Seers v Australian Postal Corporation
[2014] FCCA 377
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEERS v AUSTRALIAN POSTAL CORPORATION | [2014] FCCA 377 |
| Catchwords: PRACTICE & PROCEDURE – Summary dismissal – abuse of process – no reasonable prospect of success. |
| Legislation: Fair Work Act 2009, part 3.1. ss.340, 341(1)(c), 342, 351, 360, 365, 368(3)(a), 371, 570(2) |
| Seers v Australia Post [2011] FMCA 659 Lancet & Lancet [2008] FMCAfam 525 Spallav St George Motor Finance Ltd [2004] FCA 1699 |
| Applicant: | SHARON LEE SEERS |
| Respondent: | AUSTRALIAN POSTAL CORPORATION |
| File Number: | MLG 1785 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 18 February 2014 |
| Date of Last Submission: | 18 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 7 March 2014 |
REPRESENTATION
| Applicant Appearing In Person |
| Counsel for the Respondent: | Ms Nelson |
| Solicitors for the Respondent: | Australian Postal Corporation |
ORDERS
The application filed on 23 October 2013 be dismissed pursuant to rule 13.10 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1785 of 2013
| SHARON LEE SEERS |
Applicant
And
| AUSTRALIAN POSTAL CORPORATION |
Respondent
REASONS FOR JUDGMENT
Introduction
On 23 October 2013 Sharon Lee Seers (“the applicant”) filed an application and Claim (Form 4) alleging contravention of general protections under Part 3.1 of the Fair Work Act 2009 (“the Act”).
In essence her claim is that the respondent contravened ss.340 and 351 of the Act. She specified at point 19 of her claim the adverse action by the respondent as:
“Fraud, bullying, harassment further injury due to negligence”
She specified her workplace right pursuant to s.340 of the Act as:
“To be granted an investigation when a request is made”
She specified the “attribute” under s.351(1) of the Act as:
“Discriminated against (past injuries) aggravation of depression due to the negligent actions of Australia Post”
It is relevant to note that on 28 August 2013 the applicant made an application for the Fair Work Commission to deal with a general protection dispute (Form 9). In the Form 9, at point 3.1, in response to the question, “Did the alleged contravention involve the dismissal of the Applicant…”, the Applicant responded, “No”.
On 31 November 2013 the respondent filed an application in a case seeking orders that the proceedings be dismissed generally in accordance with r.13.10 of the Federal Circuit Court Rules 2001 (“the Rules”) and that the applicant pay the respondents costs in accordance with s.570(2) of the Act. In support of its application the respondent filed an affidavit of Sarah Blunt Blackman (“the Blackman affidavit”).
Rule 13.10 provides:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court 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
(b)the proceeding or claim for relief is frivolous or vexations; or
(c)the proceeding or claim for relief is an abuse of process of the Court.”
At the first return date (27 November 2013), the respondent sought and was granted leave to file written submissions in relation to its application in a case (“the respondent’s submissions”). As the applicant was unrepresented and to give her ample opportunity to prepare her response, orders were made that the applicant file and serve any affidavit material and submissions in reply. The applicant filed an arch folder of documents and written submissions on 20 January 2014 (“the applicant’s submissions”). The respondent’s application in a case was listed for hearing on 18 February 2014.
The applicant represented herself in these proceedings and in earlier proceedings to which I will shortly return. Without in any way criticising the applicant, it is apparent that she has very little understanding of the application and operation of the relevant provisions of the Act and the principles applicable in summary dismissal proceedings. Having said this, however, the applicant has demonstrated a capacity to actively pursue her complaints and grievances and to collate and present documentary material which she believes is relevant to the disposition of her claims. On the material before me it is apparent that she has been able to do this in these and earlier proceedings which I now set out in some detail.
On 13 August 2010 the applicant made an application to the Court, pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (“the DDA application”). In the DDA application, the applicant alleged unlawful discrimination on the basis of disability in the area of employment by the respondent in contravention of the Disability Discrimination Act 1992 (“the DD Act”).
The applicant filed and served on 17 December 2010 a statement of claim dated 16 December 2010 in relation to the DDA application.
The Respondent filed on 25 March 2011 an application in a case seeking the DDA application be summarily dismissed.
On 6 May 2011, Federal Magistrate O’Dwyer (as His Honour then was), ordered that pursuant to r.13.10 of the rules, the applicant’s application filed on 13 August 2010 be dismissed with costs: Sharon Lee Seers v Australia Post [2011] FMCA 659 (“Seers No.1”).
His Honour set out in his decision the factual background to the DDA application which is appropriate to reproduce below as this forms the factual background for the current proceedings. I note that the background is in summary form covering the many incidents and complaints set out in the applicant’s written submissions. His Honour stated at [4] to [6]:
“4.On 13 August 2010, the Applicant applied to the Court pursuant to sections 5, 6, 15 and 123 of the Disability Discrimination Act 1992 (the DDA) seeking redress for her complaints by way of a declaration that the Respondent had discriminated against her; a claim for loss due to aggravation of an injury; and pain and suffering arising out of the discrimination.
5.The background giving rise to the alleged discrimination centres around a fall she had at work on 30 October 2008, resulting in generalised injury, pain and shock, but in particular her left ankle and knee. She was escorted to a hospital and thereafter followed more generalised complaints, but in particular bruising to her left chest wall and difficulties with breathing.
6.Again, in general terms, what followed was communication to and from her employer regarding fitness for work and programs designed to get her back to work. What also followed, as is the normal course of events in these types of injuries in the workplace, were medical assessments, both by her own doctor and by those she was referred to by her employer. In short, she complains about the means and manner in which she was subjected to medical assessment, she complains about the quality of the medical assessments, and she complains about the failure of her employer to give proper consideration to medical assessments provided by her. Her complaints also pivot around errors made in documentation, allegedly aggressive prosecution by the Respondent of a back-to-work program and a return to work that proved, from her perspective, too early, resulting in aggravation of her injuries.”
Relevantly, in dealing with the requirements under the DD Act, His Honour sated at [13] to [14]:
“13.The Applicant has an abiding conviction that she was treated badly by the Respondent, both in respect of personal dealings she had with members of staff and in how her worker’s compensation claim was treated and finally resolved. However, in her conviction about how she was treated, she has assumed, it would appear principally because of the preparedness of the Commission to take on her complaint under the DDA, that the explanation for her complaint can only lie at the feet of the Respondent on the basis of disability discrimination.
14.I have some sympathy for the Applicant, who has appeared throughout unrepresented, because of her manifest lack of legal expertise and understanding of the law applying and what is necessary to successfully prove a case of disability discrimination. Nonetheless, I am satisfied, based upon the material before me, and indeed the submissions made at court on 18 April 2011, that the Applicant has no reasonable prospect of success and I make that conclusion being mindful of the law applying and the caution expressed by the authorities about summary dismissal.”
His Honour’s reasoning in deciding to grant the respondent’s application in a case is set out at [11] to [12]:
“11.The Respondent’s submissions claim, with which claim I agree, that the Applicant has failed to identify, either explicitly or by implication, any comparator in the Applicant’s application, statement of claim or the particulars. I agree with the Respondent when it said that no allegation made by the Applicant that, but for her disability, the Applicant would have been treated differently. When pressed by the Respondent to particularise how the Act applied to her claims the Applicant, in effect, responded by suggesting that it must apply otherwise the Commission would not have entertained her claim under the DDA. This plainly is not a basis for a conclusion that the complaint made over the conduct of the Respondent in respect of her claim for worker’s compensation came within the purview of the DDA. I am satisfied that none of the allegations made by the Applicant against the Respondent amount to allegations of disability discrimination.
12.The Applicant, in my view, has failed to bring herself within the provisions of the DDA. Her complaints are about the processes involved in and the outcome arising from the Applicant’s claim for worker’s compensation. It is to be noted that she resolved the dispute in this regard with the Respondent by an acceptance of $2500 pursuant to consent orders made on 7 July 2009.”
On 23 September 2011, the applicant filed in the Federal Court of Australia an application for an extension of time to file an application for leave to appeal and for the grant of leave to appeal. On 10 October 2011, Jessup J granted the application for an extension of time, dismissed the application for leave to appeal and ordered the applicant pay the respondents costs: Seers v Australia Postal Corporation [2011] FCA 1163 (“Seers No.2”). In relation to the applicant’s application for leave to appeal, his Honour stated at [7] to [8]:
“7.Although it appears, from the passages to which I have referred, that the Federal Magistrate approached the question before him largely by reference to the applicant’s Statement of Claim and particulars, I have today heard from the applicant at length with respect to the nature of her complaint against the respondent, and I have not been able to perceive anything in that complaint which would cast any doubt upon the conclusion reached by the Federal Magistrate. The complaints which the applicant desires to have heard in court are manifestly strongly felt but, in my view, the Federal Magistrate was correct to have reached the conclusion that they do not invoke the discrimination provisions of the Disability Discrimination Act.
8.I am therefore not satisfied that the judgment below is attended by sufficient doubt to warrant it being considered by this court, and must in the circumstances reject the application for leave to appeal.”
Principles to be applied to summary dismissal
The respondent’s submissions set out a convenient summary of the relevant principles to be applied in such applications at [11] to [16]:
“11.The general principles for summary dismissal were explained by Weinberg J in McKellar v Container Terminal Management Services Limited.[1] At 415, Weinberg J noted:
[1] (1999) 165 ALR 409, especially at 415-17
“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.”
12.After surveying the authorities on the law of summary dismissal, Weinberg J concluded at 416 that:
“They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of 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 process of the court.”
13.The principles which apply to an application to summarily dismiss proceedings in the Federal Magistrates’ Court were summarised by Driver FM in SZBBL v MIMIA[2]:
[2] [2004] FMCA 185
“Part 4, rules 4.01 and 4.02 of the Federal Magistrates Court Rules relevantly provide that an application to the Court must state precisely and briefly the orders sought and the basis on which the orders are sought. Rule 4.05(1) provides that an applicant must file an affidavit in support of an application, whether seeking final, interim or procedural orders.
Part 13, rule 13.10(a) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim discloses no reasonable cause of action.
The power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed should only be exercised where it is inevitable that the proceeding will fail and should be exercised with exceptional caution, especially where the ultimate outcome depends on the resolution of disputed facts.
An order for summary dismissal should only be made where the claims are clearly untenable and cannot succeed or where it is clear that there is really no question to be tried, that the grounds for the application are unarguable or it is a hopeless case with no chance of success.
In circumstances where an applicant is self-represented, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant.”
14.The respondent accepts that as set out in Oorloff & Anor v Lee & Anor[3] that in unlawful discrimination cases the power to summarily dismiss ought be exercised with caution[4]. Walter FM summarised the relevant principles that apply when there is consideration of summary dismissal of an unlawful discrimination matter, particularly where there is an unrepresented litigant. He stated[5] (quoting from submissions made to him):
[3] [2004] FMCA 893
[4] per Walter FM at 49
[5] per Walter FM at 49
“I also agree with the summary of the law in relation to this subject set out in paragraphs 1 to 12 of the written submissions prepared by Mr Redd (on behalf of Ms Lee):
4. In the context of discrimination legislation, both the Federal Magistrates Court and Federal Court have emphasised that the power to summarily dismiss a matter must be exercised with ‘exceptional caution’ and be ‘sparingly invoked’. In particular, the power should be used with great care when the litigant is unrepresented.’
5. The Federal Court has also held, however, that:
‘Whilst circumspection is appropriate, if the evidence before the Court establishes that if the matter were to go to trial in the ordinary way the application must fail then a case for summary dismissal of the proceedings is made out.’[6]
[6] Paramasivam v Grant & Anor [2001] FCA 758, [14] applying Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598.
6. Lehane J in Travers obo Travers v New South Wales affirmed the view of Sir Ronald Wilson in the HREOC decision of Assal v Department of Health, Housing & Community Services that:
‘it is in the public interest, as well as the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power ... in circumstances where that exercise is clearly warranted’.
7. Lehane J added:
‘That is especially so, perhaps, in this Court where an unsuccessful litigant, if proceedings are protracted, may face what can be the considerable burden of a costs order.’
8. Special considerations apply in applications for summary dismissal with an unrepresented litigant. Sackville J in Re Morton; Ex Parte Mitchell Products Pty Ltd surveyed the authorities and noted that the Court:
‘must ... have regard not merely to the litigant in person but also to 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.’
9. In conclusion, at 514 Sackville J quoted with approval the words of Mahoney JA in Rajski v Scitec:
‘Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of lack of legal skill, failed to claim rights or put forward arguments which otherwise he might not have done’.
10. Both the Federal Magistrates Court and the Federal Court have made it clear that the onus in a summary dismissal application is on the respondent, who must establish ‘a high measure of satisfaction in the Court that the proceedings are of a character that they should be dismissed.
11. In determining whether there is an arguable case, the Court is not limited to considering the arguments put before it by the party defending the application, but may look at all the material to assess independently whether an arguable case based on the material could be made out.
12. Drummond J in Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 468 noted that:
‘A complainant must therefore have at the outset of the inquiry into his complaint sufficient material, it need not be legally admissible evidence, ... to show that he has more than a remote possibility of a well-founded claim if he is to defeat an application for summary dismissal of the case that can be made out at the start of the inquiry’”.
15.To the extent that the Applicant’s current application relies on section 351 of the FWA, alleging discriminatory conduct, the respondent accepts that the relevant principles apply.
16.However, regardless of the high bar that must be reached by the Respondent, it is submitted that this is such case where the claim should be summarily dismissed because there is not even a “remote possibility of a well-founded claim.”
Respondent’s case
The respondent submits that the facts and issues raised by the applicant’s current application:
“…
a.are the same as those contained in the DDA Application;
b. pre-date the commencement of the FWA; and/or
c.are alleged to have occurred at times after the applicant’s employment with the respondent ended.”
The allegations are the same as the DDA application
The respondent submits that the applicant’s application should be dismissed on the basis that it is an abuse of process (Rule 13.10(c)) because they say, “it is plainly an attempt to re-litigate a case already disposed of in breach of the rule of issue estopped.”
The respondent’s submission on this are extracted below:
“18.Section 14 of the Federal Circuit Court Act 1999 (Cth) states:
“In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b)on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d)all multiplicity of proceedings concerning any of those matters may be avoided.”
19.The interpretation of the predecessor of section 14 of Federal Circuit Court Act (section 14 of the Federal Magistrates Court Act which was in identical terms) was considered by Lloyd-Jones FM in Philip v State of New South Wales[7]. His Honour stated at [50] to [53]:
[7] [2011] FMCA 308
“The authors including Allen Robinson SC, Grant T Riethmuller of the Federal Magistrates Court Practice and the CCH Editors draw particular attention to paragraph 14(d) which they state is in similar terms to s.23 of the Federal Court Act of Australia 1976. Importantly, s.14 simply provides a power to determine matters that are within the jurisdiction of the Court. Where a ‘matter’ involves issues or claims associated with a matter within jurisdiction of the Court, consideration must be given to s.18 in order to determine whether the Court will have accrued or associated jurisdiction with respect to the matter.
It is the learned authors’ view that it is clear that the intention of Parliament is to provide the Court with sufficient powers to completely deal with a matter so as to avoid multiple proceedings. The Explanatory Memorandum states as follows:
“Clause 14 gives the Court the power to conclusively determine all the claims that are before the Court and to grant whatever remedies are necessary to do so. This provision is designed to avoid multiple proceedings arising from the same dispute between parties.”
The authors refer to the decision in Rasomen Pty Ltd v Shell Company of Australia (1997) 75 FCR 216, where his Honour Drummond J considered the equivalent provisions of the Federal Court of Australia Act 1976, stating that:
“The expression ‘matter’, in the context of sec 22 and 23 of the Federal Court of Australia Act, is a term of wide import. It conveys, in the general context of curially determinable disputes and not just in the special context of sec 76(ii) the Commonwealth Constitution, the notion of a ‘justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy’: see Fencott v Muller (1983) 152 CLR 570 at 603 (a decision on sec 86, in the form it took different from that which it now takes, but in which the majority of the Court said that the ambit of the jurisdiction conferred by the section on the Federal Court depended upon the meaning of ‘any matter arising under any laws made by the Parliament’ in sec 76(ii) the Constitution).
The jurisdiction conferred on this Court by sec 22 and 23 of the Federal Court of Australia Act is jurisdiction to determine the entire controversy involving the parties provided it is a controversy arising under Federal Law. The Court’s jurisdiction can also extend to the determination of related but non-Federal causes of action: see sec 32 of the Federal Court of Australia Act and Fencott v Muller, although the question for present determination involves only causes of action arising under Federal Law in respect of which this Court is given jurisdiction”.
20.It is clear that the Court, when determining the applicant’s DDA Application, had jurisdiction to determine any related claims that the applicant may have had under the FWA. They arise from precisely the factual circumstances complained of by the applicant in the DDA Application. As held by the High Court in Walton v Gardiner[8] per Mason CJ, Deane and Dawson JJ at 393:
“Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”[9]
(emphasis added)
21.Apart from the allegations which the applicant raises on page 3 of Attachment A under the heading ‘Division 7, 2.1 360 of the Fair Work Act 2009 Part 3.1’ in paragraphs 1, 2, 3, 4, and paragraphs 6, 7, and 8 of page 4 of Attachment A (under the same heading)[10] there are no new allegations or issues that are raised by the Current Application. They are all matters that have been previously determined by the Federal Magistrates Court in relation to the DDA Application and therefore the respondent submits ought be summarily dismissed pursuant to rule.13.10(c) as an abuse of process.”
[8] (1993) 177 CLR 378
[9] per Mason CJ, Deane and Dawson JJ at 393
[10] Each of these allegations are dealt with in paragraphs below. They should also be summarily dismissed because each of the allegations arises after the applicant’s resignation on 7 July 2009, after which time the FWA had no application to the relationship between the applicant and the respondent.
The respondent has annexed to its written submission a table which they state sets out a comparison of the allegations contained of the current application (to this Court) and those previously the subject of the DDA application. The applicant has not criticised the correctness of the content of this comparison. Having examined the applicant’s current application and the applicant’s statement of claim (SBB-2, Blackman affidavit) and submission (SBB-4, Blackman affidavit) in the DDA application, I am satisfied as to the veracity of the comparison. The table, entitled “Table of Allegations”, is extracted in full at Annexure 1 to this decision.
Allegations pre-date commencement of FWA
The respondent submits that it is apparent from the table (Annexure 1) setting out the allegations which form the basis for the applicant’s current application, that (other than the allegation that the applicant resigned during the conciliation conference before the Human Rights and Equal Opportunity Commission (“the HREOC”), all allegations pre-date the commencement of the Act on 1 July 2009. The respondent identifies the relevant conduct alleged by the applicant as[11]:
[11] Respondent’s submissions at [23]
“a.31 October 2008 - the determination requiring her to attend a fitness for duty assessment;
b. 6 November 2008 – the second injury;
c.prior to 5 November 2008 – the alleged bullying and harassment preventing the applicant attending her GP;
d. 25 November 2008 – the fitness for duty assessment;
e.13 February 2009 – the denial of workers’ compensation claim;
f. 21 January 2009 – direction to see a further doctor; and
g. 30 January 2009 – denial of workers’ compensation claim.”
The respondent submits that, given the applicant’s HREOC complaint had not been filed on 7 July 2009, the applicant resigned as part of the Administrative Appeal Tribunal (“the AAT”) proceedings on 7 July 2009.
The respondent submits that, as the allegations precede the commencement of the operation of the general protection provisions of the Act, there is no jurisdiction for the Court to proceed to consider the alleged contraventions. Consequently, those aspects of the applicant’s current application; namely, the claims of contravention of general protection provisions, should be summarily dismissed in accordance with r.13.10(a) of the Rules on the basis that they have no reasonable prospects of success.
The allegations alleged to have occurred at times after the applicant’s employment with the respondent
The respondent submits that the allegations the applicant makes in her Form 4 claim in the part headed, “Division 7, 2.1, 360 of the Fair Work Act 2009 Part 3.1” relates to requests that the applicant has made for investigations by:
a)the Australian Information Commissioner;
b)Comcare;
c)the Fair Work Ombudsman;
d)the Australian Federal Police;
e)the Deputy Prime Minister and various members of the Federal Parliament and senators; and
f)the HREOC.
The respondent submits:
“26.None of these allegations are the exercise of a workplace right, being able to make a complaint or inquiry in relation to the applicant’s employment as the applicant’s employment ended on 7 July 2009. There is further no adverse action by the respondent alleged in any of those paragraphs. Even if such adverse action was alleged, none could exist by virtue of the requirement in section 342 of the FWA that action be by an employer against an employee or a prospective employer against a prospective employee.”
The respondent submits that, as a consequence, these allegations should be summarily dismissed in accordance with r.13.10(a) of the Rules on the basis that they have no reasonable prospect of success.
Applicant’s submissions
In her submissions the applicant sets out firstly the history of the DDA application. The applicant then appears to make the following points in her submissions. Firstly, she states:
“(B)the respondent response to my complain (sic) of abusive behaviour by its officers (we are not interested in your complaint all we want from you is for you to resign). I broke down that day 7-7-2009”
The applicant then provides as a reason for her inability, “to show I have had been treated any differently to other employees of the respondent”, the fact that the Senate Inquiry into the respondent’s treatment of its injured and ill employees was tabled in Parliament on 24 June 2010. Included in the applicant’s material filed in support of her written submissions, is a copy of the Senate Environment, Communications and Arts References Committee report, “Australia Post’s treatment of injured and ill workers.” The report is dated June 2010 (“the Senate report”). The applicant explained to the Court in the proceedings that the Senate report demonstrated that she was treated differently by the respondent to other employees of the respondent who were ill or injured. She stated, amongst other things, she was treated differently because of the “fraud” she alleges the respondent committed in altering her injury claims. Her understanding was that this was done because of a lost time injury bonus which was acknowledged in the Senate report at paragraph 5.24. She maintained in her written submissions that “all key issues covered by the Senate Inquiry are key issues in my complaint.”
The applicant includes as part of her written submissions various documents traversing the period 30 October 2008, when the applicant suffered her workplace injury, up until July 2013. The applicant includes an index of these documents which both describes the documents in question and provides a narrative of the “evidence” she relies on. The documents that involve incidents at the respondent’s workplace, actions or non-actions taken by the respondent and records made by or interviews undertaken by or on behalf of the respondent commence on 30 October 2008 and end on 13 February 2009 (paragraph 56 of the index). Thereafter, the documents commence with an Australian Federal Police response to the applicant’s request to investigate the respondent for criminal misconduct dated 6 September 2012. The documents end with a response from the Department of Broadband, Communications and Digital Economy dated 29 July 2013.
As the applicant was self-represented, I explained to her the submissions of the respondent that the allegations predated the commencement of the general protection provisions of the Act. I drew the applicant’s attention to s.340 of the Act which prohibits a person taking adverse action against another person, relevantly, in this case because the other person has a workplace right or has exercised that workplace right. In this case, the applicant relies on the workplace right specified in s.341(1)(c):
“Section 341(1)(c):
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.”
I explained that, as s.340 came into effect on and from 1 July 2009, the adverse action which the applicant relies on must have occurred on or after 1 July 2009.
I noted that the respondent conceded that the applicant’s employment terminated on 7 July 2009. I referred the applicant to a letter contained in her DDA application and attachments (included in annexure SBB-1 of the Blackman affidavit). The hand written letter is addressed, “To the Manager” and is signed by the applicant and dated 7 July 2009. The letter states:
“I Sharon Seers hereby tender my resignation as of cease of business 7 July 2009. My decision to resign is made freely and voluntarily and I acknowledge that my resignation is final and will result in me being no longer employed by the Australian Postal Corporation.”
Preceding that letter is what is apparently a settlement deed reached at the AAT between the applicant and respondent. The terms of settlement is stated to have been made in relation to an application by the applicant for a review of a reviewable decision of the respondent dated 13 February 2009 (AAT No.2009-0826). It is to be noted that the reviewable decision is a decision by the respondent made in respect of her workplace injuries. The terms of settlement in the deed provided, amongst other things, “that the applicant shall tender her resignation from the employ of the respondent effective 7 July 2009” and, “the respondent shall pay the applicant an amount of $2,500.00 for out of pocket expenses and legal costs.” The deed is signed by the applicant and a solicitor for the respondent.
In the proceedings the applicant stated that whilst the letter is expressed as a resignation, she was forced to resign by the respondent because she could no longer work in an unsafe workplace. She clarified that she was stating that her dismissal was a constructive dismissal and that the dismissal was adverse action taken by the employer the respondent against her on 7 July 2009.
In relation to the complaints she alleges she makes to authorities and/or persons other than the respondent which post-date the coming into effect of the Act, I explained to the applicant that s.342(1) of the Act relevantly confines the scope of adverse action to adverse action taken by an employer against an employee.
This meant, therefore, that the responses to her requests for investigations by bodies or persons, other than the respondent, which she maintained was adverse action, fell outside the scope of s.342(1) and hence the general protection provisions of the Act.
The respondent’s submissions in reply
The respondent submitted that the Senate report did not address the requirement of a comparator for the purposes of the DDA Act. The respondent further submitted that the question of the applicant’s termination and the factual circumstances of that termination were fully dealt with in her DDA application. The respondent submitted that the factual circumstances surrounding the applicant’s termination of employment was before the Court in her DDA application by reason of point 43 of her Statement of Claim in the DDA application. Point 43 stated:
“Australia Post officers did discriminate against the applicant at a mediation conducted by the Human Rights Commission on the 7-7-09 with intimidation and hearsay. Australia Post left the meeting without any explanation to the applicant.”[12]
[12] Annexure SBB-2 of the Blackman affidavit containing applicant’s Statement of Claim dated 16 December 2010 in the DDA application
The respondent points out that in fact the applicant resigned on 7 July 2009 as part of the AAT proceedings. It submits that the factual circumstances surrounding the ending of her employment with the respondent was fully canvased in the litigation before His Honour Judge O’Dwyer. I note that His Honour referred to the circumstances of the termination of the applicant’s employment at [12] of Seers No.1 as follows:
“The Applicant, in my view, has failed to bring herself within the provisions of the DDA. Her complaints are about the processes involved in and the outcome arising from the Applicant’s claim for worker’s compensation. It is to be noted that she resolved the dispute in this regard with the Respondent by an acceptance of $2500 pursuant to consent orders made on 7 July 2009.”
The respondent submits that there was no claim made by the applicant in the DDA application that she was coerced into resignation by the employer. The respondent submits, therefore, that the applicant’s submission that she was constructively dismissed and that this constituted adverse action amounts to an abuse of process as the circumstances of her dismissal were fully ventilated and dealt with in Seers No.1.
I note that in an attachment B to the applicant’s Form 4 filed in the Court the applicant states:
“…I was subjected to bullying, harassment and intimidation. All because I exercised a workplace right and requested an investigation, and was denied so on 7-7-09 I resigned at the request of management but I would not have returned after that day because it became an unsafe workplace.”
The respondent submits that even if it were accepted that she was constructively dismissed, s.366 of the Act provided, at the relevant time, that other in exceptional circumstances an application involving dismissal must be made within 60 days of the dismissal.
Consideration
Rule 13.10 enables the Court to dismiss proceedings on grounds including that the proceedings or claim are an abuse of process or that the party prosecuting the claim has no reasonable prospects of success.
I have earlier set the respondent’s submissions on the law on the abuse of process under the rubric “issue estoppel” (see [22] above)
Abuse of process, putting the matter broadly, is not by definition a closed area. The headnote to Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 states:
“The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed.”
(Per French J, as His Honour then was).
To quote again from the headnote:
“Underlying the power the courts have assumed to stay or dismiss proceedings for abuse of process is a policy preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is another relevant matters to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts.”
Over the years, as stated above, the applicant has continued to file many excessively lengthy documents that are unclear, prolix, dense and largely incomprehensible. In Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189 at [24], Sully J said as follows:
“I say again, and say it with emphasis, it is time that all litigants understood that it is no part of the judicial duty to accept an undifferentiated mass of documentary material as though it were a matter of course that the Judge will simply wade through it hoping that, after hours or, in a case of the present kind, days, of reading at large, he will somehow manage to identify correctly what the parties thought they were putting before him in the first place.”
In SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 Justice French (as His Honour then was) stated at [37]:
The Federal Magistrates Court, like the Federal Court, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One way involves the use of the procedures of the court to try to relitigate controversies which have already been decided. The Court prevents misuse of its procedures by the doctrines of res judicata and issue estoppel and their extension by analogy to issues which ought reasonably to have been litigated in original proceedings: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1980-1981) 147 CLR 589. The power of the courts to prevent abuse of their processes extends beyond the strict limits of those doctrines. It is of long standing. As Lord Halsbury said in 1889:
“My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. ...
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.”
In Lancet & Lancet [2008] FMCAfam 525 Federal Magistrate Riethmuller (as His Honour then was) stated:
“In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ said:
6. …In Walton v Gardiner[15], the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter[16] in which Lord Diplock spoke of "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". His Lordship went on to describe as "very varied" the circumstances where "abuse of process" can arise[17]. It will be necessary to return to that consideration later in these reasons.
7. In Hunter[18], Lord Diplock disavowed the use of the word "discretion" in describing the exercise of the power to prevent abuse of process. Thereafter, in R v Carroll[19], Gaudron and Gummow JJ observed that the use of the term "discretion" in this context indicates no more than that, although there are some clear categories, "the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse". They added[20]:
“It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration."
In Ridgeway v The Queen (1995) 184 CLR 19 at 74 -75, Gaudron J explained[32]:
"”The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose[33], as well as proceedings that are 'frivolous, vexatious or oppressive'[34]. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard[35]. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories'[36] because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case[37]. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose[38] and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging'[39] or 'productive of serious and unjustified trouble and harassment'[40]."
Earlier, in Rogers v The Queen (1994) 181 CLR 251 at 286, McHugh J observed[41]:
“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.”
In Spallav St George Motor Finance Ltd [2004] FCA 1699 (“Spalla”), French J (as His Honour then was) observed that the general concept of abuse of process is a broad one that “subsumes” the specific doctrines of res judicata, issue estoppel and their Anshun extension.[13] His Honour further observed that:
“69.The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts – Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 545 Carr J).[14]
[13] at [60]
[14] at [69]
In Spalla the Federal Court also set out a non-exhaustive list of matters relevant to the determination of an abuse of process, taken from the judgment in State Bank of New South Wales Ltd v Stenhouse Ltd (1997)[15] which were as follows:
“(a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b)the opportunity available and taken to fully litigate the issue;
[15] (1997) Aust Torts Reports 81-423
(c) the terms and finality of the finding as to the issue;
(d)the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –
(f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.’[16]”
[16] Spalla at para.70 per French J quoting Stenhouse at 64,089 per Giles CJ.
I am satisfied that the applicant, in making an application alleging contraventions of general protections pursuant ss.340 and 351 of the Act is pursuing new proceedings arising from the same dispute between the parties which was dealt with to finality by reason of the decisions of His Honour Judge O’Dwyer in Seers No.1 and Justice Jessup in Seers No.2.
My reasons for so finding are set out below.
The allegations of the applicant in these proceedings are substantially the same as the allegations in the DDA application (See Annexure 1).
I am satisfied that the factual circumstances as evidenced in the documentary material in applicant’s submissions mirror, up until 13 February 2009, the factual circumstances relied on by the applicant in her DDA application
The applicant has relied on the Senate report dated June 2010 as providing fresh evidence or material in support of her submission that her complaints in DDA application were not dealt with to finality. She submits that the report is an answer to His Honour Judge O’Dwyer’s finding that the applicant had not identified the comparator required by s.5 of the DD Act. The applicant’s submission is misconceived as the comparator required under s.5(1) of the DD Act is as stated by Gummow, Hayne and Heydon JJ in Purvis v New South Wales [2003] 217 CLR 92:
“223.In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…”
The applicant’s submissions rely on a comparison of the treatment meted out to her as an injured worker by the respondent and the treatment of other injured employees of Australia Post. Clearly, the Senate report does not provide the comparator required pursuant to s.5(1) of the DD Act. The applicant’s allegations as to discrimination would still remain allegations which could not be made out under the DD Act.
I am satisfied that the issues were dealt with to finality by reason of the judgments in Seers No.1 and Seers No.2 and that if the issues were allowed to be re-litigated this would operate unfairly to the respondent. This is not to deny the grievance clearly felt by the applicant about the way she was treated by the respondent after she suffered her workplace injuries. It was very apparent in proceedings that she feels extremely emotionally distressed about her treatment and the unfairness which she firmly believes she has suffered. However, the fact remains that I have formed the view that her issues were determined to finality in the earlier proceedings.
The applicant alleges the respondent has breached s.351 of the Act on the basis of her disability (workplace injury). It is to be noted that unless the applicant alleges that adverse action taken by an employer is discriminatory treatment by comparisons with other employees then s.351 does not require a comparative test of the type under s.5 of the DD Act: Cugura v Frankston City Council (No.1) [2012] FMCA 340.
However, the adverse action alleged must have occurred on or after 1 July 2009. As observed by the Full Court in Khiani v Australian Bureau of Statistics[2011] FCAFC 109 at [3], it is not open to an applicant to rely on adverse action taken by an employer prior to 1 July 2009 as the general protection provisions of the Act are not retrospective.
Consequently, the applicant cannot rely on all the allegations of adverse action taken by the respondent preceding 01 July 2009 (See [31] above).
The applicant claims in these proceedings that her dismissal constituted a constructive dismissal and, as her employment ended on 7 July 2009, the Court has jurisdiction to consider her claims. No doubt, the applicant would rely on her allegations of the treatment she received at the hands of the respondent in relation to her workplace injury, her recovery from that injury and her various claims made in relation to that injury as constituting a course of conduct which amounted to a repudiation of her contract of her employment at common law or alternatively inimical to the continuation of her contract of employment.
Assuming that indeed the applicant was dismissed by the employer, there is an insurmountable jurisdictional hurdle to her pursuing her claim that she was constructively dismissed and that this constituted adverse action taken by the employer on 7 July 2009.
As noted earlier, in her claim lodged with the Fair Work Commission, the applicant stated that the alleged contravention did not involve dismissal. The consequence of this is that the applicant’s dispute with the respondent was not dealt with by the Fair Work Commission under s.365 of the Act. That section provides:
“If:
(a) a person has been dismissed; and
(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
At the time the applicant filed her Court application, section 371 of the Act relevantly provided:
“1. A person who is entitled to apply under section 365 to the FWC for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)the FWC has issued a certificate under paragraph 369 in relation to the dispute; or
(ii)the general protections court application includes an application for an interim injunction.
2.Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.”
The effect of s.371 of the Act is that, in circumstances where an employee is dismissed and is therefore entitled to apply under s.365 for the Fair Work Commission to deal with the dispute, he or she must not make a general protection Court application unless the Fair Work Commission has issued a certificate under paragraphs 368(3)(a) in relation to that dispute. That is, the scheme of the Act is that unless there is an application for interim injunction, which is not the case in these proceeding, an applicant may not make a general protections claim involving dismissal unless the Fair Work Commission has issued a certificate. No such certificate has been issued in this case. Hence, there is no jurisdiction to deal with the applicant’s general protections Court application to the extent that she relies on dismissal as adverse action occurring after 1 July 2009.
Consequently, if the applicant relies on her claim of constructive dismissal on 7 July 2009 she would, nevertheless, have no reasonable prospects of success as the necessary jurisdiction for the Court to deal with her application is absent.
Similarly, the adverse action she alleges were taken by authorities and persons not being the respondent or its employees do not fall within the scope of s.342(1) of the Act. Consequently, the applicant would have no reasonable prospects of prosecuting her claim in that respect.
Conclusion
I find that the applicant’s general protection Court application is for the reasons set out above both an abuse of process and is one that she would not have a reasonable prospect of successfully prosecuting. Consequently I will dismiss the application filed 23 October 2013 pursuant to r.13.10 of the Rules.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 07 March 2014
Annexure 1 – table of allegations
| Allegation | Current Application | DDA Application |
| The respondent did not allow the applicant recovery time after she was injured on 30 October 2008. | Attachment A: p.5, first paragraph | Statement of Claim (SOC) paragraph 5 Applicant’s submissions paragraph 2 |
| The respondent did not accept a medical certificate dated 30 October 2008 from the Epworth Hospital and instead directed the applicant on 31 October to attend a facility nominated doctor. | Attachment A: | SOC paragraph 1 Applicant’s submissions (attachment) paragraph 2 and 3 |
| Discrimination on the basis of past injuries regarding injury on 30 October 2008. | Attachment A: | SOC paragraph 9, 11, 12, 13, 15, 22, 27, 31, 38, 41 Applicant’s submissions paragraph 1 |
| Aggravation of depression due to treatment of injury on 30 October 2008 and further injury on 6 November 2008. | Attachment A: | SOC 12, 13, 15, 22, 27, 32, 36, 46 final un-numbered paragraph Applicant’s submissions paragraph 2 Applicant’s submissions (attachment) final paragraph |
| Bullying and harassment because of, or following, the injury on 30 October | Attachment A: | SOC 38, 43, final un-numbered paragraph Applicant’s submissions paragraph 1 |
| Failure by the respondent to investigate, applicant threatened with disciplinary action on 26 November 2008 | Attachment A: | SOC 38, 39, 40 Applicant’s submissions paragraph 2 |
| Unfair determination of workers compensation claim | Attachment A: | SOC 8, 9, 10, 12, 13, 15, 16, 17, 18,19, 20, 21, 22, 24, 27, 30, 31, 32, 33, 36, 37, 38, 39, 40, 44 Applicant’s submissions paragraph 1, 2, 3 Applicant’s submissions (attachment) fourth paragraph, fifth paragraph and final paragraph |
| Use of medical report obtained under section 36(3) SRC Act on 25 November 2008 in denying claim | Attachment A: | SOC 22, 23, 25 Applicant’s submissions (attachment) fourth paragraph |
| Alleged resignation during conciliation by Human Rights and Equal Opportunity Commission (as it then was). | Attachment A: | SOC 43, 45 |
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