FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCDONALD v CIVIC DISABILITIES SERVICES LTD | [2014] FCCA 1464 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case seeking summary dismissal of proceedings on grounds that there are no reasonable prospects of success of substantive application – relevant considerations – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.365, 369, 570 Federal Circuit Court Rules 2001 (Cth), rr.13.10, 15.28, 15.29 |
| Applicant: | GOWAN MCDONALD |
| Respondent: | CIVIC DISABILITIES SERVICES LTD |
| File Number: | SYG 428 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 17 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared via teleconference. |
| Solicitor for the Respondent: | Ms S. Ryan of HWL Ebsworth |
ORDERS
The application filed on 4 May 2013 and amended on 27 May 2013 be dismissed summarily pursuant to reg.13.10(b) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs of and incidental to the proceedings pursuant to s.570(2)(b) of the Fair Work Act 2009 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 428 of 2013
| GOWAN MCDONALD |
Applicant
And
| CIVIC DISABILITIES SERVICES LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent, Civic Disabilities Services Ltd (“Civic”) is a not for profit organisation whose principal activities are to provide vocational, residential, respite and training services to adults with disabilities, as well as the provision of respite services to aged parent carers and other frail and elderly persons. Civic operates a group home and villa style accommodation for adults with disabilities.
The applicant, Gowan McDonald (“Ms McDonald”), was employed by Civic on a casual basis on 1 September 2009 and then on a permanent part-time basis from 12 July 2010. Ms McDonald held the position of social educator (now referred to as carer, disability support worker). On 29 November 2012 Civic terminated the employment of Ms McDonald. Ms McDonald has brought an application in this Court filed on 4 May 2013 (the “Application”), alleging that the termination of her employment by Civic was in contravention of a general protection afforded by the Fair Work Act 2009 (Cth) (the “FW Act”). Amongst these claims…
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- Case
- [2014] FCCA 1464
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether Ms McDonald's application disclosed a reasonable cause of action, and whether her proceedings were frivolous, vexatious, or an abuse of process, thereby warranting summary dismissal. The Court was required to consider the principles governing the summary dismissal of proceedings, including the standard for demonstrating "no reasonable prospect of success," and the requirements for proper pleadings and admissible evidence. The Court also considered the challenges presented by Ms McDonald's status as a self-represented litigant and the impact of her conduct on the proceedings.
The Court reasoned that while it possessed the power to summarily dismiss proceedings that lacked reasonable prospects of success, were frivolous or vexatious, or constituted an abuse of process, this power should be exercised with caution. It noted that Ms McDonald's application and supporting affidavit suffered from significant deficiencies in particularity and clarity, making it difficult for the respondent to understand and respond to the case against it. The Court found that despite opportunities to amend her pleadings and evidence, these deficiencies persisted. However, the Court ultimately dismissed Civic's application to strike out the proceedings.
The Court ordered that Civic's application to dismiss the proceedings summarily be dismissed. It further ordered that Ms McDonald pay Civic's costs of and incidental to the strike-out application.
Orders
Orders of the court
1.
The application filed on 4 May 2013 and amended on 27 May 2013 be dismissed summarily pursuant to reg.13.10(b) of the Federal Circuit Court Rules 2001 (Cth).
2.
The applicant pay the respondent’s costs of and incidental to the proceedings pursuant to s.570(2)(b) of the Fair Work Act 2009 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY
SYG 428 of 2013
GOWAN MCDONALD
Applicant
And
CIVIC DISABILITIES SERVICES LTD
Respondent
REASONS FOR JUDGMENT
Introduction
1.
The respondent, Civic Disabilities Services Ltd (“Civic”) is a not for profit organisation whose principal activities are to provide vocational, residential, respite and training services to adults with disabilities, as well as the provision of respite services to aged parent carers and other frail and elderly persons. Civic operates a group home and villa style accommodation for adults with disabilities.
2.
The applicant, Gowan McDonald (“Ms McDonald”), was employed by Civic on a casual basis on 1 September 2009 and then on a permanent part-time basis from 12 July 2010. Ms McDonald held the position of social educator (now referred to as carer, disability support worker). On 29 November 2012 Civic terminated the employment of Ms McDonald. Ms McDonald has brought an application in this Court filed on 4 May 2013 (the “Application”), alleging that the termination of her employment by Civic was in contravention of a general protection afforded by the Fair Work Act 2009 (Cth) (the “FW Act”). Amongst these claims in her application is a claim that, at the time of the termination of her employment, Ms McDonald was a member of the Australian Services Union (“ASU”), however, ASU is not acting for her in these proceedings.
Application in a Case – Strike-out application
3.
On 6 September 2013 Civic filed an application in a case (the “Strike-Out Application”) seeking the following orders:
1. An order pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (the Rules), that the Court strike out the application, either in whole or in part, in the proceedings on the basis that:
a) The applicant has no reasonable prospects of success prosecuting the proceedings; or
b) In the alternative, the proceedings are frivolous and/or vexatious; or
c) In the alternative, the proceedings are an abuse of process of the Court.
2. In the alternative, an order pursuant to r.15.29 of the Rules that the Court strike out the applicant’s affidavit, either in whole or in part, filed in proceedings on 27 May 2013 on the basis that it is unnecessary, scandalous, a prolix and contains opinions of persons not qualified to give them.
3. The applicant pay the respondent’s costs thrown away as a result of the application being struck out in the proceedings; and
4. Any further orders that this honourable Court deems fit.
The Strike-Out Application is supported by the Affidavit of Sian Patricia Ryan sworn 28 August 2013 and filed on the same day (the “Ryan Affidavit”).
The Application
4.
On 4 March 2013 Ms McDonald filed in this Court an application (the “Substantive Application”) in the Fair Work Division of the Court. The sections of the Substantive Application headed “Final Orders Sought by the Applicant, Grounds of Application and Interlocutory, Interim or Procedural Orders Sought by the Applicant” are blank.
5.
Attached to the Substantive Application is a certificate from the Fair Work Commission issued under s.369 of the FW Act, issued by Deputy President Sands in Sydney on 18 February 2013 in the following terms:
An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Gowan McDonald alleging she was dismissed by Civic Disabilities Services Ltd in contravention of Part 3-1 of the Act.
The Fair Work Commission conducted a conference to deal with the dispute by 18 February 2013.
Pursuant to s.369 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
6.
Filed at the same time as the Application is a Form 2- Claim under the FW Act Alleging Dismissal in contravention of a General Protection. In that document under the heading “Part B – Details of Employment” the following is disclosed:
8. Work performed for employer (occupation): Social Educator (now called carer, disabilities support worker).
10. Period of employment. Date started work.
Commenced as casual – 1 September 2009. Permanent part-time employee from 12 July 2010.
Last date worked. Date of dismissal
25 November 2012.
7.
The grounds of the Application allege numerous contraventions by Civic in the termination of Ms McDonald’s employment. It is not necessary to particularise these for reasons that will be addressed below.
Court’s Power to Summarily Dismiss
8.
Ms Ryan, in her submissions, has prepared a convenient summary of the authorities that address this Court’s power to summarily dismiss a claim on the grounds that it fails to disclose a reasonable cause of action. The basis of any proceedings is the content of the pleadings and the function is summarised in Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 by Mason CJ and Gaudron J:
The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.
That principle has been applied in this jurisdiction: Forest v Smith & Anor; Forest v Tranter Pty Ltd [2008] FMCA 1697 per Coates FM (as he then was) at [27]:
27. Procedural fairness extends to the respondents as well as to the applicant — the respondents must know the case to meet and be given opportunity to answer.
9.
In Mulhern’s Properties Inc v Bank of Queensland [2013] FCA 401 per Flick J his Honour stated at [12]:
12. The principles to be applied when exercising the discretion remain common to both the former Order 11 r 16 and the current r 16.21. That discretionary power will only be exercised with “great caution” (Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [6] ; 79 ALJR 1716 ; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ) or with “exceptional caution”: Morton v Vouris (1996) 21 ACSR 497 at 513 per Sackville J. See also: Burrup Fertilisers Pty Ltd v Oswal (No 2) [2011] FCA 731 at [21] per McKerracher J. In Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510, Tracey J helpfully summarised the principles as follows:
5. The principles governing the exercise of the Court’s power summarily to dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 415–421. It is not necessary to restate, at length, his Honour’s exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that:
• The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised …
• The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them …
• A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out …
• It is not sufficient for the pleader to state conclusions drawn from unstated facts …
• There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle … and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits …
• Not all conclusionary pleadings will be struck-out as being deficient … Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality …
Appl’d: Christou v Stantons International Pty Ltd [2010] FCA 1150 at [3]. A “pedantic approach” should not be pursued: Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 at [14] per Logan J.
10.
Ms Ryan, in her written submissions, concedes that the Federal Court Rules 2011 (Cth) (the “FCA Rules”) set a higher standard to the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”), however, contends that the principles as to what will constitute an acceptable application and disclosure of a reasonable cause of action are comparable and those principles have been applied in the Federal Circuit Court’s jurisdiction: Ejueyitsi v Deakin University [2013] FCCA 1034 where an application to strike out a statement of claim/application was determined on the following grounds at [24]-[27]:
24. The particulars however draw no connection between the matters pleaded and a breach of the provisions of the Act, nor the connection between that legislation and any power in the court to declare that “the process followed by the defendant to arrive at its decisions defied procedural fairness, natural justice and other claims”.9.
25. The particulars provide no basis for the court to conduct a general review of the procedural fairness of the “defendant’s process” nor to order a “review of the plaintiff papers and examination incidence by externally body based on the process applied by the defendant defied fair process”.10.
26. I found the document to be unintelligible and incapable of founding the basis for proceedings within the jurisdiction of the court. Further, the initiating proceedings were lodged on 3 October 2012. An application to amend the originating Application, in a form capable of being dealt with by the court, ought to have been the subject of an application for leave to amend under r 7.01 long before this document was filed.
27. For these reasons the Respondent’s application to have the “Statement of Claim” struck out was granted.
11.
The question of what constitutes “reasonable prospects of success” was dealt with by his Honour Driver FM (as he then was) in Alfaro v Crown Commercial Cleaning Pty Ltd & Anor [2012] FMCA 478, relying upon the statement of the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118. In adopting that decision his Honour stated at [8]-[10]:
8. Section 17A of the Federal Magistrates Court Act 1999 (Cth) (“the Federal Magistrates Court Act”) sets out the relevant test as to when summary judgment will be given against another in relation to the whole or part of the proceedings. The test is, in the present circumstances, that “the court is satisfied that the other party has no reasonable prospects of successfully prosecuting the proceedings or that part of the proceedings.”1.. Section 17A is relevantly identical to s 31A of the Federal Court Act 1975 (Cth), except for s 31A(5) which has no application to the present proceedings.
9. The High Court considered s 31A in Spencer v Commonwealth http://www.lexisnexis.com/au/legal/ - 2 where the court stated:
First, the central idea about which the provisions pivot is "no reasonable prospect"(emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
Secondly, effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of subss (2) and (3) is that the inquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW) …
Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.
Likewise, it is dangerous to apply directly what has been said in the United Kingdom about the application of a test of "no real prospect" or what has been said in United States decisions about summary judgment …
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 bedeviled 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.
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.
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.
10. As the High Court has made plain, no hard and fast rule can be laid down as to when summary judgment is available. Much depends on the case at hand. Nonetheless, generally speaking, summary judgment would appear appropriate when well-established propositions of law deny the prospect of success. Summary judgment would appear inappropriate where there are “factual issues capable of being disputed and in dispute” (see generally Spencer at [25] per French CJ and Gummow J.
12.
Ms Ryan, in her written submissions, concedes that whilst in the matter of Mulhern’s (supra) his Honour Flick J gave specific consideration to the application of the FCA Rules, it is, however, common to both the FCC Rules and FCA Rules that a matter may be disposed of summarily in circumstances where there is no reasonable prospects of success and in the following further circumstances:
a) Where the proceeding or claim for relief is frivolous or vexatious (FCC Rules, Reg.13.10(b) and FCA Rules, Regs.16.02(2)(b) and (f); and
b) Where the pleadings or proceedings constitute an abuse of process of the Court (FCC Rules, Reg.13.10(c) and FCA Rules, Reg.16.02(2)(f).
13.
In dealing with those areas of commonality, Flick J in Mulhern’s (supra) adopted the findings of the Federal Court in Rana v Commonwealth of Australia [2013] FCA 189 at [41]-[43] where Mansfield J stated:
41. In Pickering v Centrelink [2008] FCA 561, McKerracher J made the following useful observations at [27] about when a proceeding is frivolous, vexatious and/or an abuse of process:
In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434, although the majority (Allsop and Conti JJ) reached a different ultimate conclusion, there is, with respect, a helpful collection of authorities by Gray J on “frivolous” at [16]–[22] from which it may be concluded that if, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, it is frivolous. A matter is also frivolous when it is without substance or groundless or fanciful: Bullen & Leake Precedents of Pleadings (1975) 12th ed, p 145. However such matters will only be struck out when it is so obviously frivolous that to put it forward, would be an abuse of the process of the court: Young v Holloway [1895] P 87. The words “frivolous” or “vexatious” are used either separately or in conjunction, or interchangeably with the expression “abuse of the process of the court”: Young v Holloway [1895] P 87 at 90–91.
42. Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.
43. It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant’s intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.
Self-representation
14.
Ms McDonald is a self-represented litigant with a limited understanding of litigation generally and, particularly, the Court’s Rules and the legislative framework through which she seeks to bring these proceedings. I note the recent observations of his Honour Judge Harman in Deacon v Castle [2013] FCCA 691, proceedings brought under the Family Law Act 1975 (Cth). His Honour’s observations appear at [75]-[78] where he stated:
75. Whilst it is common for parties before this court to be self-represented, the same rules of practice, procedure and, importantly, evidence apply to them as apply to parties who are capably legally represented.
76. One of the purposes for the inclusion of Division 12A may well have been to seek to obviate against difficulties faced by self represented litigants in preparing material to be filed with the court in support of their application or response. However, the requirement of due process can never obviate against the equal dispensation of justice.
77. The creation of different or unequal requirements as regards the production of evidence, by represented and self represented parties, is inappropriate. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.
78. The rules of evidence have evolved over a significant period and have since 1995 been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the court is able to do that which is enshrined within our legal process (as far back as Magna Carta) and being the right to properly meet and test a case which one is called upon to answer.
15.
This lack of understanding has caused Ms McDonald some difficulties in the preparation of her case, particularly in respect of:
a) Contents of affidavits;
b) The issuing of procedural documents – notice to admit facts;
c) Correspondence with Civic and my chambers;
d) The raising of inappropriate allegations against Civic and its legal representatives.
16.
Ms Ryan, in her written submissions, refers the Court to the decision in Du Boulay v Worrell & Ors [2009] QCA 63 per Muir JA at [68]-[69] where his Honour stated:
68. The appellant appears to have succumbed to the phenomenon which inflicts many self-represented litigants of becoming so fixated on real or perceived wrongs that he has lost any semblance of objectivity and the power of discrimination. It does not appear to have occurred to him that by heaping allegation on allegation he has put it beyond his ability to plead, let alone conduct and finance his case. Nor does it appear to have occurred to him that the myriad of allegations has a tendency to destroy whatever credibility may have attached to a case involving fewer allegations more obviously supported by clearly identified material facts.
69. It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance.22 But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.
17.
In preparing these reasons I wish to make it abundantly clear to Ms McDonald that the Court appreciates the difficulties that she faces in the preparation and presentation of her case as a self-represented litigant. In this respect, I note the observations of his Honour Lucev FM (as he then was) in Reynolds v Minister for Health & Anor (2010) 247 FLR 425 at [60]:
The role of a federal court in relation to self-represented litigants has been broadly described by the Federal Court as a requirement to be fair.39. That does not entail being unfair to the other party. Such guidance as is provided by a federal court to a self-represented litigant is not for the purpose of advantaging the self-represented litigant in the litigation, or disadvantaging the other party or parties, but rather to ensure that the case proceeds, so far as is possible, in a manner consistent with the interests of justice.40.
[39] Dowling v Fairfax Media Publications Pty Ltd (No. 2) 2010 FCAFC 28 at [24] per Graham J, citing Malouf v Malouf [2006] NSWCA 83; [2006] 65 NSWLR 449 at 452 per Bryson JA
[40] Brehoi V Minister for Immigration & Multicultural Affairs [2001] FCA 931 at [6]-[7] per Beaumont J
18.
In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 the Full Court of the Federal Court observed at [28]:
The general principles governing the role of the Judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSW CA. Samuels JA said this (at 14):
"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ...At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."
…
19.
In Fletcher v George & Ors (No.7) [2010] FMCA 541 per Burnett FM (as he then was), his Honour made the following observation in regard to a self-represented who lacked an appreciation that permit proceedings to be run smoothly to a final outcome, according to good law, practice and procedure. At [5] his Honour stated:
5. These matters have recently been explored by Bell J of the Victorian Supreme Court in a decision of Tomasevic v Travaglini (2007) 17 VR 100. In that decision, His Honour conducted an extremely detailed analysis of the policy and law, at least in the area of dealing with self-represented litigants, and as a result of the scholarship, expressed in his judgment, one can find a very helpful summary of the law as it presently stands. Commencing at page 129 His Honour made these observations:
On the basis of this analysis, I think I can summarise the law as it currently stands.
Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
Most self-represented persons lack two qualities that competent lawyers possess — legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances — it must ensure a fair trial, not afford an advantage to the self-represented litigant.
Mediation
20.
At a directions hearing in this matter on 20 June 2013 before Judge Barnes her Honour made the following orders:
1. The name of the respondent be amended to read “Civic Disabilities Services Ltd”.
2. The proceedings be referred to the District Registrar for mediation pursuant to Part 27 of the Federal Circuit Court Rules 2001 (Cth). Mediation to be completed by 30 August 2013.
3. Proceedings to be listed before Judge Lloyd-Jones for directions at 9.30am on 5 September 2013 in Court 6D, John Maddison Tower, 88 Goulburn Street, Sydney.
4. There is liberty to either party to apply on five days’ clear notice.
21.
The Court Registry, by letter dated 25 July 2013, advised the parties that a mediation conference was listed for Monday 12 August 2013. A mediation of the proceedings occurred before a registrar of the Court, but the dispute was not resolved by assisted dispute resolution.
Chronology
22.
Civic’s outline of submissions, filed in court on 17 December 2013 and prepared by Ms Ryan, contains a schedule setting out a chronology of the proceedings, including all documents filed by Ms McDonald in the course of the proceedings. This schedule was attached in order for Ms Ryan to raise the objection, to the extent Ms McDonald seeks to rely on these additional documents (listed in Civic’s Chronology), that the documents do not comply with the FCC Rules and are otherwise inadmissible. I have included the schedule for the additional reason that it demonstrates a number of the aspects raised above, in respect of the reliance on incorrect procedural documentation and inappropriate facsimile correspondence.
No.
Details
Date/Filed
1.
Application ‑ Dismissal from employment in contravention of a general protection and Application ‑ Fair Work Division (filed with Form 2) filed by Applicant.
4 March 2013
2.
Affidavit of Service filed by Applicant.
2 April 2013
3.
Application in a Case filed by Applicant.
3 April 2013
4.
Notice of Address for Service filed by Respondent.
8 April 2013
5.
Response filed by Respondent.
18 April 2013
6.
Response to Respondent's Response filed by Applicant.
18 April 2013
7.
First Directions before Judge Lloyd-Jones, orders made:
1. The applicant has leave to file and serve an amended application and supporting document by 27 May 2013.
2. The respondent must file and serve an amended response by 11 June 2013.
3. The matter be listed for directions on 20 June 2013.
26 April 2013
8.
Affidavit and Amended Application filed by Applicant.
27 May 2013
9.
Outline of Submissions and Defence filed by Applicant (documents titled "Document 5 of 6 - Summary of Background Issues" and "Document 6 of 6 - Points of Defence").
28 May 2013
10.
Affidavit of Service filed by Applicant.
29 May 2013
11.
Amended Response filed by Respondent.
14 June 2013
12.
Reply filed by Applicant.
17 June 2013
13.
Notice to Admit Facts (and Authenticity of Documents) by Applicant.
18 June 2013
14.
Notice to Produce filed by Respondent.
19 June 2013
15.
Reply filed by Applicant; Directions before Judge Barnes, orders made:
1. The name of the Respondent be amended to read “Civic Disabilities Services Limited”
2. The proceedings be referred to the District Registrar for mediation.
3. The proceedings be listed before Judge Lloyd-Jones for directions at 9.30am on 5 September 2013.
4. Liberty to apply.
20 June 2013
16.
Notice of Objection - Subpoena filed by Applicant.
24 June 2013
17.
Return of subpoena before District Registrar Wall, orders made:
1. Leave granted to the parties to inspect and copy the documents produced in accordance with the Notice to Produce addressed to the Applicant (S1).
2. The balance of the outstanding Notice to Produce to the Applicant be adjourned until 11.30am on 9 July 2013.
3. In respect of any objection to access on grounds of confidentiality or privilege to the Notice to Produce addressed to the Applicant, the Respondent is to file and serve any submission or affidavits in support of access by 4.00pm on 5 July 2013.
2 July 2013
18.
Return of Subpoena before District Registrar Wall, orders made: Leave granted to the parties to inspect and copy the documents produced in accordance with the Notice to Produce addressed to the Applicant (S2).
9 July 2013
19.
Mediation before Registrar Morgan – unsuccessful.
12 August 2013
20.
Affidavit of Sian Patricia Ryan filed by Respondent.
28 August 2013
21.
Reply to affidavit of Sian Patricia Ryan filed by Applicant.
28 August 2013
22.
Affidavit filed by Applicant.
4 September 2013
23.
Directions before Judge Driver, orders made:
1. Leave is granted to the respondent to file and serve on the applicant an Application in a Case for summary dismissal by close of business on 6 September 2013.
2. The Court notes that the respondent will rely upon its affidavit filed on 28 August 2013 in support of any such Application in a Case.
3. The applicant has leave to file and serve any affidavit evidence in opposition to any Application in a Case if filed, by 20 September 2013.
4. The applicant has leave to file and serve on the respondent any further amended application or any further pleading by 20 September 2013.
5. The Application in a Case, if filed, is to be listed at 10.15am on 22 November 2013 before Judge Lloyd-Jones.
5 September 2013
24.
Application in a Case filed by Applicant seeking closed Court.
5 September 2013
25.
Affidavit filed by Applicant, in support of Application in a Case.
5 September 2013
26.
Applicant in a case filed by Respondent, seeking to dismiss proceedings.
6 September 2013
27.
Email from Gowan McDonald attaching response to email from Sian Ryan (that stated the solicitors for the Respondent will assume the Applicant does not rely on any evidence in opposition to the Respondent's Application in a case filed on 6 September 2013) and seeking denial of involvement in alleged suspicious activities.
21 September 2013 (12:25 pm)
28.
Email from Sian Ryan responding to allegations of interference with mobile phone, stalking and intimidation.
23 September 2013
(4:58 pm)
29.
Email from Gowan McDonald attaching revised response to email from Sian Ryan that stated the solicitors for the Respondent will assume the Applicant does not rely on any evidence in opposition to the Respondent's Application in a case filed on 6 September 2013.
21 September 2013 (11:33 pm)
30.
Email from Gowan McDonald in relation to setting a hearing date.
6 November 2013 (4:10 pm)
31.
Email from Gowan McDonald confirming hearing date.
7 November 2013 (11:24 am)
32.
Email from Gowan McDonald regarding references to Sian Ryan's legal position and titles.
7 November 2013 (10:11 pm)
33.
Email from Gowan McDonald attaching letter regarding "inappropriate intrusions" and "breaches of confidentiality and personal space."
10 November 2013 (3:20 am)
34.
Email from Gowan McDonald attaching revised letter regarding "inappropriate intrusions" and "breaches of confidentiality and personal space."
10 November 2013 (5:32 am)
35.
Email from Gowan McDonald regarding suspicious conduct.
18 November 2013
(4:13 pm)
36.
Email from Gowan McDonald threatening to request Court order that Sian Ryan and her connections not be allowed to reside closer than a minimum of two hours from where Gowan resides or linger in close proximity to her or she is associated with.
18 November 2013
(5:59 pm)
37.
Email from Gowan McDonald regarding possible stalking and intimidation, in addition to threat of restraining order.
19 November 2013
(7:29 pm)
38.
Email from Gowan McDonald demanding response to previous correspondence and containing contentions of attempted murder.
21 November 2013
(11:58 am)
39.
Email from HWL Ebsworth to Gowan McDonald attaching letter responding to allegations of misconduct and threat of apprehended violence order.
21 November 2013
(12:00 pm)
Civic’s Submissions – Strike-out Application
23.
Ms Ryan indicated Civic relied on the following material in support of the Strike-out Application:
a) Rule 13.10 of the FCC Rules, being:
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.
b) Rule 15.28 of the FCC Rules, which states:
Documents annexed or exhibited
(1) A document to be used in conjunction with an affidavit must be annexed to the affidavit.
(2) However, if because of the nature of the document or its length it is impractical to annex the document, it may be made an exhibit to the affidavit.
(3) An annexure must:
(a) be paginated; and
(b) bear a statement signed by the person before whom the affidavit is made identifying it as the particular annexure mentioned in the affidavit.
(4) If there is more than 1 annexure, the pagination must be consecutive until the last page of the annexures and identified by page number in the affidavit.
Example: For an affidavit with 10 annexures totalling 100 pages, the first page of the first annexure is page 1 and the last page of the last annexure is page 100. An annexure would be identified in the affidavit in the following way: 'Annexed and marked with the letter G (pages 72-81) is a copy of the agreement for sale'.
(5) An exhibit must:
(a) be marked with the title and number of the proceeding; and
(b) be paginated; and
(c) bear a statement signed by the person before whom the affidavit is made identifying it as the particular exhibit mentioned in the affidavit.
(6) A document annexed or exhibited to an affidavit must be served with the affidavit.
c) Rule 15.29 of the FCC Rules, which states:
Objectionable material may be struck out
(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
(2) Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.
d) Affidavit of Sian Patricia Ryan sworn 28 August 2013;
e) Affidavit of Sian Patricia Ryan sworn 21 November 2013;
f) Amended Application filed 27 May 2013;
g) Amended Form 2 filed 27 May 2013;
h) Affidavit of Gowan McDonald affirmed 27 May 2013;
i) Affidavit of Gowan McDonald affirmed 4 September 2013;
j) Civic’s Outline of Submissions filed in court on 17 December 2013;
k) Exhibit “R1” to the Affidavit of Gowan McDonald affirmed 27 May 2013 with notations by Ms Ryan in respect of objections;
l) Exhibit “R2” – Bundle of documents; and
m) Exhibit “R3” – Further Bundle of documents.
Objections to the Affidavits of Ms McDonald
24.
Ms Ryan, in her written submissions, raises objection to Ms McDonald’s affidavits filed in these proceedings as follows:
18. Rules with respect to the form, content and annexures to an affidavit are rules 15.28 and 15.29.
19. The respondent submits that the applicant’s primary affidavit, along with its annexures, ought to be struck out in whole based upon the requirements of rule 15.28 and 15.29.
20. Our primary submission is that, those portions of the affidavit which have been highlighted are caught by the rules with respect to objectionable material and should be struck out. Specifically, those paragraphs are [8], [10] and [11], [13]-[21] inclusive, [23]-[32] inclusive, [33] in part and [34].
25.
To explain the objection, Ms Ryan referred in oral submissions to [8] of Ms McDonald’s Affidavit of 27 May 2013 which reads:
8. This was in response to an issue with another staff member who had false and/or exaggerated comments and extremely harsh action taken against him.
The objection to that paragraph and, similarly, to [10] and [11] is that they are not in proper form. Ms Ryan submits the paragraphs fail to provide any particularisation as to whom is being referred to or to what was said. This is objected to on the basis it is hearsay evidence and, particularly, [10] and [11] contain statements of opinion which are not admissible and which Ms McDonald is not qualified to make. That objection is, essentially, the objection that is taken to each and every paragraph identified above. Ms Ryan acknowledges that there are some very limited attempts to adopt proper form where conversations aren’t paraphrased, but generally the Affidavit contains claims about an alleged conversation or direction without providing any details as to whom it is alleged to have said, what, and to whom, where and when without that level of detail it is submitted that the paragraph is inadmissible.
26.
Ms Ryan, in her written submissions, continues with the objections to Ms McDonald’s Affidavit of 27 May 2013 as follows:
21. The applicant was notified of the respondent’s objections to those paragraphs by letter dated 7 June 2013 which is Annexure “SPR8” to the Affidavit of Sian Patricia Ryan sworn and filed on 28 August 2013.
22. That letter also objected to the form of annexures to Ms McDonald’s, each and every one of which contravenes rule 15.28. The annexures are not properly identified, some are unidentifiable and all contain hand-written notes and commentary, presumably from the applicant.
23. In our letter of 7 June 2013, we invite the applicant to amend her documents and place her on notice that failure to amend would result in an application to have the documents struck out. In response, the applicant sent an email on Saturday 8 June 2013 at 2.15pm (Annexure “SPR9”) which states:
From an initial look at your comments I have found them to be nothing more than an attempt to confuse the issue and the Court and to intimidate me. I also find your comments to be discrimination against me in that you have tried to belittle and demean my submissions to the Court by making irrelevant comments to the relevance and the truthful statements I have made as is requested in the application and affidavit.
Therefore, as such at this stage I will not be making any further reply with regards to your comments or any other comments that are irrelevant, incorrect or obviously attempts to confuse this matter and are therefore insulting to me and to the (hopefully, fair and sensible processes of the Court for that matter.
If I do respond to any comments after a more thoughtful examination of your correspondence I will also be charging your client for my time at the going rate of legal work ($350 per hour I believe) and will add this to the compensation request as will any further attempts to delay settlement of this matter etc.
24. Further opportunities were provided to the applicant to amend her documents due to the irregularities pointed out by the respondent at each of the directions hearings before [Judge Barnes] on 20 June and then before [Judge Driver] on 5 September 2013. [Judge Driver] made orders to that effect. The applicant has not availed herself of the opportunity to amend her application nor her supporting affidavit.
25. The respondent therefore submits the affidavit should be struck out.
27.
In oral submissions Ms Ryan indicated the difficulty for Civic is that the case which it is required to meet is in a form and contains substance which it simply cannot understand. Attempts to get some further particulars or further clarification of the claim have been unsuccessful. The next step Civic took to try to understand the case that it was to meet was to file a notice to produce which was done on 19 June and is reproduced at “SPR13”. That Notice to Produce sought production of those documents that one might reasonably expect to exist having regard to what it could make of Ms McDonald’s Affidavit and Application. In response, Ms McDonald filed a notice of objection which is contained at Annexure “SPR17”. Ms Ryan informed the Court that there were a number of appearances before the Registrar dealing with Ms McDonald’s objection to the Notice to Produce and at that point she again refused to produce documents. At a subsequent directions listing before the Registrar, Civic’s legal representatives provided correspondence (Annexure “SPR19”), the purpose of which was to set out what it was that Civic was seeking in order to try to understand the case that it had to meet. That correspondence outlined the objection taken by Civic to the form of Ms McDonald’s evidence and Civic has set out, as directed by the Registrar, the basis upon which each document was sought.
28.
In the Affidavit of Sian Patricia Ryan sworn 28 August 2013, Annexure “SPR19” at p.124 states:
1. As to the documents sought at paragraphs 1 and 2, you have claimed adverse action on the basis of union membership or delegate status, but have not provided any evidence of union membership or delegate status. Our client was not aware that you were a union member or delegate. It is therefore proper for our client to require the production of any documents that might either verify or attest that claim.
That approach continues with respect to each of the documents that had been identified in the Notice to Produce. Ms McDonald did file a second affidavit on 4 September 2013 and it is submitted that affidavit simply reattaches everything that had been previously been filed in the same objectionable form as had previously been identified.
29.
Ms Ryan submits that in dealing with the Affidavit of Ms McDonald sworn 4 September 2013 and the annexures, it is almost wholly inadmissible. Those portions that are admissible do not advance the claim as they are simply perfunctory and procedural. It is submitted that there have been numerous opportunities afforded to Ms McDonald to remedy those defects, being those that have not been accepted. There was a refusal to comply with the Notice to Produce and that remains an outstanding issue, but it has not subsequently been pursued out of frustration. It is submitted that the Affidavit of Ms McDonald of 4 September 2013 offends the rules of evidence, the rules of this Court and should be struck out.
Objections to Amended Form 2 Application
30.
Ms McDonald amended her Form 2 Application following the first directions hearing in this Court, however, Ms Ryan submits that the amendments made to that document do not cure it of the defects that were identified and do not save it from being struck out in accordance with the FCC Rules.
31.
Ms Ryan, in her written submissions, raised the following objections to the Amended Application and claim for relief as follows:
26. If the Applicant’s affidavit material is deemed inadmissible, then the Applicant’s Form (sic) 2 application is wholly unsubstantiated and may be dismissed on that basis.
27. In the alternative, having regard to McKerracher J’s consideration of the terms “frivolous, vexatious and an abuse of process” in the overall context of the principles outlined above, it is submitted that the Applicant’s claims, as articulated in her form 2 amended application for relief are unintelligible, in capable of invoking the jurisdiction of this Court and cannot be understood nor answered by the Respondent. For example:
a) In alleged contravention 1, which appears to be the Applicant’s central allegation, the Applicant refers to “advice from external agencies”, “legal advice over trivial issues” and “contacting the Fair Work Commission”. It seems to be the Applicant’s case that those communications led to her dismissal. Notwithstanding that, the Applicant provides no particulars at all of any such communication, nor the nexus between those communications and her dismissal. The reference to Annexure 2 is misleading as that annexure does not support the allegation and the letter of dismissal referenced is also incorrectly referenced.
b) In alleged contravention 2, neither the alleged “telephone call” nor the “letter”, which are said to ground this particular contravention are pleaded or particularised. In the absence of those particulars, this alleged contravention is impossible to understand, particularly given the inclusion of the assertion that this contravention was apparently no (sic) the reason for dismissal.
c) As to alleged contravention 3, the Applicant asserts discrimination on the basis of “social origin” without providing any particulars of the ground complained of, the alleged less favourable treatment or the causal link between the ground and alleged treatment;
d) As to alleged contravention 4, the Applicant asserts victimisation on the basis of union membership without providing any particulars whatsoever of that alleged union membership, the period of membership and any connection between the alleged membership and events in her employment;
e) The “Summary” and “additional information” add nothing to the application by way of particularisation.
28. It is therefore the Respondent’s primary submission that in the absence of any admissible affidavit evidence, the allegations in the amended Form 2 are wholly unsubstantiated and may be dismissed on that basis.
29. In the alternative, it is submitted that the claims which are advanced are so unintelligible, confusing and lacking in particularity that they infringe the principles in Banque Commerciale and Forest.
30. The Applicant’s attention has been drawn to these serious deficiencies of pleading throughout the course of these proceedings, both in writing and at each directions hearing. The Applicant has failed to avail herself of the opportunity to amend the deficiencies and there is no reason to think that the Applicant would do so in the future.
Objections to the Conduct of the Applicant
32.
Ms Ryan, in her written submissions, raises with the Court the following objections to Ms McDonald’s conduct up to the date of the hearing of the Strike-out application as follows:
31. The Respondent submits that the Applicant’s conduct of this proceeding is frivolous, vexatious and constitutes an abuse of process.
32. The Respondent relies on each of the affidavits of Sian Patricia Ryan filed in the proceedings in support of this submission. Notwithstanding the requirements of the Court’s Practice direction dealing with Communication with Judges’ Chambers, the Applicant routinely includes Chambers in email communications. In so doing, the Applicant – by her own conduct – has included all such matters this “proceeding” as defined at section 5 of the Act.
33. In her most recent communications, the Applicant has also directly contacted representatives of the Respondent, notwithstanding the fact that she is aware the Respondent is legally represented and has previously been advised that all communication is to be directed to us on behalf of the Respondent.
34. Annexure SPR-32 is a 4 page letter, emailed to Sian Ryan at 5.32am on Sunday 10 November 2013, and copied to Chambers. The letter sets out allegations of stalking, intimidation, phone hacking and other allegedly suspicious activities. Notwithstanding the fact that the correspondence neither requests nor invites a response, the Applicant’s emails of 18, 19 and 21 November (SPR33, 34 and 35 respectively) not only demand a response but threaten AVO proceedings against the Respondent and its legal representatives and the make allegations of attempted murder (SPR36).
35. Such conduct is such a serious infringement of the Court’s Rules and the standard expected of litigants in this jurisdiction as to constitute an abuse of process.
36. The Applicant’s conduct in this regard is not limited to the email communications highlighted above. We also rely on the Applicant’s conduct during the interlocutory hearings in this Court. On at least one such occasion – before [Judge Barnes] – the Applicant pointed at Ms Fitze, the Human Resource Manager for the Respondent and threatened to have her criminally charged. The Applicant routinely makes scandalous allegation during the course of directions hearing – which are wholly unsubstantiated by any evidence. On the last occasion, before [Judge Driver], Ms McDonald made allegation about sexual abuse which His Honour invited Ms McDonald to substantiate with affidavit evidence, which she has not done. See transcript reference lines 13-24.
37. AS to the Applicant’s status as an unrepresented litigant the Respondent relies upon the judgment of Muir JA in Du Boulay v Worrell & Ors [2009] QCA 63 at [68]-[69]:
The appellant appears to have succumbed to the phenomenon which inflicts many self-represented litigants of becoming so fixated on real or perceived wrongs that he has lost any semblance of objectivity and the power of discrimination. It does not appear to have occurred to him that by heaping allegation on allegation he has put it beyond his ability to plead, let alone conduct and finance his case. Nor does it appear to have occurred to him that the myriad of allegations has a tendency to destroy whatever credibility may have attached to a case involving fewer allegations more obviously supported by clearly identified material facts.
It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.
38. It is the Respondent’s submission that the Applicant’s conduct of the proceedings, combined with pleadings and affidavit material which are either inadmissible or otherwise non-compliant with the Court’s Rules, are denying it of procedural fairness, requiring it to defend scandalous and unsubstantiated allegations, and to incur significant additional costs than would otherwise be incurred if the proceedings was to be conducted ion (sic) accordance with the Act, Rules, Practice direction and usual standard expected of litigants in this jurisdiction.
Ms McDonald’s Submissions
33.
When the matter was before his Honour Judge Driver for a directions hearing on 5 September 2013, Ms Ryan sought the leave of the Court to file an application in a case seeking summary dismissal of these proceedings. Leave was granted to Civic to file and serve on Ms McDonald an application in a case seeking summary dismissal by close of business on 6 September 2013. The Court noted that Civic would rely upon the Affidavit filed on 28 August 2013 in support of that application. Ms McDonald was granted leave to file and serve any affidavit evidence in opposition to any application in a case, if filed, by 20 September 2013. Leave was also granted for Ms McDonald to file and serve on Civic any further amended application or amended pleading by 20 September 2013. The hearing of that application as listed on 22 November before me. Due to delays the matter did not come before the Court until 17 December 2013. No written submissions were submitted by Ms McDonald addressing any of the issues raised in the Strike-out Application.
34.
When Ms McDonald was invited to make oral submissions, there was no formal or systematic approach adopted by her, rather, a general ventilation of a number of issues that Ms McDonald objected to the submissions made by Ms Ryan and more generally a broad canvassing of a number of the issues raised in the substantive proceedings. Consequently, in the preparation of these reasons, I have attempted to marshal the various issues addressed by Ms McDonald and place them in some sequence that roughly correlates to the formal submissions made by Ms Ryan. In broad terms, this exercise has not proven simple, as Ms McDonald has not addressed in any specific manner the issues that are relevant and have been raised in the Strike-Out Application, alternatively, she has concentrated on a number of issues which she has formed a view that there is a dispute between herself that of the method of presentation adopted by the legal representatives of Civic.
35.
Unfortunately, it appears that Ms McDonald has misinterpreted the vast majority of the correspondence addressed by Civic’s legal representatives as a personal attack her in an attempt to succeed in this litigation. On the material before the Court, this clearly was not the intention or motivation of the legal representatives acting for Civic, rather, it was an attempt to rationalise and clarify claims being brought against Civic in order for it to fully understand and appreciate the claims against it. This aspect will be considered more fully in my consideration below, however, I raise it in these reasons now as I have attempted to marshal the aspects being argued by Ms Ryan and isolate any argument raised against the issues contained in the Strike-out Application.
36.
When Ms Ryan was addressing objections to Ms McDonald’s Affidavit, Ms McDonald made the comment that the issues being raised by Ms Ryan were addressed in the document she had filed titled “Points of Defence”. Ms McDonald claimed that the issues raised in respect of her Affidavit of 27 May 2013 had all been addressed in this document. That document is titled “Document 6 of 6 – Points of Defence … McDonald v Civic Disabilities – FW – SYG428/2013”. The format of the document is set out in the form of the sub-headings “Response to letter of termination dated 29 November from Civic Disabilities”, “Respondent’s Claim”, “Applicant’s claim/grounds” and “Parts of the Act relied on”. This is followed by sections headed “Letter of termination states, alleged breach of termination the letter of termination also states, the letter of termination also states” and, finally “Summary”. It is my belief that the document titled “Points of Defence” can be more accurately categorised or described as a statement which addresses issues raised by Civic in respect of the early affidavit of Ms McDonald filed 27 May 2013.
37.
There is another document, titled “Document 5 of 6 – Summary of Background Issues, McDonald v Civic Disabilities – FW – SYG428/2013” which is in a similar as the document referred to in the paragraph immediately preceding this. After the first court date directions made on 26 April 2013, Ms McDonald filed 6 documents, which have been identified as follows:
a) Document 1 of 6 – Amended Application, filed 27 May 2013;
b) Document 2 of 6 – Affidavit of Gowan McDonald affirmed 264 May 2013. This document has Document 4 of 6 attached to it, titled “Annexures for Affidavit – File SYG 428/2013”, filed 27 May 2013;
c) Document 3 of 6 – Amended Form 2, filed 27 May 2013;
d) Document 5 of 6, titled “Summary of Background Issues McDonald vs Civic Disabilities – FW-SYG428/2013”, filed 28 May 2013;
e) Document 6 of 6, titled “Points of Defence McDonald vs Civic Disabilities – FW-SYG428/2013”, filed 28 May 2013:
38.
Ms McDonald informed the Court the documents that relate to staff members do not identify the individual that is the subject of her allegation due to fear of intimidation. No further explanation as to the source of that information is provided, but presumably someone within Civic is being referred to. However, Ms McDonald claims that there is an email from that staff member in the form of a statement that has been included in the annexures (Annexure 16 of the affidavit of Ms McDonald, filed 27 May 2013)
Consideration
39.
When the matter initially came before the Court for first directions on 26 April 2013, Ms Ryan raised with the Court her specific concerns about the content and form of the Application, Form 2 and the Affidavit in support of the claim as well as the lack of clarity in relation to what was being asserted by way of fact and law in respect of the claim. Ms Ryan raised concerns in relation to the contents of the application. She stated:
Ms Ryan: Your Honour, we’ve written to Ms McDonald with respect to the application that has been filed. Whilst we have filed a response, we had some difficulty doing that because we say that the application in its current form simply does not articulate a proper cause of action. The order that we would be seeking this morning, your Honour, is an order requiring Ms McDonald to file a proper pleading, be it a statement of claim or a points of claim so that we can properly understand the case that we have to meet.
(Transcript, 26 April 2013, p.2.10)
On my reading of that material, I have formed a similar view to that of Ms Ryan.
40.
It appears that the terminology used has caused Ms McDonald some confusion and particularly the word “pleadings” appears to be the source of this problem. Ms McDonald indicated that she had the Court’s website and understood that she was required to submit a complaint form, being Form 2, and in circumstances where it was elected not to proceed with a Form 2, she was required to submit a pleading and affidavit. When she was initially contacted by Ms Ryan concerning the deficiencies in the application filed she responded by offering to send a set of pleadings but decided not to pursue that course because the website informed her that pleadings were not required. In order to assist Ms McDonald, I indicated to her that she should put aside references to pleadings and follow the course set out below.
41.
In the Form 2 I advised Ms McDonald she should set out the allegations she is making, then provide a supporting affidavit the details that support that allegation. The affidavit should be prepared adopting the formal layout required in an affidavit with any supporting documentation attached as annexures thereto.
42.
A further problem arose where Ms McDonald forwarded documents to the Court Registry upon which, in effect, she was seeking to rely as evidence in the proceedings. I indicated to Ms McDonald that this material should also be incorporated into the supporting affidavit so when the matter came before this Court, at a final hearing, that material could be addressed as evidence. This was important as the other side would be made aware of what was being raised against them and give them the opportunity to raise objections if any of that evidence was not appropriate.
43.
The Court therefore made the following orders on 26 April 2013:
1. The applicant has leave to file and serve an amended application and supporting documents by 27 May 2013.
2. The respondent must file and serve an amended response by 11 June 2013.
3. The matter is listed for directions on 20 June 2013 at 9.30am in Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney.
44.
Because of the vagueness of the factual material set out in the initial Form 2, the Court’s orders made on 26 April 2013 provided Ms McDonald with an opportunity to file an amended Form 2 and any affidavits in support of her claim. The purpose of doing so was to have the alleged contraventions properly set out so that they could be understood by Civic and the Court, and be properly responded to by Civic for the purposes of the final hearing.
45.
The Form 2 Claim Form was approved by the Chief Federal Magistrate (as he then was) pursuant to rr.2.04(1A) and 45.06 of the
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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