Kumar v NORTHROP GRUMMAN M5 Network Security Pty Ltd

[2019] FCCA 3576

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD [2019] FCCA 3576

Catchwords:
INDUSTRIAL LAW – High Court and Federal Court – Federal Circuit Court – Procedure – ending proceedings early – summary disposal or stay.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 342, 345, 361

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001 (Cth), r.13.10

Applicant: RAKESH KUMAR

Respondent: NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD

File Number: BRG 1069 of 2018

Judgment of: Judge Jarrett

Hearing date: 19 August 2019

Date of Last Submission: 19 August 2019

Delivered at: Brisbane

Delivered on: 19 August 2019

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondent: HWL Ebsworth Lawyers

ORDERS

1. To the extent that the statement of claim filed on 5 August, 2019 pleads a cause of action for a contravention of s.345 of the Fair Work Act 2009 (Cth), those matters in the statement of claim are struck out.

2. To the extent that the statement of claim filed on 5 August, 2019 pleads a cause of action other than one which prosecutes a contravention of s.340 of the Fair Work Act 2009 (Cth), those matters will be struck out.

3. The respondent make any request for further particulars by no later than 4:00pm on 26 August, 2019.

4. The applicant provide particulars in response to a request made in accordance with order 3 hereof by no later than 4:00pm on a day that is twenty-one (21) days after such request is made.

5. The application is adjourned to 4 October, 2019 at 9:30am for directions.

IT IS NOTED:

1. The cause of action which remains on foot is one for contravention of s.340 of the Fair Work Act 2009 (Cth).

2. In the event that the applicant does not appear on the next date, having regard to his failure to appear today, the Court will entertain an application to have the proceedings dismissed because of the applicant’s failure to appear.

3. These orders were made in the absence of the applicant and that pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 the applicant may apply to have these orders set aside.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1069 of 2018

RAKESH KUMAR

Applicant

And

NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application to dismiss proceedings summarily pursuant to s.17A of the Federal Circuit Court of Australia Act1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules 2001 (Cth). The basis of the application is that the applicant has no reasonable prospects of successfully prosecuting his application. For the reasons I am about to give, the application must be dismissed, that is, the interlocutory application. There has been a number of attempts in this case for the applicant who represents himself to plead his case.

2. There have been a number of orders for him to deliver a statement of claim, the purport of which was to take the place of his form 2 that was filed on 18 October, 2018 when he commenced his proceedings.  The document that he filed on 5 August, 2019 is the latest iteration of his statement of claim.  Some things need to be observed about it.  It contains material which would not ordinarily form part of a statement of claim, as Mr Frost argues.  It contains submission, reference to the law which is by way of a submission, and argument.

3. It is in the form with which lawyers are unfamiliar in terms of pleadings. But Mr Kumar is not a lawyer. He is a person representing himself in a workplace case and I am satisfied doing the best that he can. The real issue is the substance of the document rather than its form and as Mr Frost has pointed out, there are many parts of it that are submission and argument and demonstrably so. Those parts can, of course, be clearly ignored in terms of it being a pleading. At issue is whether it contains an allegation of sufficient material fact to give rise to a cause of action and if those facts are proved, whether the applicant might be said to have reasonable prospects of success in his case.

4. The initial proceedings commenced by Mr Kumar on 18 October, 2018 are much broader than his present statement of claim would suggest. I accept that submission and to the extent that the current statement of claim does not support any of the pleas in the initial form 2 filed on 18 October, 2018 the application will be dismissed. But there are two matters raised in the present statement of claim which, in my view, are sufficiently pleaded to cause further inquiry as to whether, if those matters are proved, there is a reasonable prospect of success on the part of the applicant.

5. The first is his claim for adverse action. He claims, clearly, that his employment was suspended and that, ultimately, it was terminated. Those matters are adverse action for the purposes of s.342, I think, of the Fair Work Act 2009 (Cth). The question is whether the adverse action was taken for a proscribed reason. The proscribed reason identified by Mr Kumar, and tolerably identified – Mr Frost for the respondent was able to articulate the applicant’s case in this respect – is that he made complaints and inquiries about his employment and he says because of that, he was the subject of the adverse action.

6. The complaints and inquiries are set out in paragraph 4 of his statement of claim interspersed with some material which is irrelevant, case references and the like, but they can be safely ignored. His case, though, is tolerably articulated. He says, by reference to certain emails, that he made complaints about his employment, that he initiated certain grievance procedures but that his employer did nothing about those matters other than to suspend him from his work and ultimately terminate him.

7. Those matters, if proved, arguably make good a cause of action under s.340 of the Fair Work Act. He will have proved that his employer has taken adverse action against him because he exercised a workplace right, namely, the right to make an inquiry or complaint about his employment. More than that, if Mr Kumar proves the fact of his employment, the fact of the complaints and the fact of his suspension and termination, all of which seem to be able to be proved having regard to what is contained within his statement of claim, then arguably s.361 of the Fair Work Act is engaged and the onus falls upon the respondent to show that it did not take the adverse action against Mr Kumar for a proscribed reason.

8. Although I accept it is not without difficulty, the statement of claim pleads sufficient material facts to make out a case if the evidence – if the allegations are found to be true of adverse action. 

9. The second cause of action which is apparent from the statement of claim is one of misrepresentation under s.345 of the Fair Work Act. That allegation relies upon Mr Kumar, it seems, being summoned to a meeting for a particular purpose but that particular purpose not being discussed at the meeting.

10. It is difficult to see how, in the circumstances pleaded in his statement of claim, he can make that case out and I come to the conclusion that he has no reasonable prospects of success on that cause of action. And so to the extent that the current version of the statement of claim asserts a breach of s.345 of the Fair Work Act and an entitlement to relief on that basis, those claims will be struck out. That leaves his claim for adverse action set out in the current version of the statement of claim.

11. It will be susceptible to a request for particulars, the identification of people who meet various descriptions as set out in paragraph 8 of the written submissions relied upon by the respondent, but those are matters for particulars rather than material fact. So for all of those reasons, the orders will be:

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

1. The particulars can be provided no later than 21 days after that.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  10 December 2019