John Moores v Rus Mining Services Pty Ltd

Case [2021] FCCA 1481

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 13.10

Cases 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

  1. 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.

  2. 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.

  3. 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

  4. The…

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John Moores v Rus Mining Services Pty Ltd [2021] FCCA 1481
Case
[2021] FCCA 1481
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Humphreys J considered an application by Rus Mining Services Pty Ltd (the Respondent) seeking summary dismissal of proceedings brought by John Moores (the Applicant). The dispute arose from the termination of the Applicant's employment, with the Respondent relying on a Deed of Settlement dated 24 December 2020, which included a release of all claims, to argue that the Applicant had no reasonable prospect of success.

The central legal issue before the Court was whether the Deed of Settlement, which had been signed by the Applicant and the Respondent, and for which payment had been made, operated as a complete bar to the Applicant's claim. This required the Court to determine if the Applicant had any reasonable prospect of successfully prosecuting his claim, particularly in light of the release contained within the Deed, or if the matter was so obviously untenable that it could not succeed.

Humphreys J noted that the Respondent's argument was akin to accord and satisfaction, where acceptance of a settlement extinguishes a cause of action. However, the Court also acknowledged the principle that summary judgment jurisdiction should be sparingly employed and only in clear cases where a definite conclusion can be reached. While the Applicant would face considerable hurdles, including potentially needing to establish that the Deed should be voided before pursuing his claim for breach of general protections, the Court found that there were sufficient factual issues in dispute. These issues necessitated the calling and testing of evidence, meaning the case was not so obviously untenable as to warrant summary dismissal.

Consequently, the Respondent's Application in a Case was dismissed, and costs were reserved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.