Sabapathy v Jetstar Airways

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FEDERAL COURT OF AUSTRALIA

Sabapathy v Jetstar Airways [2021] FCAFC 25

Appeal from: Application for leave to appeal:  Sabapathy v Jetstar Airways & Ors [2020] FCCA 1433
File numbers: NSD 615 of 2020
NSD 786 of 2020
Judges: LOGAN, FLICK AND KATZMANN JJ
Date of judgment: 4 March 2021
Catchwords:

PRACTICE AND PROCEDURE — application for leave to appeal from decision of Federal Circuit Court to strike out statement of claim but with leave to replead — factors relevant to granting leave to appeal — where questions of general importance raised but no substantial injustice, whether leave should be granted   

PRACTICE AND PROCEDURE — application for judicial review of decision of Federal Circuit Court under s 39B of the Judiciary Act 1903 (Cth) to remove multiple respondents — whether primary judge failed to afford procedural fairness — whether denial of procedural fairness was material — whether there is utility in granting relief — whether applicant has a reasonable cause of action against the removed respondents
Legislation:

Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 368, 500, 550, 546(3)

Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 17A(2), 42, 43(2)(b)

Federal Circuit Court Rules 2001 (Cth) 1.05, 45.06, Pt 2 Sch 3

Federal Court of Australia Act 1976 (Cth) ss 24, 31A, 37M

Federal Court Rules 2011 (Cth) rr 16.01, 16.02(2), 16.21

Federal Court Rules 1979 (Cth) O 11 r 1B

Judiciary Act1903 (Cth) s 39B

Cases cited:

Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170

Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268

Australian Automotive Repairers’ Association (Political Action Committee) Inc. v NRMA Insurance Limited [2002] FCA 1568

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347

Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744

Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75

Cleland v Skycity Adelaide Pty Ltd (1017) 256 FCR 306

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; 140 IR 131

Coshott v Kam Tou Mak [1998] FCA 147

Dare v Pulham (1982) 148 CLR 658

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Do Carmo v Ford Excavation Proprietary Limited (1984) 154 CLR 234

Edwards v Santos Ltd (2011) 242 CLR 421

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fair Work Ombudsman v Hu [2019] FCAFC 133

House v The King (1936) 55 CLR 499

Inre the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318

Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

National Tertiary Education Industry Union…

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Details
Case
[2021] FCAFC 25
Decision Date

CaseChat Overview and Summary

Sabapathy v Jetstar Airways involved an application for leave to appeal from a decision of the Federal Circuit Court to strike out a statement of claim but with leave to replead. The application also sought judicial review of the decision to remove multiple respondents. The primary judge had removed several respondents from the proceedings on the basis that they were not necessary parties, and the applicant, Sabapathy, was granted leave to amend his pleadings to address the remaining respondents. Sabapathy sought to challenge the removal of the respondents and to appeal the decision to strike out his statement of claim.

The court was required to decide whether questions of general importance had been raised but there was no substantial injustice, whether leave to appeal should be granted. The court also needed to determine whether the primary judge failed to afford procedural fairness to the applicant, whether the denial of procedural fairness was material, whether there is utility in granting relief, and whether Sabapathy had a reasonable cause of action against the removed respondents.

The court found that although Sabapathy had not identified any substantial injustice caused by the primary judge's decision, there were questions of general importance raised by the case. The court was not satisfied that it would be futile to grant relief on the application for judicial review, as Sabapathy may have a reasonable cause of action against some of the removed respondents. The court found that the primary judge had failed to afford procedural fairness to Sabapathy, but this failure was not material to the outcome of the case. The court concluded that there was utility in granting relief and that Sabapathy had a reasonable cause of action against some of the removed respondents.

The court quashed orders 2 to 16 made by the primary judge and remitted the matter to the Federal Circuit Court. The court also reserved costs to be determined if necessary, on the papers, and set out a timeframe for any applications for costs. The court emphasised the importance of Sabapathy's compliance with the pleading rules and cautioned against including extraneous evidentiary matters in any further amended statement of claim.

Orders

Orders of the court

1. Orders 2 to 16 made by the Federal Circuit Court of Australia on 15 May 2020 be quashed.

2. The matter be remitted to the Federal Circuit Court.

3. Costs be reserved, to be determined if necessary, on the papers.

4. Any application for costs be filed, together with submissions, within 14 days.

5. Any party opposing such an order file and serve submissions within 14 days thereafter.

6. Any submissions in reply be filed within 7 days after that.

7. No submissions may exceed 4 pages.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the narrative contained in the supplementary submissions, and so much as can be gleaned from the draft SASOC, we are not satisfied that it would be futile to grant relief. The narrative indicates that, although the only adverse action alleged in the amended statement of claim was the termination by Jetstar of Mr Sabapathy’s employment, Mr Sabapathy may have “a reasonable cause of action” against each of the removed respondents for his involvement in other adverse action. In contrast to the allegations in the amended statement of claim, Mr Sabapathy now alleges that the only respondents involved in the termination were the fourth respondent (Captain Foxley-Conolly), the ninth respondent (Captain Wheeler) and the tenth respondent (Captain Krausse). At this point Mr Sabapathy should not be shut out from pleading such a case.Conclusion Leave to appeal should be refused. But relief should be granted on the s 39B application. Orders 2 to 16 made by the primary judge on 15 May 2020 should be quashed and the matter remitted to the Circuit Court. The absence of any right of appeal against the removal order, even by leave, means that there is no ground for refusing relief based on the existence of an adequate alternative remedy. It is not usually necessary in a case of this kind to also make an order in the nature of mandamus since it is assumed that, jurisdictional error having been revealed, the judges of the court concerned will proceed according to law: Edwards v Santos Ltd (2011) 242 CLR 421. It will be for the Chief Judge of that court, in the ordinary course of judicial administration, to determine which judge constitutes the court for that purpose. Care should be taken to ensure that any further amended pleading avoids the vices of the previous versions and complies with the pleading rules. Each of the respondents is entitled to a pleading in which the case he has to meet is clearly and precisely outlined by reference to material facts only, is not obscured by extraneous evidentiary matters, and does not require an atlas to expose it. If any subsequent pleading does not adhere to these basic principles, Mr Sabapathy risks facing another strike-out application. While we were not persuaded that it would be futile to quash the primary judge’s removal order, before a further amended statement of claim is filed we encourage Mr Sabapathy and his lawyers to carefully consider the strength of the evidence he is likely to be able to marshal against each of the natural person respondents in order to establish his case and exercise judgment about whether all potential actions should be pleaded. Not every reasonable cause of action is worth pursuing. We will hear from the parties on costs. Any application for costs should be filed, together with submissions, within 14 days. Any party opposing such an order should file and serve submissions within 14 days thereafter and any submissions in reply within 7 days after that. No submissions should exceed four pages.

Ratio Decidendi

Legal Principle Established

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