Shreea v Ezy Mart Pty Ltd
[2019] FCCA 3050
•4 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHREEA v EZY MART PTY LTD & ANOR | [2019] FCCA 3050 |
| Catchwords: INDUSTRIAL LAW – Procedure – application in a case to strike out amended statement of claim – amended statement of claim brings substantially different and inconsistent claims – discontinuance against parties formerly claimed to be employers – new claim first respondent is employer, addition of further respondent – orders made striking out the amended statement of claim and dismissing proceedings – costs awarded under s.570(2)(a) of the Fair Work Act 2009 (Cth). |
| Legislation: Fair Work Act2009 (Cth), ss.550, 557C, 570(2)(a) Federal Circuit Court of Australia Act 1999 (Cth), s.17A(2) Federal Circuit Court Rules 2001 (Cth), rr.13.01(4), 13.022, 13.10 Federal Court Rules 2011 (Cth), r.16.21 Migration Act 1958 (Cth), ss.235, 245AG |
| Cases cited: Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Ellis v Wadjemup Trading (No.3) [2018] FCCA 3075 Ghimire v Karriview Management Pty Limited and Sharma [2018] FCCA 2157; (2018) 336 FLR 153 |
| Applicant: | ABDEL RAHMAN AREF ABU SHREEA |
| First Respondent: | EZY MART PTY LTD |
| Second Respondent | SADDAM MAGABLEH |
| File Number: | SYG 724 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 4 September 2019 |
| Date of Last Submission: | 27 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C. McArdle, McArdle Legal |
| Counsel for the First Respondent: | Mr O. Fagir |
| Solicitors for the First Respondent: | Zouki Lawyers |
| Counsel for the Second Respondent: | Ms J. Stuckey-Clarke |
| Solicitors for the Second Respondent: | Kennedys Law |
ORDERS
PURSUANT to r.13.10 of the Rules that the proceeding against EzyMart Pty Ltd and Saddam Magableh be summarily dismissed as I am satisfied the Applicant has no reasonable prospects of success.
ORDERS the Applicant pay the First Respondent’s costs pursuant to s.570(2)(a) of the Fair Work Act 2009 (Cth).
ORDERS the Applicant pay the Second Respondent’s costs of the Application in a case.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 724 of 2018
| ABDEL RAHMAN AREF ABU SHREEA |
Applicant
And
| EZY MART PTY LTD |
First Respondent
SADDAM MAGABLEH
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
Introduction
By an Amended Application in a Case dated 12 April 2019, the First Respondent, Ezy Mart Pty Limited, seeks orders, pursuant to r.16.21(2) of the Federal Court Rules 2011 (Cth) (FCRules), that the amended statement of claim (ASOC) (in mark-up dated 15 November 2018, and in changes accepted format handed up to the Court on 12 July 2019), be struck out on the ground that it is an abuse of process (r.16.21(1)(f) of the FCRules), and, I apprehend from the course of submissions before me, on the ground that it also fails to disclose a reasonable course of action (r.16.21(1)(e) of the FCRules).
The First Respondent alternatively seeks the ASOC be struck out, or the proceedings dismissed, on the basis that it is not verified as required by r.16.01 of the FCRules.
The Application in a Case further seeks orders in relation to costs, a direction pursuant to r.13.022 of the Federal Circuit Court Rules 2001 (Cth), permitting the former Second, Fourth, Fifth and Seventh Respondents (together the Ezy Mart Respondents) to make an application for costs more than 28 days after the proceedings were discontinued against them, an order that the Applicant pay those Ezy Mart Respondents’ costs of the proceeding, and an order for security for costs.
I note that on 26 February 2019 the Applicant filed a notice of discontinuance against the previously numbered Second to Ninth Respondents. I apprehend from what has been said today and previously, that the notice of discontinuance filed in relation to the Third, Sixth, Eighth and Ninth Respondents was filed further to a settlement following mediation before a Registrar of this Court. This was not the case, however, with respect to the notice of discontinuance filed in relation to the Ezy Mart Respondents.
The present Second Respondent, Mr Saddam Magableh, joins in the First Respondent’s Application in a Case, and submits that the ASOC should be struck out under r.16.21(1)(a)-(e) of the FCRules. Mr Magableh was joined to the proceeding pursuant to leave given on 27 February 2019, upon my making orders in Chambers. In those orders I noted that Mr Magableh was then incorrectly named as the “Second Respondent”.
To complete the identification of parties and former parties, I note that by order made 17 December 2018 by consent I granted leave to the then second applicant to file a notice of discontinuance, and noted the agreement of the parties that there be no order as to costs.
Affidavits read in the Application in a Case
In support of the Application in a Case, the First Respondent relies on the affidavit of Ms Marihan Hanna, sworn 20 December 2018, which set out a brief history of the proceeding, and the affidavit of Mr Faddy Zouky, affirmed 18 April 2019. Mr Zouky attested to his firm being the solicitors on the record for the First Respondent and the Ezy Mart Respondents, evidenced matters relating to the application for security for costs, and in relation to discontinuance of the proceeding against the Ezy Mart Respondents, stated that a notice of discontinuance had been emailed to Ms Hanna’s email address, that she had left the firm on 6 January 2019, and that her departure caused some administrative confusion contributing to the delay in the Ezy Mart Respondents applying for their costs. Sub-rule 13.01(4) of the Rules provides that a party may apply for an order for their costs within 28 days of being served with a notice of discontinuance.
Mr Fagir, Counsel appearing for the First Respondent, also tendered a number of paragraphs of the first affidavit sworn by Mr Kieran McArdle (K McArdle) affirmed 25 January 2019 (which affidavit had been relied in the earlier application to join the present Second Respondent, determined on the papers).
The Applicant, Mr Abdel Rahman Aref Abu Shreea, represented by Mr Chris McArdle of McArdle Legal, relies on certain other paragraphs of K McArdle’s first affidavit, the second affidavit of K McArdle affirmed 7 May 2019, a further affidavit of K McArdle affirmed 26 July 2019 (excepting for paragraphs 4, 8, and 22 to 28 inclusive, rejected further to objection), and the affidavit of Mr Shreea, affirmed 7 May 2019.
Hearing of the Application in a Case
I heard the Application in a Case on 12 July 2019. At the conclusion of the hearing late on that day at the close of submissions, further to the oral application of Mr McArdle, I made orders permitting him on behalf of his client to file and serve any further affidavit evidence in answer, and any supplementary submissions by 26 July 2019, directed that he serve on the First and Second Respondents copies of any subpoenas that had been issued at the request of the Applicant (Mr Shreea) in 2019 (which subpoenas had been referred to in the course of the hearing), and directed the Respondents inform Chambers whether they wished to be heard further, and if so, orally or in writing, and stood the Application in a Case over part heard to today. Written submissions by all parties were subsequently served and provided to Chambers (although on Mr McArdle’s further application to Chambers, with the consent of the Respondents, informally I extended time for his compliance to 2 August 2019).
At the resumed hearing today, Mr McArdle has handed up a further submission dated 4 September 2019. Today, I have raised with Mr McArdle whether the ASOC in its present form is the best pleading that the Applicant can put forward, and Mr McArdle has stated categorically that the Applicant does not currently intend to further amend the pleading.
I then enquired of Mr Fagir, Counsel appearing for the First Respondent, whether if I acceded to the Application in a Case to strike out the ASOC on the grounds relied on by his client, I should also consider an order that the proceeding be summarily dismissed as having no reasonable prospects pursuant to r.13.10 of the Rules. I put that proposition on the basis that it seemed to me that if I acceded to the order sought in the Application in a Case to strike out the proceeding, given the course of the proceeding to date and Mr McArdle’s statement, I would also have formed the view that the Applicant has no reasonable prospect of successfully prosecuting the claims made in the ASOC. Mr Fagir in substance agreed, submitting that with the striking out of the pleading, it would not be possible to replead the case in a viable way, and the effect will be to end the claim – to summarily dismiss the proceeding.
The parties’ submissions have been comprehensive, both in writing and orally. Mr McArdle has relied on written submissions dated 14 July 2019, and supplementary submissions, and further supplementary submissions, dated 2 August 2019 and 4 September 2019 respectively. Mr Fagir has relied on an outline of written submissions dated 12 July 2019 and further submission dated 27 August 2019, while Ms Jennifer Stuckey-Clarke, counsel for the Second Respondent, supports the submissions of Mr Fagir for the First Respondent, and has made additional written submissions dated 26 August 2018.
Principles for summary dismissal
The Court may summarily dismiss a proceeding if it is satisfied that the Applicant has no reasonable prospect of successfully prosecuting the claims in the proceeding: see s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth), and r.13.10(a) of the Rules, or under r.13.10(c) if the proceeding or claim for relief is an abuse of the process of the Court.
The relevant principles guiding the application s.17A of the Act, and summary dismissal under r.13.10 of the Rules were recently summarised in this Court by Judge Obradovic in Ritter v Ritter and Anor [2019] FCCA 782 at [4] to [13], and by Judge Lucev in Ellis v Wadjemup Trading (No.3) [2018] FCCA 3075 at [6] to [11]. I refer to and rely on their Honours’ explication of the principles.
The inquiry required under s.17A is whether there is no reasonable prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination should be made that the proceeding would necessarily fail. I observe that in Ritter her Honour was concerned with whether the proceeding had reasonable prospects, rather than whether the proceeding or claim for relief was an abuse of process, and that it is apparent from Ellis at [34], that Judge Lucev was there also directing his observations to r.13.10(a) of the Rules, concluding that the statement of claim in that case failed to disclose a cause of action, either at all, or with a reasonable prospect of success, and accordingly he dismissed the originating application.
In relation to striking out a claim (noting Mr Fagir’s submissions have primarily focussed on striking out the ASOC in the present case as being an abuse of process), in Ellis at [36], Judge Lucev observed that the Rules do not provide for a specific power to strike out pleadings, but noted that if in a particular case the Rules are insufficient, the Court may apply the FCRules in whole or in part as necessary: r.1.05(2) of the Rules. His Honour then summarised the principles applicable to the power to strike out a claim or portions of a claim at [37] and [38], referring to r.16.21 of the FCRules.
Overview of conclusion
I have come to the conclusion - and I do not lightly come to this conclusion - in short, that the changes the Applicant has made in the ASOC from the claims that the Applicant previously contended in the statement of claim are so significant and inconsistent with the previous pleading, that I am entitled to, and do, infer that the change in the allegations to those now pleaded is a device intended to permit the Applicant to maximise his recovery against the various respondents, and that the fresh allegations made in the ASOC against the present respondents are made without a proper basis, and for reasons of perceived forensic advantage, namely in order to maximise prospects of his overall recovery. Below I expand upon why I have come to this conclusion.
Applicant’s claimed employment history and hours worked
It is useful to summarise the allegations that the Applicant made in his original statement of claim. The claim was filed on 16 March 2018. It contained 23 short paragraphs of “facts and assertions” (numbered [1] – [21], repeating numbers [18] and [19]), and relief claimed in 5 further paragraphs. Attached was a letter of demand dated 19 February 2018 in which McArdle Legal stated that “Mr Shreea has consulted us and provides the following details”, and set out the Applicant’s claimed history of employment by the Ezy Mart Respondents, and the Third respondent (Ezy Mart 300 George Street), the hours worked, rates at which he claims to have been paid, and the claimed underpayment. Whilst the hours are summarised, the total hours worked in each financial year are precisely specified.
In his original pleading the Applicant contended that he was employed variously:
(a)by “Ezy Mart 58 Pitt Street” on a part time basis from June 2014 to March 2015 (claim, at [10] – “permanent part time employment with the Second Respondent controlled by the Seventh Respondent”);
(b)by “Ezy Mart 300 George Street” from March 2015 to March 2016 (claim, at [11] – “the Applicant transferred to the Third Respondent controlled by the Sixth and Eighth Respondents”);
(c)by “Ezy Mart The Rocks Harrington Street” from March 2016 to August 2017 (claim, at [12] - “the Applicant transferred to the Fourth Respondent controlled by the Seventh Respondent and resigned on 10 August 2017”).
The Applicant went on to plead that:
(a)he was underpaid a total of $103,143 (claim, at [16]–[18]); and
(b)the First Respondent, is the Franchisor to multiple Ezy Mart stores in Australia, including that conducted by the Second Respondent, is a “Responsible Franchisor entity”, and was liable for underpayment contraventions by various other entities (claim at [1]-[3]). The Applicant did not plead that the First Respondent was his employer.
I note from the above that, originally in the claim, the Applicant contended he was employed variously by three different employers, each of whom were formerly respondents in the present proceeding. The claim of underpayment extended to hours, which averaged, variously 18 hours, 36 hours, or 9 hours a week, depending on the financial year. In the Attachment to the claim – the demand - the Applicant’s solicitors stated that the Applicant instructed them he worked an average of 950 hours per annum in year ending 30 June 2014, 1900 hours in years ending 30 June 2015 and 30 June 2016, and 475 hours in the 2017 year, and that when University was not in session he worked approximately 50 hours per week.
Following a mediation conducted by a Registrar of this Court in October 2018, it appears that the Applicant settled his claims against a group of respondents who were formerly alleged to be associated with a store described as “Ezy Mart 300 George Street”, namely the Third, Sixth, Eighth and Ninth Respondents. I note that in a statement of agreed facts as among the Applicant and those respondents filed by the Applicant on 8 June 2018, they agreed that the Applicant was an employee of the Third Respondent.
In the ASOC, in the marked-up form filed in November 2018, the Applicant now alleges, in contradiction to his previous allegations, that he was employed by the First Respondent as follows:
(a)between June 2014 and March 2015 for 76 hours per week (a period during which he had previously alleged he was employed by Ezy Mark 58 Pitt Street);
(b)from March 2016 to January 2017 for 91 hours a week (a period during which he had previously alleged he was employed by Ezy Mark The Rocks Harrington Street); and
(c)from March to April 2017 for 84 hours a week (a period during which he had previously contended that he was employed by Ezy Mark The Rocks Harrington Street).
The quantum of the Applicant’s underpayment claimed in the ASOC has almost doubled to $201,358.44 (from $103,143 previously claimed).
In sum, the history of the proceeding, the statement of claim, the ASOC and the “Statement of Points of Claim and Particulars” filed 12 April 2019 reveal that:
(a)the Applicant initially alleged to the effect that he was employed by certain entities over succeeding periods, each for a certain number of hours per week;
(b)he then resolved the proceeding against those parties, in or subsequent to mediating with those parties, or in the case of the Ezy Mart Respondents, simply by filing a notice of discontinuance;
(c)having resolved the proceedings against those parties, he now makes a series of new allegations that a different entity (in the claim named as a franchisor, but not then claimed to be his employer) employed him for periods he previously claimed to be employed by a one or other former respondents, but in each period for significantly greater number of hours per week (excepting the period March 2015-March 2016, in relation to which he now does not press a claim);
(d)the basis for the new allegations appear to be a series of events and conversations which pre-date the original claim, which include a letter I consider in relation to the case alleged against the new Second Respondent.
Thus, before the Court is a pleading (the ASOC) concerning a different employer, now claimed to have employed the Applicant for a significantly greater number of hours, but over the same years he previously claimed to have been employed variously by two of three other entities and their controlling directors, for lesser, but stated, hours.
The First Respondent submitted that there was no plausible explanation as to how the Applicant and his lawyers might legitimately allege two fundamentally different factual cases, and that they are logically incapable of both being made with proper basis.
The Applicant’s lawyers’ explanation
Mr McArdle has submitted, and Mr K McArdle has attested, that, over time, the Applicant has provided further instructions. In his first affidavit Mr K McArdle attested to the Applicant being a Jordanian who resided in Malaysia (as at January 2018), that he did not speak English as a first language, and that the Applicant’s solicitor’s instructions were taken by phone or email.
Subsequently, in later affidavits, Mr K McArdle has reiterated that as English is the second native language of the Applicant, this has caused difficulties in obtaining clear instructions, and, due to the absence of records and absence of disclosures, specific details disclosing his alleged employment with the First Respondent have only emerged as the case has progressed. In his affidavit of 7 May 2019, Mr K McArdle asserts that the claim has had to be reframed on the basis that the First Respondent was the employer of the Applicant on the basis of incremental disclosure of information and “longstanding failure of the Respondents to disclose the actual employer”.
In his most recent affidavit of 26 July 2019, Mr K McArdle expands upon his evidence as to the searches he has had to undertake in order to identify the relationships between, and the identities of, the First and the various other respondents. He has also reiterated that post mediation, he has recently been able to obtain more instructions of the hours that the Applicant worked for the First Respondent. Mr K McArdle attests that further specific instructions have revealed that the Applicant worked for the First Respondent significantly more than was previously calculated. He states:
Throughout the course of this matter, I have found communicating with the Applicant to be difficult, due to the significant language barrier and the time difference between Sydney and the country the Applicant resides in.
The Applicant’s evidence is that he now resides in Jordan.
Consideration
Accepting the difficulties that Mr K McArdle and his firm have had in obtaining instructions from their client due to language and logistical difficulties, including time, the difference in the number of hours the Applicant claimed to have been employed is so significant, and the claims as to the different employers are so fundamentally different (from 3 different employers, each for specific sequential periods commencing from June 2014 and ending in August 2017, as contrasted with a single, different employer, for the same period commencing in June 2014 and ending in August 2017, but now with a 12 month gap March 2015-March 2016 (in the claim he had alleged he was then employed by the Third Respondent), that I am not persuaded that the Applicant’s case now brought in the ASOC (including as set out in the separate “statement of points of claim and particulars”) is a mere refinement of the case originally brought.
I consider that the case now brought in the ASOC is, on the contrary, a radically different case. It is brought, in the case of the First Respondent, against an entity formerly described as “franchisor” and not alleged to be an employer of the Applicant, and now, apparently, claimed to be the sole employer, and an entity who, through the device of the Second Respondent, directed the Applicant to work in various other stores, which stores it appears were stores variously operated by several entities formerly sued as respondents to the proceeding.
It also appears from Mr K McArdle’s evidence that the evidence as to payment of wages to the Applicant will be that the Applicant was paid in cash from the till of the various stores in which he was physically working at the time, that is, from the takings of the entities formerly alleged to be the various employers. Thus, it appears that the evidence now will be that the Applicant’s wages were paid by entities other than the alleged employer, whereas that evidence would have previously been called to support the claim that the operator of the store in which he then worked paid him out of their takings.
Asserted application of s.557C of the Fair Work Act
There has been debate before me about whether the failure to keep any records, contrary to s.557C of the Fair Work Act2009 (Cth), can be relied on for the benefit of the Applicant in the present case.
In my view, s.557C of the Fair Work Act does not operate to establish that an entity is an employer by an absence of records required to be made and kept by the entity. The section operates to impose upon the employer the burden of proof of the existence of a matter in relation to which the employer was statutorily required to make and keep records or provide a payslip, in circumstances where an entity is an employer and has failed to comply with the obligation; it does not, in the absence of such records, make good a bald allegation that an entity should be found to be the employer because of the absence of the records to which the provision relates.
In the present case Mr McArdle relying on s.557C seeks to make good his client’s allegation that the First Respondent is the Applicant’s employer because the Applicant has no records that it was the employer. I am not persuaded that the section operates to make good the Applicant’s allegation and prove that the First Respondent was his employer.
Section 557C came into operation in September 2017. Whilst in the ordinary case legislation operates prospectively and not retrospectively, unless it is specifically stated to so apply, the retrospectivity of the section is not a matter I need resolve today. In my view, whether or not s.557C operates prospectively or retrospectively does not assist the Applicant in the present case with his claim now made that the First Respondent is truly the employer of the Applicant, and not the former Second Respondent and the former Fourth Respondent and their directors, entities previously identified as his employers.
Applicant’s allegations against Mr Saddam Magableh
In relation to the new Second Respondent – I say “new”, because Mr Saddam Magableh, also known as “Sam Mac”, has been joined in the ASOC recently, and only after discontinuance of the proceeding against the previously named second respondent – the allegation made is that Mr Magableh is a controlling mind or person involved in a contravention of the Fair Work Act, and under s.550 as a person who is involved in a contravention of a civil-remedy provision under the Fair Work Act, and therefore is taken to have contravened the provision.
The Applicant alleges that Mr Magableh was the human face with whom the Applicant interacted at all times during period of the alleged employment. That may be so, but it does not follow from that interaction that Mr Magableh is involved in a contravention of a civil remedy provision, unless the claim against the First Respondent can be made good.
Given the view I have taken as to the ASOC’s allegations against the First Respondent, namely, that it is an inconsistent case that has been newly brought and after the discontinuance of proceedings against other Respondents, I am not persuaded by the Applicant’s submission that there is actually no doubt that the Second Respondent worked for the First Respondent.
I do not have any basis to believe that there is a refinement of the Applicant’s case so as to bring in the Second Respondent, which could not have been made when the statement of claim was initially filed.
As Ms Stuckey-Clarke has submitted, as against the Second Respondent there is continuing ambiguity and a lack of clarity in the Applicant’s allegations:
(a)as to the capacity in which the Second Respondent was employed by the First Respondent, if indeed he was so employed; and
(b)sufficient facts and circumstances on which such an allegation is based.
Insofar as the Applicant’s employment, engagement, or arrangements for work, it is still unclear by whom the Applicant alleges he was in fact employed. In respect of each of the Ezy Mart stores where the Applicant says he worked, it is unclear with whom the Applicant is said to have arranged that employment, and if with the Second Respondent, for whom the Second Respondent was acting or in what capacity.
Ms Stuckey-Clarke points to allegations made by the Applicant that the Second Respondent has variously represented he was the HR manager, or the finance manager of the First Respondent, and whether the Second Respondent is alleged to be an employee or agent of the First Respondent, or an independent member of the group co‑ordinating a pool of potential employees with whom each store‑manager was then in turn contracting. These ambiguities have not been clarified.
Whilst Ms Stuckey-Clarke draws my attention to the Applicant’s deposition in his affidavit that various store-managers paid him cash and the contradiction that he pleads in the ASOC that at all times the Applicant was in fact a store-manager himself, I am not persuaded by those differences, which may be a difference of language, that the claim is ambiguous.
The combination, however, of the ambiguities in relation to the claims now made against the Second Respondent that I refer to above, and the fundamental change in the case from the previous case brought against other former respondents and now brought against the First Respondent as to who was his employer, and the extremely large difference in the amount of hours the Applicant now alleges he worked, are such that I am persuaded that, in the case of the First Respondent, the claim is an abuse of process, and in relation to the Second Respondent, the claim is an abuse of process and also one which does not have reasonable prospects in the sense discussed by Judge Obradovic in Ritter and Judge Lucev in Ellis. It follows, that on these bases the ASOC should be struck out in respect of the claims against both Respondents.
Ms Stuckey-Clarke makes a further submission in support of the abuse-of-process submissions made by the First Respondent. She draws the Court’s attention to the statements of the High Court in UBSAG v Tyne as Trustee of the Argot Trust [2018] HCA 45, at [58], and at [38] – [39] their approval of dicta of French CJ in Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 193, and observation that serial discontinuances might amount to an abuse of process. She submits that the illegitimately staged conduct of the present litigation lies in discontinuance after settlement of the case against some respondents, and then the attempt to re-litigate on a wholly different basis against the party who refused to settle, and a newly joined party about whom instructions had been received before the original claim was made. In this latter regard, the evidence before me includes a written reference in relation to the Applicant’s employment “with us” at Ezymart 300 George Street, Sydney Pty Limited given and signed by Mr Sam Mac dated 6 December 2015 which was exhibited to K McArdle’s first affidavit, and duplicated as annexure J to his most recent affidavit of 26 July 2019. It is reasonable to infer from this reference that the allegations made about the present Second Respondent are based on facts and matters known to the Applicant’s solicitors at the time of filing the original statement of claim.
Illegality – increase in quantum
I wish to make short observations in relation to issues of illegality because of the increase in quantum raised by Ms Stuckey-Clarke. She submits that it would have been well known to the Applicant and his legal advisers at the commencement of the proceeding that as a holder of a student visa he could not legally work for more than 20 hours of the week. The claim made in the ASOC greatly exceeds the hours the Applicant could have worked legally.
Ms Stuckey-Clarke draws attention to s.235(1) of the Migration Act 1958 (Cth), which sets out a strict liability offence. She also draws attention to s.245AG of the Migration Act, which has a very wide definition of “work”, not limited to contract. Ms Stuckey-Clarke submits that the act of work itself by a person in the Applicant’s situation is illegal, and any claim based upon that illegality would be void and unenforceable.
Ms Stuckey-Clarke refers to Ghimire v Karriview Management Pty Limited and Sharma [2018] FCCA 2157; (2018) 336 FLR 153, in which Judge Lucev in turn reviews several of the authorities, and also the decision of Graham J in Hussein v Secretary of the Department of Immigration and Multicultural Affairs (No.2) [2006] FCA 1263; (2006) 155 FCR 304. Whilst both decisions concern the concept of “work” and the act of work and the provisions of s.235 of the Migration Act, however, I note that neither decision was directed to the question of enforceability of an award, which is what is relied on in the present case.
I do not, for the purposes of today’s application, need to decide whether Ms Stuckey-Clarke’s submissions are made good in the context of the claim now purported to be brought by the Applicant. I note that Mr McArdle has assured me from the Bar table that the provisions of the Migration Act would not prevent the claims the Applicant seeks to bring for enforcement of the award. Suffice to say that I consider there are real difficulties in such a case being brought in the present circumstances, apart from the question whether s.235 of the Migration Act applies to the Applicant’s claim.
Conclusion and orders
In sum, I have concluded that it is appropriate to make orders as sought in [1] of the amended Application in a Case, striking out the ASOC. As the consequence of that strikeout, in the present circumstances it is appropriate that I make a second order that, pursuant to r.13.10 of the Rules, the proceeding against Ezy Mart Pty Limited and Saddam Magableh be summarily dismissed, as I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding.
There are subsidiary orders that the First Respondent seeks. The matter of security for costs falls away. That leaves application for the directions in terms of paragraph 3 of the amended Application in a case, and the order sought in paragraph 4. I am not persuaded, in the present instance, that it is appropriate to make a direction under r.13.03(2) as permitting the Ezy Mart Respondents to make an application for costs more than 28 days after the proceeding was discontinued against them.
Given that I have found that the claim as against the First Respondent is an abuse of process, it follows that I am persuaded it is appropriate to order costs to be paid pursuant to s.570(2)(a) of the Fair Work Act. Accordingly, I will make an order that the Applicant pay the First Respondent’s costs of the Application in a case, as sought in paragraphs [2] of the Application in a case.
For the reasons that I have already given in relation to the position of the Second Respondent, and, in particular, that the ASOC case brought against the Second Respondent, on the evidence, appears to be based on facts and matters known to the Applicant’s solicitors at the time of filing the original statement of claim, I consider that his application for costs is made out. I am satisfied that the ASOC, as against the Second Respondent, was instituted without reasonable cause, and I will, accordingly, order that the Applicant pay the Second Respondent’s costs of the Application in a case.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 5 November 2019
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