HIJAZEEN v AUSTIN Health

[2016] FCCA 1034

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIJAZEEN v AUSTIN HEALTH [2016] FCCA 1034

Catchwords:
INDUSTRIAL LAW - Application by respondent pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 for summary dismissal of application – applicant unable to file statement of claim disclosing a justiciable claim despite five attempts - applicant readily conceding inadequacy of statement of claim – whether applicant should be given one last chance – court deciding on balance to give applicant opportunity to re-plead – applicant to pay respondent’s costs.

Legislation:

Federal Circuit Court of Australia Act 1999, s 17A

Federal Circuit Court Rules 2001, r.13.10(a)
Fair Work Act 2009, ss.340, 342, 570(2)(b)
Occupational Health and Safety Act 2004 (Vic)
Workers Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases cited:
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Ors [2008] FCAFC 60; (2008) 167 FCR 372

Applicant: KHALID HIJAZEEN

Respondent: AUSTIN HEALTH

File Number: MLG 162 of 2015

Judgment of: Judge Burchardt

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Melbourne

Delivered on: 19 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Dealehr

Solicitors for the Applicant: Simon Legal

Counsel for the Respondent: Mr Harrington

Solicitors for the Respondent: Victorian Government Solicitor’s Office

ORDERS

1. The respondent’s application in a case filed 3 December 2015 be dismissed.

2. The applicant file and serve a further amended statement of claim within 30-days of these orders.

3. The applicant pay the respondent’s costs of the application in a case.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 162 of 2015

KHALID HIJAZEEN

Applicant

And

AUSTIN HEALTH

Respondent

REASONS FOR JUDGMENT

Introductory

1. By an application in a case filed 3 December 2015 the respondent seeks the applicant’s application be summarily dismissed pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 and r.13.10(a) of the Federal Circuit Court Rules 2001.  Put shortly, the respondent submits that the applicant’s statement of claim does not disclose a cause of action and that the applicant should not be given an opportunity to re-plead.  Put equally shortly, the applicant’s position concedes the inadequacy of the statement of claim in its current form but seeks one final opportunity to put his ‘house in order’.

2. For the reasons that follow, and not without considerable hesitation, I propose to give the applicant just one more chance to produce a pleading and/or evidence that supports a claim capable of being sustained at law.

The course of the proceeding

1. The respondent had much to say through counsel about the applicant’s conduct of this proceeding and the five inadequate versions of the statement of claim produced to date.  Those submissions are all manifestly correct. 

2. The application originally filed on 30 January 2015 asserted a contravention of a general protection provision in only the very broadest of terms (indeed, apart from the Form 2 heading no mention was made of what the contravention actually was).

3. The applicant was given an opportunity to file particulars of claim, which he did on 23 April 2015.  Although the further and better particulars asserted at paragraph 26 that the conduct of the staff of the respondent in respect of the applicant constituted bullying “in accordance with the provisions of the Fair Work Act 2009” and paragraph 27 of the particulars alleged that there had been a contravention of the general protection provisions of the Act, no further particularisation was given.

4. The applicant was given yet another opportunity to file amended particulars of claim, which he did, on 6 October 2015 (annexed to an affidavit of Paul Simon sworn on 6 October 2015), following extensive efforts on the part of the respondent to obtain a pleading in an intelligible form. The amended particulars of claim set out a narrative as to facts relating to the applicant’s employment and, for the first time, the pleading isolated s.340 and s.342 of the Fair Work Act 2009 (“the Act”) as being those upon which the applicant relied.  Noteworthily, however, particulars of claim also alleged a failure to comply with the Occupational Health and Safety Act 2004 (Vic) and the Workers Injury Rehabilitation and Compensation Act 2013 (Vic).

5. I refer to these matters because all iterations of the applicant’s statement of claim have concentrated markedly upon alleged injury suffered by the applicant arising out of his employment.

6. On 16 November 2016 (following yet another directions hearing, at which the applicant was represented by counsel) the applicant filed further amended particulars of claim. These add various additional asserted facts and rejig the pleading to an extent, and at paragraphs 52 and 56 breach contraventions of s.340 and s.342 of the Act are respectively set out.

7. It should be noted that from the affidavit material put on by the respondent it is clear that the applicant and his legal advisors had been made aware since very early days that the respondent contended that the pleadings were inadequate and failed to disclose a cause of action.  The primary complaint made by the respondent is that there is no articulation in the applicant’s case of what the workplace right was that the applicant purported to exercise and what connection there was between the exercise of that right and anything that the respondent actually did to the applicant.

The submissions made at court

1. The respondent, who was, of course, the applicant in the application in a case, provided a very helpful outline of written submissions to which counsel spoke at some length.  It is not necessary for me to rehearse the submissions made in any detail, although I should, as a matter of courtesy, make it clear that the submissions were extremely thorough and were very well put.

2. In short, counsel submitted that the statement of claim in its current form continued to suffer from all the vices of the earlier iterations of the applicant’s case. He submitted that the claim of contravention of s.340, set out in paragraph 52 of the statement of claim, was simply not made out by the paragraphs of the statement of claim articulated therein and submitted a helpful aide memoire (MFI-1), which, in my view, makes good that proposition.

3. Further, paragraph 56 of the statement of claim, it was submitted, simply did not address the issues that the respondent raised.  Although the paragraph asserts that the applicant was dismissed, injured in his employment and discriminated against by the respondent not accepting his explanations for allegations against him, this did not show, as I have earlier indicated, what the workplace right was that the applicant asserted nor what it was that the respondent had done as a result of the applicant’s exercise of it.

4. It was further submitted that nothing in the statement of claim showed any sort of conduct that could have contravened the provisions of the Act in relation to workplace bullying.

5. I have dealt with these submissions in what, it will be readily apparent, is an extremely broad-brush way.  The reason for this is unusual.  It is because counsel for the applicant readily conceded the force of all of the submissions made by counsel for the respondent.  Counsel submitted that while the failure to plead a cause of action no less than five times was extremely regrettable, this arose from, in essence, a lack of familiarity on the part of his instructing solicitor (the author of the last four drafts) with industrial relations law and practice.

6. Counsel assured the Court that contact had been made with a barrister well-versed in workplace relations law and that if the Court were to grant leave a final endeavour would be made to articulate a justiciable claim. 

The law in relation to s.17A

1. I have been referred to copious authority in relation to s.17A of the Federal Circuit Court of Australia Act and its counterpart in the Federal Court, namely, s.31A of the Federal Court of Australia Act.  It is common cause between the parties, as I understand it, that cases such as Spencer v Commonwealth of Australia (2010) 241 CLR 118 make it clear that the summary dismissal test in section 17A is different from the former case law surrounding summary dismissal exemplified by cases such as Dey v Victorian Railways Commissioner (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

2. In Spencer the Court was particularly concerned with what is meant by the use of the phrase “there was no reasonable prospect of successfully prosecuting the proceeding”.  Although, of course, I have regard to the entirety of the decision, there are three passages which I wish to set out as being of particular relevance.  At [24] French CJ and Gummow J said:

   “The exercise of powers to summarily terminate proceedings must always be attended with caution.  That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence.”

3. At [25] their Honours continued:

   “Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact.  Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.”

4. Hayne, Crennan, Kiefel and Bell JJ said at [60]:

   “Rather, full weight must be given to the expression as a whole.  The Federal Court may exercise power under s.31A if, and only if, satisfied that there is “no reasonable prospect” of success.  Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly.  The elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read and confined to cases of kind which fell within earlier, different, procedural regimes.”

5. The only other case it is necessary to refer to in this regard is the decision of the Full Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Ors [2008] FCAFC 60; (2008) 167 FCR 372. That decision predated Spencer but nothing in the High Court’s decision suggests that the matters set out by the Full Court were in any way wrong. The further observation I would draw from that case is from the judgment of Gordon J, where her Honour said at [132]:

   “I now come to a final, sixth principle, which is that in determining whether a real issue of facts exists such as to preclude summary judgment, the court must draw all reasonable inferences – but only reasonable inferences – in favour of the non-moving party (authority omitted).”

6. Finally I should make it clear that I have regard to the observations of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Case management considerations, taken together with the delay and expense of responding to repleadings, are by no means irrelevant considerations in deciding whether or not to give the applicant one further chance.

Consideration

1. In the end I have come to the conclusion that the interests of justice require that the applicant be given one last opportunity to replead his case.  Although the inadequacy of the applicant’s conduct of the proceeding is manifest (he was given yet another opportunity to replead on 7 October 2015 at which time he was represented by counsel), and indeed speaks for itself, it is the very inadequacy of these endeavours that is telling.

2. From the materials filed it does appear the applicant has suffered some form of ill health which he says arises from the conduct of the respondent during his employment.  Counsel for the respondent conceded that the Victorian health and safety legislation was capable of supporting or constituting a workplace right.

3. It is by no means inconceivable that counsel properly versed in the legislation will be able to extract from the applicant instructions that give rise to a factual narrative and an associated pleading that does indeed remedy the startling defects alleged by the respondent and so readily conceded by counsel for the applicant.  I note that although there has been protracted endeavour on the applicant’s part to plead his case, and there must have been a concomitant associated cost on the part of the respondent arising therefrom, the matter is nowhere near trial.  The applicant has not yet been required to put on his affidavit material, there has been no process of discovery and the only formal document lodged apart from the application in a case and supporting affidavits is the defence. 

4. I bear in mind the comments of the plurality in Aon Risk Services as to the negative effects of litigation upon the officers and employees of corporations and the difficulty occasioned to the respondent by the prima facie prohibition of costs orders under the Fair Work Act. These are all clearly relevant factors.

5. Nonetheless I infer from the materials that have been filed that this is a matter about which the applicant would feel deeply.  To tell him in effect that he cannot ever have his grievances heard and determined by a court merely because he consulted a solicitor who was not, unfortunately, competent to articulate his claim for him would in my opinion be unjust.

6. Although this puts the matter shortly it is the conclusion at which I have arrived and I propose therefore to give the applicant 30 days in which to file a further amended statement of claim.

Costs

1. Relevantly for these purposes the court may only order costs in a proceeding such as this pursuant to s.570(2)(b) of the Fair Work Act which reads:

   “(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.”

2. Although the material suggests that the applicant has suffered ongoing loss of income as a result of his termination of employment, this is a case in which my conclusion can likewise be stated shortly.  There is no possible question that the failure of the applicant on most particularly the most recent occasion to file a statement of claim that properly articulated a justiciable controversy is unreasonable.  Apparently the applicant’s solicitor has now been able to isolate a barrister thought to be capable of drafting an appropriate statement of claim.  The applicant was represented by counsel when the matter was before the court on 7 October 2015.  It would have been no more difficult then than it is now to engage a member of the Bar capable of addressing the issues required to be addressed.  The failure to do so is plainly unreasonable and I will order that the applicant pay the respondent’s costs of the application in a case, notwithstanding that prima facie the respondent was unsuccessful.  The respondent was entirely entitled to bring the application in a case and the substantive matters asserted by the applicant have not put in issue any of the matters the respondent asserted.  Rather, the applicant has thrown himself upon the mercy of the court and has been fortunate enough to receive the benefit of it.  The price for that is the costs of the application in a case.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 19 May 2016