant to state that the applicant wished to be given a different lawyer. The applicant confirmed to the Court that this was his preference. The applicant said that he had correspondence from Justice Connect asking the Court for a new lawyer because he was “of the understanding that [the lawyer] was not going to assist any further, and so I went to Justice Connect to see about my options”.[10]
[10] Transcript dated 14 November 2024 at T03.24 to 03.26
The solicitor informed the Court that from his perspective, he had assisted the applicant in the service of documents but felt he would be unable to do more. The solicitor indicated that there had been challenges involved in obtaining instructions, and that the applicant had expressed the view that he wished to be self-represented. The solicitor was unaware, until mention of it in Court, of the correspondence with Justice Connect. The Court thanked the solicitor for his willingness to assist, and for his multiple attendances before the Court in an attempt to help the applicant. In all the circumstances of the case, the Court excused the solicitor from the referral on the basis that it did not appear to be a proper use of his time to continue to in the proceedings, in particular noting the challenged he had experienced in obtaining instructions.
On 14 November 2024, I made the following orders and listed the matter for further directions on 6 February 2025:
1.The applicant must file and serve points of claim including amendments to properly identify the fourth and fifth respondents by 4:00pm on 18 December 2024.
2.The respondents must file and serve points of defence and any applications in a proceeding by 4:00pm on 22 January 2025.
(November orders).
On 19 December 2024, the applicant filed the following documents:
(a)application for a claim under the Fair Work (Registered Organisations) Act 2009 (Cth) (FWROA) in respect of the Commonwealth of Australia (Commonwealth reprisal claim);
(b)application for a claim under the FWROA in respect of the State of New South Wales (NSW reprisal claim); and
(c)application for a claim under the FWROA in respect of the Oscars and the AHA (Oscars/AHA reprisal claim).
(collectively, the reprisal claims).
Unlike the originating application which purported to have been brought pursuant to s 351 of the Act, each of the reprisal claims utilised the Court’s approved form for a claim brought under the FWROA pursuant to r 30.08 of the Rules, the latter of which provides as follows:
Application in relation to taking a reprisal (Registered Organisations Act, section 337BB)
An application for an order in relation to an allegation that a person took or threatened to take, or is taking or threatening to take, a reprisal against another person must:
(a) be in accordance with the approved form; and
(b) be accompanied by a claim in accordance with the approved form.
Note 1: Section 337BB of the Registered Organisations Act states the orders the Court may make.
Note 2: Part 4 of Chapter 1 of these Rules sets out general rules about starting proceedings.
Note 3: An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 4.04).
It is somewhat unclear from the reprisal claims whether they were intended to constitute the points of claim to replace/augment the originating application pursuant to the November orders, or whether they were intended to be separate applications intended to be in addition to the originating application. I will deal with both contingencies, noting that no claim under the FWROA (nor any points of claim) was filed in respect of the second respondent.
The applications in a proceeding
On 16 January 2025, the Oscars and the AHA jointly filed an application in a proceeding seeking summary dismissal (Oscars/AHA application). On 23 January 2025, an application in a proceeding seeking similar relief was filed for the state of New South Wales (NSW application). Each of the Oscars/AHA application and the NSW application was given a first return date of 25 February 2025, to coincide with the next directions hearing.
At the directions hearing on 25 February 2025, the applicant was unrepresented. Each of the respondents appeared and were represented by their respective solicitors. The solicitor for P21 made submissions to the effect that P21 had not existed as an entity at the time of the applicant’s alleged employment by Oscars, having been incorporated at a later date. Accordingly, the solicitor for P21 sought a brief adjournment to enable him to have discussions with the applicant to this effect to see if there might be a resolution of matters between the applicant and P21. The Court facilitated that adjournment, however, it did not resolve the issue. When the directions hearing resumed, the applicant confirmed that he wished to continue in his claims against P21.
The applicant claimed to have been taken by surprise by each of the summary dismissal applications filed to date. The nature of the applications was explained to the applicant, and the Court made orders adjourning the hearing of those applications to a later date in order that the applicant could be given a proper opportunity to meet the applications. Accordingly, the following order was made:
1.The Applications in a Proceeding filed by the first and third respondents on 16 January 2025, and the fifth respondent filed on 23 January 2025 are listed for hearing at 9:45am on 18 March 2025 before Judge Given at Court 13.1 level 13, 80 William Street, Woolloomooloo.
On 14 March 2025, the fourth respondent filed an application in a proceeding seeking summary dismissal (Commonwealth application) and, as discussed at [1] above, P21 made a similar application orally at hearing.
SUMMARY DISMISSAL PRINCIPLES
The principles in relation to summary dismissal were helpfully summarised by Judge Manousaridis in Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104 at [29] to [31] as follows (footnotes omitted):
[29] Subsection 143(2) of the FCFC Act provides that this 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 defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
[30] Subsection 143(3) of the FCFC Act relevantly provides that, for the purposes of s 143, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
[31] Subsection 143(2) of the FCFC Act is substantially similar to s 31A(2) of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were set out by Perry J in Przybylowski v Australian Human Rights Commission(No 2) :
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]–[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5)Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
Relevantly, s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) provides that:
Summary judgment
(1) The Federal Circuit and Family Court of Australia (Division 2) 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.
(2) The Federal Circuit and Family Court of Australia (Division 2) 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 defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting 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.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
(5) This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975 .
Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975 , see section 102QAB of that Act.
Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides that:
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.
In AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368, I made the following observations at [31]:
Section 143 of the Court’s Act mirrors s 31 of the Federal Court of Australia Act 1976 (Cth). In relation to the use in those sections of the word “reasonable”, it is an important word, and as has been noted, the sections have been described in Spencer at [53] as departing:
radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail.
HEARING OF THE SUMMARY DISMISSAL APPLICATIONS
The parties all appeared before me today. The applicant is unrepresented.
While identifying the evidence before the Court in respect of the summary dismissal applications, considerable time was taken to address what emerged as an adjournment application made by the applicant, on the basis that he wished to have further time in which to obtain legal representation, including by the determination of an application that he has made to New South Wales Legal Aid for representation in these proceedings.
That application was refused. I explained to the applicant that the proceedings had last come before the Court on 25 February 2025 (which was four weeks ago), yet the applicant appeared to have waited almost a month in order to make his application to Legal Aid. The Court was not satisfied that there would be utility in the proceedings adjourning further in circumstances where there was also no indication that the application would be successful. The applicant was put very clearly on notice by the Court on the last occasion that the summary dismissal applications would be heard today. If the applicant was desirous of having Legal Aid (or any other organisation/solicitor) represent him, he ought to have sought such services with greater haste than it appears has occurred. The applicant also said that he had approached the Office of the Anti-Slavery Commissioner which had indicated that it was not able to assist him. Even accepting those steps were taken, the Court is not satisfied there was utility in the matter adjourning further. The Court is satisfied that in the interests of the administration of justice, the applications brought by the various respondents should be heard today.
Evidence
In support of the summary dismissal applications, the Court received the following evidence, without objection:
(a)in support of the NSW application, the Affidavit of Greg Carruthers-Smith affirmed on 22 January 2025 (Carruthers-Smith Affidavit);
(b)in support of the Commonwealth application, the Affidavit of Emma Nicole Petrie sworn on 24 February 2025 (Petrie Affidavit);
(c)in support of the P21 application, an ASIC extract which was tendered and marked Exhibit “1R”; and
(d)in support of the Oscars/AHA application, the Affidavit of Henry Richard Coventry sworn on 16 January 2025 (Coventry Affidavit).
For the applicant were tendered the following, also without objection:
(a)an email chain between various persons commencing with an email from a particular counsellor to a particular employee of Oscars dated Monday 13 August 2018 at 5:11am which was marked Exhibit “1A”; and
(b)medical records totalling five pages and dated with an admission date of 13 August 2018 pertaining to the admission of the applicant to “Mid North Coast Health Campus”, which were collectively marked Exhibit “2A”.
NSW application
The State of New South Wales says that each of the originating application and the NSW reprisal claim should be summarily dismissed.
As noted above, the applicant initially commenced the proceedings against the NSWPF and leave was later granted to substitute the State of New South Wales instead.
The applicant alleges the following against the respondents as a group:
stalking, harassment, malicious prosecution, obstructing to commence legal proceedings
in conjunction with his alleged employment as “Hotel Mgr” at the Plantation Hotel, Coffs Harbour.
Under Part I of the originating application, the applicant seeks the following remedies against the respondents:
injunction, compensation and pecuniary penalty.
On its face, the originating application was so insufficiently pleaded that I agree with the submissions made for the State of New South Wales that, if that document is intended by the applicant to still be on foot, it fails to disclose a cause of action which would have a reasonable prospect of being successfully prosecuted in respect of the claim that is made by the applicant against the State of New South Wales, and in fact against any respondent noting that the allegations appear to be made collectively against them.
Next, if it is the case that the applicant intended that the reprisal claims genuinely be brought pursuant to the FWROA (as opposed to constituting points of claim as he was ordered to file pursuant to the November orders), this seems misplaced. Firstly, none of the respondents, with the exception of the AHA, appears to be a registered organisation for the purposes of the FWROA. This seems an incurable flaw in the reprisal claims against all except the AHA.
By reference to the NSW reprisal claim specifically, the following list of legislation was included under part F of that form in which an applicant is to detail the “Conduct alleged” (errors in original):
Fair Work Act 2009
Modern Slavery Act 2015
Anti doxing Act 2020
Crimes Act – Crimes Legislation Amendment (Coercive Control) Act 2022
Disability Discrimination Act 1992
As will be observed, that is a bare list of legislation which is incapable of constituting “conduct alleged”. If what is intended to be alleged is conduct which was in breach of the aforementioned legislation, the list of legislation alone is too vague to be comprehensible and not contravention of the FWROA itself is even alleged.
Further, it will be observed that the list of legislation above includes the Act and modern slavery legislation. On the material before the Court, the applicant has never claimed to have been an employee of the State of New South Wales, nor of the NSWPF. Accordingly, much of the legislation which is listed in the NSW reprisal claim would seem to be wholly inapposite to the respondent against whom it is directed.
When invited to address the NSW application, the applicant made various submissions in respect of what is said to be the interaction between New South Wales Police and Oscars. The applicant made submissions to the effect that NSWPF officers used to come into the Plantation Hotel, in which he claims to have worked. The applicant made submissions to the effect that he felt that pressure had been applied to him by the NSWPF, and that he had experienced repeated harassment from law enforcement.
The applicant sought to tender a document from the Law Enforcement Conduct Commission of New South Wales (LECC) dated 12 December 2018. The letter refers only to the existence of a complaint made by the applicant about the NSWPF. The applicant says the letter is about a complaint he made in respect of his alleged employment at the Plantation Hotel and matters related thereto. However, on the face of the document, there is nothing to indicate that that is so. In any event, the LECC letter concludes by saying that the LECC has decided that the (unspecified) matter complained of was not one which was considered to be a matter justifying investigation by the LECC and, therefore, it was not referred for action or investigation. In the absence of there being any direct, or obvious correlation between the LECC letter and the subject matter of the proceedings, tender of that letter was rejected.
Various other wide-ranging submissions were made by the applicant in respect of the NSW application, including that the applicant has engaged with an array of state government services (particularly health services), the relevance of which was at times difficult to grasp. Submissions were made on a number of occasions about the State of New South Wales “risk and reputation management”.[11] The applicant made submissions to the effect that he has had a lot of difficulty engaging with NSW government agencies for redress in relation to his case. Multiple complaints were made about the legal advice he has been given. In this regard, he said that he was uncomfortable that the firm which employs the aforementioned pro bono solicitor, had donated money to the NSW Premier. No evidence was provided to ground that assertion. Submissions were made that the whole purpose of the conduct of the respondents was to get the applicant “off topic”.[12]
[11] Transcript of hearing dated 18 March 2025 at T27.45
[12] Transcript of hearing dated 18 March 2025 at T32.31
In submissions in reply, the solicitor for the State of New South Wales characterised the applicant’s submissions as being grievances[13] and said the submissions were otherwise difficult to understand. I agree with the characterisation of the complaints as being grievances and also concur that many of the submissions were difficult to follow. I say that without intending any criticism of the applicant.
[13] Transcript of hearing dated 18 March 2025 at T34.07
What is clear is that the applicant has a litany of complaints he wishes to make about the State of New South Wales, none of which in my view gives rise to a cause of action as pleaded in the originating application and/or NSW reprisal claim. Neither the State of New South Wales nor the NSWPF appears to be a registered organisation under that Act (although I would accept that some police employment organisations are).
Overall, I am satisfied in respect of the claims made against the State of New South Wales in each of the originating application and the NSW reprisal claim, that they do not disclose causes of action which have a reasonable prospect of being successfully prosecuted in these proceedings. For that reason, I would accede to the application brought by the State of New South Wales pursuant to r 13.13(a) of the Rules.
I am not satisfied in this matter, having particular regard to matters which have been made apparent during the course of these proceedings by the applicant about his mental health, and which are confirmed by Exhibit “2A”, that any particular criticism can be made of the applicant as to his belief in the claims, such that I would not be inclined to dispose of them pursuant to r 13.13(b) or (c). It is unnecessary to do so. The applicant may genuinely believe that he has causes of action against the respondents. However, it is sufficient to dispose of the proceedings in respect of the State of New South Wales pursuant to r 13.13(a), and I will make orders to that effect.
Commonwealth Application
Turning then to the Commonwealth application for summary dismissal. As noted above, the Commonwealth formally disputes having been served. However, having been made aware of the proceedings, the Commonwealth has filed an appearance and its summary dismissal application. The Commonwealth joins in the submissions of the State of New South Wales as to the bases upon which it says the proceedings do not appear to disclose a reasonable cause of action in respect of the Commonwealth either. There is no claim by the applicant, as was the case in relation to the State of New South Wales, that he was ever an employee of the Commonwealth of Australia nor of the AFP, against whom the proceedings were initially brought.
When given the opportunity to address the basis upon which the applicant was resisting the application in a proceeding brought by the Commonwealth, he again detailed an array of grievances that he has against the Commonwealth. It appears that many of these stem from counselling services provided to him consequent upon his claimed[14] participation in the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). Those grievances centre on a duty of care the applicant says the counsellor owed him (said to be) pursuant to the Royal Commissions Act 1902 (Cth) and the Royal Commission’s engagement of external contractors. That then led to submissions about the Royal Commission having been funded by the Commonwealth and facilitated by the Commonwealth Attorney-General's Department. The applicant observed that the Attorney-General's Department is a Commonwealth government Department and that the Fair Work Ombudsman (the relevance of which was not entirely clear) is a Commonwealth statutory entity.
[14] There being no evidence before the Court to verify such participation
Submissions were also made to the effect that another Commonwealth Government agency, the National Disability Insurance Scheme (NDIS) has been “extremely weaponised” in respect of “psychosocial assessments”.[15] The applicant told the Court that there is a “well-executed framework of risk and reputation mismanagement” in respect of NDIS.[16] Submissions were made to the effect that there has been a considerable amount of “adversarial”[17] conduct by the respondents towards the applicant since the time the proceedings were commenced. However, as I observed to the applicant during today’s hearing, these are adversarial proceedings, and notwithstanding the fact that various of the respondents have obligations to conduct themselves as model litigants, a certain degree of adversarial resistance is to be expected in such circumstances: see Brandon v Commonwealth of Australia [2005] FCA 109 at [11] per Whitlam J.
[15] Transcript of hearing dated 18 March 2025 at T38.03 to 38.04
[16] Transcript of hearing dated 18 March 2025 at T38.33 to 38.34
[17] Transcript of hearing dated 18 March 2025 at T39.24
I also observed to the applicant that for much of the duration of the proceedings, the respondents were unaware of the existence of the litigation, until being served with documents in late 2024. By that time, the proceedings had been on foot for almost a year. The applicant made submissions to the effect that he had been living at the airport, which is:[18]
kind of federal government land, and that sort of did attract the attention of law enforcement, which – I stayed there from late September to early February of 2023 to 2024. So there was instances where they were following us around and all that sort of thing.
[18] Transcript of hearing dated 18 March 2025 at T40.04 to 40.06
To the extent that, by that submission the applicant was suggesting that the respondents knew he would be commencing these proceedings because he had stayed at the airport and been followed by them, I do not accept it.
Under Part F –“Conduct Alleged” of the Commonwealth reprisal claim, the applicant lists the following legislation (errors in original):
Breaches & contraventions of clauses & sub clauses with sections of the
NDIS Act 2013
Social Security Act 1991
Privacy Act 2018
Commonwealth Ombudsman Act 1976
Commonwealth Crimes Act 1995
Commonwealth surveillance devices Act 2004
Public Health Act 2024
Anti doxing Act 2024
Royal Commission Act 1902
Fair Work Act 2009
Federal Court of Australia Act 1976
Modern slavery Act 2015
Disability Discrimination Act 1992
Again, without more, this bare list is meaningless. It will again be observed that no contravention of the FWROA is alleged.
In submissions in reply, the solicitor for the Commonwealth observed that even if the various allegations made by the applicant from the Bar table today had properly made their way into an Affidavit, there was nothing which renders those statements about the Commonwealth as being proper claims which would have a reasonable prospect of success. I agree.
For the foregoing reasons, noting that the Commonwealth repeats and adopts the submissions of the State of New South Wales and that the originating application makes no distinction between the respondents, I am prepared to accede to the application of the Commonwealth of Australia that the proceedings be dismissed in relation to the claims for relief because I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim/s against the Commonwealth and/or the AFP in respect of each the originating application and the Commonwealth reprisal claim.
P21 application
Turning then to the second respondent, P21.
In support of the oral application made returnable instanter today, was tendered Exhibit “1R”, referred to above. From Exhibit “1R”, it is apparent to the Court that P21 was a corporation which was established on 1 December 2020. While various matters were advanced for P21 from the Bar table only, based on the acceptance by the applicant of them, there does not seem to be any dispute about the following matters.
Firstly, the date of registration of P21 post-dates the time during which the applicant claims to have been employed by Oscars at the Plantation Hotel. The Court is told that P21 purchased that hotel in March of 2021, which also post-dates the applicant’s alleged employment there. P21 says that, beyond the sale of premises, there is no connection between the Oscars and P21. The solicitor for P21 made submissions to the effect that this gives rise to a defect in these proceedings which is “absolutely incurable”.[19]
[19] Transcript of hearing dated 18 March 2025 at T42.04
As noted above, on the last occasion there was an opportunity given to the applicant to discuss these factual matters with the solicitor for P21 and to withdraw his claims in respect of P21. When asked to explain the claim against P21, the applicant made submissions to the effect that he “totally agree[s]” that the claim cannot succeed, but that he had proceeded on the basis of legal advice to commence against the second respondent.[20] When asked why it was that he declined to discontinue the proceedings against P21 on the last occasion, once the matters he now accepts had been drawn to his attention, the applicant again said he relied on legal advice.
[20] Transcript of hearing dated 18 March 2025 at T42.46
I am satisfied on the basis of the content of Exhibit “1R” and accepting the submissions, which the applicant also appears to accept in respect of the relevant chronology of the incorporation of P21, that it is a party wholly unrelated to any of the causes of action which might conceivably have been brought in these proceedings. For that reason, I would accede on the basis of
r 13.13(a) of the Rules to dismiss the proceedings in respect of the second respondent, noting that no reprisal claim was filed in respect of it.
Oscars/AHA application
Lastly, there is the summary dismissal application brought for the first and third respondents.
The first respondent, Oscars, is said by the applicant to have been his employer. That is disputed by Oscars. The relevance of the third respondent, the AHA, was entirely opaque until the applicant made submissions at hearing today. The applicant sought to explain the basis for the claim against it was that the mid-North Coast representative named “Harry Barry” had not assisted the applicant in a contract negotiation between he and Oscars. Otherwise, the applicant made submissions to the effect that the AHA “had been a bit adversarial”[21] in these proceedings and made the observation that he had “picked an interesting list of respondents”.[22] Neither of these submissions improves an understanding of the claims made against the AHA.
[21] Transcript of hearing dated 18 March 2025 at T45.11
[22] Transcript of hearing dated 18 March 2025 at T45.13
In respect of the originating application, despite the bare allegation of employment, that document fails to disclose a cause of action against Oscars (or the AHA) which could enjoy a reasonable prospect of success by reference to that document, because the pleading is entirely unclear.
By the Coventry Affidavit filed in support of the Oscars/AHA application, the solicitor for the first and third respondents makes a bare assertion that the first respondent was not the employer of the applicant.
Today the applicant tendered Exhibits “1A” and “2A” as evidence that he was an employee. The document which forms Exhibit “1A” is an email to which reference was made several times during submissions in respect of the Commonwealth of Australia by the applicant, namely that this was an email sent by the Commonwealth funded counsellor (to whom I have referred earlier, was made available to the applicant said to be consequent upon the Royal Commission), to a person at Oscars. The email includes statements which were self-reported by the applicant to the counsellor, namely that he was an employee of Oscars. However, I agree with submissions made for Oscars that the assertion does not evidence the existence of such a relationship.
The documents which form Exhibit “2A” are medical records from an occasion in August 2018 during which the applicant was admitted to a medical facility in Coffs Harbour which he said was called “Mid North Coast Health Campus”.[23] Various matters can be observed from the document. The applicant highlighted in yellow a summary of a telephone call made by the medical facility to the manager of the Oscars hotel in question. Having regard to the highlighted parts, there is nothing there that seems to have been said by the hotel manager to concede the existence of an employment relationship. The document also provides a clinical diagnosis of “paranoid ideation” which, with the greatest of respect to the applicant, may explain a number of the allegations by him against the various respondents in these proceedings. The documents otherwise do not assist the Court in any conclusive way to determine whether the applicant was employed by Oscars, which is in any event denied.
[23] Transcript of hearing dated 18 March 2025 at T49.41
In submissions in reply, Counsel for Oscars and the AHA suggested that limited weight ought be given to Exhibits “1A” and “2A” because they were self-reported and therefore could not give rise to a concluded position whereby the applicant could be accepted as having been an employee of the first respondent. I have already addressed the content of the documents. However, I am equally of the view that a bare statement in the Affidavit of the solicitor for the first respondent to the effect that he is instructed that the applicant was not an employee of Oscars establishes anything of the kind as a matter of fact, either. However, even accepting that there may be a genuine dispute between the applicant and Oscars in respect of that question, the mere fact of employment would not give rise to a cause of action in and of itself.
On the material before me, and noting the many opportunities the applicant has been given now to formulate his case, I am not satisfied that the applicant has a reasonable prospect of successfully prosecuting the proceeding or any particular claim against Oscars or the AHA, as pleaded in the originating application.
In respect of the Oscars/AHA reprisal claim. The following is said in Part F “Conduct alleged” in that document (errors in original):
Breaches & contraventions of clauses & subclauses within sections of the:
Inclosed lands Protection Act 1901
disability discrimination Act 1992
NSW Crimes Act 1900 NSW
mental health Act 2007
NDIS Act 2013
Social Security Act 1991
Privacy and personal Information Protection Act 1998 NSW
Anti doxing Act 2024
Federal Court of Australia Act 1976
NSW health act 2010
Again, this bare list of legislation takes matters no further. It can also be observed that most is NSW legislation, in respect of which the Court does not appear to have jurisdiction. Even if the Court somehow accrued jurisdiction, the document fails to disclose any conceivably arguable cause of action.
If the claim is one of reprisal, then on its face, it cannot seem to be made in respect of Oscars given that it is not an organisation to which the FWROA applies. While the AHA does appear to be an organisation which is subject to the FWROA, the basis for any reprisal claim is entirely unclear. Further, when regard is had to the list of legislation referred to at [71] above, it will again be observed that no contravention of the FWROA is alleged at all. Even if the Court were able to be satisfied that the applicant had been an employee of Oscars, he makes no claims against it or the AHA in respect of the FWROA.
CONCLUSION
Prior to reaching a conclusion in respect of the various summary dismissal applications, I also gave consideration to whether or not the deficiency/ies in those documents was curable. However, I am satisfied that the applicant has been given ample opportunity to rectify the maladies in the pleadings, including by the provision to him of apparently competent pro bono representation. It was the applicant's election not to proceed with the filing of an amended pleading and instead to file the various reprisal claims. None of the documents filed to date make comprehensible allegations.
In all of the foregoing circumstances, I am satisfied that there would be no utility in granting further leave to the applicant to seek to allow him to further plead the case in circumstances where I am not satisfied that any of the matters propounded from the Bar table today would also give rise to any reasonable cause of action.
In truth, the applicant’s submissions to the Court throughout the various interlocutory events that culminated in today indicate that he has strong views about each of the first, third, fourth and fifth respondents. I accept those beliefs are genuinely held. However, on the material before me there does not appear to be (either individually or cumulatively) a claim for relief advanced in respect of those respondents throughout these proceedings which has a reasonable prospect of success.
During submissions today the applicant described the proceedings as “literally a stalking horse for other legal issues that I’ve got – a list to try and knock them out”.[24] This probably best explains the applicant’s approach in these proceedings and gives some credence to the suggestion that the proceedings might be an abuse of process. However, for the reasons already given, it is not necessary to make such a finding.
[24] Transcript of hearing dated 18 March 2025 at T40.28 to 29
I will make orders dismissing each of the originating application filed in this Court on 15 February 2024, together with the individual applications filed on 19 December 2024, pursuant to r 13.13(a) of the Rules, together with s 143 of the Court Act.
Noting that these proceedings were initially brought in the Court’s Fair Work division, to which s 570 of the Act applies, none of the respondents made an application seeking costs notwithstanding their respective success in the summary dismissal applications.
ADDENDUM
It is my usual practice in delivering ex tempore reasons for judgment to make an order that pursuant to r 17.02 of the Rules that substantive orders not be entered until the date of the publication of written reasons for judgment (revised from transcript), which for the avoidance of doubt, is also to be taken to be the date upon which the judgment was pronounced. I did not do so in this case anticipating that the judgment and hearing transcripts would be ordered for next day delivery such that these reasons could be published to the parties (and particularly to the applicant) in a timely fashion. Unfortunately, despite my chambers having ordered the transcripts for next day delivery (and the Court Registry having followed up on multiple occasions), they were not received from VIQ transcripts until 3 and 7 days (respectively) after hearing. As a result, these reasons for judgment took more than a week from the date of hearing to produce, which may become be relevant to any application pursuant to r 35.14 of the Federal Court Rules 2011 (Cth), should it arise.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 27 March 2025
SCHEDULE OF PARTIES
SYG 258 of 2024 Respondents
Fourth Respondent:
COMMONWEALTH OF AUSTRALIA
Fifth Respondent:
STATE OF NEW SOUTH WALES
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