Smith v La Spina
[2022] FedCFamC2G 31
•31 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Smith v La Spina [2022] FedCFamC2G 31
File number(s): SYG 1692 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 31 January 2022 Catchwords: PRACTICE & PROCEDURE – Striking out pleadings – summary dismissal – relevant considerations. Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 343, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.143
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr.1.06, 13.13, sch.1
Federal Court Rules 2011 (Cth), r.16.21Cases cited: Lacherdis v Huynh [2021] FedCFamC2G 143
J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581
Rana v Commonwealth of Australia [2013] FCA 189Division: Fair Work Division Number of paragraphs: 26 Date of hearing: 24 January 2022 Counsel for the Respondent: Ms R. Gall Counsel for the Applicant: The Applicant appeared in person ORDERS
SYG 1692 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LATAI SMITH
Applicant
AND: SAM LA SPINA
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
THE COURT ORDERS THAT:
1.The applicant’s Form 4 Claim Form be struck out.
2.The applicant pay the respondent’s costs of and incidental to his application in a proceeding filed on 26 November 2021 as agreed or assessed in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
THE COURT NOTES THAT:
1.The applicant may seek leave to file an amended claim form.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant, Ms Smith, was employed as a security officer by Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia (“Certis”). Certis dismissed Ms Smith from its employment on 19 November 2021.
Ms Smith commenced this proceeding on 9 September 2021 seeking relief under the Fair Work Act 2009 (Cth) (”FW Act”), alleging that Certis breached the FW Act by directing her to, when at work, wear a face mask and register her contact details electronically with the Service NSW COVID safe check-in application (“Service NSW app”). The named respondent, Mr La Spina, is the head of human resources at Certis.
The matter has come before the Court at this point for consideration of Mr La Spina’s interlocutory application filed on 26 November 2021 seeking summary dismissal of the proceeding pursuant to s.143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“FCFCOA Div2 GFL Rules”) or alternatively an order striking out the application.
BACKGROUND
Ms Smith commenced work with Certis, then known as Sydney Night Patrol & Inquiry Company, in 2017.
On 14 October 2020, in a letter signed by Mr La Spina, Certis wrote to Ms Smith directing her to wear a face mask when at work. The direction was repeated in a 30 June 2021 letter, also signed by Mr La Spina, from Certis to Ms Smith. Certis sent Ms Smith a circular letter dated 23 February 2021 recommending that she have a COVID-19 vaccination.
In her Form 4 Claim Form filed with her initiating application, Ms Smith alleged:
My original work agreement didn’t disclose any obligation to be vaccinated or wear face masks. I believe it’s illegal to impose new terms & conditions in an agreement/contract without the consent of all parties. I don’t consent.
She offered to agree to such requirements if, in turn, Certis agreed to certain conditions. Those conditions included:
…
17.You agree you will pay compensation of ten thousand and dollars ($10,000) for any adverse event which can in any way be reasonably assumed to be a result of wearing a mask or from any covid-19 vaccination enforced by you, and
18.You agree you will pay compensation of twenty five million dollars ($25,000,000) for an adverse event from wearing a mask or from any vaccination enforced by you which results in any Health Impact Events* lasting longer than 24 hours, and
19.You agree you will pay compensation of fifty million dollars ($50,000,000) for any adverse event or Health Impact Events* resulting in death, payable to my immediate family members.
As you are requesting, insisting, forcing and or coercing me to wear a medical devise and or to receive a medication of the type commonly named COVID-19 vaccine, as a requirement for my continued employment, I will give you 21 days from the date of this notice to provide me with the sworn evidence of all points above numbered 1-19, during which time my employment will remain as it currently is and has been since the beginning of my employment.
…
Subsequent, similar correspondence followed to which Certis ultimately replied that it did not intend to entertain Ms Smith’s demands and required her to comply with what it contended were reasonable and lawful directions. By that time, it had, by letter dated 14 September 2021, directed Ms Smith to wear a face mask and to register on the Service NSW app when at work and indicated that failure to do so might lead to dismissal.
At some point prior to 10 October 2021, Certis required all its employees to be vaccinated against COVID-19. On 12 November 2021, in a letter signed by a Mr Tanios, Client Services Manager, Certis wrote to Ms Smith directing her to book an appointment for a first dose of COVID-19 vaccine. The letter advised her that failure to comply with the direction might be deemed a breach of her employment contract and lead to suspension and possibly termination.
When this proceeding was commenced, Ms Smith was on personal leave. By a letter dated 19 November 2021, signed by Mr La Spina, Certis terminated Ms Smith’s employment effective that day.
RELEVANT LEGISLATION
The FCFCOA Act relevantly provides:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) 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.
…
The FCFCOA Div2 GFL Rules relevantly provide:
13.13 Disposal by summary dismissal
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 vexatious; or
…
Rule 16.21 of the Federal Court Rules 2011 is applied in this Court pursuant to r.1.06 of and sch1 to the FCFCOA Div2 GFL Rules. It provides:
16.21 Application to strike out pleadings
(1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d)is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
Mr La Spina has referred to cases which discuss summary dismissal and the striking out of part or all of a proceeding. For present purposes it is sufficient to repeat what I said in Lacherdis v Huynh [2021] FedCFamC2G 143 at [9]-[10]:
An application to strike some or all of a pleading out is concerned with the adequacy of the pleading as a matter of law in that, assuming the truth of the allegations it makes and drawing all inferences in favour of the non-moving party, the Court must decide whether the pleading discloses a reasonable cause of action. The question is whether the allegation(s), even if proved, cannot succeed as a matter of law: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. Further, an action will not be dismissed as frivolous or vexatious and an abuse of process if there is to be determined a real question of fact or law on which the rights of the parties depend: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 per Dixon J.
An application for summary dismissal under r.13.13 is concerned with the substance of the claim, not with the form in which it is pleaded. The Court is concerned with whether the case raises a real or genuine dispute as to any material fact that might reasonably be resolved in the applicant’s favour: cf Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4]-[6]; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581 at [6].
In relation to the latter situation, in J & A Vaughan Super v Becton Property Group [2014] FCA 581 at [6]-[7], Pagone J summarised the relevant principles as:
a)the court is concerned with substance and not form or deficiencies in pleadings;
b)the enactment of the section lowered the bar for obtaining summary judgment and permits summary judgment where an applicant fails to identify a valid claim on the material before the court;
c)caution must be exercised before concluding that a claim lacks reasonable prospects of success, especially where evidence can give colour and content to allegations which are best left to be heard and determined at trial;
d)the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial;
e)in assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences in favour of the party whose pleading or action in question; and
f)as the section requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim.
EVIDENCE
Respondent
In his affidavit sworn 25 November 2021 Mr Swebeck, the solicitor for Mr La Spina, deposed:
(a)Ms Smith was employed with Certis on 2 March 2017;
(b)Mr La Spina sent directions by letters dated 14 October 2020 and 30 June 2021 issued by Certis;
(c)on 17 and 18 September 2021 Ms Smith and the solicitors for Mr La Spina exchanged emails regarding who the intended respondent to the proceeding was;
(d)on 1 October the Court noted that “The applicant intends to bring proceedings against Sam La Spina and references to Certis in the documents filed by her should not be read as a joinder of Certis as a respondent in this proceeding”; and
(e)on 19 November 2021, Ms Smith’s employment with Certis was terminated.
CONSIDERATION
At the outset it should be recorded that Ms Smith sought an adjournment of the present interlocutory application in order that she could obtain legal advice, advising the Court that she had a lot to do as she also has unlawful dismissal proceeding on foot in the Fair Work Commission and has no legal qualifications or experience in litigation. Given that the application in a proceeding was given its hearing date over 6 weeks ago and, in the meantime, Ms Smith sought an adjournment only to withdraw that application as she had been able to file her written submissions on time, I do not consider an adjournment to be appropriate or necessary. Moreover, any legal advice Ms Smith felt she needed could have been sought last month, before Christmas, and she did not suggest that she had made any enquiries concerning representation in this proceeding then or subsequently.
Ms Smith’s claims are set out in an attachment to the Form 4 Claim Form that was filed with her initiating application. In paras 1-39, 60-61 and 65-67 of that document she sets out her version of the history of her disagreement with Certis and makes allegations of fact against it. In paras 40-59, 62-64 and 68-71 she refers to potentially relevant legislation and makes submissions. Those paragraphs are referred to in the following terms in Part G of the claim form:
See attachments numbered paragraphs:
1. Employment contract.
2. response letter about covid vaccination.
3. email implementation of mandatory mask PPE.
6. Oct 12 2020 Formal direction to comply with PPE face mask.
8. 30 Oct 2020 email from management.
9. medical certificate 2 Nov 2020
12. February 25 2021 first notice of conditional acceptance to offer of vaccination and wearing face masks.
13 June 30 2021 second formal direction to comply with PPE instruction.
15. email from (UWU) United Workers Union Justin Davies.
16. 7 July 2021 notice to Cease and Desist.
17. My email to (UWU)
18. medical certificate 7 Jul-2021-13 Jul 2021.
20. Notice of Conditional acceptance of Liability COVIDsafe.
23. Notice to attending meeting and suspension of duties July 16 2021.
35. work cover application declined.
See attached. Section 94H of the Privacy Act 1988-Requiring the Use of COVIDsafe.
See attached paragraphs:
65-71
See attached total 8 pages of numbered paragraphs the facts.
Some comments on the claim form are necessary but they need not be lengthy:
(a)the factual narrative set out in the attachment seems to be more concerned with Certis’s conduct than with anything Mr La Spina may have done;
(b)the attachment does not make clear what role Mr La Spina may have played in the substantive matters which all seem to concern Certis;
(c)the claim form and the attachment make no allegation of contraventions of the FW Act against Mr La Spina or against Certis for that matter. It is not pleaded that any particular conduct contravened any particular statutory or regulatory provision such that Ms Smith is thereby entitled to a remedy that is available in this Court.
As currently articulated, the litigation that Ms Smith has commenced does not identify a cause of action against Mr La Spina. Indeed, in her submissions Ms Smith has underscored that flaw in her pleading by arguing that Mr La Spina was Certis’s agent, the implication being that any contraventions were its, not his. Because the claim identifies no matter upon which the Court may adjudicate, there is no point in letting it proceed any further in its present form.
Moving from the merits of the pleading as a pleading to the dispute underlying it, the proceeding will not be dismissed for want of reasonable prospects of success if there is a real question of law or a real question of fact to be decided. The provisions of the FW Act to which the attachment to the claim form principally refers, ss.340 and 341, are relevantly concerned with the conduct of an employer, which Mr La Spina was not, and the provisions of the other Acts to which reference was made in the attachment were not mentioned in a way that amounted to an allegation of an arguable cause of action.
The only provision remaining to be considered is s.343 of the FW Act, which prohibits coercion in relation to workplace rights protected under the FW Act. The attachment to the claim form alleges that on 12 October 2020 Ms Smith told her “employer” that she had a health condition that exempted her from wearing face coverings and later “returned to work due to undue influence and coercion to comply but I didn’t consent to wear face masks”. It is possible that this represents real questions of fact and law requiring adjudication and, as Ms Smith is unrepresented and unfamiliar with pleading, I am prepared to give her the benefit of the doubt on this issue.
However, the claim form as a whole is too flawed to be allowed to stand and so it will be struck out. Leave to file amended pleadings is not automatic in this Court and so Ms Smith will need to seek leave to file any amended claim form.
COSTS
Mr La Spina sought his costs of the application in a proceeding. He relied on the following provision:
570 Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
(2) The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
…
He argued that the case brought by Ms Smith was sufficiently lacking in merit that it could properly be characterised as having been brought vexatiously or without reasonable cause.
For the reasons already given, the evidence does not support a conclusion that the entirety of Ms Smith’s claims are so obviously untenable or manifestly groundless as to be utterly hopeless and so vexatious: Rana v Commonwealth of Australia [2013] FCA 189 at [42]-[43]. However, that is not to say that the manner in which the proceeding was brought, by relying on a claim form which failed to articulate one arguable cause of action, was not unreasonable. As pleaded, the case could not succeed and Mr La Spina should not have been expected to meet it. For those reasons, Ms Smith should pay Mr La Spina’s costs as agreed or assessed in accordance with the Court’s scale.
In reaching that conclusion I have not overlooked the arguments Ms Smith made for being absolved of any responsibility to pay costs by reason that she had not consented to the retainer of Mr La Spina’s solicitors, but that argument was entirely misconceived. I also record that Ms Smith submitted that costs would be a significant burden on her but the issue is not her ability to pay Mr La Spina’s costs but his entitlement to be indemnified for those costs in accordance with the FW Act and the FCFCOA Div2 GFL Rules.
CONCLUSION
The claim form is to be struck out and the applicant may seek leave to file an amended claim form. She is to pay the respondent’s costs of this application in a proceeding.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 31 January 2022
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