Hossain v Restuccia

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FEDERAL COURT OF AUSTRALIA

Hossain v Restuccia [2018] FCA 1383

File number: NSD 72 of 2018
Judge: BROMWICH J
Date of judgment: 7 September 2018
Catchwords: PRACTICE AND PROCEDURE – application for summary judgment under s 31A(2) of the Federal Court of Australia Act (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) – application for striking out of originating application and statement of claim under r 16.01 of the Federal Court Rules – application for default judgment under r 5.23 of the Federal Court Rules
Legislation:

Fair Work Act 2009 (Cth) ss 88(2), 97, 340(1), 342, 343, 351(3), 570

Federal Court of Australia Act 1976 (Cth) s 31A(2)

Federal Court Rules 2011 (Cth) rr 16.42, 26.01(1)(a)

Cases cited:

Geneva Laboratories v Prestige Premium Deals (No 4) [2016] FCA 867; 120 IPR 133

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; 167 FCR 372

Date of hearing: 22 June 2018
Date of last submissions: 7 August 2018
Registry: New South Wales
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 60
Counsel for the Applicant: The Applicant did not appear
Counsel for the First and Fourth Respondents: Mr S Balafoutis with Ms E Doyle-Markwick
Solicitor for the First and Fourth Respondents: Integroe Partners
Counsel for the Second Respondent: Mr K Brotherson
Solicitor for the Second Respondent: Hall & Wilcox
Counsel for the Third Respondent: The Third Respondent appeared in person

ORDERS

NSD 72 of 2018
BETWEEN:

SEIKH HOSSAIN

Applicant
AND:

ELENA RESTUCCIA

First Respondent

ALLIANZ AUSTRALIA WORKERS COMPENSATION (NSW) LIMITED

Second Respondent

SONG BAI

Third Respondent

TRYCLOWN PTY LTD
Fourth Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

7 SEPTEMBER 2018

THE COURT ORDERS THAT:

1.Summary judgment be entered for each of the respondents under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

2.The applicant pay each of the respondents’ costs of and incidental to this proceeding.

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


REASONS FOR JUDGMENT

BROMWICH J:

Introduction

  1. The respondents seek the early termination of this proceeding.  The applicant, Mr Seikh Hossain, commenced the substantive proceeding on 24 January 2018 by way of an originating application and statement of claim.  Broadly speaking, it is an employment-related claim.  Mr Hossain makes various allegations of breaches of the Fair Work Act 2009 (Cth) (FWAct) and seeks relief including damages and payment of penalties.  He also makes allegations of tax fraud, but without any particulars to render those allegations meaningful or intelligible. 

  2. The respondents seek orders dismissing this proceeding on an interlocutory basis.  In particular, they seek:

    (1)summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth);

    (2)striking out of the originating application and statement of claim under r 16.21 of the Federal Court Rules;…

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Details
Case
[2018] FCA 1383
Decision Date

CaseChat Overview and Summary

Hossain v Restuccia is a case where the plaintiff, Mr Hossain, brought claims against four respondents in the Federal Court of Australia. The respondents, which include individuals and entities associated with two pizza restaurants, sought various forms of relief, including summary judgment, striking out of the plaintiff's claims, and default judgment due to the plaintiff's non-compliance with court orders. The court was required to decide whether the plaintiff's claims were justiciable and whether the respondents were entitled to the relief they sought.

The court found that the plaintiff's claims were not supported by any meaningful evidence or plausible legal basis. The plaintiff's pleadings were vague and did not adequately particularise the alleged wrongdoing. The court was satisfied that the plaintiff had no reasonable prospect of successfully prosecuting any part of the proceeding against any of the respondents. This conclusion was based on the lack of any coherent or substantiated allegations against the respondents and the plaintiff's repeated failures to comply with court orders to amend his pleadings. Consequently, the court determined that summary judgment was the most appropriate remedy. The court also noted that the proceeding was vexatious and without reasonable cause, justifying an award of costs against the plaintiff.

The court ordered that summary judgment be entered in favour of each of the respondents. Additionally, the plaintiff was ordered to pay the costs of each respondent. The court's decision highlights the importance of proper and substantiated pleadings in legal proceedings and the court's willingness to dismiss baseless claims to prevent unnecessary expense and delay.

Orders

Orders of the court

1. Summary judgment be entered for each of the respondents under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

2. The applicant pay each of the respondents’ costs of and incidental to this proceeding.

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

Background

Background to the litigation

For the reasons that follow, each of the respondents should have summary judgment entered against the applicant, with costs. While a sufficient case was also advanced for the originating application and statement of claim to be struck out in their entirety, and an ample case for default judgment was also made out by reason of Mr Hossain’s non-compliance with orders of the Court, summary judgment is the more appropriate remedy in all of the circumstances. This is because I am satisfied that Mr Hossain has no reasonable prospect of successfully prosecuting any part of the proceeding against any of the respondents, thus meeting the test in both s 31A(2) of the Federal Court of Australia Act and r 26.01(1)(a) of the Federal Court Rules 2011. Facts and circumstances The following facts are derived from affidavits filed by the respondents, from the pleadings and from events that have taken place in this Court or in the course of the proceeding. Ordinarily, a decision on summary judgment would at least need to be made on the pleadings alone, with evidence providing no more than context or background. However, Mr Hossain provided no useful information beyond his pleadings, and those pleadings were far from illuminating. Some history and background was necessary to be able to understand, so far as is possible, the case that Mr Hossain brings in this Court. In 2016 and 2017, Mr Hossain worked on a temporary or casual basis for two different pizza restaurants in Sydney. The first of those restaurants is called Lipari Pizza Bar Hunters Hill and is located in the Sydney suburb of Hunters Hill. It is owned by a partnership comprising Ms Elena Restuccia, who is the first respondent, and Ms Michelle Totaro. It will be convenient to refer to this restaurant as Lipari Hunters Hill. The other pizza restaurant is called Lipari Pizza and is located in the Sydney suburb of Rozelle. It is owned by the fourth respondent, Tryclown Pty Ltd. All the shares in Tryclown are owned, in equal proportions, by a husband and wife, Mr Frank Restuccia and Ms Elizabeth Restuccia. It will be convenient to refer to Tryclown’s restaurant as Lipari Rozelle. Whatever other personal or familial connections might exist, there is no commonality of ownership or legal identity between the legal entity that owns and runs Lipari Rozelle, being Tryclown, and the legal entity that owns and runs Lipari Hunters Hill, being the partnership. Allianz Australia Workers Compensation (NSW) Limited, the second respondent, is the workers compensation insurer for the partnership in respect of Lipari Rozelle. Mr Song Bai, the third respondent, is the business accountant for the partnership and for Tryclown, and is thus the accountant for both pizza restaurants. His only involvement with any of the employees of the partnership or of Tryclown is to prepare annual payment summaries for income tax purposes. Mr Hossain worked for Tryclown at Lipari Rozelle as a cook on a casual basis from August 2016 to June 2017. He has not worked there since June 2017.

Evidence

Evidence Before The Court

Mr Hossain’s further request at [8] of his submissions for a hearing of his interlocutory application was not acceded to for the reasons set out at [34]. The references at [5] and [8] of his submissions above to further documents being prepared and almost being ready, and seeking further time in which to furnish them, did not result in any further material being provided. At the time of finalising these reasons, over four weeks had elapsed since Mr Hossain’s further submissions were filed on 8 August 2018, yet nothing more had been provided by him. Mr Hossain has had ample time and ample opportunity to present any evidence or submissions in opposition to the interlocutory relief that the respondents seek. There is no justification for any further delay in proceeding to judgment.The submissions and evidence for Mr Hossain Mr Hossain’s evidence consists of the following:(1)An affidavit sworn 16 January 2018 annexing correspondence sent to Ms Elena Restuccia, the first being the 20 December 2017 letter (referred to at [17] above), and the second being an email dated 25 December 2017 (referred to at [19] above). The latter email “reminds” Ms Elena Restuccia of her legal and moral obligations to Mr Hossain, and insists upon payment of holiday and personal leave entitlements.(2)An affidavit sworn 22 February 2018, in which Mr Hossain asserts that his “health and capacity to work remains the same”. Annexed to the affidavit are two letters. The first purports to have been sent to Mr Hossain’s psychologist. The letter makes reference to the psychologist having been “compromised” by the respondents, and purports to revoke all permissions Mr Hossain that has given to him to communicate with Allianz. The second letter is in similar terms and is addressed to several general practitioners.(3)An affidavit sworn 3 May 2018, in which Mr Hossain makes various assertions about the titles that the Court should use to address him. The nature of these assertions is best illustrated by Mr Hossain’s statement that he has been anointed as “The Prince of Justice for the whole creation”.(4)The abovementioned further affidavit sworn 22 July 2018. Importantly, Mr Hossain has not provided any meaningful response to the submissions in writing on behalf of the respondents in relation the interlocutory relief that they seek, as summarised and considered below.The submissions for Ms Elena Restuccia and TryclownParagraph 1 of the statement of claim Ms Elena Restuccia and Tryclown submit that the allegations contained in paragraph 1 of the statement of claim disclose no reasonable cause of action and are embarrassing and liable to be struck out. First, they submit that the opening words of paragraph 1 allege tax fraud, but are not accompanied by any particulars that are capable of supporting this allegation, contrary to r 16.42 of the Federal Court Rules. That rule requires a party pleading fraud to state the particulars of the facts relied upon. Secondly, they submit that the opening words of paragraph 1 allege that Mr Bai assisted Ms Restuccia and Tryclown in committing the pleaded acts, but are not accompanied by any particulars that are capable of supporting this allegation.

Decision

Reasons for decision

In the alternative, Ms Restuccia and Tryclown submit that there is no reasonable prospect that Mr Hossain will establish that Ms Restuccia, Tryclown and Mr Bai breached ss 340, 343 and 351 of the FW Act. It is submitted that the evidence of Ms Elena Restuccia establishes that: (1)Mr Hossain voluntarily continued to work for almost five months after his injury; (2)Ms Elena Restuccia assisted Mr Hossain in filling out his workers compensation forms; (3)Ms Elena Restuccia asked Mr Hossain whether he wished to work, but did not insist on him doing so; (4)Ms Elena Restuccia gave Mr Hossain two weeks’ gratuitous pay over the Christmas period; and(5)Ms Restuccia has not threatened to terminate Mr Hossain’s employment or change his role at any time. It is submitted that Mr Hossain has failed to respond to this prima face case by pointing to any specific factual or evidentiary disputes that make a trial necessary. Default judgment Default judgment is also sought against Mr Hossain under r 5.23(1) of the Federal Court Rules. It is submitted that Mr Hossain is in default of the order made on 9 March 2018 that he file and serve, on or before 6 April 2018, an amended statement of claim with further and better particulars, including how it was alleged that the second and third respondents are involved in the claimed contraventions. That default is said to be a significant continuing default occasioning unnecessary delay and expense to the other parties, citing Geneva Laboratories v Prestige Premium Deals (No 4) [2016] FCA 867; 120 IPR 133 at [57] and [60]. It is submitted that the default is serious for at least two reasons. First, the statement of claim in its present form is said to be manifestly defective for the reasons already identified, not least because there is no basis stated for joining Mr Bai. Secondly, it is said that Mr Hossain’s failure to amend the statement of claim has caused months of delay and unnecessary expense to the other parties. It is pointed out that Mr Hossain has filed no evidence or submissions justifying his pleading and has not amended his statement of claim. He is said to be either unable, or unwilling, to cooperate with the Court and the other parties to progress the matter.The submissions for Allianz The allegations made against Allianz are confined to paragraphs 2 and 3 of the statement of claim. Paragraphs 2 and 3 Allianz submits that paragraphs 2 and 3 of the statement of claim do not establish a reasonable cause of action against it, and contain matters that are embarrassing and liable to be struck out. In relation to both paragraphs, Allianz submits that:(1)the pleading is broad and generalised in form, and does not give proper particulars of matters such as the adverse action claimed, the detriment suffered by Mr Hossain, and the particular acts that are alleged to constitute the claimed breaches; and(2)there are insufficient facts pleaded to support the alleged contraventions of the FW Act, making it effectively impossible to understand the substance of the case brought against Allianz.

Ratio Decidendi

Legal Principle Established

In his affidavit, Mr Bai said that he did not understand the claim as it was made against him, noting that he was not an employer of the applicant. He said that he is the business accountant for Ms Restuccia and Tryclown, and does not have any contact with any of the employees of Ms Restuccia and Tryclown, save only that he prepares and sends payment summaries annually. On this basis, he says that Mr Hossain’s case against him is misconceived and asks for the Court to dismiss the proceedings against him. That should be understood as seeking summary judgment, default judgment or a strike out of the pleadings.Consideration I accept the submissions for the respondents summarised above. Each submission made is balanced, restrained, helpful and accurate. Each asserted defect or failing in the pleadings has been made out. Mr Hossain’s manifest and repeated failures to comply with orders to amend those pleadings is equally clear. An ample basis has been made out for any of summary judgment, striking out or default judgment to be granted in favour of all four respondents. The option that most fully and appropriately addresses the manifest deficiencies in Mr Hossain’s case is summary judgment, not least because this is not a case in which re-pleading should be contemplated because of the lack of any apparent proper foundation for the proceeding. That should be granted for the following reasons:(1)in the case of Mr Bai, there is no apparent basis, factual or legal, for Mr Hossain to sue him for anything at all;(2)in the case of Allianz, there is no apparent basis, factual or legal, for Mr Hossain to sue it at all, although at least some unrevealed basis might, conceivably, have existed;(3)in the case of Tryclown, while it did employ Mr Hossain at one point in time, it did not do so at any material point in time and there is no suggestion of anything untoward having happened during the time that it did employ him; and(4)in the case of Ms Elena Restuccia, while she could, as a member of the partnership that did employ Mr Hossain at the times during which his complaints arose, be responsible for actionable conduct against him, there is nothing to suggest in the pleadings or anywhere else, that any coherent allegation has been made that she has done anything wrong to or in relation to Mr Hossain at any time or in any way. Costs This proceeding has, at all times, been vexatious, baseless and without reasonable cause. Mr Hossain has refused to make amends in any way. Mr Hossain must pay the costs of each of the respondents, the limitation on costs being awarded in s 570 of the FW Act having been clearly overcome.