Ryan-Dengate v Sunraysia Murray Group Training Ltd
[2017] FCA 1348
•13 November 2017
FEDERAL COURT OF AUSTRALIA
Ryan-Dengate v Sunraysia Murray Group Training Ltd [2017] FCA 1348
File number: SAD 169 of 2017 Judge: WHITE J Date of judgment: 13 November 2017 Catchwords: PRACTICE AND PROCEDURE – applications for summary judgment or, in the alternative, striking out of Statement of Claim – deficiencies in the Statement of Claim – Statement of Claim struck out. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)
Fair Work Act 2009 (Cth) ss 400, 604, Pt 3‑2 of Ch 3
Federal Court of Australia Act 1976 (Cth) s 31A
Judiciary Act 1903 (Cth) s 39B
Federal Court Rules 2011 (Cth) r 16.21
Date of hearing: 13 November 2017 Registry: South Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Mr P Barry Solicitor for the Respondent: K & L Gates ORDERS
SAD 169 of 2017 BETWEEN: CELESTE RYAN-DENGATE
Applicant
AND: SUNRAYSIA MURRAY GROUP TRAINING LTD
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
13 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application filed on 13 September 2017 for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) is dismissed.
2.The Statement of Claim filed on 29 June 2017 is struck out.
3.Any application by the Applicant to file and serve an Amended Statement of Claim is to be filed and served by Monday 20 November 2017 and will be heard at 9 am on Wednesday 22 November 2017.
4.If the Applicant does not file and serve an application for leave to file and serve an Amended Statement of Claim with an Affidavit annexing the proposed Amended Statement of Claim by close of business on Monday 20 November 2017, the proceedings will stand dismissed.
5.Costs are reserved.
6.There be liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J
I am dealing with an application for summary judgment or, in the alternative, an application to strike out a statement of claim.
The Applicant, who is representing herself, commenced the proceedings on 28 June 2017 seeking judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) of decisions of the Fair Work Commission (the FWC). The originating application contains the following claims for relief.
1.Pursuant to s 39B of the Judiciary Act (Cth) 1903 the Applicant seeks a Judicial review by the Federal Court of Australia of decision [sic] of the Fair Work Commission.
2.In the alternative to the Federal Court quashing the decisions of the Commission the Applicant seeks relief in the form of a declaration that the evidence of Mr Mark Dengate be admitted for consideration and the matter be remitted back to the Full Bench of the Commission for hearing of an appeal.
3.Any other Orders considered appropriate by the Court.
The Statement of Claim, which is the only document filed by the Applicant in support of the application, states the relief which she seeks in, relevantly, the same terms.
Today is the third directions hearing in the matter. At the first hearing, I granted the Applicant leave to be represented by her father, Mr Dengate, but partway through the hearing, and at his invitation, withdrew that leave. Thereafter, the Applicant has represented herself. She did not appear at today’s hearing, but I was satisfied that she had had adequate notice of the hearing and that it was appropriate for the hearing to proceed in her absence.
The background to the claim, insofar as it may be inferred from the Statement of Claim, is as follows. The Applicant’s employment by the Respondent was terminated by it on 7 November 2016. She then commenced proceedings in the FWC under Pt 3‑2 of Ch 3 of the Fair Work Act 2009 (Cth) (the FW Act) asserting that her dismissal had been harsh, unjust or unreasonable and seeking reinstatement. That application failed, as did a subsequent application for leave to appeal to the Full Bench of the FWC pursuant to ss 400 and 604 of the FW Act.
The Statement of Claim seems to indicate that the Applicant seeks relief in this Court in respect of both the first instance and the Full Bench decisions of the FWC. The complaint in [4] of the Statement of Claim is that the FWC (apparently at first instance, but possibly the Full Bench) erred in not receiving evidence from the Applicant’s father which is said to have been relevant to “the issue of re‑engagement or otherwise of the Applicant prior to dismissal”. The Statement of Claim pleads that the Full Bench had found this evidence to be irrelevant.
The complaint in [5] of the Statement of Claim is that the FWC (apparently at first instance) had erred in finding that there was a valid reason for the dismissal. This is particularised by an assertion that the reason given by the Respondent “could not be a valid reason because the termination on such a basis was unlawful after her re‑engagement”. Paragraph [5] also alludes to other reasons put forward in the FWC for the Applicant’s contention that the reason for the dismissal was not a valid reason but these are not particularised.
Paragraph [6] pleads that the FWC (apparently at first instance) had erred in granting permission to the Respondent to be represented by a paid agent “because it manifested an unfair advantage to the Respondent”.
Paragraph [7] of the Statement of Claim pleads that, in addition to these grounds, the Applicant seeks relief “on any one or more of the following grounds”, those grounds being:
(i)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(ii)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(iii)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(iv)that the decision was otherwise contrary to law.
As can be seen, those grounds replicate grounds (a), (b), (f) and (j) contained in s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
At the first hearing on 14 August 2017, I drew the Applicant’s attention to some shortcomings in the Statement of Claim and granted her leave to file and serve an amended version. That leave was to be exercised by 28 August 2017. The Applicant did not avail herself of that leave.
At the second directions hearing on 5 October 2017, the Applicant explained that she was having difficulty in obtaining legal assistance in relation to the preparation of an amended statement of claim. Over the objection of the Respondent, I extended the time in which the Applicant could file and serve an amended statement of claim to 19 October 2017. However, the Applicant has still not filed an amended statement of claim.
The Respondent filed its strike out/summary dismissal application on 13 September 2017. It seeks summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) or, in the alternative, the striking out of the Statement of Claim pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). Section 31A(2) provides:
(2)The Court 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.
It is unnecessary to canvass the principles bearing upon the application of s 31A(2) which emerge from the authorities concerning it. That is because it is plain that the Respondent has not established a proper basis on which the Court could act pursuant to s 31A. In particular, the Respondent adduced evidence only during the course of this morning’s hearing of the two decisions in the FWC and has not adduced evidence of the transcript of proceedings in the FWC. That being so, it is not possible for the Court to conclude presently that the Applicant has no reasonable prospects of successfully prosecuting the application in its entirety.
The Respondent’s alternative application with respect to the striking out of the Statement of Claim pursuant to r 16.21 stands differently. It is plain that the Statement of Claim is deficient in a number of respects. It appears to have been prepared inappropriately on an assumption that an application to this Court pursuant to s 39B of the Judiciary Act is in the nature of an appeal from a decision or decisions of the FWC on the merits. The deficiencies in the Statement of Claim include these:
(a)none of the grounds pleaded in [7] is particularised;
(b)the decision of FWC with respect to the evidence of Mr Dengate which is the subject of [4] is not particularised;
(c)the assertion that the Full Bench erred in finding that the proposed evidence of Mr Dengate was not relevant is unparticularised;
(d)there are no particulars provided of the allegation in [5]. Amongst other things, the Statement of Claim does not particularise the reason advanced by the Respondent which is said to have been the valid reason for the dismissal, the unlawfulness which is alleged with respect to that reason, the “reengagement” referred to, nor the other reasons said to indicate that the Respondent’s reason for the dismissal was not valid;
(e)more generally, it does not indicate a particularised basis on which it could be held that jurisdictional error, or an error on the face of the record of the FWC, could be found.
In my opinion, these deficiencies warrant the striking out of the whole of the statement of claim.
Despite the opportunities which the Applicant has already had, I will grant her one further opportunity. However, in order that the Court maintains some supervision over that process, the filing of a further statement of claim is to be subject to the grant of leave. It will be necessary for the Applicant to demonstrate that she has a statement of claim which is in an appropriate form and is capable of identifying the kind of error upon which this Court might grant relief in the exercise of the jurisdiction pursuant to s 39B of the Judiciary Act. In addition, given the opportunities which the Applicant has had so far to provide an adequate statement of claim, the grant of leave will be subject to a self‑executing order.
The orders of the Court are these:
(1)The application filed on 13 September 2017 for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 is dismissed.
(2)The Statement of Claim filed on 29 June 2017 is struck out.
(3)Any application by the Applicant to file and serve an Amended Statement of Claim is to be filed and served by Monday 20 November 2017 and will be heard at 9 am on Wednesday 22 November 2017.
(4)If the Applicant does not file and serve an application for leave to file and serve an Amended Statement of Claim with an Affidavit annexing the proposed Amended Statement of Claim by close of business on Monday 20 November 2017, the proceedings will stand dismissed.
(5)Costs are reserved.
(6)There be liberty to apply.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 17 November 2017
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