Perananthasivam v Telstra Corporation Limited (No 2) - [2007] FMCA 1274

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PERANANTHASIVAM v TELSTRA CORPORATION LIMITED (No 2)

[2007] FMCA 1274

HUMAN RIGHTS – Disability discrimination in employment – summary dismissal of application – whether the application is frivolous or vexatious or an abuse of process considered.

Disability Discrimination Act 1992 (Cth), s.15
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PG, 46PH
Workplace Relations Act 1996 (Cth)

Batistatos v Roads and Traffic Authority (NSW), Batistatos v Newcastle City Council (2006) 226 CLR 256
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Hamilton v Oades (1989) 166 CLR 486
Oceanic Sun Line Special shipping Co Inc v Fay (1988) 165 CLR 197
Ridgeway v The Queen (1995) 184 CLR 19
Walton v Gardiner (1992-1993) 177 CLR 378
Williams v Spautz (1992) 174 CLR 509

Applicant:

SIVANADIAN PERANANTHASIVAM

Respondent:

TELSTRA CORPORATION LIMITED

File Number:

SYG1602 of 2007

Judgment of:

Driver FM

Hearing date:

1 and 2 August 2007

Delivered at:

Sydney

Delivered on:

2 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr B Shields

Solicitors for the Respondent:

Deacons

INTERLOCUTORY ORDERS

The Court directs that the matter be listed for directions at 9.30am on 10 August 2007 to determine costs of the summary dismissal application.
The application filed on 18 April 2007 be struck out, except insofar as it asserts indirect disability discrimination in relation to the performance improvement programme which the applicant was required to participate in July 2004.
The substantive hearing be listed for hearing for two days, commencing at 10.15am on 5 December 2007 and continuing on

7 December 2007.
Telstra and Deacons are excused from compliance with the subpoenas issued to them on 26 June 2007.
The applicant has leave to file and serve on the respondent an amended application limited to the ground of disability discrimination identified by the Court in order (1) above, but seeking such relief in respect of that ground that the applicant deems appropriate, no later than

14 September 2007.
The respondent is to file and serve on the applicant an amended response no later than 28 September 2007.
The applicant is to file and serve on the respondent any further affidavit evidence on which he wishes to rely no later than 12 October 2007.
The respondent is to file and serve on the applicant any further affidavit evidence on which it wishes to rely no later than 9 November 2007.
The applicant is to file and serve on the respondent any evidence in reply, together with an outline of legal submissions no later than 23 November 2007.
The respondent is to file and serve on the applicant an outline of written submissions no later than 30 November 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1602 of 2007

SIVANADIAN PERANANTHASIVAM

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me what is in substance an application for summary dismissal of an application for relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The substantive application under the HREOC Act was filed in the Federal Court on 18 April 2007 and the present interlocutory application comes before the Court by way of a response filed on 26 June 2007. I should say at the outset that the response was foreshadowed by the respondent to the substantive proceeding when this matter first came before me on 15 June 2007. The response in its terms seeks dismissal of the application pursuant to rr.13.10(a), 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), plus costs.
In submissions, counsel for Telstra indicated that dismissal pursuant to r.13.10(a) was not pressed although, in the course of the applicant's oral submissions, counsel for the respondent indicated a desire to revisit that concession. Ultimately, while I was invited of my own motion to consider summary dismissal pursuant to r.13.10(a) it was not pressed on behalf of the respondent. I indicated during argument that I would not take up the invitation to deal with the application on the basis of no reasonable cause of action.
The response is supported by two affidavits by Vanessa Swannie, the first filed on 26 June 2007 with a bundle of exhibits and the second with annexures filed on 5 July 2007. The respondent also relies upon an affidavit of the applicant sworn and filed on 18 July 2007.
For his part, the applicant relies upon all of the material he has filed in the Court in support of his claim of disability discrimination and, as I understand it, also that filed in regard to procedural issues.
The background to these proceedings is conveniently summarised in a letter written by the delegate or the president of HREOC advising of the termination of the complaint made to it, that letter being dated 21 March 2007. Those facts are that the applicant was employed by Telstra from 1988 to 19 August 2004. He was appointed as a bid manager in 1999. He alleged there was a history of bullying at Telstra and that he had been victimised. Telstra stated that the applicant was placed on a performance improvement program (“PIP”) in January 2004, although that was disputed.
On 9 February 2004 the applicant had a meeting with two other Telstra employees. The applicant alleged that during that meeting a Mr King used offensive language. The applicant complained that he was distressed by the meeting and in February 2004 he consulted his general practitioner, Dr Param Paramsothy, who referred him to a psychiatrist, Thomas Newlyn. The applicant took sick leave from 9 February to 3 May 2004. In March 2004 the applicant was diagnosed by Dr Newlyn as having an “adjustment disorder with mixed anxiety and depressed mood acute” and he lodged a worker's compensation claim.
In April 2004 a lawyer from Deacons Solicitors was engaged by Telstra to conduct an investigation into the applicant's complaints against the two other Telstra employees and there was correspondence. On 3 May 2004 the applicant returned to work for five hours a day, five days a week, reporting to a new supervisor. Apparently, the two individuals the subject of the investigation, were asked to have minimal contact with the applicant. On 28 June 2004 the applicant advised Telstra that he would be working six hours a day, five days a week. In July 2004 the applicant was placed on a further PIP and a worker's compensation claim he had made was refused. On 9 August 2004 the applicant advised Telstra that he would be working four hours a day until

20 August 2004. On 19 August 2004 the applicant's employment with Telstra was finalised.
On 28 February 2005 and on 1 to 3 March 2005 the applicant attended a hearing before the Australian Industrial Relations Commission (“the AIRC”). The AIRC handed down a decision on 15 June 2005. The AIRC found that the termination of the applicant's employment was not harsh, unjust or unreasonable. The applicant then made an application to the Administrative Appeals Tribunal (“the AAT”). There was a hearing before the AAT on 19 to 22 December 2005 and 7 April 2006. The AAT handed down a decision on 1 June 2006. The AAT decided that Telstra was liable for an injury sustained by the applicant on 9 February 2004 and liable to pay incapacity payments for a period of time. The applicant lodged his complaint with HREOC on 5 October 2006. The complaint included allegations of victimisation. That aspect of the complaint was withdrawn in accordance with s.46PG of the HREOC Act.
The delegate decided to terminate the complaint on the basis that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place. The jurisdiction of this Court to deal with the substantive application before it was thereby enlivened.
In the letter from the delegate of the President I have referred to, the delegate notes that the AIRC was presented with all of the facts regarding the termination of the applicant's employment, including the recommendation of his doctors, and found the termination of his employment was not harsh, unjust or unreasonable.
The application for relief under the HREOC Act is unusually drafted in that it asserts generally both direct and indirect discrimination involving unspecified breaches of s.15 of the Disability Discrimination Act 1992 (“the DDA”). Some particulars are provided under the heading; "Details of the Claim", but in the context of orders sought from the Court. Significantly, the second order sought is an order requiring the respondent to provide a letter signed by the Chief Executive Officer of Telstra to the applicant stating that:
(a)it subjected the Applicant to disability discrimination in its requiring the applicant to undertake performance improvement on a basis that did not adequately take into account of his disability, or that it treated his disability in a discriminatory manner;
(b)it subjected the applicant to disability discrimination in terminating his employment on the basis of poor performance while the applicant was suffering from a disability and failing to accord him the benefit of Telstra's policy for managing long-term medical restrictions;
(c)it failed to provide the applicant as a person suffering with an anxiety disorder with an environment free of bullying and in which the applicant could feel safe and that it failed to ensure its management was properly trained and supervised so that incidents of bullying did not recur;
(d)it unreservedly apologises for its conduct to the Applicant.
The application also seeks reinstatement, damages and costs.
The parties have filed written submissions in relation to the issue of summary dismissal. Those of the respondent were filed on 26 July 2007.
The grounds on which the response is pressed are set out in paragraph 5 of the respondent's submissions which I incorporate in this judgment:
The respondent contends that the applicant’s Application is an abuse of process within the meaning of Rule 13.10 (c) for two reasons:
(a)The applicant is in substance seeking to re-litigate the matters previously litigated in the AIRC Proceedings, on appeal to the Full Bench and in the AAT Proceedings; and
(b)The applicant’s application, and his conduct in this Court, amount to the use of proceedings in a way that is unfairly burdensome, prejudicial and productive of serious and unjustified trouble and harassment.
I also incorporate and accept the relevant principles set out in para. 6 of the submissions:
As a matter of general public policy ‘a person ought not to be vexed twice for one and the same cause’ and ‘it is in the interests of the State that there be an end to litigation’.
In the High Court decision of Walton v Gardiner (1992-1993) 177 CLR 378 at 393, a majority of the High Court determined that:
…proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
The High Court recently revisited the concept of ‘abuse of process’ in Batistatos v Roads and Traffic Authority (NSW), Batistatos v Newcastle City Council (2006) 226 CLR 256. Gleeson CJ, Gummow, Hayne and Crennan JJ said, at [9]:
…What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues…
At [14] their Honours quoted from Gaudron J in Ridgeway v The Queen (1995) 184 CLR 19 at 74-75.
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose [83] , as well as proceedings that are "frivolous, vexatious or oppressive" [84] . This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard [85]. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" [86] because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case [87] . That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose [88] and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" [89] or "productive of serious and unjustified trouble and harassment" [90]
[89] Williams v Spautz (1992) 174 CLR 509 at 526-530, 532-537, 553-556; see also at 543-551; [89] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247;[90] Hamilton v Oades (1989) 166 CLR 486 at 502.
Similar remarks are found in the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 28 [74]-[75].
Rule 13.10 is in substantially the same form as the old Part 13 Rule 5 of the Supreme Court Rules, under which Batistatos was decided. The majority in Batistatos noted, at [19], that:
Rules of Court in their various forms may be influenced by, and to differing degrees restate, the characteristics of the inherent power to stay for abuse of process.
The form of Rule 13.10 restates the characteristics of the inherent power described in the cases referred to above and the principles apply to the respondent’s application.
The respondent contends that the applicant is, in substance, seeking to re-agitate in this Court the matters that have already been dealt with before the AIRC and the AAT. Significantly, the applicant sought leave to appeal from the decision of the AIRC and that application for leave was refused with reasons. The respondent contends that the application before the Court is an abuse of the Court's process and is frivolous and vexatious.
The respondent notes that under s.46PH(1) of the HREOC Act, the delegate would have been entitled to terminate the complaint on the basis that the subject matter of the complaint had been adequately dealt with in another proceeding. Telstra seeks to be relieved of the trouble and expense of dealing with this legal proceeding which, in its submission, raises nothing that has not already been dealt with, both by the AIRC and the AAT.
In his submissions, the applicant refers to the high standard that must be met before acceding to an application for summary dismissal.

I accept that principle. The applicant contends that the present proceeding is not a re-litigation of the earlier proceedings in the AIRC and the AAT and is not an abuse of process, frivolous or vexatious. He contends, and the respondent accepts, that there is no issue of res judicata or any form of estoppel. The proceeding before the Court is clearly a new cause of action. The proceeding before the AIRC was an application for relief in relation to asserted unfair dismissal. In such a proceeding the question is whether the termination was harsh, unjust or unreasonable. The relevant considerations include, whether there was a valid reason for the termination relating to the employee's capacity and conduct, whether the employee was notified of that reason, whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee and, if the termination related to unsatisfactory performance, whether the employee had been warned about the unsatisfactory performance before the termination.
Substantially, unfair dismissal proceedings deal with issues of process. They are to be distinguished from unlawful dismissal proceedings which would formally be brought before the AIRC and can now be brought before this Court and the Federal Court under the Workplace Relations Act 1996 (Cth) (“the Workplace Relations Act”). Any employee may bring proceedings in the Court claiming unlawful dismissal for a prohibited reason. The prohibited reasons include race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. It can be seen that there is an overlap between unlawful dismissal proceedings under the Workplace Relations Act and a discrimination claim brought pursuant to the HREOC Act. For whatever reason, the applicant elected not to bring any claim for unlawful termination before the AIRC and no attempt has been made since to bring such a proceeding in the Federal Court and this Court. Rather, following the outcome of the proceeding before the AAT, the applicant elected to make a claim of unlawful discrimination before HREOC which has now been terminated.
The mere fact of the earlier claim of unfair dismissal and indeed the dispute over worker's compensation resolved by the AAT does not provide any bar to the bringing of the present proceeding in this Court. The real question to resolve is whether the present proceeding is an abuse of process or is frivolous or vexatious because it amounts in substance to a re-agitation of the issues already considered and resolved in the earlier proceedings.
In order to answer that question it is necessary to consider the decision of the AIRC made on 15 June 2005. Deputy President Hamberger in that decision dealt extensively with the evidence and covered a wide range of matters. He referred to the applicant's performance history at Telstra which had been problematic. The employer had performance concerns well before the incident on 9 February 2004. The AIRC dealt with a performance improvement plan put in place in January 2004 and the incident on 9 February 2004 which was apparently related to that PIP. Deputy President Hamberger dealt at some length with the investigation into the incident of 9 February 2004 and its findings. He went on to consider the applicant's return to work from sick leave on 3 May 2004 and the extent of his duties. There was an issue at the time with the burden of duties that the applicant should be subject to.
At [64] to [71] of its decision, Deputy President Hamberger deals with relevant medical evidence. Importantly, at [67], he refers to a letter dated 8 July 2004 from Mr Newlyn, the applicant's treating psychiatrist, in which Mr Newlyn stated:
as Peri is currently on a 6 hours a week return to work rehabilitation, I believe that a performance review should be delayed until he has returned to full time work. Such a review at this time is psychologically detrimental to his rehabilitation.
At [68] the Deputy President refers to a further letter dated 10 August 2004 from Mr Newlyn:
As Peri is currently on 4 hours a week return-to-work rehabilitation program. He continues to struggle with problems relating to Steve King and Phil Cornwell and asked me to write to you to request that neither man directly contact him.
At [71] the Deputy President stated:
The applicant submitted that this stress was a direct result of the bullying behaviour of his managers. I do not find that this has been established. On the evidence before me it appears clear that the applicant was sufficiently stressed to seek medical treatment for his condition. However the evidence presented to the Commission was not sufficient for me to make a finding that the applicants stress was caused by inappropriate behaviour of his managers. It was also insufficient to establish that any contact between the applicant and Mr Cornwell and Mr King was an occupational health and safety issue.

I note in that regard that the decision of the AAT on the worker's compensation issue is not entirely reconcilable with that finding.
The AIRC decision then deals with issues concerning e-mail and work performance in May 2004 and the final performance review begun in June 2004. At [87], Deputy President Hamberger states:
On 7 July 2004 Mr Sexton met with the applicant, gave him a copy of the PIP and told him that he wanted to meet with him on 9 July 2004. The applicant told Mr Sexton that the PIP was a tool for management to get rid of him, and refused to read or sign the PIP. The reason he gave for this refusal was that he was suffering from stress and therefore should not be required to participate in a performance review program. The applicant obtained a letter from Dr Newlyn dated 8 July 2004 to this effect.
Nevertheless, it is apparent from the reasons of the AIRC that the applicant was required to participate in the PIP. Indeed, it was the applicant's breach of the PIP which formed a significant part of the reason for the termination of his employment.
The AIRC found that there was a valid reason for the applicant's dismissal from his employment and found no unfairness in the performance review process or in the termination itself. At [133] to [136], Deputy President Hamberger considered whether the applicant was too sick to undergo a performance review. At [134] he states:
Firstly, on the evidence which was before me, I do not find that Telstra was responsible for the stress which the applicant was feeling. Neither do I consider that the behaviour of the applicants managers constituted targeted bullying. From the evidence presented to the Commission, the applicant was a very difficult person to manage. On numerous occasions he wilfully refused to follow the lawful and reasonable directions of his managers. On several occasions this resulted in his managers [losing] their temper and using inappropriate language to the applicant. While I do not condone the use of such language, neither I do not consider that in these circumstances it constitutes targeted bullying.
Deputy President Hamberger found that on the evidence before him the applicant's condition did not exempt him from having to perform his duties or participate in the PIP and comply with it.
It is apparent to me from the material that to a significant degree the present proceeding before the Court is a re-agitation of the proceeding before the AIRC. In substance, the applicant is seeking to take advantage of the favourable worker's compensation decision he achieved in the AAT to re-visit the findings of the AIRC. His cause is not assisted by the terms of his complaint to HREOC and of his application to the Court, the voluminous material he has so far filed in the Court in support of his application which traverses issues that could not conceivably be relevant to a claim of disability discrimination and the manner in which he has conducted his case thus far. Even today I found extreme difficulty in persuading the applicant to address the salient issues. He appears bent on a course of redressing what he sees an injustice during the period of his employment in Telstra and particularly related to the conduct of particular individuals and the investigation of their conduct and the subsequent resistance by Telstra to his claims; both before the AIRC and the AAT.
The applicant has indulged in unfair and inappropriate criticism of Telstra's legal representatives and Telstra itself in simply seeking to defend its position. These proceedings should not be and will not be permitted to be a forum for general grandstanding in relation to employment grievances and dissatisfaction with earlier legal processes.
To the extent that the application relates to a claim of unlawful dismissal, it is difficult to link it to a clear assertion of disability discrimination. The application seeks relief for disability discrimination in the termination of his employment on the basis of poor performance while the applicant was suffering from a disability. In other words, the applicant is merely asserting a coincidence between the fact of the disability and the termination which was undoubtedly based upon poor performance. Thus expressed, it is hard to view this as anything other than an attempt to re-litigate the fairness of his termination.
Likewise, the attempt to obtain relief in relation to an asserted failure to provide a safe workplace is difficult to view as anything other than an attempt to re-agitate the applicant's concern about the incident on 9 February 2004 and the investigation of that incident. It is difficult to link that to a coherent allegation of disability discrimination.
The matter is further clouded by the applicant's claim of both direct and indirect discrimination and his failure to identify which paragraphs of s.15 of the DDA are relied upon. I pressed him for clarification on those issues with limited success. What that course of argument revealed is that the applicant's real complaint about disability discrimination relates to the performance improvement program to which he was subjected in July 2004. This can be seen from the applicant's letter of complaint to HREOC forming annexure A to his affidavit of 18 April 2007. In that there is an assertion that Telstra subjected him to disability discrimination in requiring him to undertake performance improvement on a basis that did not adequately take into account his disability or that treated his disability in a discriminatory manner. This can then be connected with claim 2(a) in the application before the Court which is expressed in the same terms.
The applicant stated in argument that this was a claim of indirect disability discrimination. His assertion is that he could not and indeed did not participate in that PIP because of the disability he suffered as a result of the incident on 9 February 2004. There must be an arguable proposition in that complaint based simply on the decision of the AIRC which drew attention to relevant medical opinion that the PIP should not proceed in July 2004 in view of the applicant's condition, which was subsequently accepted in the AAT as being work-caused.
It must also be accepted that the AAT's reasoning in relation to the issue of worker's compensation is at some variance with the reasoning of the AIRC in relation to those same medical issues. This, in my view, leaves the door open to the applicant to resolve that issue of asserted indirect disability discrimination in this Court. The likelihood would be that the applicant would be asserting a breach of s.15(2)(d) of the DDA in that he was subjected to a detriment by being required to participate and comply with the PIP notwithstanding his disability. Seen in that light the termination of the applicant's employment is not a separate incident of disability discrimination. It is the consequence of the asserted act of disability discrimination in requiring him to participate in the PIP.
In all other respects I have come to the view that the application before the Court is no more than a re-agitation of the applicant's claims before the AIRC and the AAT and that those aspects of the matter should not be permitted to be pursued any further.
I am also of the view that the applicant should bear the costs of the issues raised in the response. If the applicant had confined his proceeding to the Court to the real issue, namely the assertion of indirect disability discrimination by reason of being required to participate in the PIP in July 2004 this interlocutory hearing may well not have been necessary. The generality of the applicant's complaint to HREOC and his application to the Court and the voluminous, extravagant and at times embarrassing material he has submitted in support of the application has clouded the real issue and created a strong sense that the applicant was merely using the Court as a grandstand in order to re-agitate his concern about the previous proceedings.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 9 August 2007