Kennedy v Australian Taxation Office
[2011] FWA 7469
•15 NOVEMBER 2011
[2011] FWA 7469 |
|
DECISION |
Workplace Relations Act 1996
s 709 - Application to FWA to have a dispute resolution process conducted (Div 5)
John Patrick Kennedy
v
Australian Taxation Office
(DR2011/169)
DEPUTY PRESIDENT SAMS | SYDNEY, 15 NOVEMBER 2011 |
Application to dismiss proceedings - dispute under the terms of an enterprise agreement - failure to particularise claims and relief sought - no reasonable prospects of success - whether application frivolous and/or vexatious - application to dismiss granted.
Introduction
[1] This decision will determine a preliminary application lodged on the 3 August 2011, by the Australian Taxation Office (‘the ATO’), in which the ATO made an application to dismiss a substantive application lodged by Mr John Patrick Kennedy on 17 May, 2011. The ATO’s application is made under s 587(1) of the Fair Work Act 2009 (‘the Act’) which grants Fair Work Australia (‘FWA’) the power to dismiss an application where:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Before returning to the principles applying to what is essentially a ‘strike out’ application, it is necessary to trace a brief background to the present application and establish the statutory framework under which the dispute may be considered by FWA.
Background
[2] The substantive application lodged by Mr Kennedy was for FWA to deal with a dispute in accordance with a dispute settlement procedure, pursuant to s 739 of the Act. However, as I will outline shortly, this dispute is one which falls squarely for determination under the Workplace Relations Act 1996 (the ‘WR Act’). Nevertheless, Mr Kennedy contends that the dispute relates to 5 clauses (107, 108, 121, 128, 136.8) of the ATO (General Employees) Agency Agreement 2009 (‘the Agreement’) and his belief that the ATO has not correctly interpreted and applied the provisions of the said clauses in respect to a conclusion reached by the ATO’s management that Mr Kennedy’s performance is unsatisfactory. Mr Kennedy describes the relief he seeks as ‘a declaration clarifying the correct interpretation of the clauses in the agreement in dispute and an order to be issued to the Australian Taxation Office that it complies strictly with the clauses’.
[3] Annexed to his application and other filed documents are various exchanges between Mr Kennedy and officers of the ATO and notes of meetings concerning this dispute. I note that Mr Kennedy has had 3 periods of employment with the ATO since 1974, totalling around 11 years. His present position is APS Level 6. On the 27 May, 2011 (after he had filed this substantive matter), Mr Kennedy was advised as follows:
This letter is to confirm that your services cannot be effectively utilised by the Australian Taxation Office (ATO) in your current position and that alternative employment for you within the ATO is not available. In accordance with provisions under the ATO (General Employees) Agreement 2009 (GEA), Clause 101, I am formally offering you voluntary redundancy.
I am advised that you have been provided with the information set out in Step 4 of sub-clause 104.4 of the GEA, this is:
- estimate of severance benefits, pay in lieu of notice and pay in lieu of any unused annual, purchased or long service leave credits
- estimate of the amount of taxation that will be deducted from any payments, and
- access to superannuation information.
Please note that you have up to two weeks from the date of this letter (ie until 10 June 2011) to respond to this offer. A failure to respond in the two-week time period will be deemed to be a rejection of the offer (Clause 101.8). If you decide to accept this offer, follow-on action can commence within the 14 day period with your consent. Should you accept, you will be paid a redundancy payment pursuant to Clause 104 of the GEA.
Please return your response to the offer to myself or your manager Penny Jackson.
Rejection of this offer precludes any further offer of voluntary redundancy being made in respect of your current employment situation. Employees who decline the offer will be provided with assistance to find opportunities for redeployment within the APS.
If a suitable position cannot be found within three (3) months, action will ensue under Clauses 101.13 of the ATO (General Employees) Agreement 2009, commencing with:
(a) provision of written notice of the intention to involuntarily terminate your employment as if an excess employee; or,
(b) provision of 4 weeks’ written notice of the intention to reduce your classification so that you can be redeployed to suitable employment.
In addition, clause 101.16 of the GEA provides that employees will have access to the support that is available to excess employees. The ATO provides employees with reimbursement of up to $2,200.00 for career, lifestyle and financial planning by a qualified advisor and or assistance with preparation of application for job interviews, where they choose to use the support service. The provider must hold a current registered ABN to be considered eligible to provide the service.
If you have not already accessed this service and wish to do so, you will need to make your own arrangements with a qualified provider of your choice and provide me with the appropriate receipts. You can obtain more information on accessing the Career, lifestyle & financial planning - support services for excess employees on the Intranet.
[4] It would appear that the gravamen of this dispute; namely, Mr Kennedy’s dissatisfaction with his performance appraisals, has been ongoing for over 2 years. Also of relevance to the present matter is that, last year, on 15 November 2010, Her Honour Drake SDP published a decision in John Patrick Kennedy & ATO [2010] FWA 8747, in which Her Honour dismissed a similar application lodged by Mr Kennedy as it was out of time in terms of the notification requirements of disputes under the Agreement. Her Honour found at paras 11 and 12 as follows:
‘The 2009 Agreement allows 14 days for the referral of the dispute to FWA after the decision of Step 2 is handed down. Mr Kennedy failed to lodge this application within 14 days. The 2009 Agreement allows for the application to be lodged in any “such longer time as agreed” however, there is no agreement allowing for an extension of time between the parties. As no action was taken by Mr Kennedy within the 14 day period, this dispute was treated as finalised after 4 June 2010. FWA does not have a discretion to extend in the absence of agreement.
The ATO’s first objection must succeed. The application must be dismissed. FWA does not have jurisdiction to conduct a dispute resolution process in this matter. For completeness however, I wish to indicate that the ATO’s second objection, that the essential preconditions of a dispute had not been met, would also have succeeded. If I had had a discretion to extend the time for notification, I would not have done so’.
Jurisdiction of Fair Work Australia
[5] It is now well understood that this dispute arises under the 2009 Agreement; an agreement made under the WR Act and which came into operation on 8 July 2009. Pursuant to transitional provisions, the WR Act continues to apply in relation to this dispute, with FWA now performing the functions which were previously exercisable by the Australian Industrial Relations Commission (AIRC). It follows then that this dispute must be dealt with under s709(1) of the WR Act, which is as follows:
(1) A person may apply to the Commission to have a dispute resolution process conducted by the Commission under this Division in relation to a matter or matters in dispute if:
(a) the dispute is one that, under the terms of a workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; and
(b) any steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have been taken.
There is no dispute that the requirement under s 709(2) of the WR Act for the various steps to be taken under the Disputes Resolution Procedure of the Agreement have been taken. Also particularly relevant to this application is s 711 of the WR Act, which is expressed as follows:
(1) In conducting the dispute resolution process under this Division, the Commission has, subject to subsection (2), the functions and powers:
(a) given to it under the workplace agreement; or
(b) otherwise agreed by the parties.
(2) The Commission does not have the power to make orders.
(3) The Commission must, as far as is practicable, act:
(a) quickly; and
(b) in a way that avoids unnecessary technicalities and legal forms; and
(c) if the parties have agreed, either in the workplace agreement or otherwise, that an aspect of the process is to be conducted in a particular way—in accordance with that agreement.
These statutory provisions must be read in conjunction with, and FWA must consider this matter in light of the express provisions of the Agreement. The relevant provisions are found at Cl 136.9, which are as follows:
136.9 Referral to the Australian Industrial Relations Commission
Subject to the procedure above, a dispute about the application or interpretation of this agreement may be referred by any party to the dispute, or where they choose their representative, to the AIRC for conciliation and, if conciliation is not successful, arbitration.
The parties to the dispute agree:
a) that the AIRC may give all such directions and do all such things as it considers necessary for the just resolution of the dispute except those listed in clause 136.10 below.
b) to comply with the AIRC’s directions and decisions.
SUBMISSIONS
For the ATO
[6] Mr D Gardner, Solicitor, submitted that Mr Kennedy’s application was misconceived in form, in that the Agreement is one made under the WR Act which continues as a transitional instrument under the Fair Work Act 2009. FWA may deal with disputes under the Agreement only if FWA is expressly authorised to do so under s 595(1) of the Act and subject to the powers exercisable by FWA (formerly the AIRC) under the terms of the Agreement and the WR Act. Mr Gardner put that there is no power available to FWA under s 711(2) of the WR Act, to make orders of the kind sought by Mr Kennedy. In addition, the relief sought by Mr Kennedy in this case was essentially the same relief he sought in John Patrick Kennedy & ATO [2010] FWA 8747 at para 1: ‘A declaration clarifying the correct interpretation of the clause in the agreement in dispute as above described and an order to be issued to the Australian Taxation Office that it comply strictly to the clauses’. While in that case, Drake SDP dismissed the application as it was out of time, Her Honour relevantly found that even if she had exercised a discretion to extend time for the filing of the notification, she would not have done so.
[7] Mr Gardner noted that during a conference before me on 1 June, 2011:
● The basis of the Applicant’s dispute was not capable of clear articulation by the Applicant.
● After some time it seemed as though the Applicant was asking FWA, in general and uncertain terms, to interpret various provisions of the Agreement.
● His Honour reasonably requested that the Applicant, in conjunction with his union representative, focus on the actual basis of his allegations in order to set out in simple terms and with more certainty what he was asking FWA to do in respect of his application.
● The Applicant indicated that he was able to do this and that it could take him 3 weeks or so to prepare a document setting out in simple terms his allegations and the remedy sought from FWA.
[8] Mr Gardner said that in a second document filed on 28 July 2011, Mr Kennedy merely repeated the remedy he had earlier sought in ‘abstract declaratory terms’ but also expressed his dispute as concerning other existing and future ATO employees. Specifically, Mr Kennedy sought ‘outcomes’ as follows:
The ATO:
● has not been meeting its responsibilities under clause 124 to provide employees learning new tasks or new work roles with the time and opportunity to learn the new tasks and work roles as required by clause 124.
● has not been providing feedback in accordance with clause 121.4 and 121.5.
● has not followed the procedures set out in clause 107 and 108 and that Fair Work Australia makes the following orders -
● has an obligation to comply with clauses 121.4 and 121.5, 124 and 107 and 108.
● has a responsibility to recognise that there is a relationship between clauses 121, 124, 107 and 108 and that each clause must be read in the light of others.
● must not in future apply clause 107 and 108 to employees learning new tasks or with new work roles during the period of training.
[9] Mr Gardner referred to the broad discretion of FWA under s 587 of the Act, to dismiss an application, as consistent with authority as to the statutory and inherent discretionary powers of courts and tribunals to regulate their own proceedings and ensure the efficient administration of justice. However, such a power should be carefully considered (see State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146, 168 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130).
[10] Mr Gardner further submitted that Mr Kennedy’s application had not been made in accordance with the Act, in that FWA had directed him to properly articulate his application by better specifying his allegations and the remedy he sought, in order for the ATO to fairly understand the case it had to answer. He had failed to do so. This meant he had not complied with the procedural rules of FWA and therefore his application had not been made in accordance with the Act. Arguably, he had also failed to comply with sub-clause 136.9(b) of the Agreement which requires parties to comply with directions of FWA.
[11] In addition, Mr Gardner submitted that Mr Kennedy’s application was frivolous and vexatious; citing Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at para 84. FWA has no power to make a declaration or orders of the nature sought by Mr Kennedy and even if it did, Mr Gardner put that:
● such declaratory power could only concern matters within jurisdiction of the FWA and could only be exercised if FWA had before it a justiciable controversy;
● one party could not properly seek to have FWA ‘give a purely advisory opinion involving no present dispute’:see Warramunda Village Inc v Pryde [2002] FCA 250, [76]; and
● a party could not properly seek remedies concerning matters framed in the general and hypothetical about future employees in circumstances that may well differ to the issues concerning the parties before FWA.
[12] Mr Gardner further argued that Mr Kennedy’s application had no reasonable prospects of success, given the absence of power as described above (see Davis v Insolvency and Trustee Service Australia (No 3) [2010] FCA 69, at para 15 and Luck v University of Southern Queensland [2009] FCAFC 73, at para 112). Mr Gardner said that FWA could reasonably predict, as a matter of law, that the application had no reasonable prospects of success.
Mr Kennedy’s Submissions
[13] Mr Kennedy sought to amend his application by requesting that ‘FWA decide whether the respondent has complied with clauses 121, 124, 107 and 108 and to give all such directions and do all such things as it considers necessary for the just resolution of the dispute as per subclause 136.9 of the Agreement’. Mr Kennedy submitted that the dispute was not only about the ATO not accepting the interrelationship of the above clauses, but he relied on the full text of the answer to the question ‘what is the dispute about?’ as outlined in his application. This answer included examples of where he hadasserted that the ATO was not correctly interpreting certain clauses of the Agreement. Mr Kennedy said he had explained, in clear and certain terms, how the various clauses were not being intentionally complied with. He believed the respondent has acted completely without legal authority in making its threat/ultimatum to terminate his employment and to offer him redundancy.
[14] Mr Kennedy stressed that he was not asking FWA to interpret the subject clauses, only to state whether or not the respondent was complying with them. Mr Kennedy rejected the submissions that he had failed to articulate his application and failed to comply with FWA’s directions in that regard. He cited two examples:
● the failure of the ATO to put in place a ‘Learning and Development Plan’ during a Performance Development Agreement (‘PDA’) beginning on 1 January, 2010. The PDA was not put in place until 1 April, 2010.
● he alleged that he was bullied by two ATO legal officers into accepting redundancy or being terminated. He claimed these officers were not authorised to make such an offer or threat.
In reply
[15] Mr Gardner submitted that by seeking to amend his application, Mr Kennedy had implicitly acknowledged that his application was misconceived and had no reasonable prospects of success. In any event, the ATO opposed the grant of leave to amend the application, as Mr Kennedy should not be given a further opportunity (after a number of earlier opportunities) to clarify and properly particularise his application. Mr Gardner put that Mr Kennedy’s amended application does no more than repeat the precise wording of Cl. 136.9 of the Agreement. The Tribunal is no more the wiser as to any clarification of what he seeks. Moreover, the amended relief is, in essence, declaratory relief or an advisory opinion; both of which are outside FWA’s jurisdiction.
[16] Mr Gardner relied on the authority of the High Court in Spencer v The Commonwealth of Australia [2010] HCA 28 and said that the power to dismiss an application under s587 of the Act, whilst not to be exercised lightly, is available to a less stringent standard than that which may have been suggested by earlier High Court authority.
CONSIDERATION
Dismissing an application
[17] There is no doubt that FWA has a statutory and inherent discretionary power to manage its own proceedings, according to its procedural rules, to ensure the proper and efficient administration of justice. The exercise of such discretion must be given careful consideration, particularly when the Tribunal is called upon to dismiss an application, and thereby, effectively conclude a matter.
[18] In State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 at para 168, the High Court said:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at para 130 said:
‘...great care must be exercised to ensure that under the guise of achieving expeditiously finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed’.
More recently, the High Court reemphasised the care to be taken by courts and tribunals when summarily dismissing proceedings. In Spencer v Commonwealth of Australia [2010] HCA 28, French CJ and Gummow J said at para 24:
‘The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence’.
Leave to amend the application
[19] Mr Kennedy sought leave to amend his application in the following manner:
‘That FWA decide whether the Respondent has complied with clauses 121, 124, 107 and 108 and to give all such directions and do all such things as it considers necessary for the just resolution of the dispute as per sub-clause 136.9 of the Agreement’.
As will be readily seen, this amendment does no more than repeat the exact wording of Cl 136.9 of the Disputes Procedure in the Agreement. Mr Kennedy made the request to amend his application no less than 7 times in his written submission and reaffirmed the request during his oral submissions. Indeed, much of his other submissions were repetitive of earlier submissions filed by him. Understandably, the ATO opposes leave being granted to amend the application. Mr Gardner observed that Mr Kennedy’s request to amend his original application, plainly demonstrated a concession that his original application had no reasonable prospects of success. In my view, this observation is undoubtedly correct, but more needs to be said about it.
[20] The Tribunal’s power to amend an application before it, is to be found in s586 of the Act as follows:
FWA may:
(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to FWA.
[21] Given the broad language of, ‘on any terms that it considers appropriate’, the power to amend an application, is wide and discretionary. Nevertheless, in my view the mere replication of the exact wording in the disputes clause of an Agreement, about a generic process in the disputes procedure, neither properly grounds the Tribunal’s jurisdiction in this dispute, but more importantly, gives no clear indication, or at all, of what it is the Tribunal is being asked to do to resolve the dispute between Mr Kennedy and the ATO. Indeed, on one view, the proposed amendment to the application makes Mr Kennedy’s position even more vague and unclear and unable to be properly rebutted by the ATO.
[22] In any event, Mr Kennedy’s submissions as to the intent of the wording in the disputes procedure, is misconceived. It seems to me that the words are not intended to serve as a substantive tool for resolving a dispute. On its plain, ordinary meaning, sub-clause 136.9 is a facilitative or ancillary procedural provision giving the Tribunal the power to give directions, such as producing or filing of documents and doing ‘all such things’ such as summoning witnesses, taking evidence on oath or affirmation, ordering conferences or persons to attend conferences, inspecting the work or requesting further information. When viewed from this perspective, such a procedural provision does not, in my opinion, give the Tribunal the power to use it to secure a substantive result, let alone provide the power to enforce a party’s rights under the terms of the Agreement.
[23] In addition, I do not accept that the discretionary power of FWA to amend an application, can simply be used to ‘clothe’ an application in jurisdiction when it so obviously is without it. For an amendment to an application to succeed in these circumstances would be to completely alter the fundamental premise of the original application. To my mind, that cannot be a proper basis for granting leave to amend an application. Given these observations and the opposition of the ATO, I decline to grant leave to amend the originating application filed by Mr Kennedy. Obviously, this conclusion leaves Mr Kennedy’s application in a somewhat precarious jurisdictional position, which can only be answered by the Tribunal finding that the relief sought by him, namely orders directed against the ATO, are beyond jurisdiction. Consequently, the application must be dismissed (see Luck v University of Southern Queensland [2009] FCAFC 73). However, even if I am wrong about this finding, the application should be dismissed for other reasons, which now follow.
Is the application frivolous and/or vexatious?
[24] In deference to both parties’ submissions, I make the following observations as to whether Mr Kennedy’s application was frivolous and/or vexatious. The principles to be applied by the Tribunal in this respect have been helpfully outlined by McCarthy DP in Applicant v Respondent [2010] FWA 1765, where His Honour said at paras 9 -14:
‘[9] It can also be readily seen that the FW Act sees a distinction between a frivolous and vexatious application and an application that has no reasonable prospect of success. Otherwise there would be no purpose in providing the separate and distinct grounds for dismissing an application in s.587(1) of the FW Act.
[10] The distinction between a frivolous and vexatious application and an application that has no reasonable prospect of success is illustrated by examination of the application of s.31A of the Federal Court Act (FC Act). That provision is of a similar nature to that in s.587(1)(c) of the FW Act. Section 31A of the FC Act provides that any party to an action may obtain summary judgment by showing that the other party has “no reasonable prospect of successfully prosecuting or defending the whole proceeding or any part of the proceeding”.
[11] The effect of s.31A of the Federal Court Act was canvassed in White Industries Aust Ltd v Federal Commissioner of Taxation (2007), where Lindgren J said:
Under s 31A I must be satisfied that the Applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].
[12] I consider that there are three separate tests with different types of considerations and approaches needed by the provisions of s.587 of the FW Act.
[13] Section 587(1)(a) provides for a matter to be dismissed if the application has not been made in accordance with the FW Act. That is not a matter in contention here as to how it should be applied.
[14] Section 587(1)(b) provides for matters that may be dismissed where the application is frivolous or vexatious. It is here that in my view the approach to be applied involves dismissing matters where the application is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”.’
[25] As to the meaning of vexatious, I refer to Attorney-General v Wentworth (1988) 14 NSWLR 481, where Roden J held:
‘(1) | For the purposes of restraining a vexatious litigant under the Supreme Court Act 1970 NSW, s 84(1), legal proceedings might properly be regarded as vexatious on either objective or subjective grounds. | ||||||||
(2) | The relevant tests for determining whether proceedings were "vexatious" were:
| ||||||||
(3) | Other relevant considerations on an application under s 84(1) included
| ||||||||
(4) | The power of the court to make an order under s 84(1) was an unfettered discretionary one as to which the prima facie right of access to the courts enjoyed by all citizens and the availability of other powers to deal with abuse of process would be relevant considerations. | ||||||||
(5) | In circumstances where, out of a large number of interrelated proceedings including both substantial and incidental matters, three matters only could be regarded as vexatious proceedings instituted without reasonable grounds, it was not appropriate to conclude that the defendant had "habitually and persistently" and without reasonable ground instituted vexatious proceedings, and no order should be made under s 84’. |
[26] In carefully weighing up the various tests referred to above, I am unable to come to a conclusion that Mr Kennedy’s application is frivolous and/or vexatious. I have no doubt that he feels genuinely aggrieved by the decisions of the ATO as to his performance. However, for the reasons I express elsewhere in this decision, I do not believe Mr Kennedy can pursue his grievances in the way he has chosen to date. In short, the filing of a dispute application, pursuant to s709 of the WR Act, in the form sought by him, is not the appropriate avenue to challenge the ATO’s decisions as to his performance. In addition, it is not entirely clear to me whether Mr Kennedy has exhausted all avenues of internal appeal against his unsatisfactory performance reviews.
No reasonable prospects of success
[27] The principles to be applied by the Tribunal when determining whether a particular application has no reasonable prospects of success were recently considered by the High Court in Spencer v The Commonwealth of Australia [2010] HCA 28. The expression ‘no reasonable prospects of success’ was discussed in the context of s 31A of the Federal Court of Australia Act 1976 and I think the principles are apposite to considerations of FWA under s 587(1)(c) of the Act. At paras 58-60, the plurality of the High Court, namely, Hayne, Crennan, Keifel and Bell JJ said:
‘58 How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
59 In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
60 Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes’.
[28] As I said earlier, even if I be wrong about my finding that leave to amend the application be refused and the application be dismissed, I would further conclude that the originating application has no reasonable prospects of success for the following reasons:
[29] Notwithstanding that the annexures to his originating application included numerous detailed documents, it was not clear to me on what basis Mr Kennedy asserted FWA’s jurisdiction to deal with his dispute, the precise nature of the claims he was making, nor the relief he sought - other than orders which he now seems to concede were beyond jurisdiction. When the matter was first listed for conciliation on 1 June 2011, Mr Kennedy was invited by FWA to particularise the claims he was making and the relief he sought with the help of his Union (the Community and Public Sector Union).
[30] Mr Kennedy sought an adjournment of 3 weeks in order to do so. However, no contact was made with FWA for 7 weeks. I then caused inquiries to be made as to whether he intended to proceed with his application. Ultimately, Mr Kennedy filed a document which the ATO properly assessed as doing no more than replicate much of the material from his originating application. It might be said that Mr Kennedy failed to comply with FWA’s directions; though given Mr Kennedy’s conviction of his sense of grievance, I do not apprehend that he deliberately sought to ignore FWA’s directions. That said, the second document provided no better articulation of how FWA is to find a just resolution of the dispute, or what directions or things are necessary to secure such a result, or indeed, what the result should be.
[31] The recast proposal of Mr Kennedy remained so vague, unclear and lacking in specificity as to be meaningless and unhelpful. In these circumstances it would be unreasonable and unfair to expect the ATO to respond to it. Accordingly, I consider, on this basis alone, there would be justification to exercise my discretion, under s 587 of the Act, and dismiss this application as having no reasonable prospects of success.
[32] I interpose at this point to note that Mr Kennedy has consistently maintained that his Union is supportive of his claims, but due to other priorities has not been able to directly provide assistance to him in the Tribunal. Unfortunately, I can ascertain no evidence of the Union being either actively willing to represent Mr Kennedy, or that the Union takes a positive view of his claims. Of course this does not necessarily mean that Mr Kennedy does not hold well meaning grievances against the ATO. However, it does seem curious that Mr Kennedy consistently invokes the support of his Union, but it is nowhere to be seen. Bringing another Union delegate from the workplace is not demonstrable evidence of the Union’s official support for his claims. Given the obvious legal issues involved and Mr Kennedy’s understandable difficulties in addressing these issues, it is regrettable that I have not had the benefit of the Union’s official position. This is particularly so, given Mr Kennedy asserts that this case is not just about him, but other employees, including future employees of the ATO.
[33] On this later point, I would wish to make it clear that Mr Kennedy cannot purport to represent others in a case such as this; nor is it possible to determine any aspect of merit in the dispute based on the alleged effect it will have on other employees now, and into the future. If this dispute is about anything, it can only be about the direct personal circumstances as they effect Mr Kennedy - no one else.
[34] In any event, I accept Mr Gardner’s submission that the ‘outcomes’ Mr Kennedy seeks (see para 8) are akin to declarations of rights, or an expression of an advisory opinion. When viewed in this way, they are powers not only unavailable to FWA in respect to Mr Kennedy, but they cannot possibly be made to apply to unnamed persons, involving unknown and unspecified hypothetical circumstances.
[35] I note that when asked to clarify his application, Mr Kennedy offered two examples of where he asserted that the ATO had failed to comply with Cl. 121, 107 and 108 (see para 14). Without expressing a concluded view of his examples, it appears that Mr Kennedy firstly, seeks to rely on a trivial timing issue in respect to Cl. 121 about when he was placed on a Learning and Development Plan. The real issue is whether he had been on a Performance Development Plan. There was no denying that he had been. Secondly, Mr Kennedy asserted that the two ATO legal officers were in breach of the Agreement, and the law, by offering him voluntary redundancy. Mr Kennedy did not explain how this alleged breach arose in circumstances where it seems perfectly reasonable to me, that the officers were merely conveying the wishes of Management and explaining the alternatives to Mr Kennedy, if he persisted in disputing the ATO’s right to declare his performance as unsatisfactory.
[36] Nevertheless, in reality, this dispute is no more and no less than Mr Kennedy disagreeing with the ATO as to his performance and his refusal to acknowledge that his performance is not what is expected of the ATO. Disputes such as this are not uncommon in the workplace and are usually (and hopefully) dealt with in a caring and compassionate way. I can discern no evidence, from the material provided in these proceedings, that the ATO has not treated Mr Kennedy fairly and with dignity. It is my prima facie opinion that the ATO has acted according to its obligations under the Agreement. Mr Kennedy’s performance has been assessed over a long period of time; the ATO has endeavoured to find an alternative position for him and retraining has been provided. Both options have proved unsuccessful. In May 2011, Mr Kennedy was offered an opportunity for voluntary redundancy. I am unsure of the current status of this offer, or its consequences. However, in my view, he should seriously consider voluntary redundancy and if it has been withdrawn by the ATO, the offer should be reinstated. Ongoing litigation of this kind, by minutely dissecting with a fine tooth comb, every word or phrase in every relevant (or irrelevant) clause in the Agreement, is not in Mr Kennedy’s, or anyone else’s interests.
[37] In any event, FWA dismisses this application, pursuant to s 587(1)(c) of the Act on the basis that it has no reasonable prospects of success. An order to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Applicant: Unrepresented
Respondent: Mr D Gardner - Maddocks Lawyers,for the ATO.
Hearing details:
2011
SYDNEY
10 November
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