Joyce v St George Bank Limited

[2006] FCA 876

FEDERAL COURT OF AUSTRALIA

Joyce v St George Bank Limited [2006] FCA 876

PETER JOYCE v ST GEORGE BANK LIMITED

NSD2463 OF 2005

EMMETT J
3 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2463 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PETER JOYCE APPELLANT
AND:	ST GEORGE BANK LIMITED RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 JULY 2006
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the appeal be dismissed.

2.Orders that Order 1 be stayed up to and including 4 August 2006.

3.Grants leave for the appellant to have the matter listed for directions on 4 August 2006 upon giving notice no later than 28 July 2006.

4.Notes the agreement of the parties that there be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2463 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PETER JOYCE APPELLANT
AND:	ST GEORGE BANK LIMITED RESPONDENT
JUDGE:	EMMETT J
DATE:	3 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order of the Federal Magistrates Court dismissing a proceeding pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001. Rule 13.10 provides that the Court may order that a proceeding be dismissed generally, if it appears to the Court that no reasonable cause of action is disclosed in relation to the proceeding, or the proceeding is frivolous or vexatious. The appellant made a complaint to the Human Rights and Equal Opportunity Commission (‘the Commission’) in respect of his dismissal as an employee of the respondent. His complaint was that he was dismissed by reason of a disability in contravention of the Disability Discrimination Act 1992 (Cth) (‘the Act’). The Commission terminated the complaint on the ground that it was satisfied that it lacked substance. The appellant then commenced a proceeding in the Federal Magistrates Court.

2. The Federal Magistrates Court accepted, on the basis of uncontradicted evidence of the appellant, that he suffers from bronchitis and upper respiratory tract infection, and accepted that they are disabilities under the Act. However, the primary judge acceded to an application made on behalf of the respondent for summary dismissal. The circumstances in which that application was made are slightly unusual in that, when the appellant’s case had closed, counsel for the respondent made an application for summary dismissal on the basis that no reasonable cause of action had been disclosed.

3. There was some question as to whether or not that was a ‘no case to answer’ application, such that, in the ordinary course, the respondent would be required to accept that it would not go into evidence.  The general rule in a civil proceeding is that, except in exceptional circumstances, a defendant or respondent is not entitled to a ruling that there is no case to answer.  In exceptional circumstances, such as an allegation of fraud or serious misconduct, there is an exception to the rule.  That is to say, the defendant or respondent must decide whether or not to go into evidence.  If the defendant or respondent elects not to do so, then that is the end of the evidence and the matter is then decided on the basis of the plaintiff’s or applicant’s evidence. 

4. The primary judge ordered that the proceeding be dismissed summarily, pursuant to rule 13.10. In those circumstances, it was unnecessary to decide whether or not the respondent would be entitled to go into evidence. The appellant then sought leave to appeal, on the basis that the summary dismissal was an interlocutory order. The grounds of appeal were that the appellant was denied natural justice and that all of the evidence was not considered. It is not entirely clear whether those grounds related to the proceeding before the Federal Magistrates Court, as distinct from the proceeding before the Commission.

5. In any event, on 5 July 2005, the appellant was granted leave to appeal.  Stone J considered that it was at least arguable that the primary judge was in error in denying the appellant the opportunity to hear the respondent’s evidence and to cross-examine witnesses for the respondent.  It is by no means clear that the primary judge did in fact deny the appellant that opportunity but that is not a question for me to decide at this stage.  The question that would arise on the appeal is whether the proceeding should have been dismissed summarily.

6. That would involve a consideration of whether or not the appellant, on the material before the primary judge, had disclosed at least a reasonable cause of action.  A proceeding should not be summarily dismissed unless it is clear, at least beyond argument, that the applicant cannot articulate a reasonable cause of action.  In this case, it was not so much a question of articulating a reasonable cause of action, since all of the appellant’s evidence had been heard. 

7. In the course of argument on the hearing of the appeal, it appeared that the appellant and the respondent may be able to reach a compromise.  Therefore, I adjourned the hearing of the appeal for a short time and when the hearing resumed, the parties informed me that they had reached agreement in principle but wished to have some time in order to formalise the proposed agreement.  The appellant appears without any legal representation and both parties wished to ensure that he had a reasonable opportunity to take legal advice concerning the proposed compromise.  While I am informed that there has been agreement in principle reached, there is no binding agreement between the parties at this stage.  The agreement in principle would involve a deed of release and, I assume, some other arrangements that satisfy the appellant.  The parties have not, and should not, inform me of the terms of that arrangement.  However, they have indicated that, if the agreement in principle is reached, then the Court would be asked to dismiss the appeal and make no order as to costs. 

8. Since it is desirable in a case like this to ensure that unnecessary costs are not incurred, I propose to make those orders, but to stay the orders for several weeks to enable the parties to formalise their proposed agreement.  If, for whatever reason, the agreement is not formalised then the hearing of the appeal will continue.  That, of course, is not an ideal situation, in that further costs would be incurred if the hearing of the appeal has to resume.  The parties, however, without of course binding themselves, have assured me that they are confident that a formal agreement could be reached. 

9. In those circumstances, I propose to order that the appeal be dismissed but to stay that order for several weeks with leave to the appellant to restore the matter for further consideration before the stay expires. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             6 July 2006

The Appellant appeared in person.
Counsel for the Respondent:	Ms K. Eastman
Solicitor for the Respondent:	St George Bank
Date of Hearing:	3 July 2006
Date of Judgment:	3 July 2006