SANKARARAMALINGAM v Infotech PROFESSIONALS Pty Ltd - [2016] FCCA 2729

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANKARARAMALINGAM v INFOTECH PROFESSIONALS PTY LTD

[2016] FCCA 2729

Catchwords:
INDUSTRIAL LAW – Application under the Fair Work Act 2009 (Cth) – Alleged underpayment of wages – claims made against respondent contrary to the Fair Work Act 2009 (Cth) – application for summary dismissal – whether the applicant’s claims are not reasonably arguable – certain claims made by the applicant struck out – application for summary dismissal otherwise dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.90(1), 96(1), 117, 330

Fair Work Regulations 2009 (Cth), reg.3.46
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court of Australia Rules 2001 (Cth), r.13.10

Cases cited:

Cavar v Nursing Australia [2012] FCA 338

Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

SZWBH v Minister for Immigration & Border Protection (2015) 229 FCR 317; [2015] FCAFC 88

Applicant:

VALLIGOMATHY SANKARARAMALINGAM

Respondent:

INFOTECH PROFESSIONALS PTY LIMITED

File Number:

SYG 2116 of 2016

Judgment of:

Judge Smith

Hearing date:

19 October 2016

Date of Last Submission:

19 October 2016

Delivered at:

Sydney

Delivered on:

4 November 2016

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr I. Latham

Solicitors for the Respondent:

Sachi Legal

ORDERS

The following claims made by the applicant be struck out:
(a)that the base salary was unlawfully reduced by the respondent on some payslips;
(b)that the applicant was not paid as a trainer during the period 15 May 2014 to 14 November 2014 despite the designation in the Service Certificate provided by the respondent; and
(c)that the respondent did not pay the applicant the correct statutory entitlements for the period between October 2010 and November 2011.
The application for summary dismissal is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2116 of 2016

VALLIGOMATHY SANKARARAMALINGAM

Applicant

And

INFOTECH PROFESSIONALS PTY LIMITED

Respondent

REASONS FOR JUDGMENT

The applicant in these proceedings seeks compensation from the respondent, (“Infotech”) who is her former employer. Infotech seeks an order summarily dismissing the application on the basis that the applicant’s claims are not reasonably arguable.

Application for summary dismissal

The Court may summarily dismiss proceedings, or any claim for relief, if it is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim: r.13.10 of the Federal Circuit Court Rules2001 (Cth). Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2729
Decision Date: 4 November 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Smith considered an application by Infotech Professionals Pty Ltd to summarily dismiss proceedings brought by Sankararamalingam. The core of the dispute involved whether Sankararamalingam had a reasonable prospect of successfully prosecuting his claim.

The court was required to determine the appropriate test for summarily dismissing proceedings under rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) and section 17A of the Federal Circuit Court of Australia Act 1999 (Cth). This involved considering the threshold for demonstrating that a party has "no reasonable prospect of successfully prosecuting" a proceeding.

Judge Smith applied the principles established by the High Court in cases such as *Spencer v Commonwealth of Australia*, *Fancourt v Mercantile Credits Ltd*, and *Batistatos v Roads and Traffic Authority (NSW)*. The court emphasised that powers to summarily terminate proceedings must be exercised with great care and only when there is no real question to be tried. The test requires a high degree of certainty about the ultimate outcome if the case were allowed to proceed to trial, and while the prospect of success need not be hopeless or bound to fail, it must be more than merely fanciful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court may summarily dismiss proceedings, or any claim for relief, if it is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim: r.13.10 of the Federal Circuit Court Rules2001 (Cth). Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides: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.(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section. The High Court considered an equivalent provision in the Federal Court of Australia Act 1976 (Cth) in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28. French CJ and Gummow J said, at [24]:The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.(Citations omitted)

Ratio Decidendi

Legal Principle Established

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