McCardle v LYONS

[2019] FCCA 511

FEDERAL CIRCUIT COURT OF AUSTRALIA

McCARDLE v LYONS & ORS [2019] FCCA 511

Catchwords:
HUMAN RIGHTS – Applicant asserting compensation for unlawful discrimination – none shown – summary judgment in favour of respondents.

Legislation:

Australian Human Rights Commission Act 1986, ss.3, 46PO

Evidence Act 1995, s.140

Federal Circuit Court of Australia Act 1999, s.17A(2)

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

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Gordon & Gordon [2017] FCCA 2899
Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v Commonwealth (2010) 241 CLR 118

Applicant: ROXANNE MARIE MCCARDLE

First Respondent: NICHOLAS LYONS

Second Respondent: IAN VINSOM

Third Respondent: SAINES LUCAS SOLICITORS

File Number: MLG 3137 of 2019

Judgment of: His Honour Judge J D Wilson QC

Hearing date: 25 February 2019

Date of Last Submission: 25 February 2019

Delivered at: Melbourne

Delivered on: 8 March 2019

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent: Mr M McKenny

Solicitors for the First Respondent: Saines Lucas Solicitors

Counsel for the Second Respondent: Mr M McKenny

Solicitors for the Second Respondent: Saines Lucas Solicitors

Counsel for the Third Respondent: Mr M McKenny

Solicitors for the Third Respondent: Saines Lucas Solicitors

ORDERS

1. Pursuant to s 17A(2) of the Federal Circuit Court of Australia Act and r 13.10(a) of the Federal Circuit Court Rules, the application filed on 19 October 2018 is summarily dismissed.

2. The applicant pay the respondents’ costs of the proceeding (on a party‑party basis), to be taxed in default of agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3137 of 2019

ROXANNE MARIE MCCARDLE

Applicant

And

NICHOLAS LYONS

First Respondent

And

IAN VINSOM

Second Respondent

And

SAINES LUCAS SOLICITORS

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. By initiating application filed 12 October 2018, the applicant sought payments in the nature of compensation for alleged unlawful discrimination under s 46PO of the Australian Human Rights Commission Act.

2. The respondents to this application are, and at all relevant times have been, members of the firm Saines Lucas, solicitors.  The applicant was employed by the respondents from January 2015 to 18 May 2017.  On the latter date, the applicant alleged her employment was terminated on the basis of unlawful discrimination.

3. On behalf of the respondents, an application was made on 30 January 2019 for judgment to be given in favour of the respondents under s 17A of the Federal Circuit Court of Australia Act or r 13.10 of the Federal Circuit Court Rules.  The respondents contended the applicant had no reasonable prospects of successfully prosecuting this proceeding against all or any of the respondents.  Alternatively, the respondents contend that the proceeding was frivolous, vexatious or an abuse of the process of the court.

4. On 25 February 2019 I heard argument on the respondent’s motion for summary judgment, having read previously the parties’ detailed written submissions filed in accordance with my orders made 7 December 2018.

Synopsis

1. For the reasons that follow, in my view summary judgment should be entered in favour of the respondents with respect to the whole of the cause of action recorded in the initiating application filed 12 October 2018. 

Relevant factual recital

1. In support of her application in this proceeding, the applicant affirmed an affidavit made 6 February 2019.  It was lengthy so the details that are recorded below represent the more salient aspects of the applicant’s evidence.  It must be kept in mind that none of the applicant’s evidence was tested by cross‑examination or otherwise challenged.  At the outset, it must be said that the task of distilling information that was probative and utile in this application by the applicant was anything but straightforward.  The applicant said –

   a)she was aged 60, having worked full‑time for the third respondent since January 2015, earning $105 000 per annum and she was a duly qualified solicitor;

   b)she was dismissed on 18 May 2017 because she did not return to work despite informing staff she was too unwell to return to work;

   c)her job required her to travel to regional courts around Victoria,as well as Melbourne and Geelong and she found travel extremely tiring;

   d)in 2015 she was stressed by the travelling and regularly encountered difficulty finding accommodation;

   e)she learned of what she called “contentious issues” between persons in the firm’s Horsham office and the firm’s Ballarat office and, although she gave little insight into those contentious issues, she indicated that by reason of an unexplained hostility exhibited by a circuit judge towards solicitors appearing before that judge she briefed barristers;

   f)in late 2015 she suffered a bacterial infection leading to her taking a days’ leave and she was later diagnosed with asthma and pneumonia and subsequent thereto with a heart problem (she did not disclose what the heart problem was);

   g)in early 2016 she returned to work at her firm’s Horsham office and was informed that one of the firm’s partners, Nick Lucas, was to retire in June 2016;

   h)upon the retirement of Mr Lucas an “extremely disruptive and distressful” state (her words) then followed leading to ill health, so she said, through in‑fighting and the lowering of morale;

   i)following the exit of Mr Lucas from the firm’s Horsham office, other firm staff from the Ballarat and the Horsham offices either left or were dismissed;

   j)she said “everyone was stressed…by all the personal changes that were occurring”;

   k)the applicant suffered an incident of memory loss leading to her being unable to remember anything for four to five days that she said was attributable to stress;   

   l)the firm’s Horsham office suffered a downturn in clientele during 2016 so that by the end of 2016 only the applicant and a full‑time solicitor, Nick Graham, worked at the firm’s Horsham office;

   m)on an unidentified date in late 2016 Nick Graham accused the applicant of damaging his car, which the applicant denied, leading to the firm’s Ballarat office requiring Mr Graham to apologise to the applicant;

   n)Mr Graham apologised to the applicant then he left the respondent firm to open his own practice;

   o)the applicant became stressed in late 2016 by reason of in‑fighting for which she was prescribed mirtazapine;

   p)the firm’s Horsham office was subjected to stress by reason of the activities of the firm’s Ballart practice manager Malcolm Sinclair sending letters to clients recommending them to update their wills;

   q)the partners of the firm’s Ballarat office required the applicant to travel to Melbourne from Horsham instead of briefing barristers, she found the travel exhausting and it impacted on her servicing her firm’s clients in regional parts of Victoria;

   r)by early 2017 she suffered lower back pain that affected her walking, sleeping, sitting, driving and standing;

   s)she developed breast lumps;

   t)on 3 April 2017 the applicant underwent a procedure for spinal investigation that took longer than the day that was proposed, leading to the applicant taking longer to recover than first thought;

   u)she suffered pain and depression and took time off work although she did not give the precise days that she did not attend her work by reason of ill health;

   v)on 11 May 2017 a solicitor with her firm sent her a text message asking whether her firm should retain a locum solicitor until her return, with which suggestion she agreed;

   w)she did not resign her position nor abandon her position as she said she was “just battling to get well enough to return to the firm and its work”; and

   x)on 18 May 2017 she received an email that had the effect of dismissing her.

2. The applicant said she was dismissed because she was ill.  She said the third respondent failed to provide time off with pay or assistance to return and they failed to provide proper notice or three weeks’ severance to her.

3. In the balance of her affidavit the applicant deposed to various staff members of the respondent firm departing.  A large proportion of that information was of dubious probative value in this application.  For example, she complained in her affidavit that supported her initiating application that she was denied procedural fairness in not being present to convene a directions hearing by telephone.  She complained that the respondents’ material in this case was voluminous.  She complained that an experienced arbitrator should have been appointed as a better way to deal with this dispute.  She complained that the respondents’ motion to dismiss her proceeding was an abuse of process.

4. In making those observations above I recognise that the applicant was not legally represented in this case.  While the applicant was at all relevant times a solicitor, her affidavit lacked the objectivity that an affidavit prepared by a detached, objective legal representative would have contained with an emphasis on adducing evidence on facts central to the constituent elements of her cause of action in this case.

5. In her address to me on 25 February 2019 the applicant informed me that she did not press the financial relief claimed in her application beyond non-payment of her salary.  That meant she abandoned –

   a)a claim for loss of income said to have been $105 000 per annum until she obtained 67 years of age;

   b)her claim to an apology;

   c)her claim for a favourable employment reference;

   d)an unqualified claim to compensation for distress, added pain (whatever that meant), added stress (likewise, whatever that meant), shock and depression;

   e)an assertion that she was entitled to emails over a given period;

   f)staff records; and

   g)other claims in her application.

6. In opposition to the claims made in this proceeding, the first respondent, through an affidavit sworn on 22 January 2019 (in which he put in issue a number of assertions made by the applicant) also put into evidence matters that the applicant did not put into evidence.  Among the more important matters that emerged from his affidavit, the first respondent said the following –

   a)on 17 October 2014 the third respondent (the firm Saines Lucas Solicitors) offered the applicant employment, which offer she accepted;

   b)her annual salary was $105 000 plus statutory superannuation;

   c)her normal work hours were 9am to 5:30pm and the applicant was required to meet a budget of $350 000 per annum;

   d)the applicant was required to work as a solicitor in the family law section of the firm’s Horsham office;

   e)contrary to her assertion, the applicant was not charged with the running of the Horsham office and the applicant was required to report to the partners of the firm;

   f)the applicant consistently failed to meet her budget;

   g)at no stage did the applicant provide the first respondent or anyone else from within the third respondent with formal notification of any alleged medical conditions from which she suffered together with supporting medical certificates;

   h)on 9 May 2017 the first respondent sent the applicant a text message asking for details of her whereabouts but she did not respond until five days later and she failed to give details of files especially for court hearings;

   i)in May 2017 the first respondent became concerned that the applicant was assisting her daughter in setting up a new business, and that, based on supporting documentation, the applicant may have been planning to leave the employment of the third respondent in April or May 2017;

   j)the applicant indicated an intention to vacate her Horsham rented accommodation on 26 May 2017; and

   k)on 18 May 2017 the third respondent wrote to the applicant, terminating her employment. 

7. Certain additional material emerged from the first respondent’s affidavit.  It included –

   a)the applicant had been the subject of disciplinary action by the Legal Practice Board of Western Australia;

   b)the applicant failed to disclose unresolved complaints to the Legal Commissioner of South Australia;

   c)on 30 November 2016 the Victorian Legal Services Commissioner reprimanded the applicant for unsatisfactory professional conduct;

   d)the third respondent completed an employment separation certificate, lodged with the Centrelink agency of the Commonwealth Department of Human Services, stating the applicant had abandoned her employment; and

   e)the applicant remains an undischarged bankrupt.

8. The third respondent has maintained with the Australian Human Rights Commission (“AHRC”) that the respondents terminated the applicant’s contract with the respondents for reasons unrelated to any alleged disability or discrimination.

9. The AHRC terminated a complaint made to it by the applicant.  It did so on 15 August 2018. 

10. The applicant then commenced this proceeding under s 46PO of the Australian Human Rights Commission Act.  The statutory scheme under that section is a little involved.  It allows an applicant to commence a proceeding in this court where a complaint to the AHRC has been terminated, so long as the complaint alleges unlawful discrimination by one or more respondents to the terminated complaint.  The unlawful discrimination alleged in this court must be the same as the unlawful discrimination that was the subject of the terminated complaint.

11. In this application for summary judgment the respondents rely on s 17A of the Federal Circuit Court of Australia Act, on r 13.10 of the Federal Circuit Court Rules and on case law.  On behalf of the respondents Mr McKenney of counsel submitted that the applicant has no reasonable prospect of success in her claim in this court.  That expression is easily stated yet it does not admit of easy application.  Case law at the highest level has spoken of it in terms that seem to state the test, rather than impart a solution.  Those cases include Spencer v Commonwealth[1] and Przybylowski v Australian Human Rights Commission (No 2).[2]  While earlier in time, Gordon J considered the issue in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd.[3] 

    [1] (2010) 241 CLR 118

    [2] [2018] FCA 473

    [3] (2008) 167 FCR 372

12. The question for me was whether I took the view in this case that the applicant had no reasonable prospects of success in view of the way she cast her case. The respondents argued that s 3 of the Australian Human Rights Commission Act set out the purview of “unlawful discrimination” and that here the relevant provisions of the Disability Discrimination Act do not apply.  The respondents argued that the reason for the applicant’s termination of employment were unrelated in any way to disability or discriminatory conduct.  The respondents contended that, on its face, the letter of termination revealed the reason for the applicant’s termination in the following terms –

    We have this day terminated your employment for abandonment of your position as a family law practitioner at our Horsham office.

13. It seemed to me there was real force in the respondents’ contention that the applicant’s termination had nothing whatever to do with any disability of the applicant.  Conversely, the applicant’s termination had everything to do with her unexplained absence from work for a sustained period.  In my view, the applicant’s assertions about the stressful atmosphere of the respondents’ work environment were not borne out by the evidence.  The applicant said she communicated with respondent employees to notify them that she was unable to attend work by reason of an assortment of maladies.  No corroboration was given of those assertions.  It fell to the applicant to prove her contentions in this regard.  She failed to do so.

14. Of course, the applicant argued that she suffered ill health soon after commencing with the respondent firm, initially suffering stress, then back issues, breast cancer, difficulty sitting, sleeping and driving and a spinal procedure.  The proof of those issues was poor.  Next to no medical proofs were adduced.  Most importantly, little in the way of evidence was adduced to show that the controlling minds of the third respondents (the firm partners) knew of the applicant’s medical conditions from time to time or that she was off work because of the medical issues then besetting the applicant.  Quite properly, the respondents seized on the connective disjoint between the claims made by the applicant and any applicable act of discrimination by the respondents.  I agree.  In my view, there was next to no evidence to show that the respondents terminated the applicant by reason of a discriminatory step.  The two broad categories relating to the reasons for termination were conduct and performance-related issues. 

15. The respondents invoked s 140 of the Evidence Act in inviting me to be very careful before concluding that the applicant had made out such a serious case as the one she advanced.  They relied on the well-known evidentiary principles in Briginshaw v Briginshaw.[4] I agree that it is appropriate to examine the applicant’s claims with an eye to the principle enunciated in that authority, as well as with s 140 of the Evidence Act in mind.

    [4] (1938) 60 CLR 336

16. In the face of the foregoing, I have considered whether the applicant had reasonable prospects of succeeding in establishing liability against one or more of the respondents. In my view, the answer to that is in the negative. It is appropriate to make an order under s 17A of the Federal Circuit Court of Australia Act, or under r 13.10 of the Federal Circuit Court Rules, to the effect that summary judgment should be entered against the applicant in favour of the respondents.  Accordingly, I make those orders.

17. The respondents sought indemnity costs.  An indemnity costs order is appropriate in the circumstances canvassed by Sheppard J in Colgate‑Palmolive Co v Cussons Pty Ltd.[5]  I addressed the issue in Gordon & Gordon.[6]  In my view, it would orchestrate undue hardship to the applicant to make an indemnity costs order against her.  She is an undischarged bankrupt, in any event.  The usual order for party‑party costs will apply.

    [5] (1993) 46 FCR 225

    [6] [2017] FCCA 2899

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC

Date:     8 March 2019