Hill v St Anthony's Tennis Club (No 2)
[2021] FCCA 1745
•30 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hill v St Anthony’s Tennis Club (No 2) [2021] FCCA 1745
File number(s): SYG 2827 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 30 July 2021 Catchwords: PRACTICE AND PROCEDURE – determination of separate questions – whether document filed by applicants discloses reasonable causes of action and if so whether the Federal Circuit Court of Australia has jurisdiction to determine them – questions answered in the affirmative – directions made Legislation: Fair Work Act 2009 (Cth), ss 340, 342(1), 343, 566
Federal Circuit Court Rules 2001 (Cth), r 9.04
Cases cited: Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216
Hill v St Anthony's Tennis Club [2021] FCCA 66
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457
Number of paragraphs: 33 Date of hearing: 9 July 2021 Place: Sydney First and Second Applicants: First applicant in person, and on behalf of the second applicant, by telephone Solicitor for the Respondent: Mr S Alexander of Alexanders Lawyers, by telephone ORDERS
SYG 2827 of 2020 BETWEEN: ANDREW JAMES HILL
First Applicant
AJH LEISURE PTY LTD
Second Applicant
AND: ST ANTHONY'S TENNIS CLUB ABN 69 475 998 584
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
30 JULY 2021
THE COURT ORDERS THAT:
1.The two questions identified in order 1 of the orders made on 4 June 2021 are answered in the affirmative.
2.By 13 August 2021 the applicants file and serve additional affidavits (if any) on which they intend to rely.
3.By 3 September 2021 the respondent file and serve all affidavits on which it intends to rely.
4.By 17 September 2021 the applicants file and serve affidavits in reply (if any) to any affidavits the respondent files pursuant to order 3.
5.The proceeding is listed for directions before Judge Manousaridis at 9:30 am on 24 September 2021, such directions hearing to proceed by telephone.
6.The parties have liberty to apply on such notice as the circumstances warrant.
THE COURT NOTES THAT:
7.At the directions hearing referred to in order 5, or at such earlier time as the proceeding may come back before the Court, the second applicant is to apply for an order under r 9.04 of the Federal Circuit Court Rules 2001 (Cth) that it carry on the proceeding otherwise than by lawyer.
REASONS FOR JUDGMENT
INTRODUCTION
In these reasons for judgment I consider the following questions which, on 4 June 2021, I ordered be set down for hearing on 9 July 2021 (Orders):
a)whether the document titled “Andrew J Hill Affidavit – Statement of Proposed additional claims” discloses any reasonably arguable causes of action; and
b)assuming (a) is answered in the affirmative, whether the Federal Circuit Court of Australia has jurisdiction to entertain any cause of action.
PROCEDURAL BACKGROUND
The first applicant, Mr Hill, commenced this proceeding on 15 December 2020 for relief under the Fair Work Act 2009 (Cth) (FW Act). I set out the claims Mr Hill made in reasons for judgment I published on 22 January 2021 (earlier reasons),[1] and these reasons assume familiarity with my earlier reasons.
[1] Hill v St Anthony's Tennis Club [2021] FCCA 66
The proceeding already has an extensive history. The following are its principal events:
(a)On 5 February 2021 I added the second applicant (AJH) as a party, ordered that paragraphs 6-20 of my earlier reasons stand as the applicants’ statement of claim, and ordered that the respondent (SATC) file a defence, and that the matter be referred for mediation.
(b)On 25 February 2021 I heard and determined a dispute in relation to an application by the applicants that the respondent produce documents. I ordered the respondent produce some documents.
(c)On 25 March 2021 I heard, but dismissed, a further application by the applicants for the production of documents.
(d)The parties participated in a mediation on 29 March 2021, but they were unable to resolve their dispute. The matter was listed for directions before me on 12 May 2021. Before that directions hearing the first applicant, Mr Hill, sent emails to the Court: one on 5 May 2021; two on 11 May 2021, one attaching an affidavit and another attaching a number of documents; and one in the morning of 12 May 2021 before the directions hearing.
(e)On 12 May 2021 I ordered the applicants file and serve a document titled “Statement of Proposed Additional Claims”. I made this order in response to submissions made by Mr Alexander, the lawyer for SATC, that it appeared the applicants were seeking to make additional claims to the claims I identified in my earlier reasons.
(f)On 21 May 2021 the applicants filed an affidavit attaching a document headed “Andrew J Hill Affidavit – Statement of Proposed additional claims” (SPAC).
(g)On 4 June 2021 I made the Orders.
(h)On 18 June 2021 the applicants filed an affidavit made by Mr Hill, and on 2 July 2021 SATC filed a document titled “Outline of Respondent’s Submissions”.
(i)On 9 July 2021 I heard submissions on the questions identified in the Orders.
CLAIMS MADE IN THE SPAC
The claims the applicants make in the SPAC may be summarised as follows:
(a)The applicants held a “tennis court administrators contract” with SATC. That is a reference to the “Contract” identified in paragraph 7 of my earlier reasons (Contract).
(b)The applicants have “an exclusive tennis coaching and court hire contract” with SATC, and they have had this contract for 30 years (Alleged Coaching and Hiring Contract). Under that contract “A Hill/AJH” were guaranteed to hire 1,000 hours of tennis court time every school term at the hourly rate of $6.50 in return for exclusive coaching rights at SATC. The Alleged Coaching and Hiring Contract permitted “A Hill/AJH” to use all SATC’s facilities for the clients participating in “A Hill/AJH” coaching and recreation programs.
(c)In May 2020, while “A Hill/AJH” were undertaking voluntarily “significant additional Covid duties”, SATC’s treasurer, Mr Souksavath, approached SATC’s public officer, Mr Nell, who is a barrister, with a proposal to make changes to the Contract.
(d)On 5 May 2020 Mr Nell sent an email to SATC’s committee that they could not unilaterally modify any term of the Contract.
(e)On 31 May 2020 SATC’s president, Mr Tesara, along with SATC’s committee members, unilaterally assumed the duties of “A Hill/AJH” under the Contract, including administering the online booking system; and they obstructed “A Hill/AJH” from accessing the online booking system. This was done in contravention of s 340 of the FW Act.
(f)SATC has refused “numerous requests” from SATC’s members for over a year to provide details of the online booking system, and a comparison of the setup and operating costs of that system with the previous online booking system.
(g)The minutes of meeting of the SATC committee held on 19 January 2020 reveal that “SATC committee members associated with the take over [sic] of A Hill/AJH administration of the booking system have not declared conflicts of interest”.
(h)On 9 June 2020 “A Hill/AJH” filed a general protections application with the Fair Work Commission (FWC), and a bullying application in which “A Hill/AJH” complained of interference, SATC’s takeover of the Contract, and SATC breaching the Contract.
(i)According to the minutes of meeting of SATC’s committee, on 9 August 2020 the committee resolved that “A Hill/AJH” no longer oversees bookings of courts; and it confirmed putting an option on the table to offer “A Hill/AJH” $224 per week, down from $424 provided for in the Contract.
(j)The FWC directed SATC to commence mediation with “A Hill/AJH”, but SATC ignored this direction, and instead terminated the Contract, in breach of the Contract and s 340 of the FW Act.
(k)“A Hill/AJH” reapplied for the position of tennis court administrator at the rate SATC offered, but SATC did not offer “A Hill/AJH” an interview. SATC engaged another contractor for $335 per week.
(l)Also at the meeting on 9 August 2020, SATC’s committee “added draconian conditions to” the Alleged Coaching and Hiring Contract. These consisted of: increasing the hourly court hire rate from $6.50 per hour to $9 per hour during the day, and $11 per hour during the night; “A Hill/AJH” being required to pay court hiring fees in advance of the school term; and refusing to provide refunds for wet weather. These actions were also done in contravention of s 340 and s 343 of the FW Act.
(m)“A Hill/AJH” are subjected to ongoing bullying and harassment by SATC. This consists of SATC entering the worksite of “A Hill/AJH” without their consent, coercing subcontractors of “A Hill/AJH” not to deal with them, but instead deal with SATC; and damaging the equipment of “A Hill/AJH”.
It should be apparent that the SPAC makes three additional claims to the claims I identify in my earlier reasons. The first relates to the Contract. In my earlier reasons I identified a claim in which “A Hill/AJH” claim SATC terminated the Contract in contravention of s 340 of the FW Act. In the SPAC “A Hill/AJH” also relies on SATC’s terminating the Contract, but alleges that this constituted a breach of the Contract. “A Hill/AJH” also alleges SATC breached the Contact by purporting to unilaterally vary the Contract.
The SPAC, however, relies on a separate set of facts; and these relate to the Alleged Coaching and Hiring Contract. The SPAC alleges that under the Alleged Coaching and Hiring Contract “A Hill/AJH” had the exclusive right to coach on the courts; “A Hill/AJH” were entitled to acquire 1,000 hours worth of court hire every school term at the rate of $6.50 per hour (subject to a wet weather refund); and that “A Hill/AJH” were entitled to pay the court hiring fees at the end of each school term. The SPAC alleges SATC breached the Alleged Coaching and Hiring Contract by purporting to unilaterally vary the Alleged Coaching and Hiring Contract by increasing the court hiring fees, and by requiring “A Hill/AJH” to pay the court hiring fees in advance, rather than in arrears, as had been the case for 30 years; and SATC otherwise undermined the benefits “A Hill/AJH” held under the Alleged Coaching and Hiring Contract. “A Hill/AJH” further claim that by varying and undermining the Alleged Coaching and Hiring Contract SATC contravened s 340 of the FW Act and breached that contract.
SATC’S SUBMISSIONS
SATC submits as follows:
(a)There was no employment relationship between Mr Hill and SATC; the only relationship that existed between the parties was contractual, and it was between AJH and SATC.
(b)The applicants have not particularised the acts they allege constitute bullying. SATC’s decision to introduce a new booking system, to raise the price at which it hires its courts, and to offer those courts to AJH on terms that are different from those it had before are incapable of constituting bullying.
(c)The applicants have not produced any evidence to show that either Mr Hill or AJH had a contract with SATC under which SATC permitted Mr Hill or AJH to provide coaching services at SATC’s courts.
REASONABLE CAUSES OF ACTION?
I have already concluded in my earlier reasons that Mr Hill has a reasonable cause of action for relief under the FW Act based on SATC’s having terminated the Contract; and I therefore do not propose to repeat here what I said in my earlier reasons. The question I need to address is whether the three additional claims I have identified in paragraphs 5 and 6 of these reasons disclose reasonably arguable causes of action.
Breach of the Contract?
The SPAC does not identify the term of the Contract it is alleged SATC breached by informing Mr Hill on 30 August 2020 that it intended to terminate the Contract effective on 28 September 2020. For this reason alone the SPAC does not disclose any reasonable cause of action that by giving Mr Hill notice of its intention to terminate the Contract SATC breached any term of the Contract.
It is reasonably arguable that SATC’s deciding to implement the online booking system constituted its taking over one of the functions AJH performed under the Contract; and by doing so it breached the Contract. SATC, however, continued to pay AJH the amount payable to it under the Contract up to 28 September 2020 when the Contract came to an end. In those circumstances, there is no reasonably arguable case that AJH suffered any injury that would merit the award of damages. That, however, would not mean that AJH would not have a reasonable cause of action based on breach of contract. A breach of contract is actionable per se.
Thus, I am satisfied that AJH’s claims based on breach of the Contract are reasonably arguable, but there would appear to be little point in AJH pursuing such a claim in the absence of any evidence that it suffered damage, or unless it claims it has grounds for claiming an order for specific performance.
Claims based on the Alleged Coaching and Hiring Contract
The two remaining claims relate to the Alleged Coaching and Hiring Contract. Both claims rely the existence of a contract to the effect alleged by the applicants. The first question, therefore, is whether the applicants have a reasonably arguable case that AJH entered into a contract with SATC to the effect of the Alleged Coaching and Hiring Contract.
Reasonably arguable that Alleged Coaching and Hiring Contract made?
Mr Hill relies on a number of documents for submitting AJH had entered into a contract with SATC to the effect of the Alleged Coaching and Hiring Contract. The first is a document apparently made by a Mr Kevin J Flynn, the “Past President and Life Member” of SATC. The document states as follows:[2]
I was not directly involved in the negotiations that confirmed Andrew Hill (AJH Leisure) as the St Anthony’s Tennis Club coach. However, I do recall being at a committee meeting where Andrew’s proposal was presented and accepted, about 1991, and from that time he was certainly regarded as the court’s exclusive coach. From that time, I do not recall any other coach being active there.
I have been continuously associated with the club since 1970
[2] SPAC, annexure “A”
The second document is one apparently made by Mr John Peacock:[3]
I, JOHN PEACOCK, confirm that ANDREW HILL (AJH LEISURE) has an exclusive coaching contract with St Anthonys [sic] Tennis Club. This was organised from the time that Kevin Flynn (president), Maxine Neil (treasurer) and Bob Wicks (secretary) were on the committee. In return for AJH Leisure’s coaching exclusivity. Andrew agreed to book 1000 hours of court time per term. This has been in place for the last 30 years.
[3] SPAC, annexure “B”. Annexure “C” of the SPAC is another document apparently made by Mr Peacock which states he has been a member of SATC since 1984, SATC treasurer from 2007 to 2019, and a committee member from at least 1998.
The third document on which AJH relies is a memorandum dated 2 April 2020 from Mr Gregory Nell to “Bennett/Sid cc: all committee members”.[4] Mr Nell prepared the memorandum in response to emails exchanged amongst members of the committee “agitating principally whether the tennis courts should be reopened as well as whether or not a decision can be now made in this regard” (emphasis in original). The memorandum makes it clear that the decision to cease activities on the courts was made on 27 March 2020 in response to recommendations made by Tennis NSW. The applicants rely on two passages of the memorandum which identify Mr Hill as the “manager of the Courts”. The applicants particularly rely on paragraph 29 of the memorandum, which is as follows:
In any event, I understand that Andrew Hill (who is the only person who hires the Courts for coaching) has notified all his clients that he has stopped all coaching, in which case there is no need to reopen the courts to accommodate even one on one coaching
[4] SPAC, annexure “D”
The fourth document is one apparently made by Mr Peter Bach:[5]
I, Peter Bach, member of St Anthony tennis club since 2003. I served as a member of the SATC committee member [sic] since 2011, and as Secretary from 2012 to 2019.
I can confirm that Andrew Hill (AJH Leisure) has had an exclusive tennis coaching contract with St Anthony Tennis club.
This was organised from the time that Kevin Flynn (president), Maxine Neil (treasurer) and Bob Wicks (secretary) were on the committee.
[5] SPAC, annexure “E”
The fifth document on which AJH relies is item 2.07 from the minutes of meeting of SATC’s committee held on 31 May 1998:[6]
Club Coaching Exclusivity
A letter from Andrew Hill was received and will be circulated with the minutes. At issue is the need to state and codify the current implied exclusivity by Andrew Hill to provide coaching services to the Club.
[6] SPAC, annexure “F”
The sixth document is item 2.04 from the minutes of meeting of SATC’s committee held on 28 June 1998:[7]
Club Coaching Exclusivity (Ref # 2.07)
A letter from Andrew Hill was received and will be circulated with the minutes. At issue is the need to state and codify the current implied exclusivity by Andrew Hill to provide coaching services to the Club. Renato to fax a copy of the letter to Greg Nell who will draft a response that will be tabled in the next meeting.
Action Required: Issue tabled for the next meeting.
[7] SPAC, annexure “G”
The seventh document on which AJH relies is item 1.00 from the minutes of meeting of SATC’s committee held on 20 June 1999:[8]
1.01Club Coach Exclusivity – After long discussion, the Committee agreed to the following statements as suggested by G Nell:
1.That the courts should not be hired for the purpose of coaching for a fee and/or reimbursement unless the person hiring the court and the person coaching (if they are not one and the same) carries suitable liability insurance;
2.That the above condition shall be subject to any specific direction or resolution of the Management Committee;
3.That without limiting in anyway, subclause (1), the Management Committee acknowledges that a policy issued by and/or complying with the T.C.A is “suitable liability insurance” for the purpose of subclause (1).
[8] SPAC, annexure “H”
The eighth document on which AJH relies is an email Mr Nell sent to Mr Souksavath on 5 May 2020. Mr Nell sent the email in response to an email Mr Souksavath sent to Mr Nell, although that email is not in the evidence before me.[9] Mr Nell assumes that his email will be the first step in the investigation into “the future roles and responsibilities of the Court Manager”. Mr Nell expressed this assumption after noting that “AJH attended our last committee meeting and was still at that meeting when the committee resolved to investigate further the future roles and responsibilities of the Court Manager”. Mr Nell then sets out detailed advice about how the SATC committee should approach those investigations; and he made a number of points, which included the following:
[9] SPAC, annexure “Q”
(a)First, Mr Nell did not consider it appropriate to copy AJH in his email “or more importantly any responses that may be provided to this email by committee members”. That, however, was not to say that the SATC committee:
can make a decision about the role and responsibilities of AJH Leisure or what is to be paid in the future for its performance of that role and/or discharge of those responsibilities unilaterally and without first consulting AJH or giving him an opportunity to respond or be heard. Nor indeed should the committee take such a course.
If the committee forms a view that the current role/responsibility/terms of engagement of AJH Leisure require reconsideration/adjustment, then that can only be done in consultation with AJH. That is because it amounts to a modification of the Club’s existing contract with AJH Leisure.
But once the committee has had the opportunity to carry out its investigation and consider its own thoughts and has formed a view as to the way in which it would like to go forward and there is a consensus amongst committee members about that course/proposal, it is at that point that AJH becomes involved in the process directly . . . . [sic] it is that point that we have to invite his response, consider his comments and the committee then has to determine whether (in light of what he says) the position earlier taken by the committee should be reconsidered and if so in what way.
(b)Second, discussions concerning the future role and responsibilities of the court manager, which have been made difficult because of COVID-19, should be discussed face to face or on Zoom.
(c)Third, if emails were to be exchanged, they should be polite, measured, and only address issues relevant to the investigation.
(d)Fourth, any decision SATC may make “cannot be unilaterally imposed on AJH or AJH Leisure”. If, after SATC completes its investigations and takes a position, and “this involves any proposed changes to the current arrangements, then there will need to be at that time negotiation with AJH”.
In particular, neither the Club nor committee can unilaterally determine the amount which it will henceforth pay AJH Leisure for its services and expect AJH Leisure to be bound by that. Nor in my opinion should that [sic] approach to be taken to any negotiations with AJH. It ought not be a take it or leave it proposition. Any discussion with AJH should be constructive and conciliatory. This is especially given AJH’s long association with the Club, long record in providing services and also bearing in mind the income that the Club derives from him hiring the courts to tennis coaching. For instance, I do not think that it can be assumed that if AJH Leisure was not employed to manage the courts, AJH would still run the tennis coaching at SATC (the provision of which coaching being one of the objectives of the Club) or hire courts at SATC for that purpose.
(e)Fifth, the earnings for April 2020 are hardly indicative of what SATC is likely to earn from court hiring per month, given that the courts were closed for most of April.
(f)Sixth, it is not possible to “renegotiate AJH’s fees “from April onwards”” as Mr Souksavath’s email seemed to suggest:
The Club is bound by its existing agreement with AJH Leisure to pay to it the full amount due under the terms of that existing agreement for the month that has past.
(g)Seventh, there is no clause in SATC’s contract with AJH that allows SATC to unilaterally reduce the amount payable to AJH because the courts have closed, or because AJH ends up doing fewer hours than normal because of some external event for which AJH is not responsible.
(h)Eighth, any consideration of the amount SATC should pay AJH “must be going forward”.
(i)Ninth, it is not clear whether SATC’s proposed reassessment of what should be paid to AJH is limited to the COVID-19 period “or to apply even once business as usual returns”.
(j)Tenth, any review should not be based just on any change in SATC’s income. SATC should also consider the duties AJH is performing during the COVID-19 period.
(k)Eleventh, if agreement cannot be reached with AJH “in relation to any position that the committee may prefer or wish to adopt and the alternative is terminating the agreement with AJH Leisure after adequate notice has been given”, SATC should be confident it can readily put in place alternative means of providing services AJH had been providing “for less than the amount we are no [sic - now] contractually obliged to pay AJH Leisure before taking such a decision” (emphasis in original).
(l)Twelfth, it is open to SATC to suggest to AJH that it cannot afford the level of current payments and propose reduced payments commensurate with the reduction of work, but “this cannot be done unilaterally and would need to be the subject of negotiation”.
(m)Thirteenth, Mr Nell was conscious that the amount paid to AJH had not increased “for many years”.
(n)Finally, Mr Nell said:
Finally, so far as a review of AJH Leisure’s role and responsibilities post Covid (if that is what your email was directed to) I am also conscious of the decision to introduce a new automated booking system. To the extent that that may result in a reduction of AJH Leisure’s work, then that may justify a reduction in fees payable, assuming any such reduction in role and time was more than just minimal. Although from the discussion at the last meeting, it still appears that AJH would have . . . a role to play (processing wet weather cancellations or casual bookings/refunds and presumably also still fielding telephone inquiries). It is not evident to me at the moment that there is any appreciable reduction in that role. But if it is to be asserted that there is, it should be discussed and quantified before any decision is made.
The final document on which the applicants rely is an email SATC sent to Mr Hill on 31 May 2020 in which SATC purported to notify Mr Hill of the “changes to the role that you are fulfilling for SATC”.[10] The email principally deals with the operation of the online booking system and what Mr Hill should do in relation to enquiries for bookings he may receive. The email contains the following paragraph:
Courts have been pre-booked as per your request to book your 100 hours allocation. Only these courts and times can be used by AJH at the reduced rates as agreed with AJH.
[10] SPAC, annexure “R”
It is reasonably arguable that the documents on which the applicants rely are capable of supporting findings that Mr Hill, through AJH, booked courts for the purpose of providing tennis coaching; Mr Hill had been doing this since around the early 1990s; Mr Hill had regularly booked courts for 1000 hours for every school term in return for paying SATC fees for the hire of the courts at a rate that was less than that usually charged by SATC; and Mr Hill had been the only person who had used SATC’s courts to provide coaching. The documents, however, are incapable of supporting a finding that AJH and SATC expressly agreed on a contract between AJH and SATC under which AJH committed to booking and paying 1000 hours of court time every school term; or that SATC committed not to change the prices at which it was prepared to offer its courts to AJH or Mr Hill; or that SATC had committed not to alter any of the other terms on which SATC was prepared to offer the courts to AJH or Mr Hill for the purposes of his business.
That the evidence does not suggest any express agreement does not mean no agreement to the effect alleged in the SPAC came into being. Contracts can be implied from conduct. The relevant principles were stated by Thomas J in Australian Energy Limited v Lennard Oil NL:[11]
Unless it affords direct evidence of the formation of a contract, conduct of the parties is relevant only when it leads to the necessary inference that somewhere, somehow, the parties must have made a particular agreement. It would be preferable to say that the admissions of parties (including admissions by a course of conduct) may be sufficiently clear to persuade a court to infer that there has been a variation of a contract even though no evidence can be produced to show when, where, by whom or in what particular words such agreement was made. The principle is not limited to variations. The formation of a contract, (Brogden v. Metropolitan Railway Co. (1877) 2 App.Cas. 666) the existence of a contract and its basic terms, (Lahey v. Canavan [1970] Qd.R. 224, 230; Goodwin v. Temple [1957] St.R.Qd 376, 384 (H.C.)) or an additional or varied term (Bruner v. Moore [1904] 1 Ch. 305, 314…) may be inferred from the conduct of the parties, notwithstanding the absence of the usual evidence of formation and content (Ferguson v. Dawson (supra at p. 823-4 and 831 (All E.R.). 1221 and 1229 (W.L.R.); Winks v. W.H. Heck and Sons Pty. Ltd. [1986] 1 Qd.R. 226; …). Of course, it is only in cases where the evidence is clear that such inferences will be drawn; but there is nothing in principle which prevents proof of a contract by admissions (Cf. Lustre Hosiery Ltd. v. York (1935) 54 C.L.R. 134, 143-4; Grey v. Australian Motorists & General Insurance Co. [1976] 1 N.S.W.L.R. 699). The latter case exemplifies a difficulty if the admission is of a mixed statement of fact and law, but I fail to see why a party may not be held to such an admission if he makes it with sufficient clarity and deliberation.
[11] Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216, at page 237 (Andre CJ concurring)
In light of the long term and apparently regular dealings between the applicants and SATC in relation to AJH’s hiring SATC’s courts for the purpose of coaching, it is reasonably arguable that AJH entered into a contract with SATC on terms to the effect, or substantially to the effect, of the Alleged Coaching and Hiring Contract.
Reasonably arguable that SATC breached Alleged Coaching and Hiring Contract?
The SPAC alleges that at the SATC committee meeting held on 9 August 2020 SATC unilaterally altered the terms of the Alleged Coaching and Hiring Contract by increasing the rates at which AJH could hire SATC’s courts, and requiring AJH to pay court hiring fees in advance. In my opinion, given I have found it is reasonably arguable that AJH and SATC entered into a contract in terms of the Alleged Coaching and Hiring Contract, by unilaterally purporting to increase the court hiring fees and the terms of payment, SATC breached that contract.
Reasonably arguable case of contravention of s 340 of FW Act?
The SPAC alleges that SATC unilaterally raised the court hiring fees and altered the terms of payment because Mr Hill had made a bullying complaint to the FWC. In my earlier reasons I found it was reasonably arguable that Mr Hill’s making a bullying complaint to the FWC constituted the exercise of a workplace right, even though he was not an employee of SATC. Given it is reasonably arguable that SATC’s decision to raise the court hiring fees and alter the terms of payment constitute a breach of the Alleged Coaching and Hiring Contract, it follows it is reasonably arguable that this alleged conduct constitutes the taking of adverse action within the meaning of item 3 of the table in s 342(1) of the FW Act. Further, the applicants have an arguable case that SATC raised the court hiring fees, and altered the terms of payment because Mr Hill made a bullying complaint to the FWC. That case would be based on the applicants’ allegations that SATC decided to raise the court hiring fees, and alter the terms of payment, after Mr Hill applied to the FWC.
Reasonably arguable case of harassment
The SPAC alleges acts of harassment and damage by SATC. It does not, however, provide any details sufficient to identify the acts, when they occurred, or the persons who took the actions. In other words, the allegations are not particularised. For these reasons alone, the SPAC does not disclose a reasonable cause of action based on acts of harassment and damage.
JURISDICTION
In addition to the cause of action I identified in my earlier reasons, I am satisfied that:
(a)AJH has a reasonable cause of action against SATC for breach of the Contract based on SATC’s decision communicated to Mr Hill by email sent on 31 May 2020 in relation to the use of the online booking system;
(b)AJH has a reasonable cause of action against SATC for breach of the Alleged Coaching and Hiring Contract based on the alleged decision or decisions by SATC made in August 2020 to increase the court hiring fees it had been charging AJH, and to alter the terms of payment; and
(c)the applicants have a reasonable cause of action against SATC under s 340(1) of the FW Act based on the same acts on which AJH relies for alleging that SATC breached the Alleged Coaching and Hiring Contract.
This Court has jurisdiction to entertain the claims made under the FW Act; and that is because s 566 of the FW Act confers jurisdiction in this Court “in relation to any civil matter arising under this Act”. The Court’s jurisdiction in relation to a civil “matter arising under” s 566 of the FW Act extends to claims in relation to which this Court would not ordinarily have jurisdiction, if such claim arises “out of a common substratum of facts” as those out of which the claim in relation to which this Court does have jurisdiction arises.[12] I am satisfied that AJH’s causes of action for breach of contract arise out of a common substratum of facts as those out of which the applicants’ claims under the FW Act arise; and, for that reason, this Court has jurisdiction to hear AJH’s claims for breach of contract.
[12] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457, at page 512
DISPOSITION AND FURTHER PROGRESS
I propose to answer in the affirmative the questions I identify in paragraph 1 of these reasons. I also propose to direct that the parties file and serve their evidence. There are two points, however, that I consider necessary to note.
The first is that at the hearing the Court will determine the applicants’ case on the basis of admissible evidence. Thus, to the extent a party relies on documents these must be annexed to an affidavit; to the extent a party relies on a transaction in relation to which a document exists to evidence it, the document should be annexed to an affidavit; and to the extent a party wishes to rely on a conversation, the affidavit should set out when and where the conversation occurred and the effect of what was said, preferably using direct speech. The second point is that my concluding that the SPAC does not particularise the acts of harassment and damage does not prevent the applicants from filing evidence that identifies those acts. Those acts, however, should be identified by the person or persons who observed the act in question in an affidavit; and the person should in the affidavit identify the person who engaged in the act, when and where the act occurred, and what that person did or did not do.
I will order that the applicants file and serve any additional affidavits on which they rely by 13 August 2021, SATC file and serve its affidavits by 3 September 2021, and the applicants file and serve any affidavits in reply by 17 September 2021. I will also list the matter for further directions on 24 September 2021 on which day I will set the matter down for hearing.
Finally, I should record that I am conscious that Mr Hill has been conducting this proceeding on behalf of AJH in circumstances where I have not made an order under r 9.04 of the Federal Circuit Court Rules 2001 (Cth) that AJH carry on this proceeding otherwise than by a lawyer. I expect that when the matter is next before the Court Mr Hill will make an application for an order that he be permitted to carry on the proceeding on behalf of AJH. I will make a notation to the orders I propose to pronounce that on 24 September 2021, or at such earlier time as the proceeding may come back before me, an application will be made that AJH carry on the proceeding other than by a lawyer.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 30 July 2021
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