John Moores v Rus Mining Services Pty Ltd
[2021] FCCA 1481
•2 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
John Moores v Rus Mining Services Pty Ltd [2021] FCCA 1481
File number(s): SYG 279 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 2 July 2021 Catchwords: INDUSTRIAL LAW – Fair Work proceedings – application for summary dismissal – application dismissed – costs reserved Legislation: Fair Work Act 2009 (Cth), ss 365, 368, 369
Federal Circuit Court of Australia Act 1999 (Cth), s 17A
Federal Circuit Court Rules 2001 (Cth), r 13.10Cases cited: Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81
Doyle v Oil Basins Limited [2017] FCCA 2758
Fadheel v Douglass Hanly Moir PathologyPty Ltd [2017] FCCA 2659
George v Fletcher [2010] FCAFC 53
Murphy v Innovior Pty Ltd [2020] FCCA 2060
Webster v Lampard (1993) 177 CLR 598
Number of paragraphs: 23 Date of last submission/s: 29 June 2021 Date of hearing: 29 June 2021 Place: Parramatta Counsel for the Applicant: Mr Taylor Counsel for the Respondent: Ms Dinnen ORDERS
SYG 279 of 2021 BETWEEN: JOHN MOORES
Applicant
AND: RUS MINING SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed by the Respondent on 13 April 2021 is dismissed.
2.Costs are reserved.
3.Pursuant to s.34 of the Federal Circuit Court Act 1999 (Cth) the matter be referred to a Registrar of the Court for mediation in accordance with r.45.13B of the Federal Circuit Court Rules 2001 (Cth).
4.The parties are to seek to have the matter relisted within 7 days of an unsuccessful outcome at mediation.
5.Grant liberty to apply on 3 days’ notice.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
On 24 February 2021, the applicant, Mr John Moores, lodged an Application with the Court alleging that he was dismissed by his employer, the respondent, Rus Mining Services Pty Ltd from the position of General Manager of the company in contravention of a general provision under the Fair Work Act 2009 (Cth) (“the Act”).The applicant seeks the payment of compensation together with a pecuniary penalty to be paid by the respondent.
On 13 April 2021, the respondent filed an Application in a Case seeking the following Orders:
•Summary Judgement for the Respondent of the Application filed 24 February 2021 pursuant to Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”);
•In addition or in the alternative, Summary Dismissal of the Application filed 24 February 2021 pursuant to Rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”);
•In addition or in the alternative, Summary Dismissal of the Application filed 24 February 2021 pursuant to Rule 13.10(c) of the Rules;
•Applicant to pay the Respondent’s costs.
The matter was accordingly set down on an interlocutory basis for determination of the Application in a Case. On 26 April 2021, Orders were made for the filing and serving of relevant documents and submissions.
THE RESPONDENT’S EVIDENCE AND SUBMISSIONS
The Respondent relied upon the Affidavits of Zhong Li affirmed 26 May 2021 and 26 June 2021 together with the Affidavit of Belinda Taing, solicitor, affirmed 13 April 2021. Ms Taing makes reference to a Deed of Settlement between the parties dated 24 December 2020, which has been tendered to the Court. That Deed includes, inter alia, the following terms:
The Parties have agreed to fully and finally settle all matters arising out of and in connection with the Employee’s employment on the terms set out in this deed…
2.4 On the Employer complying with clauses 2.1 and 2.2 above, the Employee releases and forever discharges and releases the Respondent, its directors, applicants, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the employer,... including but not limited to the cessation of the employee’s employment
It is not disputed that the Deed is signed by the applicant and has been signed by a Director of the Company pursuant to s 127(1) of the Corporations Act 2001 (Cth. It is also not disputed that the payment set out in the Deed was paid to the applicant on 24 December 2020 in full. This included all the applicant’s entitlements under his Contract of Employment with the addition of a $12,000 “golden handshake”.
In an Affidavit of Zhong Li, affirmed 26 May 2021, Mr Li deposes that he is the Managing Director of Rus Mining Services Pty Ltd. Mr Li deposes as to the background of the termination or redundancy of the applicant and the negotiations leading up to the Deed off Settlement being signed. Mr Li deposes that, following receipt of the Deed, the amounts agreed to were paid that day.
In submissions, Counsel for the Respondent put to the Court that the agreement between the applicant and the respondent operates as a bar to these proceedings. In these circumstances, the applicant has no reasonable prospects of successfully prosecuting the claim.
It was further submitted that the Deed contains a release which is similar to those considered by the Court on a number of occasions; see Murphy v Innovior Pty Ltd [2020] FCCA 2060, Doyle v Oil Basins Limited [2017] FCCA 2758 and Fadheel v Douglass Hanly Moir PathologyPty Ltd [2017] FCCA 2659 (“Fadheel”). In each case, the Court gave the respondent summary judgement under s 17A of the Act and dismissed the proceedings pursuant to r 13.10(a) of the Rules.
In Fadheel, the following was stated at [25]:
25. The respondent effectively argues that there has been accord and satisfaction. In Commissioner of Taxation v Orica Ltd (1998) 194 CLR 500; [1998] HCA 33, Gummow J citing Dixon J in McDermott v Black (1940) 63 CLR 161, 183-185; [1940] HCA 4 (McDermott), explained that:
116… The essence of accord and satisfaction “is the acceptance by the plaintiff of something in place of his cause of action”, that the accord is the agreement or consent to accept the satisfaction and that, upon provision of the satisfaction, there is a discharge which extinguishes the cause of action.
The judgement goes on to explain that, unless and until there is satisfaction of the promise made in the accord, it is only executory and cannot bar the claim. Care needs to be taken by a Court as to the precise terms of the release contained within any Deed of Settlement to ensure that the Deed does properly bar any applicant from further legal action.
In response to the claim of duress raised by the applicant, Counsel for the respondent submitted that the reasons why the applicant says he was forced to sign the Deed are insufficient, such that the Deed should be voided. There was no evidence of financial pressures that forced the applicant to sign the Deed. The applicant was able to negotiate with the respondent over the relatively short period of time between the applicant being advised he would be made redundant and the Deed being signed such that the applicant ensured that he was paid out at his full contract rate of remuneration in addition to receiving a “golden handshake”. Counsel for the respondent submitted that this was not consistent with a person whose will had been overborne by unconscionable conduct on the part of the respondent.
It was conceded, however, that there were a number of factual disputes between the applicant and the respondent. These included the applicant requesting to take 8 weeks of leave, the nature of the applicant’s personal circumstances, including the serious illness of the applicant’s wife. The respondent denied ever knowing the applicant was married. There is also a factual dispute as to the events of 26 August 2020. The respondent also denies threatening the applicant with redundancy in a face to face meeting
THE APPLICANT’S EVIDENCE AND SUBMISSIONS
Counsel for the applicant submitted that there were issues that required the Court to hear and determine the evidence. If the Court concluded that the applicant may have been coerced or pressured into signing the Deed, or that the Application discloses a reasonable cause of action, the Application for Strike Out or Summary Dismissal must fail. A further matter for determination would be if the redundancy was, in fact, a sham and the applicant was terminated for making a request for 8 weeks leave in order to look after his ill wife who was being discharged from hospital.
There were a number of factual disputes including Mr Li stating to the applicant “if you do not sign it (the Deed)… you won’t get paid and you won’t have any money for Christmas”. It was put by Counsel for the applicant that the pressure applied to the applicant was beyond what the law is prepared to count as legitimate and ultimately constituted duress. It was submitted that the factual issues in dispute were such that the matter required the calling and testing of evidence.
It was submitted that this case was not a matter that the applicant’s case was “so obviously untenable that it cannot possibly succeed” and “manifestly groundless”: see Webster v Lampard (1993) 177 CLR 598 at [602] ; Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]-[38].
CONSIDERATION
Section 17A(2) of the Act provides as follows:
(2) the Federal Circuit Court of Australia may give judgement for one party against another in relation to the whole or any part of the 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.
Rule 13.10 of the Rules provides as follows:
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 George v Fletcher [2010] FCAFC 53, Ryan and Logan JJ held that care must be taken by this Court when considering to grant summary judgement. Reference was made at [75] to General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 where the Court said at [8]:
the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion..
Riethmuller J writing in the CCH publication “Australian Federal Circuit Court Practice” at 100-510 states:
The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s 31A to grant summary judgement. That would be inconsistent with the way in which the phrase “no reasonable prospect of success” is to be read in the light of s 31A(3) and s17A(3).
The Court is of the view that the applicant will face considerable hurdles in successfully prosecuting his case. Firstly, the applicant will need to establish that the Deed should be voided. Secondly, the applicant will then need to establish his claim under the Act that he was terminated in breach of the general protections provided by that Act.
CONCLUSION
The fact that the applicant may face considerable hurdles however, does not mean that he should not have his day in Court. The Court is satisfied that there are sufficient factual issues in dispute, as outlined above, that the matter requires the calling and testing of evidence before a proper conclusion can be arrived at as to the merits of the case. This is not a matter that is so obviously untenable that it cannot succeed.
In these circumstances, the Application in a Case made by the respondent is dismissed.
Costs in the matter will be reserved.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 2 July 2021
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