Nasir v Reynolds

Case [2024] FCA 1027

FEDERAL COURT OF AUSTRALIA

Nasir v Reynolds [2024] FCA 1027

File number: NSD 725 of 2024  
Judgment of: LEE J
Date of judgment: 5 September 2024
Catchwords:

ADMINISTRATIVE LAW – where applicant as former employee of the third respondent claims he was subjected to racial discrimination, unfair treatment, adverse action and breach of privacy – where applicant made complaint to AHRC – where AHRC terminated the applicant’s complaint without inquiry – where applicant executed release agreement with third respondent – whether release operates as a complete defence – where applicant alleges the release agreement was procured by duress – where no evidence of duress or other vitiating conduct – where release agreement operates as complete defence – application dismissed

PRACTICE AND PROCEDURE – vexatious proceedings orders – s 37AO of the Federal Court of Australia Act 1976 (Cth) – Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100 – where applicant to show cause why an order under s 37AO of the FCA Act ought not be made

Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46PF(1)(b), 46PH(1B)(b), 46PO, 46PO(3)

Federal Court of Australia Act 1976 (Cth) ss 37P(2), 37AO

Judiciary Act 1903 (Cth) s 78B

Racial Discrimination Act 1975 (Cth) ss 18AA, 27

Federal Court Rules 2011 (Cth) rr 2.26, 29.03(2), 39.05(b)

Cases cited:

Crescendo Management v Westpac (1988) 19 NSWLR 40

El-Mir v Risk [2005] NSWCA 215

Nasir v Reynolds (Application for leave to appeal) [2024] FCA 865

Nasir v Reynolds (stay application) [2024] FCA 864

Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100

Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85
J D Heydon, Heydon on Contract (Thomson Reuters, 2019)
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 70
Date of hearing: 8 August 2024
Counsel for the applicant: The applicant appeared in person
Counsel for the respondents: Mr J Fernon SC
Solicitor for the respondents: Baker & McKenzie

 

ORDERS

NSD 725 of 2024
BETWEEN:

SAJJAD NASIR

Applicant
AND:

CATHERINE REYNOLDS

First Respondent

AMY MCCUDDEN

Second Respondent

ORACLE CORPORATION AUSTRALIA PTY LIMITED (ABN 580003074468)

Third Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

5 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.Subject to Orders 2 and 3 below, the proceeding be dismissed with costs.

2.On or by 27 September 2024, the applicant:

(a)file any material upon which he intends to rely to oppose an order (proposed order) being made in the following terms:  

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Mr Nasir be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

(b)notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the proposed order ought to be made by the Court and, in the absence of such notification, the issue as to…

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AGLC
Nasir v Reynolds [2024] FCA 1027
Case
[2024] FCA 1027
Decision Date

CaseChat Overview and Summary

In the case of Nasir v Reynolds, the Federal Court of Australia dealt with a dispute where the applicant, a former employee, alleged racial discrimination, unfair treatment, adverse action, and breach of privacy by the third respondent, Oracle. The applicant, Mr Nasir, had made complaints to the Australian Human Rights Commission (AHRC), which terminated his complaint without inquiry. Subsequently, Mr Nasir executed a release agreement with Oracle, which included a full and final settlement of all claims and indemnities. The court was required to determine whether the release agreement served as a complete defence to the applicant's claims and whether the agreement was validly procured. The court also considered whether the proceedings were vexatious and warranted a vexatious proceedings order.

The court found that there was no evidence of duress or other vitiating conduct in the procurement of the release agreement. The agreement was found to be a complete defence against the applicant's claims. The court also concluded that the proceedings were vexatious, as the applicant had continued to pursue claims despite the clear terms of the release agreement. As a result, the court dismissed the application with costs and ordered that the applicant file any material to oppose a vexatious proceedings order by a specified date. The court further directed that any oral hearing regarding the vexatious proceedings order be listed on a date to be fixed after the specified date.

In light of these findings, the court made the following orders: the proceeding was dismissed with costs, subject to the subsequent orders. The applicant was required to file any material to oppose a vexatious proceedings order by 27 September 2024 and notify the Registry whether an oral hearing was desired. Any oral hearing for the vexatious proceedings order was to be listed following 27 September 2024.

Orders

Orders of the court

1. Subject to Orders 2 and 3 below, the proceeding be dismissed with costs.

2. On or by 27 September 2024, the applicant:

(a) file any material upon which he intends to rely to oppose an order (proposed order) being made in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Mr Nasir be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

(b) notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the proposed order ought to be made by the Court and, in the absence of such notification, the issue as to whether the proposed order ought to be made be dealt with on the papers.

3. Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Federal Court of Australia Act 1976 (Cth) is to be listed for hearing by the Court on a date to be fixed following 27 September 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I will return to the separate issue later in these reasons, but before going further, it is worth providing some further background to the dispute. B FURTHER BACKGROUND Mr Nasir’s claims arise out of several “complaints” made by him during the relevant period against Oracle, its related corporations, and their respective employees. Because of the focus of the separate issue, it is unnecessary to descend here into the detail of these complaints, save to note that on 31 October 2022, Mr Rachna Sampayo, Senior Vice President of Human Resources (Oracle Singapore) raised several of them with Mr Nasir during a Zoom meeting. By that point, Ms Sampayo had formed the view that Mr Nasir’s complaints were not genuine, and that he had been “weaponizing [sic] the complaint and/or grievance process” (Affidavit of Ms Sampayo affirmed 2 August 2024 (Sampayo Affidavit)). Ms Sampayo gave evidence that in that meeting, she had informed Mr Nasir, among other things, that Oracle, in the light of his conduct, was considering terminating his employment (Sampayo Affidavit (at [6])). I will return to Ms Sampayo’s evidence later in these reasons. On 4 November 2022, prior to the commencement of this proceeding, Mr Nasir entered into the Release with Oracle by which Mr Nasir agreed that his employment would cease on that date. The recitals to the Release provided that:AMr Nasir had been employed by the Company since 8 August 2019 (the Employment).BThe Company and the Employee agreed that the Employment will terminate effective at close of business on 4 November 2022 (the Termination).CIn the course of the Employment, the Employee had lodged various complaints against the Company, its related corporations and their respective employees (the Complaints).D The Employee withdrew all allegations arising out of the Complaints.EWithout admission of liability, the parties entered into this Release for the purpose of resolving all matters in dispute between them and matters arising out of or in connection with the Complaints. The operative provisions of the Release provided, among other things: 1. Without admission of liability, the Company agrees to pay to the Employee, within 14 days of the execution of this Release, the follow:(a) the sum of $41,500, less tax being an ex gratia payment;(b) the sum of $7,980.77, less tax being a payment in lieu of notice; and(c) the sum of $21,634.48, less tax being payment in lieu of accrued annual holidays.(together called the Payment)2. The Employee acknowledges that the Payment is in full and final satisfaction and discharge of all claims and entitlements which the Employee has or may have had arising out of the Employment, the Termination and/or the Complaints, whether pursuant to statute, contract or otherwise, including, without limitation of the foregoing, unpaid salary, annual leave, pay in lieu of annual leave, long service leave, pay in lieu of long service leave, pay in lieu of notice, redundancy payment, incentive or bonus payments and allowances.3. The Employee hereby releases the Company from and indemnifies the Company against all liability relating to or arising out of the Employment, the Termination and/or the Complaints (other than those arising under this Release) and the Employee hereby remits, releases and forever quits all claims, suits, causes of action, debts, dues, damages, expenses and demands (other than those arising under this Release) which the Employee has or may have or would, but for this Release, have had arising out of the Employment, the Termination and/or the Complaints.4. The Employee acknowledges that the releases are for the benefit of the Company, its related corporations and their respective employees.…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For completeness, given the way the separate hearing has proceeded, I should note that none of the interlocutory applications have been moved upon, and many were, in any event, superseded by events, and I do not consider that any of the relief sought in any so-called “interlocutory application” is material to the consideration of the separate issue which, as I have already ordered, was to be determined before any other issue in the proceeding (and has proven to be determinative of the whole proceeding).G CONCLUSION Accordingly, I will make the following orders: 1. Subject to Orders 2 and 3 below, the proceeding be dismissed with costs.2. On or by 27 September 2024, the applicant: (a)file any material upon which he intends to rely to oppose an order (proposed order) being made in the following terms: Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Mr Nasir be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act. (b)notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the proposed order ought to be made by the Court and, in the absence of such notification, the issue as to whether the proposed order ought to be made be dealt with on the papers.3.Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Federal Court of Australia Act 1976 (Cth) is to be listed for hearing by the Court on a date to be fixed following 27 September 2024.

Ratio Decidendi

Legal Principle Established

Mr Nasir responded “Noted with thanks” on the same day by email (Sampayo Affidavit (at 84)). E CONSIDERATIONE.1 Whether the Release was procured by duress or other vitiating conduct As noted earlier, in order to succeed in relation to duress, Mr Nasir must show that he was subjected to a form of illegitimate pressure by Oracle which had the purpose of inducing him to enter into the Release and in fact caused him to enter into the Release: Crescendo Management v Westpac (1988) 19 NSWLR 40 (at 45 per McHugh JA, Samuels and Mahoney JJA agreeing); see also J D Heydon, Heydon on Contract (Thomson Reuters, 2019) (at [16.10]). As is well known, allegations of common law duress are often accompanied by the assertion of misrepresentation, or an equity based upon undue influence or unconscionable conduct. To the extent Mr Nasir sought to develop any argument, it was focussed on duress and there was no separate misrepresentation claim articulated (which would not already be encompassed within his duress claim). Mr Nasir’s apparent complaint that he did not “fully underst[and] the implications of accepting the Payment” made to him pursuant to the terms of Release was similarly undeveloped, but seems to be connected to his claim he was induced into an incorrect understanding of the Release by those with whom he was dealing. As to any proposed equitable remedy (which again was unarticulated), there are important differences between common law duress and unconscionable conduct; the latter of which is focussed on the quality of the conduct of the party against whom relief is sought, whereas the former is focussed on the effect of the pressure applied by the offending party. Additionally, undue influence is directed to the quality of the consent of the party seeking relief: see, for example, Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 (at 97–104 [25]–[40] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ). Given the nascent form of the argument, even though we are dealing with a final trial which involves consideration of the enforceability of the Release, it is unnecessary to explore these differences further. As my factual findings above make clear, insofar as duress is concerned, and although Mr Nasir subjectively feels very poorly done by, none of the evidence established that Oracle engaged in threats or conduct towards Mr Nasir which could be considered to be illegitimate to procure his entry into the Release or which amounted to any actionable misrepresentation. Nor am I satisfied on the evidence that illegitimate pressure or unconscientious conduct for which Oracle is allegedly responsible was a reason for Mr Nasir entering into the Release. It is tolerably clear that: (1) when Mr Nasir raised a number of complaints in late 2022 in the lead up to the execution of the Release, from the perspective of his employer, none of those complaints were thought to be corroborated by evidence suggesting that Ms McCudden, Ms Reynolds, Ms Sampayo, Mr Saran or other Oracle staff engaged in “retaliation” or placed illegitimate pressure on Mr Nasir so as to prompt his exit from the company on terms. Further, when confronted with Mr Nasir’s allegations, Ms McCudden, Ms Sampayo and others responded by: (a) attempting to engage in discussions with Mr Nasir about his use of the complaints process (see above (at [19], [21], [23] and [25])); and (b) following further dealings recorded above, informing him that Oracle was considering terminating his employment (see above (at [32]–[33] and [39])).