Perananthasivam v Telstra Corporation Ltd (No.5)
[2007] FMCA 2043
•5 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERANANTHASIVAM v TELSTRA CORPORATION LTD (No.5) | [2007] FMCA 2043 |
| HUMAN RIGHTS – Interlocutory proceedings – application to set aside orders – application without merit. |
| Human Rights and Equal Opportunities Commission Act 1986 (Cth), ss.46PH, 46PO Workplace Relations Act 1996 (Cth) s.170CE Federal Magistrates Court Rules2001, Rule 16.05 |
| Perananthasivam v Telstra Corporation Limited [2007] FMCA 1261 Perananthasivam v Telstra Corporation Limited (No.2) [2007] FMCA 1274 Perananthasivam v Telstra Corporation Limited (No.3) [2007] FMCA 1378 Perananthasivam v Telstra Corporation Limited [2007] FCA 1548 Perananthasivam v Telstra Corporation Limited (No.4) [2007] FMCA 1774 |
| Applicant: | SIVANADIAN PERANANTHASIVAM |
| Respondent: | TELSTRA CORPORATION LTD |
| File Number: | SYG 1602 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 December 2007 |
| Date of Last Submission: | 5 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Shields |
| Solicitors for the Respondent: | Deacons |
INTERLOCUTORY ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1602 of 2007
| SIVANADIAN PERANANTHASIVAM |
Applicant
And
| TELSTRA CORPORATION LTD |
Respondent
REASONS FOR JUDGMENT
The applicant seeks orders varying or setting aside orders made in earlier proceedings in this court. The orders that he seeks are these:
a)To set aside the order no. 1 made by Federal Magistrate Scarlett on 19 October 2007.
b)To make an order,
either that the applicant’s original application filed on 18 April 2007 proceeds to substantive hearing as reasoned by Justice Sackville in his judgment of 16 October 2007 and accepted by Respondent’s counsel, Mr Shields, in the hearing on 9 October 2007:
or identifying the applicant’s specific claims that are struck out to enable the applicant to file an amended application.
c)To set aside the order no.3 made by Federal Magistrate Scarlett on 19 October 2007 and in its place to order that the applicant file his affidavit 3 weeks after the return of subpoena or on 31 March 2008 whichever is the later.
d)to set aside the order no. 6 made by Federal Magistrate Scarlett on 19 October 2007.
e)to reverse the cost orders made by Federal Magistrate Driver on 2 and 10 August 2007.
f)To make an order that the respondent participates in a court supervised mediation with the applicant.
g)To make an order that the respondent explain the circumstances of various court stamps and dates in their summary dismissal application form and the affidavit by Vanessa Swannie dated 22 June 2007.
h)To make an order to stay the current proceedings until a direction hearing in end of March 2008.
i)To make any other orders that the Court thinks necessary to achieve the above orders.
The respondent opposes those orders on the basis, to put it bluntly, that the applicant is asking the court to conduct an appeal against not only the orders made earlier by Driver FM and myself, but also by Sackville J in the Federal Court.
The applicant has produced a submission of some 72 paragraphs in support of his claims. Counsel for the respondent, Mr Shields, has taken objection to various parts of the submission. He complains that the applicant, in paragraphs 61 to 68 of the submission, has unjustly impugned the character of two of the respondent’s solicitors, alleging that they have not been honest and truthful.
Mr Shields also complains that the applicant has included a considerable amount of irrelevant material in the submission. He has certainly done that, but I note that the applicant is not legally represented and I have accepted the submission, not withstanding the irrelevant material.
The applicant has also tendered a transcript of the proceedings before me on 8th October 2007. He also relies on an affidavit to which he has annexed some 15 documents, not of all of which appear to be relevant to the application before me.
Under the heading “Court Jurisdiction”, the applicant claims at paragraph 8 of his submission that According to Rule 16.05 (2) (a), (2) (c) and (3) FMC can vary or set aside its judgments or orders.
Whilst that is so, the applicant’s understanding of the meaning of the rule is misconceived. The Rule does not permit a party to appeal to the court against its own decisions.
Background
After the respondent terminated the applicant’s employment on 19th August 2004, the applicant applied to the Australian Industrial Relations Commission for relief under s. 170CE of the Workplace Relations Act 1996 (Cth). The AIRC dismissed the applicant’s claim in a decision handed down on 15th June 2005.
On 29th August 2005 the Full Bench of the AIRC refused the applicant leave to appeal from the decision dismissing his claim.
The applicant then applied to the Administrative Appeals Tribunal for a review of the decision by the respondent to deny him worker’s compensation benefits. The AAT handed down its decision on 1st June 2006, finding that the applicant was entitled to compensation for incapacity during the period 9th February to 3rd May 2004.
The applicant then complained to the Human Rights and Equal Opportunity Tribunal on 5th October 2006 that he had been subject to discrimination by the respondent by reason of a disability. The Human Rights and Equal Opportunity Commission terminated the applicant’s complaint under s 46PH (1) ( b) of the Human rights and Equal Opportunity Commission Act 1986 (Cth) because the complaint had been lodged more than twelve months after the date of the alleged discrimination.
The applicant then commenced these proceedings in the Federal Court seeking relief in respect unlawful discrimination against him. The proceedings were transferred to this court on 18th May 2007.
The respondent then filed an application seeking summary dismissal of the applicant’s application and the applicant then filed an application on 25th July 2007, seeking orders that the solicitors Deacons should be removed from representing the respondent in these proceedings.
The Proceedings before Driver FM
Federal Magistrate Driver heard the interlocutory applications on 1st and 2nd August 2007. His Honour handed down decisions in both matters on 2nd August 2007.
Driver FM dismissed the applicant’s application that sought to prevent the respondent’s solicitors from continuing to act. His Honour ordered that the applicant should pay the respondent’s costs in the sum of $5,000.00 (Perananthasivam v Telstra Corporation Limited[1]).
[1] [2007] FMCA 1261
In a separate judgment, his Honour then dealt with the respondent’s application for summary dismissal (Perananthasivam v Telstra Corporation Limited (No 2[2]). His Honour made these orders, inter alia:
(1)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 in which the applicant was required to participate in July 2004.
(2)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[3], but seeking such relief in respect of that ground that the applicant deems appropriate, no later than 14 September 2007.
[2] [2007] FMCA 1274
[3] There is a typographical error. The order concerned is order (2)
It is the above orders which form the subject of Order No 2 sought by the applicant in his application.
His Honour also ordered that the matter should be listed for directions on 10th August 2007 to determine costs of the summary dismissal application. On 10th August 2007 Driver FM delivered a judgment ordering that the applicant should pay the respondent’s costs and disbursements of the summary dismissal application in the sum of $10,000.00 (Perananthasivam v Telstra Corporation Ltd (No 3)[4].
[4] [2007] FMCA 1378
It is these costs orders made on 2nd and 10th August 2007 which the applicant seeks to have set aside in Order No.5 of his application.
Application for Leave to Appeal
The applicant then filed an application for leave to appeal against the judgment of Driver FM given on 2nd August 2007. That application was heard by Sackville J who dealt with the matter on the basis that the applicant was seeking leave to appeal against all three of Driver FM’s decisions made on 2nd and 10th August 2007.
On 16th October 2007 Sackville J dismissed the application for leave to appeal against Judgment No 1, Judgment No 2 and Judgment No 3, with costs (Perananthasivam v Telstra Corporation Limited).[5]
[5] [2007] FCA 184
The Respondent’s Application to re-list the proceedings
The applicant did not comply with the directions made by Driver FM on 2nd August 2007 relating to the filing of an amended application, so the respondent’s solicitors filed an application to re-list the matter for further directions. Due to the absence of Driver FM on long service leave the application was listed before me on 8th October 2007, the day before the scheduled hearing of the application for leave to appeal.
The applicant argued that he should not be required to comply with those directions pending the hearing of the application for leave to appeal. I stood the matter over until the application for leave to appeal had been decided.
Sackville J handed down his judgment on 16th October 2007, dismissing the application for leave to appeal. I then arranged to list the application for directions on 19th October 2007.
The applicant did not attend court. As I noted in my decision, the applicant forwarded a medical certificate to the court, indicating that he would not be able to attend court for two weeks until 31st October 2007, because he was suffering from severe anxiety and depression. He wrote to the court indicating his wish for a mediated settlement and setting out a fresh timetable which would have involved vacating the hearing dates of 5th and 7th December 2007 and listing the matter for hearing before his Honour on 2nd and 3rd June 2008.
As I also noted in the decision[6] the applicant went on to say in his letter:
In the light of above reasons and explanations, I request your Honour to make the following orders without a direction hearing, (if direction hearing is necessary, in my absence):
i)That the parties enter into a court supervised mediation.
ii)That, if the parties cannot enter into a court supervised mediation or if the mediation fails, the above time line or similar is followed.
iii)Revising any orders made by Federal Magistrate Driver to reflect Justice Sackville’s reasoning.
iv)Any other orders your Honour thinks fit.
[6] Perananthasivam v Telstra Corporation Ltd (No 4) [2007] FMCA 1774 at [7]
After considering the applicant’s letter and hearing submissions form the solicitor for the respondent, I made a number of orders, including these orders, which the applicant seeks to have set aside:
(1)The Applicant has leave to file and serve on the Respondent an Amended Application limited to the ground of disability discrimination identified in Order 2 made by Federal Magistrate Driver on 2 August 2007, but seeking such relief in respect of that ground that the Applicant deems appropriate, no later than Wednesday 7 November 2007.
(2)The Applicant is to file and serve on the Respondent all affidavit evidence upon which he wishes to rely by Monday 3 December 2007.
(3)The applicant is to pay the Respondent’s costs fixed in the sum of $1,500.00.
It is those orders that the applicant seeks to have set aside in Orders 1, 3 and 4 of his application.
Submissions
The applicant’s written submission he makes a number of claims:
i)It is a miscarriage of justice to prevent him from proceeding with his claims.
ii)Driver FM deprived him of his rights in his orders of 18 July 2007.
iii)I deprived him of his rights in my orders of 19 October 2007.
iv)It is an abuse of process by the respondent to file an application for summary dismissal against his legitimate claim.
v)Driver FM wrongly applied the principle relating to abuse of process.
vi)Sackville J stated during the hearing of the application for leave to appeal that the applicant could still bring all his claims in his originating application to the hearing of his substantive and, therefore, the orders made by Driver FM need to be set aside.
vii)The orders that I made in the applicant’s absence on 19th October 2007 did not take into account the applicant’s request in the letter he sent to the court.
viii)Order no 1 that I made on 10th October 2007 does not reflect Sackville J’s decision and the reasoning.
ix)The orders that I made do not reflect what Mr Shields, counsel for the respondent, agreed to at the hearing of the application for leave to appeal.
x)The applicant does not know which of his claims were struck out by Driver FM on 2nd August 2007.
xi)The applicant is unable to comply with Order No 3 made on 19th October 2007 because he needs to serve subpoenas.
xii)It is unreasonable to expect an applicant to file all evidences without being given an opportunity to study the respondent’s affidavit.
xiii)The orders that I made were different from those made by Driver FM and were made in favour of the respondent without being fair and just.
xiv)Both Driver FM and I failed to apply the rule that costs follow the event.
xv)I reserved the respondent’s costs on 8th October but made an order for costs on 19th October.
xvi)The costs orders made by this court and the Federal Court are mainly due to the abuse of process by the respondent.
xvii)The delay in these proceedings has not been caused by the applicant but by the respondent.
xviii)Filing an application for summary dismissal application against the applicant’s unlawful discrimination claims by the respondent is an abuse of process.
xix)The respondent’s unwillingness to participate in court supervised mediation is an abuse of process.
xx)The costs orders made against the applicant should be reversed. The respondent should be ordered to pay the applicant’s costs and disbursements.
xxi)The applicant again requests an order for court supervised mediation due to his health. He claims that in my reasons for decision of 19th October 2007 I wrongly stated that the solicitor for the respondent has indicated that there was no consent to the court supervised mediation when a perusal of the transcript of those proceedings revealed that this was not the case.
xxii)The applicant claims that Sackville J held that Driver FM should have concluded that the interests of justice justified the Court restraining the solicitors from acting in the proceedings against the applicant.
xxiii)The applicant claims that the respondent’s solicitors have not been truthful.
xxiv)The applicant gives examples of the alleged dishonesty by the respondent’s solicitors in an affidavit, in a submission to the Australian Industrial Relations Commission, during the independent investigation, and in the Administrative Appeals Tribunal.
xxv)The applicant complains that Driver FM should have made orders for costs against the respondent’s solicitors.
xxvi)The applicant reiterates his claim that the respondent’s solicitors should be restrained from representing the respondent and they should be reported to the Legal Services Commission for misconduct.
Counsel for the respondent submitted that the applicant is seeking to relitigate earlier matters. He also submitted that the application is incompetent and should be dismissed. He said that the court should not be used as a vehicle to canvass decisions made in other jurisdictions.
Conclusions
The applicant seeks orders varying or setting aside a number of earlier orders. I will deal with the applicant’s claims in order.
Order 1 – to set aside the order no.1 made by Federal Magistrate Scarlett on 19 October 2007.
The applicant complains that this order was made in his absence and does not reflect the decision and reasoning of Sackville J. He also claims that this order does not reflect what counsel for the respondent said at the hearing of the application for leave to appeal.
The applicant’s application for leave to appeal was dismissed with costs on 16th October 2007.
The applicant chose not to attend the proceedings before me on 19th October, producing a medical certificate covering him until 31st October 2007. However, the applicant did not seek an adjournment of the proceedings. Quite the reverse, in fact, he sought that orders should be made in his absence.[7]
[7] [2007] FMCA 1774 at [6] - [7]
I considered the matters in the applicant’s letter but decided to make other orders. It is not a ground to vary or set aside an order just because a party does not agree with it. The applicant’s first claim has not been made out.
Order 2 – to make an order,
a)Either that the applicant’s original application filed on 18 April 2007 proceeds to substantive hearing as reasoned by Justice Sackville in his judgment of 16 October 2007 and accepted by Respondent’s counsel Mr Shields in the hearing on 9 October 2007;
b)or identifying the applicant’s specific claims that are struck out to enable the applicant to file an amended application.
This matter was canvassed at the hearing of the application for leave to appeal before Sackville J on 9th October 2007. His Honour dealt with that very issue in his judgment at [36] – [38].[8]
[8] [2007] FCA 1584 at [36] – [38]
In my view this matter has already been decided by Sackville J in the application for leave to appeal and this court has no jurisdiction to deal with the matter.
Order 3 – to set aside the order no.3 made by Federal Magistrate Scarlett on 19 October 2007 and in its place order that the applicant file his affidavit 3 weeks after the return of subpoena or on 31 March 2008 whichever is the later.
I am not satisfied that I should make this order for the same reasons that I have given in [33] – [36] above.
Order 4 – to set aside the order no.6 made by Federal Magistrate Scarlett on 19 October 2007.
The applicant claims that the order for costs that I made is unreasonable, unjust and the reasoning is unacceptable. He also claims that I failed to apply the rule that costs follow the event.
Costs are discretionary. The applicant sought that orders be made in his absence on 19th October 2007 but I decided to make other orders instead. The proceedings were brought about because the applicant failed to comply with the directions made by Driver FM on 2nd August 2007. His application for leave to appeal was dismissed.
There is no reason why I should set aside the costs order that I made on 19th October 2007.
Order 5 – to reverse the costs orders made by Federal Magistrate Driver on 2 and 10 August 2007.
These orders have already been considered by Sackville J in the application for leave to appeal heard on 9th October 2007. The applicant’s arguments about the costs order of 10 August 2007 were considered by Sackville J in the application for leave to appeal, where his Honour said
In view of the dismissal of the applications for leave to appeal against the substantive orders in Judgments No 1 and No 2, I do not think it appropriate to grant leave to appeal solely against the costs order made by the Federal Magistrate in the summary dismissal proceedings. If the applicant ultimately fails in the proceedings, he will be entitled to appeal as of right. Such an appeal may provide the applicant with the opportunity to challenge the Federal Magistrate’s order that he pay Telstra’s costs of the summary dismissal application.[9]
[9] [2007] FCA 1584 at [48]
The applicant also seeks to challenge the order for costs made against him by Driver FM on 2nd August 2007. This order was made in the orders dismissing his application for an order that the respondent’s solicitors be restrained from acting for the respondent. Sackville J dismissed the application for leave to appeal against this decision.[10]
[10] [2007] FCA [45] – [46]
In each case, Sackville J has already dealt with an application for leave to appeal against the orders made by Driver FM. Accordingly, this court has no jurisdiction to deal with the matter.
Order 6 – to make an order that the respondent participates in a court supervised mediation with the applicant.
I have already considered this application and declined to make the order. The applicant has claimed in his submission that I wrongly stated that the respondent had indicated that there was no consent to court supervised mediation, saying:
57. In my letter to Scarlett FM on 19 October 2007, I requested an order for a Court supervised mediation. In the reasoning on 19 October paragraph 8 states: “Ms Woodward, who appears for the Respondent, has indicated that there is no consent to the court supervised mediation as suggested by the Applicant…”
58. Perusal of the transcript of 19 October 2007 reveals that this is not the case.
The applicant provided a transcript of the proceedings of 19th October, which he did not attend. On the first page of the transcript, there appears an exchange where, after the usual pleasantries, I asked Ms Woodward, who appeared for the respondent, whether she had seen a copy of the letter that the applicant had sent to me, along with his medical certificate.
MS WOODWARD: I have, your Honour, yes.
FEDERAL MAGISTRATE: You will see he wants Court supervised mediation, and he wants – he has allocated himself some hearing dates on 2 and 3 June 2008.
MS WOODWARD: Yes, your Honour.
FEDERAL MAGISTRATE: Before Driver FM. My understanding was that his Honour had already set hearing dates in December of this year?
MS WOODWARD: Yes, that’s right, your Honour.
FEDERAL MAGISTRATE: Now, you may, of course, have instructions to consent to this new timetable, and I should give you the opportunity to tell me if you have.
MS WOODWARD: No, we haven’t got instructions to consent to the new timetable, although we do seek that the December dates be vacated and new dates reallocated.[11]
[11] Transcript 19/10/07 page 1
It is difficult to see how the applicant, on reading this transcript, could in all honesty form the view that there was no consent to the court supervised mediation that the applicant sought in his letter. I accept the fact that he was not present at court. There is no suggestion that the applicant has any difficulty with the English language. My observation of him, based on his appearances before me on two occasions, is that he speaks English fluently.
I am left with the regrettable view that the applicant has not been entirely truthful in this matter. I will return to this subject later in these reasons.
In any event, there is no basis whatsoever for making the order for mediation.
Order 7 – to make an order that the respondent explain the circumstances of various court stamps and dates in their summary dismissal application form and the affidavit of Vanessa Swannie dated 22 June 2007.
As I was mystified by this application, I asked the applicant to explain the point of it. He had claimed in his submission at paragraph 64 that Ms Woodward had not been truthful in an affidavit of 6th September 2007 filed in connection with his application for leave to appeal that the summary dismissal application had been filed on 22nd June 2007. He gave an explanation about receiving two copies of a document, one with a court stamp and one without.
True it is that Ms Swannie affirmed an affidavit on 22nd June 2007. That document bears a court date stamp showing that it was filed on 26th June 2007. It is hard to see what is remarkable about that set of facts.
It is also true that Ms Woodward deposed in her affidavit sworn on 6th September 2007 that the respondent filed an application for summary dismissal on 22nd June 2007. This application was contained in a Response dated 22nd June 2007 and filed on 26th June 2007. Those are the same dates as appear on the affidavit of Ms Swannie. I note that Ms Swannie’s affidavit shows that it was affirmed in Melbourne, which is Ms Swannie’s business address. The calendar shows that 22nd June 2007 was a Friday and 26th June was a Tuesday. It is hardly surprising that an affidavit complet4ed in Melbourne on a Friday was not filed at the court registry in Sydney until the following Tuesday.
Quite clearly, Ms Woodward was in error. The Response and affidavit were both dated 22nd June 2007 and filed on 26th June 2007. The applicant, however, in his submission, uses this as an example of Ms Woodward’s dishonesty, stating in his submission, under the heading,
Some examples of where they have not been honest and truthful are:
64. Ms Sally Woodward in her affidavit deposited[12] on 6 September 2007 on behalf of Telstra swears that the summary dismissal application was filed on 22 June 2007. This is not true.
[12] sic
The applicant says nothing more. He makes no mention of the fact that the documents were signed on 22nd June and filed on 26th June. He quotes one fact in a vacuum as an example of his claim of wilful dishonesty by Ms Woodward. A half truth can be misleading.
The discrepancy in dates is so obviously an error, and an error of no consequence, that the applicant’s deliberate attempt to portray the matter as an example of his claim of lack of bona fides by Ms Woodward reflects very poorly on the applicant’s own character and motives.
The applicant’s claim for this order appears to me to be motivated solely by malice on the part of the applicant and there is no basis for this order to be made.
Order 8 – to make an order to stay the current proceedings until a direction hearing in the end of March 2008.
There is no basis for this order. It appears to be motivated solely by the applicant’s plans to leave Australia for a holiday overseas, which he plans to commence next week.
Order 9 – to make any other orders that the Court thinks necessary to achieve the above orders.
This order is ancillary to the other orders the applicant seeks. As there is no basis for the court to make any of the other orders that the applicant seeks this order is futile.
Misleading the Court
There is one other matter that should be covered. Mr Shields of counsel complained to the court that the applicant’s submission quotes the decision of Sackville J out of context. At paragraphs 60 and 61 of his written submission, the applicant says “Justice Sackville in his judgment in paragraph 45, with reference to the conduct of Independent Investigation and the solicitors who conducted it (said) …his Honour should have concluded[13] that the interests of justice justified the Court restraining the solicitors from acting in the proceedings against the applicant.”
[13] emphasis added by applicant
The applicant uses this quote to justify his claim that, “61. Respondent solicitors are not being honest, not telling the truth (including in affidavit) and making contradicting statements on submissions.”
What Justice Sackville actually said is,
In my view, the applicant has an arguable case that, having regard to the real prospect that he had been misled by the description of the investigation as ‘independent’ (as the Federal Magistrate appears to have found), his Honour should have concluded that the interests of justice justified the Court restraining the solicitors from acting in the proceedings against the applicant. However, I am not satisfied that substantial injustice would be caused to the applicant if leave to appeal is refused. There is no plausible suggestion that the solicitors acquired any information adverse to the applicant in consequence of the investigation, let alone any confidential information.[14]
[14] [2007] FCA 1584 at [45]
When read in context, the statement quoted by the applicant has an entirely different meaning from that which he puts forward in support of his claim. This, to my mind, is a clumsy but clear attempt by the applicant to mislead the court. It is another example, like the untruthful statement about what I said in court on 19th October and the claims about the supposed dishonesty by Ms Woodward, of the applicant’s willingness to distort the truth to serve his own ends. His claims about the dishonesty of various solicitors have not been made out.
The applicant’s claim is entirely without merit. Not one of the orders that he seeks has any merit whatsoever. The application will be dismissed with costs.
I have made some critical comments about the applicant’s attempts to mislead the court by half truths, quotes out of context and blatant misstatements. He has exhibited a willingness to attribute dishonesty to others, based on no other ground than their unwillingness to agree with his implacable conviction of the rightness of his cause.
As I have formed an adverse view of the applicant’s character, I consider it inappropriate that I should hear any further proceeding in which he is involved as a party. Upon the completion of the matter immediately before me, I propose to transfer the matter to Federal Magistrate Driver forthwith.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 5 December 2007
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