Pitt v Onesteel Reinforcing
[2003] FMCA 609
•7 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PITT v ONESTEEL REINFORCING & ANOR | [2003] FMCA 609 |
| HUMAN RIGHTS – Sex discrimination – summary dismissal. |
Federal Magistrates Court Rules 2001
Ball v Morgan & Anor [2001] FMCA 127)
Corporate Affairs Commission v Solomon Court of Appeal, 1 November 1989 (unreported, Mahoney AP)
Herron v McGregor (1986) 6 NSWLR 246
MacKellar & Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409
Re Morton: ex parte Mitchell Products Pty Ltd [1996] 828 FCA 1
| Applicant: | ANTHONY JAMES PITT |
| First Respondent: | ONESTEEL REINFORCING PTY LIMITED (ACN. 004 148 289) |
| Second Respondent: | CATALYST RECRUITMENT |
| File No: | MZ 753 of 2003 |
| Delivered on: | 7 November 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 7 November 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T.P. Smurthwaite |
| Solicitors for the Applicant: | Michael J. Amad Pty |
| Counsel for the First Respondent: | Ms M.J. Ierodiaconou |
| Solicitors for the First Respondent: | Blake Dawson Waldron |
ORDER
Leave be granted to the applicant to withdraw proceedings filed 15 July 2003 as against the second respondent.
The application filed 15 July 2003 as against the first respondent is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,305.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 753 of 2003
| ANTHONY JAMES PITT |
Applicant
and
| ONESTEEL REINFORCING PTY LIMITED and CATALYST RECRUITMENT |
Respondents
REASONS FOR JUDGMENT
The proceedings
The proceedings commenced by the filing of an application on 15 July 2003 wherein no final or interim orders were sought. Such application was within time. The applicant was then a litigant in person. The first respondent filed a response on 29 August 2003 seeking that the application be struck out and the applicant pay the first respondent’s costs. Filed in support of that application was an affidavit of Mr John Yeoh, Regional Manager of Onesteel Reinforcing Pty Limited.
When the matter first came before the Court on 10 September 2003 the applicant was represented. He was ordered to file an affidavit in the proceedings both in support of his application filed and in opposition to the application for summary dismissal. He was required to serve a copy of his application and affidavit upon the second respondent. The applicant has not complied with those orders. He failed to file an affidavit in support of his application within the time provided – that application being defective in any event. The applicant also failed to serve his application upon the second respondent.
Both the applicant and the first respondent were represented this day. The second respondent has never been served with a copy of the application or any material in the proceedings. The applicant now seeks to discontinue his application against the second respondent and I shall grant him leave to that effect. The discontinuance of the complaint as against the second respondent has not previously been communicated to the first respondent.
The applicant sought leave to file an affidavit this day and I granted such leave, the first respondent having been served with that document and not taking any objection. That affidavit is of some relevance to the application in that, as conceded by the applicant, his application discloses no cause of action.
The first respondent relies upon submissions filed by it on 9 September 2003 and 23 October 2003, and upon the earlier referred to affidavit of Mr Yeoh sworn 29 August 2003.
History
The history is as set out in the affidavit of Mr Yeoh sworn 29 August 2003 and is relevantly as follows:
1….
2….
3. The Applicant was engaged as a contractor of BHP Steel (RP) Pty Ltd (now Onesteel) and employed by the Second Respondent, a labour hire company, from 12 February 1995 until 28 May 1995.
4. Onesteel’s records reveal that on or about April 1995, the Applicant first made allegations to management that he had been sexually harassed. The allegations were dealt with by way of a formal complaint handling process by Onesteel during the course of 1995.
…
11. On 23 July 2003 Onesteel received a copy of the Applicant’s Federal Magistrates’ Court application filed with the court in this proceeding on 15 July 2003 and dated 10 July 2003. This is the first communication Onesteel has received since [the Applicant’s] non-appearance at the HREOC hearing on 1 December 1997 that the Applicant seeks to pursue allegations of sexual harassment. Onesteel was not made aware by the Applicant or the Commission that the Applicant sought to reopen his complaint or indeed, file another complaint relating to the same allegations.
The complaint which the applicant made is referred to in correspondence dated 24 June 2003 to the applicant from the President of the Human Rights and Equal Opportunity Commission and is as follows:
You claim that Catalyst Recruitment Systems Ltd employed you as a casual worker at the site of Onesteel Ltd which at the time was called BHP Steel Ltd. You claim that during this time you were sexually harassed by Mr Hich Tran who grabbed your genitals. You claim that when you complained about this harassment to management you were laughed at. These events are alleged to have occurred in 1995.
Consideration
The first respondent argues that the application discloses no reasonable cause of action; that the proceedings are frivolous and vexatious; and that the proceedings are an abuse of process. The first respondent seeks summary dismissal pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001. The Human Rights and Equal Opportunity Commission (‘HREOC’) has twice considered the applicant’s complaint and twice terminated the complaint. In almost five years the first respondent has heard nothing in pursuit of any claim by the applicant. The first respondent is a corporation. The managers employed by the corporation and who dealt with the complaint through a formal complaint handling process are no longer in the employ of the first respondent and many of the likely witnesses have left the employment of the first respondent.
The application itself sets out no orders sought. Whilst the applicant was then unrepresented there must be a balancing between the litigant in person and “the position of the other party or parties concerned and to what is required in justice to prevent the unnecessary expenditure of public and private resources.” Corporate Affairs Commission v Solomon Court of Appeal, 1 November 1989 (unreported, Mahoney AP) (cited by Sackville J in Re Morton: ex parte Mitchell Products Pty Ltd [1996] 828 FCA 1 (18 September 1996)).
Further, in Herron v McGregor (1986) 6 NSWLR 246 at 254, McHugh JA stated:
The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James (at 329). A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively.
The affidavit prepared by the applicant does not show any reasonable cause of action, save to refer to the existence of an internal memorandum in paragraph 8 of that affidavit. There is no memorandum annexed to the affidavit. The basis of complaint in the affidavit appears to be what occurred around the hearing before HREOC in December 1997. Further, the affidavit does not simply fail to adequately address or justify the reasons for this unreasonable delay, it fails, in my view, to address this issue at all. Further, the affidavit of the applicant fails to address the issue of prejudice, such a very central question in these proceedings that might be occasioned to the first-named respondent. There is a complete absence of any address of that ground by the applicant.
The application does not reveal on its face any action against the first respondent. The complaint is stale and I accept counsel for the first respondent’s submission that the ability of the first respondent to defend itself is severely limited by the unavailability of the majority of the witnesses and the unreliability of any witnesses’ recollections after so much time has lapsed. The applicant puts before the court no reasons for this unreasonable delay.
The general principles for summary dismissal were noted in the case of MacKellar & Anor v Container Terminal Management Services Limited & Ors (1999) 165 ALR 409, particularly at 415 to 417. Weinberg J in that case noted at 415:
It is clearly established that the jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.
And stated (at 416):
[Those authorities] confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing that the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.
I conclude it is an appropriate exercise of the court’s discretion on the material before me to summarily dismiss the application filed. I have concluded that it is in the interests of justice and procedural fairness to both parties to have heard this matter and determined it this day. If the applicant chooses to appeal from this decision, that is a matter entirely for the applicant. I am very mindful that a summary judgment should be proceeded with exception or caution, but in the circumstances of this case, in my view, it was appropriate that there be a summary hearing and dismissal.
There is no reason to depart from the principle that costs would normally follow the event (see Ball v Morgan & Anor (2001) FMCA 127). The court has a discretion to fix those costs and I shall so order.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 7 November 2003
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