Rangi v Kmart Australia Ltd
[2018] FCCA 2040
•26 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANGI v KMART AUSTRALIA LTD | [2018] FCCA 2040 |
| Catchwords: INDUSTRIAL LAW – Application for summary dismissal – where part of the claim is statute barred – relief sought in relation to a failure to promote – no prejudicial alteration of Applicant’s position – claim does not engage s.342 of the Fair Work Act 2009 (Cth) – no reasonable prospects of success – summary judgment entered. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 361, 544, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.17A, 18 Limitation of Actions Act 1958 (Vic), s.5 Federal Circuit Court Rules 2001 (Cth) r.13.10 |
| Cases cited: Birkett & Birkett & Anor [2017] FCCA 2503 Henderson v City of Adelaide (No 2) [2012] FCA 9 Kanan v Australian Postal and Telecommunications Union [1992] FCA 539 Przybylowski v Australian Human Rights Commission (No. 2) (2018) FCA 473 Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224 |
| Applicant: | YUDHVIR RANGI |
| Respondent: | KMART AUSTRALIA LTD |
| File Number: | MLG 345 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 20 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr McKenney |
| Solicitor for the Respondent: | Ms De Marchi, in-house lawyer for Kmart Australia Ltd |
ORDERS
Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) there be judgment for the Respondent against the Applicant in respect of the whole application filed on 22 February 2017.
The Respondent file and serve any further submissions as to costs and quantum of costs within 14 days hereof.
The Applicant file and serve submissions as to costs and quantum of costs within 14 days of service upon the Applicant of the Respondent’s submissions as to costs.
The Respondent file and serve further submissions in reply if any, within 7 days of service upon the Respondent of the Applicant’s submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 345 of 2017
| YUDHVIR RANGI |
Applicant
And
| KMART AUSTRALIA LTD |
Respondent
REASONS FOR JUDGMENT
Preliminary
By application in the Fair Work Division of the Court and by Form 4 filed on 22 February 2017, the Applicant alleged contravention, by the Respondent, of a general protection under the Fair Work Act 2009 (Cth) (‘the FW Act’) and sought amongst other things, compensation and the imposition of pecuniary penalties upon the Respondent. The Applicant also filed, on 22 February 2017, a document headed ‘Points of Claim’.
The Applicant, who is a qualified lawyer and has his own legal practice ‘Rangi Lawyers’ which practices in many areas, including employment law and general protections litigation, acted as a litigant in person throughout the proceedings.
When the matter was first before the Court on 16 March 2017 it was adjourned. Service by the Applicant upon the Respondent had not been effected. The adjourned date was 13 April 2017. By that time a Notice of Appearance had been filed by the lawyers acting for the Respondent. Those lawyers had also written promptly to the Applicant seeking further particulars in respect of his claim and orders sought.
The orders made by the Court on 13 April 2017 were as follows:-
“1. The Applicant file and serve a statement of claim within 60 days hereof.
2. The Respondent file and serve a defence within 30 days of service of the Applicant’s statement of claim upon the Respondent.
3. The Applicant file and serve an affidavit of evidence within 90 days hereof.
4. The Respondent file and serve an affidavit of evidence within 30 days after service of the Applicant’s affidavit upon it.
5. The proceedings shall be the subject of mediation to be held as soon as practicable, with the mediation to be conducted by a Registrar of the Court.
6. Otherwise the proceedings are adjourned to a directions hearing (post mediation 2-3 weeks).
7. Costs reserved.”
On 18 May 2017 the Applicant filed an undated ‘Amended Points of Claim’ which had at its conclusion ‘This amended pleading was prepared by M A Paszkiewicz of Counsel’. The orders as sought by the Applicant were as follows:-
“ A. Pursuant to s 545 of the FW Act, promotion to the position of a manager in accordance with the outcome of First MIT Application;
B. Pursuant to s 545 of the FW Act, compensation for loss of earnings;
C. Pursuant to s 545 of the FW Act, the imposition of a pecuniary penalty for each and every contravention of the FW Act referred to above; and
D. Pursuant to s 546 of the FW Act, an order that any penalty ordered be paid to the Applicant.”
On 22 June 2017 the Respondent filed a response and defence (dated 22 June 2017). The Respondent sought dismissal of the proceedings and a costs order in favour of the Respondent pursuant to s.570 of the FW Act. The “Grounds of opposition” were relevantly, as follows:-
“…
2. In summary, there are two main grounds in support of the Respondent’s summary dismissal application, [this being foreshadowed by the Respondent] being:
(a) the Applicant has no reasonable prospect of successfully prosecuting the Proceeding; and
(b) some of the Applicant’s claims are an abuse of the process of this Honourable Court in that certain of the claims, including those in contract, presumably seeking to rely on the associated jurisdiction of this Honourable Court are statute barred by reason, amongst other things, of the Limitation of Actions Act 1958 (Vic).
3. In support of the Respondent’s application for costs pursuant to s.570 of the Fair Work Act 2009, the Respondent advances the following grounds:
(a) The Applicant instituted the Proceeding MLG 345/2017 without reasonable cause; and/or
(b) The Applicant engaged in an unreasonable act by instituting the Proceeding MLG345/2017; and/or
(c) The Applicant unreasonably omitted to discontinue the Proceeding MLG 345/2017 after the Respondent drew to the Applicant’s attention:
(i) the fundamental legal and factual deficiencies in the Applicant’s claim, including that the claim in contract was statute barred; and
(ii) the fact that the Respondent would incur costs by bringing this Application in a Case in the event that the Applicant did not discontinue Proceeding MLG 345/2017;
…
5. Further and in the alternative, and in the event of a final hearing, the Proceeding be dismissed on the ground that it has no merit either factually or legally.”
On 5 July 2017 the solicitor for the Respondent, Ms De Marchi, wrote to the Applicant setting out what Ms De Marchi considered to be the legal and factual flaws in the Applicant’s ‘Amended Points of Claim’, and inviting him to withdraw the proceeding within a period of 14 days from the date of the correspondence. No response was received from the Applicant. That correspondence is important with respect to the Respondent’s application for costs. It is, relevantly, as follows:-
“… Kmart is of the opinion that your claim is fatally flawed and therefore liable to be dismissed by reason of the fact that your claim has no reasonable prospect of success. … Kmart has … raised issues about the legal status of some of your claims, particularly having regard to the fact that the claims made in contract by you are statute barred. This makes your claim in that regard untenable and amount to an abuse of process if such claims were to be maintained.
…
In relation to the Defence filed by Kmart, you will note that in addition to the formal requirements of pleadings, which in the main either denies or does not admit your allegations, in circumstances (not universal) where there are proper allegations of material fact made, that you are on notice about two fundamental legal issues.
… Kmart refers to paragraph 52 of the Defence, which raises starkly the basic reason why your claims will have no reasonable prospect of success. This is because, as pleaded, [t]he Respondent denies all matters alleged and any contravention of s.340 of the FW Act, and says further that the pleading has no reasonable prospect of success on the basis that there is no pleading of a connection with a workplace right (not routinely specified) and any adverse action (which is denied) taken by the Respondent. Further, the Respondent says that despite having the reverse onus under s.361 of the FW Act, the pleading has not set out the objective facts or circumstances giving rise to the application of the reverse onus under s.361 of the FW Act.
…
In the event that you do not withdraw your claim as a result of considering the contents of this letter and the Response and Defence, then Kmart is putting you on notice that it will make an application to the Federal Circuit Court of Australia to have your claim dismissed on the grounds of no reasonable prospect of success, abuse of process and other grounds that the Court may deem appropriate. Further, costs may be sought against you under s.570 of the FW Act in circumstances where you fail to withdraw the claim.
…
Kmart draws your attention to the interpretation of the relevant tests that the Court will apply as set out in the High Court of Australia’s decision in Spencer v Commonwealth of Australia [2010] HCA 28. Kmart directs your attention to [25] to [26] of the Judgment of French CJ and Gummow J, where their Honours state, amongst other things:
“Section 31A(2) [the equivalent of s.17A] requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. ... But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under section 31A could justifiably conclude that the proceedings had no reasonable prospect of success.”
Kmart also refers you to the explanation of how the test is applied from the joint judgment of Hayne, Crennan, Kiefel and Bell JJ at [58] to [60]. There, the Court at [59] states:
“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 section 31A.”
The Court emphasised that full weight must be given to the expression as a whole.
Kmart also refers you to some guiding principles in the application of the reasonable prospects of success test as set out by Gordon J in the Full Federal Court of Australia decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [122] -[132] . Kmart is of the view that it will satisfy each of the six guiding principles that are set out in Gordon J's Judgment.
Kmart also draws your attention to how the reverse onus under s.361 of the FW Act is intended to operate.
Normally, a party making an allegation of adverse action, provided the objective facts and circumstances are pleaded, will require a Respondent such as Kmart to discharge what is known as the reverse onus of proof.
Importantly, as Bromberg J observed in Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528 (17 May 2017), that s.361 is only concerned with onus of proof issues and is not itself determinative of the question of intent: see [67] . Kmart notes that in the same decision, Bromberg J refers to the test on summary dismissal at [11] ff, and states at [13]: “The legal principles relating to summary judgment are uncontroversial.”
What is of significance here and why Kmart has formed the opinion that it would succeed in an application to have your claim summarily dismissed is because the objective facts and circumstances giving rise to the application of the reverse onus provisions have not been pleaded. In Tattsbet Limited v Morrow [2015] 233 FCR 46 at [119], Jessup J (with whom Allsop CJ and White J agreed) states:
“It has been treated as uncontroversial that the party making an allegation that adverse action was taken ‘because’ of a particular circumstance needs to establish the existence of the circumstance as an objective fact.”
In your case, you have not pleaded such objective facts and circumstances, and where there are allegations of material fact made against Kmart, they are either denied or not admitted but, importantly, do not make a connection with a workplace right or adverse action alleged having regard to the fact that some of the action alleged is not adverse action within the meaning of s.342 of the FW Act and/or is statute barred. In Kmart's opinion, the linkage between what is alleged and any adverse action is simply not present, leading Kmart to the conclusion that your claim has no reasonable prospects of success and that, for reasons adverted to in the Defence as referred to earlier, some claims are statute barred.
…
In light of the issues raised in this letter, Kmart invites you to withdraw the Amended Points of Claim and discontinue the proceedings and, in those circumstances, Kmart would therefore not pursue a claim for costs it has incurred.
…
In the event that you proceed with the matter further, then Kmart may rely on s.570(2)(a) of the FW Act and seek costs against you.
Further, in circumstances where you fail to discontinue the proceedings in light of the contents of this letter and the Response and the Defence, Kmart will make a submission to the Court that the failure by you to discontinue the proceeding at this time is unreasonable in the circumstances. In Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20, Tracey, Gilmour, Jagot and Beach JJ state at [166] :
“It is well established that a failure to accept a reasonable offer of compromise may constitute an unreasonable act for the purposes of s 570(2) and its predecessors.”
In Kmart's opinion, any failure on your part to withdraw the proceeding and with Kmart waiving any application for costs by reason of that withdrawal, would amount to an unreasonable omission on your part.
…
Kmart would strongly recommend that you seek legal advice on the contents of this letter.
...”
A mediation before Registrar Ryan on 28 July 2017 did not result in resolution of the dispute. Thus the proceedings were listed to 16 August 2017.
On 11 August 2017 the solicitor for the Respondent, Ms De Marchi, swore an affidavit in the proceedings. This affidavit was filed with the leave of the Court on 16 August 2017. The affidavit of evidence was in support of an application in a case, also filed on 16 August 2017, with the leave of the Court. The orders sought in the application in a case were as follows:-
1. Pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 and/or rule 13.10 of the Federal Circuit Court Rules 2001 summary judgment be given for the Respondent by way of dismissal of the Applicant's Applications dated 19 February 2017 and his Amended Points of Claim (undated) and filed on 18 May 2017 on the grounds that the Applicant prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim and/or the proceeding or claim for relief is an abuse of the process of the Court (see Response and Defence both dated 22 June 2017 filed by the Respondent).
2. Declarations be made by the Federal Circuit Court of Australia pursuant to s.16 of the Federal Circuit Court of Australia Act 1999 in accordance with 1 above.
3. The Applicant pay the costs of and incidental to the Respondent's Application in a Case pursuant to s.570 of the Fair Work Act 2009 and in relation to the proceeding generally on the following alternative bases:
(a) The Applicant instituted the Proceeding MLG 345/2017 without reasonable cause; and/or
(b) The Applicant engaged in an unreasonable act by instituting the Proceeding MLG 345/2017; and/or
(c) The Applicant unreasonably omitted to discontinue the Proceeding MLG 345/2017 after the Respondent drew to the Applicant's attention:
(i) the fundamental legal and factual deficiencies in the Applicant's claim, including that the claims in contract are statute barred; and
(ii) the fact that the Respondent would incur costs by bringing this Application in a Case in the event that the Applicant did not discontinue Proceeding MLG 345/2017;
4. Such further or other orders as the Court deems fit.”
A hearing of the application in a case proceeded on 20 April 2018. The Applicant had filed and served a Response to the application in a case, filed 11 January 2018, in which he sought dismissal of the application in a case and costs. The Respondent additionally relied upon an amended defence dated 20 April 2018 and written submissions dated 20 April 2018. The Applicant relied upon an affidavit affirmed by him on 10 January 2018.
The Applicant’s response to the application in a case of the Respondent, and in particular the Respondent’s reference to claims in contract being statute barred was to depose that “… there is no limitation regarding brining [sic] evidence before the honourable Court by way of background and for putting the matters in the right perspective”.[1] Further, that “Although, the breach of contract is asserted, no claim has been made for the said breaches”.[2] The Applicant concluded in his affidavit of evidence that “As the evidence is not barred, the statement of claim dealing with events prior to 19 February 2011 is on sound footing”.[3] The Applicant then proceeded to make a submission, rather than put evidence, as follows:-
[1] Affidavit affirmed by the Applicant on 10 January 2018, paragraph 4.
[2] Affidavit affirmed by the Applicant on 10 January 2018, paragraph 5
[3] Affidavit affirmed by the Applicant on 10 January 2018, paragraph 8.
“The evidence is crucial for establishing and putting the post 19 February 2011 events in context regarding the following issues:
i. Establishing that I had capabilities which were recognised by the Respondent;
ii. Establishing the hostility of the Respondent towards me as I was demoted from level-3 employee to level-1 employee;
iii. Establishing that my working hours were reduced from 27.5 to 25 hours per week;
iv. Establishing that Mr Rob Sokolevski (Mr Sokolevski) had authority to promote me, which has been expressly denied by the Respondent.”[4]
[4] Ibid.
Otherwise the Applicant deposed in his affidavit evidence to there being many instances in the Amended Points of Claim, as answered by the Amended Defence, where there were obvious factual and legal disputes needing adjudication by the Court, and which should not be the subject of summary dismissal proceedings.
The difficulty for the Court with the affidavit evidence of the Applicant is as follows:-
a)it is mostly in the form of submissions. The Respondent objected to the affidavit being relied upon by the Applicant. The Court indicated to the parties that the affidavit evidence could remain before the Court but that little or no weight could be placed on that evidence for the most part, and that certainly matters of submission and conclusion were not evidence;
b)the Applicant is required to plead material facts and to rely upon relevant evidence. The Applicant cannot plead that a breach of contract occurred in circumstances where he now says no claim is made in relation thereto. That material is not relevant to the orders as sought in the litigation;
c)the Applicant has exhibited various documents to his affidavit. They are, as submitted by the Respondent, not probative or relevant to the relief sought. The documents do not contain factual issues that are disputed and/or of significance.
There is no doubt that some non-material factual issues remain outstanding as between the parties. Such a situation does not, however, prohibit the seeking of summary dismissal of a proceeding. In Birkett & Birkett & Anor [2017] FCCA 2503, Neville J said at paragraph 61:-
“To the above, I simply note the Full Court’s brief observation in Davis v Insolvency and Trustee Service Australia,[5] at [18]: “… we do not read Spencer as requiring that summary relief be withheld where there are factual disputes about matters which are not material to the resolution of the litigation.”
[5] Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141.
This is a case where the relief sought is directed at three separate instances of a failure to promote.[6] The Respondent argues that such instances have, as a common flaw, the non-engagement of s.342 of the FW Act and thus do not amount to a breach of s.342 of the FW Act.
[6] Amended Points of Claim, paragraphs 52-54.
Section 342 of the FW Act is relevantly, as follows:-
“FAIR WORK ACT 2009 - SECT 342
Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
| Meaning of adverse action | ||
| Item | Column 1 Adverse action is taken by ... | Column 2 if ... |
| 1 | an employer against an employee | the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. …” |
Background
From in or around April 2008, the Applicant was employed on a casual basis by the Respondent at its South Morang store. The Applicant alleged, commencing in paragraph 18 of his amended points of claim, that on or around 18 August 2008 the Applicant and the Respondent entered into an employment contract wherein the Applicant was employed in the position of Replenishment Team Leader. The contractual terms were in accordance with the Kmart Australia Ltd Agreement 2006. The employment was casual and was for the period from 28 August 2008 to 19 October 2008. The Applicant further alleged the classification was ‘Level 3 Supervisor’ within the 2006 Agreement and the base hours of work were 27.5 hours per week.
Thereafter the Applicant alleged,[7] the Applicant and Respondent entered into a further contractual relationship where the Respondent employed the Applicant as a Sales Assistant within the Replenishment team at the South Morang store for periods which commenced on 16 October 2008 and concluded on 1 March 2009. The earlier terms of employment remained. The Applicant alleged further that although his position was described as ‘Sales Assistant’ he continued to work as the Replenishment Team Leader, and continued to be paid at that rate of pay which was in accordance with the entitlements for a permanent employee.
[7] Amended points of claim, paragraph 20.
Thereafter the Applicant alleged a further contract was entered into between the Applicant and the Respondent on or around 1 March 2009 wherein the Applicant was employed as a Supervisor within the Replenishment team at the South Morang Store (‘the Ongoing Contract’).[8]
[8] Amended Points of Claim, paragraph 22.
The Applicant alleged in his Amended Points of Claim, a ‘Breach of the Ongoing Contract’ as follows:-
“23. There were terms of the Ongoing Contract that:
a. the engagement was on an ongoing basis;
b. the engagement was on a permanent-part time basis;
c. the classification was Level 3 Supervisor within the 2006 Agreement and the 2009 Agreement; and
d. the base hours of work were 25 hours per week.
24. On or around 17 August 2009, the Applicant's salary was unilaterally reduced to the equivalent of a Level 1 Retail Assistant within the 2009 Agreement by Kmart.
25. By reason of the matters in paragraph 24 above, Kmart breached the Ongoing Contract.”[9]
[9] Amended Points of Claim, paragraphs 22-25.
The Respondent did not admit, under cover of an objection, any of the claims made by the Applicant in paragraphs 18-25 of the Amended Points of Claim. The objection was that the matters pleaded were statute barred. In so far as reliance was placed on the associated jurisdiction of the Court,[10] for a claim in breach of contract and the facts surrounding it, a claim must be brought within six years, making the claims made by the Applicant statute barred.[11] The matters pleaded as they related to matters in contract in 2008 and 2009 are statute barred both in respect of s.5 of the Limitation of Actions Act 1958 (Vic) being those matters identified in the Applicant’s Amended Points of Claim at [17] - [25], and in respect of any claim under the FW Act because of s.544 of the FW Act which fixes a six year limitation period. The filing of this application on the 22 February 2017 falls outside the necessary six year limit.
[10] Federal Circuit Court of Australia Act 1999 (Cth) s.18.
[11] Limitation of Actions Act 1958 (Vic)
In his Amended Points of Claim, and under the headings ‘the Roster Complaint’; ‘the Bullying Complaints’; and ‘Application for Manager-In-Training Program’; the Applicant set out particulars which he alleged resulted in three failures by the Respondent to promote him, those failures constituting adverse action against the Applicant within the meaning of s.342 of the FW Act, taken for the reason that the Applicant had exercised a workplace right within the meaning of s.341 of the FW Act.
Each alleged contravention of s.340 of the FW Act was described by the Applicant as a “failure to promote” and expressly pleaded as alleged “adverse action” on the basis of s.342(1) Item (l)(c), which provides that adverse action is taken by an employer against an employee if the employer “alters the position of the employee to the employee's prejudice”.
It is the failure to act that is the substance of the allegation against the Respondent. In that regard the Court was referred, by the Respondent, to the decision in Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224 (‘Unsworth’), where Gyles J said, at paragraphs 24 and 25 the following:-
“24. A “before and after” test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at [127]). Applying what had been said by the Full Court in an earlier interlocutory appeal (BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at [35]), it was succinctly put by Kenny J in Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [54] as follows:
“Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer’s acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.”
25. Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441, (2006) 160 IR 1 at [13]–[22]. “Injury” is concerned with an adverse effect upon an existing legal right, or “compensable” injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd 107 FCR 93 at [17]–[22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232; and Commonwealth Bank of Australia v Finance Sector Union of Australia 157 FCR 329.”
In Unsworth it was held that a failure to make persons redundant thereby depriving them of redundancy entitlements did not amount to an injury or prejudicial alteration as the status quo remained.
As submitted by the Respondent, and being a submission with which the Court agrees, if there is no change as pleaded to the Applicant's position, as a matter of law, given the natural ordinary meaning of the words in s.342(1) Item (1)(c) no adverse action by way of prejudicial alteration of position as pleaded has occurred.[12] An alleged failure to do something, is not an alteration of the position in terms of the section. The Court accepts that on this analysis the Applicant is not able to reach the point alleging reasons for adverse action which would trigger the reverse onus provision in s.361 of the FW Act, because the action itself is not “adverse action” within the terms of the definition as pleaded and explicitly relied upon.
[12] Amended points of claim, paragraphs 29-30, 44-45, 49-54.
Consideration
In reliance on s.17A of the Federal Circuit of Australia Act 1999 (Cth) (‘the Federal Circuit Court Act’) and/or r.13.10 of the Federal Circuit Court Rules2001 (Cth) (‘the Rules’) the Respondent submits that summary judgment be given to the Respondent by way of dismissal of the Applicant’s application.
The two main foundations upon which this contention is made are:-
a)in relation to the contractual claims that no cause of action is available to the Applicant given s.544 of the FW Act and the Limitationof Actions Act 1958 (Vic), and that the continuation of such a cause of action amounts to an abuse of process; and
b)that the Applicant has no reasonable prospect of successfully prosecuting the proceeding.
Section 17A of the Federal Circuit Court Act is relevantly, as follows:-
“Summary judgment
…
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
…”
Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) is, relevantly, as follows:-
“Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar 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
…
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Note …”
In the Federal Court of Australia decision of Przybylowski v Australian Human Rights Commission (No. 2) (2018) FCA 473, her Honour Justice Perry set out six principles governing summary dismissal that emerge from the many cases that have now considered the summary judgment procedure. They are as set out in paragraph 7 of that decision as follows:-
“(1) The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6) To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.”
In the matter of Kanan v Australian Postal and Telecommunications Union [1992] FCA 539, Wilcox J found at page 17:-
“A proceeding is not to be classed as being launched “without reasonable cause” simply because it fails.
…
It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”
The Court concludes that there is neither material facts nor evidence of sufficient quality adduced by the Applicant that would militate against summary judgment being awarded. Nor is there a linkage between the allegations made and the alleged breaches raising a question of law warranting the matter going to trial.[13] The initiating application will be dismissed and the parties invited to make submissions as to costs and their quantum.
[13] Henderson v City of Adelaide (No 2) [2012] FCA 9, 56-58.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 26 July 2018
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