Leske v Trinity Lutheran College Mildura

[2015] FCCA 572

FEDERAL CIRCUIT COURT OF AUSTRALIA

LESKE v TRINITY LUTHERAN COLLEGE MILDURA & ORS [2015] FCCA 572

Catchwords:
INDUSTRIAL LAW – Application by the Respondent for proceedings to be dismissed under r.13.10 of the Federal Circuit Rules 2001 – consideration of pleadings in Federal Circuit Court of Australia proceedings – consideration of relevant provisions of the Fair Work Act 2009 – issues of fact and law to be determined – application dismissed.

Legislation:

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth), ss.340, 341, 342, 343, 351, 587

Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 1979, Order 11, r.16
Federal Circuit Court of Australia Act 1999 (Cth), ss.3(2)(b), 17A, 50(1), 81, 87(1)(d)
Federal Circuit Court Rules 2001 (Cth), rr.1.03, 1.05(2), 13.10, Division 45.3

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
Commonwealth Bank of Australia v Barker [2014] HCA 32
Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124
Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australiaand Others (1998) 195 CLR 1
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others (2001) 109 FCR 378
Spencer v Dowling [1997] 2 VR 127
Spencer v The Commonwealth of Australia (2010) 241 CLR 118

Applicant: GRAHAM ANDREW LESKE

First Respondent: TRINITY LUTHERAN COLLEGE MILDURA

Second Respondent: DEBBIE BENNETT

Third Respondent: PAUL WEINERT

Fourth Respondent: NEVILLE GRIEGER

Fifth Respondent: DAVID BRYCE

File Number: MLG 2192 of 2014

Judgment of: Judge Whelan

Hearing date: 19 February 2015

Date of Last Submission: 19 February 2015

Delivered at: Melbourne

Delivered on: 19 March 2015

REPRESENTATION

Counsel for the Applicant: Ms S Bingham

Solicitors for the Applicant: Batram Lawyers

Counsel for the Respondents: Mr C P O'Neill

Solicitors for the Respondents: Moores

ORDERS

1. The Application in a case lodged on 18 November 2014 be dismissed.

2. Pursuant to section 34 of the Federal Circuit Court Act 1999 (Cth), the matter be referred for mediation to a mediator nominated by the District Registrar, with the mediation to be conducted by 19 June 2015.

3. In the event that the matter does not settle at the conclusion of the mediation, the Registrar conduct a case management conference immediately following the mediation to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Registrar may give further directions. The mediator is to report the results of the mediation/case management conference to the Court as soon as is reasonably practicable after the conclusion of the mediation/case management conference.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2192 of 2014

GRAHAM ANDREW LESKE

Applicant

And

TRINITY LUTHERAN COLLEGE MILDURA

First Respondent

And

DEBBIE BENNETT

Second Respondent

And

PAUL WEINERT

Third Respondent

And

NEVILLE GRIEGER

Fourth Respondent

And

DAVID BRYCE

Fifth Respondent

REASONS FOR JUDGMENT

Introduction

1. This application concerns proceedings brought by

   
   

   MR GRAHAM ANDREW LESKE (“the Applicant”) against

   
   TRINITY LUTHERAN COLLEGE MILDURA

   (“the First Respondent”), MS DEBBIE BENNETT (“the Second Respondent”),

   
   

   MR PAUL WEINERT (“the Third Respondent”),

   
   

   MR NEVILLE GRIEGER (“the Fourth Respondent”) and

   
   MR DAVID BRYCE

   (“the Fifth Respondent”) (collectively “the Respondents”). The Applicant claims that the First Respondent contravened ss.340, 343 and 351 of the

   
   Fair Work Act 2009 (Cth)

   (“the FW Act”) and that the Second to

   
   

   Fifth Respondents were involved in the contraventions. The Applicant also claims that the First Respondent breached the terms of his employment contract thereby causing him loss and damage.

2. The Respondents have applied to have the proceedings dismissed[1] pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth)
   

   [1] Application in a Case filed by the Respondent on 18 November 2014.

   [2] An application pursuant to s.587 of the Fair Work Act 2009 (Cth) was dismissed as it had no application to proceedings before a Court.

   (“the Rules”).[2]

The relevant legislation

1. The substantive application[3] in this matter was brought pursuant to Division 45.3 – Contraventions of the Fair Work Act, of the Rules. The provisions of that part of the Rules[4] provide for an application to be made in accordance with the approved form and be accompanied by a claim in accordance with the approved form. An application filed under the Rules need not be accompanied by an affidavit, statement of claim or points of claim. Nevertheless in this matter the Applicant did file Points of Claim.[5] The Respondent filed a Response[6] and Points of Defence.[7]

   [3] Application – Dismissal from employment in contravention of a general protection filed 31 October 2014.

   [4] Federal Circuit Court Rules2001 (Cth), Chapter 7, Part 45.

   [5] Points of Claim filed 31 October 2014.

   [6] Response filed 18 November 2014.

   [7] Points of Defence filed 18 November 2014.

2. The objects of the Federal Circuit Court Act 1999 (Cth)

   
   

   (“the FCCA Act”) are set out in s.3(2)(b) of the FCCA Act and include as follows:

   (b)to enable the Federal Circuit Court of Australia to use streamlined procedures;

3. Consistent with those objects, s.50(1) of the FCCA Act provides as follows:

   50         Proceedings may be instituted by application

   (1)Proceedings may be instituted in the Federal Circuit Court of Australia by way of application without the need for pleadings.

4. Section 81 of the FCCA Act provides for the making of rules of the Court and s.87(1)(d) of the FCCA Act provides that the rules of the Court may make provision for the summary disposal of proceedings. Section 17A of the FCCA Act makes specific provision for the Court to give summary judgment in a case:

   17A   Summary judgment

   (1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a)     the first party is prosecuting the proceeding or that part of the proceeding; and

   (b)     the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

   (2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a 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.

   (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)     hopeless; or

   (b)     bound to fail;

   for it to have no reasonable prospect of success.

   (4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.

5. That section of the FCCA Act has its equivalence in s.31A of the Federal Court of Australia Act 1976 (Cth) (“the FC Act”).

6. The objects of the Rules of the Federal Circuit Court of Australia are set out in r.1.03 of the Rules:

   1.03  Objects

   (1)The object of these Rules is to assist the just, efficient and economical resolution of proceedings.

   (2)In accordance with the objects of the Act, the Rules aim to help the Court:

   to operate as informally as possible

   to use streamlined processes

   encourage the use of appropriate dispute resolution procedures.

   (3)The Court will apply the Rules in accordance with their objects.

   (4)     To assist the Court, the parties must:

   avoid undue delay, expense and technicality

   consider options for primary dispute resolution as early as possible.

   (5)If appropriate, the Court will help to implement primary dispute resolution.[8]

   [8] Federal Circuit Court Rules 2001, Rule 1.03.

7. Rule 13.10 of the Rules, under which these interlocutory proceedings are brought, provides as follows:

   13.10    Disposal by summary dismissal

   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.

   Note:For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.

8. These provisions are not concerned with defects in the pleadings but with the substance of the substantive application.

9. The leading authority on the application of s.31A of the FC Act is Spencer v The Commonwealth of Australia (2010) 241 CLR 118 (“Spencer”). In their joint judgment, French CJ and Gummow J said at paras.23-25 of that judgment:

   Accepting that there are a number of ways in which s 31A may be applied to empower the Federal Court to dismiss a proceeding, it is to be distinguished, in its application to deficient pleadings, from rules (such as O 11, r 16 of the Federal Court Rules) which provide for the striking out of pleadings. As Lindgren J said in White Industries Australia Ltd v Federal Commissioner of Taxation:

   “[E]vidence may disclose that a person has or may have a ‘reasonable cause of action’ or ‘reasonable prospects of success’, yet the person’s pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but … s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.”

   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. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

   “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

   More recently, in Batistatos v Roads and Traffıc Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

   “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

   There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

   Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success (footnotes omitted).[9]

   [9] (2010) 341 CLR 118.

10. After considering the judgments in Spencer and in other Federal Court judgments that have developed the principles to be applied in considering the application of s.31A of the FC Act, Reeves J in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 concluded:

    Accepting there can be no “hard and fast” rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.

    Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.

    Then there are proceedings involving questions of fact and law, or mixed questions of fact and law. Because this combination or mixing of factual and legal questions usually gives rise to the sort of complexity that traditionally requires a trial, where the Court is satisfied that this combination or mixing exists in the proceedings, it should, as a general principle, be particularly cautious about ordering summary determination. In other words, the moving party on an application for summary dismissal would, as a general principle need to show a substantial absence of merit on either of the question of fact or law concerned, or where the two questions are mixed, on the mixed question, before having any chance of success in persuading the Court that questions of these kinds should be resolved summarily.

    Finally, these authorities show that there are at least two other factors that need to be borne in mind on a summary judgment application such as this. The first is that, in all the situations outlined above, the Court has a discretion as to whether to determine the proceedings summarily, or to refer them to trial. Of course, as with any such discretion, it has to be exercised judicially: see Latoudis v Casey (1990) 170 CLR 534 at 569 per McHugh J, quoting Donald Campbell & Company v Pollak [1927] AC 732 at 811-812 per Viscount Cave LC. Secondly, while s 31A sets a lower bar, or a softened test, for the summary determination of proceedings, any such summary determination still has to be approached with caution. This is so because a trial is the usual and accepted means by which disputed questions of fact are determined in this country.[10]

    [10] [2013] FCA 641 at pp.18-19.

The proceedings

1. The substantive application in this matter needs to be considered in the context of the fact that the Federal Circuit Court of Australia of Australia (“the Court”) is not a court of strict pleadings and, indeed, has no provisions in its Rules equivalent to Order 11 - Pleadings,

   
   

   r.16 - Embarrassment, etc of the Federal Court Rules 1979
   (“the FC Rules”), although the Court could have recourse to r.16 of the FC Rules if the Rules were insufficient in a particular case to deal with the matter.[11] The exercise of considering whether pleadings should be struck out because they disclose no reasonable cause of action is a different exercise to considering if the application itself should be summarily dismissed.

   [11] See r.1.05(2) of the Federal Circuit Court Rules 2001 (Cth).

2. It also needs to be considered in the context of the provisions of the FW Act which require that, before proceedings can be instituted in this Court with respect to a claim that a party has contravened the general protections provisions of the Act by dismissing an employee, an application must first be made to the Fair Work Commission

   
   

   (“the FWC”) for the FWC to deal with the dispute by mediation/conciliation or other means of dispute resolution (except arbitration). An applicant’s claims and the basis of those claims would need to be revealed in that process.

The Respondents’ submissions

1. The Respondents submit that the terms of the Applicant’s employment were contained in a fixed term contract that was to cease on

   
   

   31 December 2014. The terms of the contract were such that it could only be varied in writing and no such variation occurred. On

   
   

   21 October 2013, the decision was made not to extend that contract beyond the nominated date and, on 17 April 2014, the Applicant voluntarily submitted his resignation. The First Respondent contends that, on the facts pleaded, there is no arguable case for a breach of contract.

2. With respect to the claimed contravention of s.340 of the FW Act, the First Respondent submits that the Applicant, by pleading that he was fit, healthy and able to return to work as Principal, cannot then plead that any action that was taken not to renew his contract was because of an alleged disability.[12] Further, with respect to the claim that the Applicant suffered adverse action because he made inquiries in relation to his employment, there is no arguable pleading that such inquiries were made prior to the decision not to extend the contract being made.[13] The same applies to the claim with respect to the institution of these proceedings.[14]

   [12] Outline of Submissions filed on behalf of the Respondents on 9 December 2014, p.6 at para.4.10.

   [13] Ibid. pp.7-8 at para.4.11

   [14] Ibid. p.8 at para.4.12.

3. Turning to the claims in so far as they relate to the Second, Third, Fourth and Fifth Respondents, the Respondents submit that the pleadings do not disclose how it is said they aided and abetted the

   
   

   First Respondent in its contravention of the general protections provisions of the FW Act. In order to have accessorial liability, a person:

   ·Must have knowledge of the essential facts constituting the contravention;

   ·Must be knowingly concerned in the contravention; and

   ·Must be an intentional participant in the contravention based on actual knowledge of the essential facts constituting the contravention.

The Applicant’s submissions

1. The Applicant took the Court to the terms used in s.342 of the FW Act to define adverse action and the meaning given to those terms by the High Court in Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR 1 at 18 with respect to predecessor legislation. The Applicant contends that, in addition to the constructive dismissal pleaded, the Applicant sets out in paragraphs 81, 82 and 83 of the Points of Claim filed on his behalf[15] how he says the employer:

   ·Injured him in his employment;

   ·Altered his position to his prejudice; and

   ·Discriminated between him and other employees.

   [15] Points of Claim filed 31 October 2014 at pp.30-34.

2. The Applicant relevantly points out that s.341 of the FW Act extends the workplace rights defined in s.341(1) to prospective employees. A failure to re-engage an employee may be adverse action within the meaning of the FW Act.[16]

   [16] See Kweifio-Okai v Australian College of Natural Medicine No 2 [2014] FCA 1124.

3. The Applicant contends with respect to the contract claims, not that the agreements pleaded were variations to the written employment contract but that they were collateral contracts breached by the First Respondent and that the resignation was a constructive dismissal because it was a situation where the acts of the First Respondent brought about the termination of the employment even though the final act was the resignation of the employee.

4. Further, the Applicant contends that the door is not shut on the implication of a ‘good faith’ term in employment contracts and the judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32 needs to be considered in light of the matters determined by the High Court in that case.

5. The Applicant contends that the pleadings claim that, as at June 2013, he had the expectation that he would have his term as Principal extended until December 2016. On 11 July 2013, he suffered a sudden death cardiac event. He was visited in hospital by the

   
   

   Fourth Respondent who suggested that he consider employment in another position. On 9 August 2013, the Applicant informed the

   
   

   First Respondent that if he could not return to work on a part-time basis he would take long service leave. The Applicant contends that the

   
   

   First Respondent was aware of his disability and did not afford him reasonable adjustment which he was entitled to under the

   
   Disability Discrimination Act 1992

   (“the DD Act”). Further, the decision not to extend his contract beyond December 2014, was made with the knowledge of his disability and with no intervening factors between June 2013 and October 2013 except his cardiac arrest.

6. With respect to the inquiries made by the Applicant, it is contended that these were made on 17 April 2014,[17] 19 May 2014[18] and

   
   

   30 May 2014[19] with respect to his ‘entitlements’ on termination. The Applicant also contended that the First Respondent took adverse action against him because of his proposal to exercise his right to bring these proceedings and attempted to coerce him not to exercise that right.

   [17] Points of Claim filed 31 October 2014, p.24 at para.57.

   [18] Ibid at para.63.

   [19] Ibid, p.25 at para.66.

7. The Applicant contends that the Second Respondent, with knowledge of his disability, was involved in the decision not to extend his contract of employment and in the actions which the Applicant contends:

   ·Injured him in his employment;

   ·Altered his position to his prejudice; and

   ·Discriminated against him.

8. Similar claims are made with respect to the Third and Fourth Respondents. With respect to the Fifth Respondent, it is alleged that with knowledge of the Applicant’s dispute with the First Respondent, the Fifth Respondent attempted to coerce the Applicant to not take legal action against the First Respondent.

Conclusions

1. The substantive application in this matter is brought under the provisions of the FW Act with respect to general protections and breach of contract proceedings in the Court’s associated jurisdiction. The Applicant seeks to engage a range of provisions including:

   ·A claim that the First Respondent dismissed him; injured him in his employment; altered his position to his prejudice; and discriminated between him and other employees because of his rights under the DD Act and his right to make a compliant or inquiry in relation to his employment;

   ·

   A claim that the Respondents took action against him with intent to coerce him not to exercise a workplace right, including his right to bring proceedings against the Respondents under the

   
   

   FW Act; and

   ·A claim that the Respondents took adverse action against him because of his physical disability under s.351 of the FW Act.

2. With respect to the breach of contract claim, the Applicant contends that the First Respondent breached the terms of two collateral contracts and also various provisions, including implied provisions, of his contract of employment.

3. The structure of the FW Act is such that, once the Applicant has established:

   ·The entitlement to the workplace right which is alleged and/or the attribute covered by s.351 of the FW Act; and

   ·The alleged adverse action,

   the onus then falls on the Respondent to establish that the alleged action taken was not for a particular reason or with a particular intent that would constitute a contravention of the Act.

4. With respect to the provisions of s.343 of the FW Act, the Applicant must establish that:

   ·The Respondent/s intended to coerce him,

   ·The Respondent/s’ actions amounted to more than mere inducement; and that

   ·This included means which were unlawful, illegitimate or unconscionable.

   Whether the actions of the Respondent/s meet these criteria needs to be determined on the facts.[20]

   [20] See Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others (2001) 109 FCR 378.

5. With respect to both the claims under the FW Act and the breach of contract, the Applicant needs to establish that his resignation should be regarded by the Court as a constructive dismissal.[21] However, a failure to do so would not prevent the Applicant from proceeding on the basis that the failure to extend his contract was adverse action taken against him as a prospective employee. Similarly, the claims with respect to the existence of collateral contracts and other contract breaches not involving dismissal could still be pursued.

   [21] See Spencer v Dowling [1997] 2 VR 127.

6. It can legitimately be said that the Points of Claim[22] have not been drafted with the utmost clarity. The claim with respect to the existence of collateral contracts for example is not clearly stated. Further, it is not clear what ‘adverse action’ the Applicant claims to have suffered arising from the inquiries made between 17 April 2014 and

   
   

   30 May 2014. Apart from the coercion claim, it is also not clear what adverse action the Applicant claims to have suffered as a result of seeking to engage in legal proceedings under the provisions of the

   
   

   FW Act.

   [22] Points of Claim filed 31 October 2014.

7. Nevertheless, I am satisfied that there are matters of both fact and law which would need to be determined in order to determine the merit of the Applicant’s claims. At this stage of the proceedings it cannot be said that Applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.

8. With respect to the claims against the Second to Fifth Respondents, the claims relate to both involvement in the adverse action claimed and the coercion. Again, the resolution of the issue needs to be determined on findings by the Court concerning the conduct in which it is said that the Respondents engaged. The Applicant’s Points of Claim[23] refer not only to his “sudden death cardiac event”[24] but also to his diagnosis as having “severe triple vessel disease”.[25] While he may well have stated on 21 October 2013 that he was “fit, healthy and able to return to work”[26] that does not exclude a claim by him to have a ‘disability’ or, in the alternative a claim that it was imputed that he had a disability.

   [23] Points of Claim filed 31 October 2014.

   [24] Ibid, p.13 at para.18(a).

   [25] Ibid at para.20.

   [26] Ibid, p.16 at para.31(c)(i).

9. For these reasons the application that the substantive application be summarily dismissed is refused.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 19 March 2015