Kumar v Northrop Grumman M5 Network Security Pty Ltd

[2019] FCCA 987

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD [2019] FCCA 987

Catchwords:

INDUSTRIAL LAW – Summary dismissal – whether applicant has reasonable prospect of successfully prosecuting – alternatively whether statement of claim should be struck out.

Legislation:

Fair Work Act 2009, s.351

Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, 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: 1 April 2019

Date of Last Submission: 1 April 2019

Delivered at: Brisbane

Delivered on: 2 April 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms Hartigan

Solicitors for the Respondent: PricewaterhouseCoopers

ORDERS

1. The applicant’s statement of claim filed on 19 December, 2018 is struck out.

2. The applicant file and serve a properly articulated statement of claim by no later than 4:00pm on 26 April, 2019.

3. The application is adjourned to 10 June, 2019 at 9:30am for directions.

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 for summary dismissal of the proceedings that were commenced on 18 October, 2018, which ostensibly seek relief under the Fair Work Act2009.  The application in the alternative is for the striking out of a statement of claim delivered by the applicant, pursuant to an order made on 3 December, 2018. 

2. The respondent argues that the applicant has no reasonable prospect of successfully prosecuting his proceedings and that the legislative provisions of s.17A of the Federal Circuit Court Act 1999 and r.13.10 of the Federal Circuit Court Rules2001 are engaged sufficient to permit the Court to summarily dismiss the proceedings.

3. The applicant’s case is that his employer, the respondent, contravened the Fair Work Act in a number of respects. It seems to be the case that he says that his employer took adverse action against him, because he sought to exercise a workplace right, and that his employer discriminated against him and took action against him because he was temporarily absent from his workplace.

4. When he commenced the proceedings, the applicant attached to the form 2 that he filed on 18 October a number of documents, one of which was a statement of his claim.  It had some accompanying documents.  The document that was attached to his form 2 has now – at least in large measure – been replicated in the statement of claim that he filed on 19 December, 2018, in answer to the Court’s order for him to do so. 

5. The applicant represents himself.  He is not a lawyer.  And it seems that English might not be his first language.  It is, therefore, perhaps a little unreasonable to expect that he would deliver a statement of claim that was in all respects compliant with the rules of pleading, as they are generally understood, and in conformity with the Federal Court Rules 2011. Those rules, of course, apply in this case, because the Federal Circuit Court Rules have no rules that relate to pleadings and so the Federal Court Rules are adopted.

6. But even making allowances for the applicant’s self-representation and the fact that he is not a lawyer, the conclusion I have come to is that the statement of claim that he has delivered is woefully inadequate.  Whilst I have reached that conclusion, I cannot conclude, despite counsel’s fulsome written outline and argument on the point, that he has no reasonable prospect of successfully prosecuting the proceedings at this point.  But it might be that that point comes.

7. As the authorities demonstrate, where a pleading is defective and there is perhaps some prospect that the defective pleading might be replaced by one which is adequate, then leave to replead ought to be given.  That begs the question, is this pleading adequate from a pleading point of view and, if not, ought leave to replead be given. 

8. The pleading is not adequate, because it is prolix, ambiguous and it is difficult to interpret. There are large parts of the claim which the applicant wishes to advance, but which are not supported by any plea of any material fact whatsoever: see, for example, the allegations that paragraphs 117, 535, 536 and 352 have been contravened. Whilst there are some references to those sections in the statement of claim, the references are not pleas of material facts sufficient, if found, to lead to the conclusion that the Fair Work Act has been contravened in relevant respects.

9. Moreover, there are significant gaps in the document, even on the most benevolent reading of it, which means that unless the gaps are addressed by the pleader, the proceedings are unlikely to succeed.  For example, it is said that certain action was taken by the respondent against the applicant and that that action was discriminatory: see, for example, paragraph 3, 3.1 and 3.2 of the statement of claim. 

10. It is a contravention of the Fair Work Act for an employer to take adverse action against an employee if the action was taken because the employee had certain attributes. And the Fair Work Act calls up the same types of considerations that arise under the Disability Discrimination Act1992, the Sex Discrimination Act 1984 and the Racial Discrimination Act 1975. But there is no assertion in the pleading, express or implicit, that the action that the applicant says was taken against him by the respondent was because of any attribute that might attract attention under s.351 of the Act. There were, according to the pleading, some discussions about the applicant’s religion, but there is nothing to suggest that they were anything more than discussions that were held with the person who might have been of a different racial or ethnic background to the person with whom they were conversing. The causal connection that is required by s.351 between the adverse action or the action taken by the employer and the relevant attributes is not set out in the pleading, either expressly or implicitly.

11. The claim for coercion suffers a similar fate.  None of this is particularly surprising, given, as I have already remarked, that the applicant is not a lawyer.  He represents himself.  And the concepts that are sought to be conveyed in the pleading, by reference to the legislative provisions, are complex. 

12. The pleading is, in terms of the test to which I was taken by counsel for the respondent, embarrassing, because it is, I find, susceptible to various meanings.  It contains some inconsistent allegations.  And it is confusing.  There are some, it seems to me – more than some – irrelevant allegations that are not directly referable to any of the alleged contraventions.

    RECORDED  :  NOT TRANSCRIBED

1. The pleading as a whole is defective.  It ought to be struck out.  I strike it out.  The applicant will be given another opportunity to replead his case in a more intelligible fashion, and must do so no later than 4:00pm on 26 April 2019.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 April, 2019.

Date: 11 April 2019