Smith v La Spina (No 2)
[2022] FedCFamC2G 276
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Smith v La Spina (No 2) [2022] FedCFamC2G 276
File number: SYG 1692 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 5 April 2022 Catchwords: PRACTICE & PROCEDURE – Application to file amended pleading – whether proposed pleading had reasonable prospects of success. Legislation: Fair Work Act 2009 (Cth) ss. 343, 345, 368, 370, 725
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.7.01, 13.04, 13.05
Cases cited: Smith v La Spina [2022] FedCFamC2G 31 Division: Fair Work Division Number of paragraphs: 17 Date of hearing: 5 April 2022 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms R. Gall Solicitor for the Respondent: HWL Ebsworth 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:
5 APRIL 2022
THE COURT ORDERS THAT:
1.The application in a proceeding filed 16 March 2022 be dismissed.
2.The proceeding be dismissed.
3.The applicant pay the respondent’s costs of and incidental to the application in a proceeding filed 16 March 2022.
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 had commenced this proceeding against Certis’s General Manager – Head of Human Resources, Mr La Spina, on 9 September 2021, that is to say before her employment was terminated. On 31 January 2022, Ms Smith’s form 4 claim form was struck out with liberty to seek leave to replead: Smith v La Spina [2022] FedCFamC2G 31.
APPLICATION IN A PROCEEDING
On 16 March 2022, Ms Smith filed an application in a proceeding seeking leave to file an amended claim form. These reasons concern that application.
For present purposes, sufficient relevant facts are summarised in the reasons for judgment delivered on 31 January 2022.
Legislation
Rule 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) provide that the Court may allow the amendment of a document at any stage in a proceeding in the way and on such conditions as it thinks fit.
Proposed amended pleading
Ms Smith filed an affidavit in support of her application in a proceeding which attached a copy of her proposed amended form 4 claim form. The burden of Ms Smith’s proposed amended claim form is that Mr La Spina took various steps related to advising her of Certis’s requirements of its staff during the COVID-19 pandemic, in the form of mask wearing, vaccination and use of the Service New South Wales app, and then was the company officer who dismissed her because she did not comply with those directions. Ms Smith would allege that as she had not agreed to Certis’s pandemic related requirements, the imposition of them breached her contract with it.
Ms Smith would further allege that Mr La Spina and other identified Certis employees were “liable on behalf of the employer”. What that proposed allegation means was not expressed in the proposed claim form but, presumably, it is an allegation that the identified Certis employees are liable for the company’s alleged contractual breaches, vis-à-vis Ms Smith, were there to have been any. However, no basis for such liability has been articulated in the proposed claim form or is otherwise apparent: it is plain from the document that Ms Smith’s claims concern Mr La Spina’s actions as an employee of Certis, rather than on his own account, but an employee and agent is not, by virtue of that status, liable for the wrongs of his or her employer.
Allegations of coercion and misrepresentation are also included in the proposed claim form. However, the criteria for the making out of allegations of coercion and misrepresentation under ss.343 and 345 of the Fair Work Act 2009 (Cth) (“FW Act”) respectively, are not addressed in the document that Ms Smith wishes to file.
Ms Smith asserted in her address to the Court that, in fact, she had a contract with Mr La Spina and that it was evidenced by three notices which she referred to in the proposed claim form. Contrary to the burden of that particular submission, the proposed claim form does not allege the creation of a contract between Ms Smith and Mr La Spina.
Mr La Spina correctly pointed out that, to the extent that the proposed claim form relies on the termination of Ms Smith’s employment, no certificate under s.368 of the FW Act has been provided to the Court and thus, at least as far as that aspect of the proceeding is concerned, by virtue of s.370 of the FW Act the Court lacks jurisdiction. I should also note in this regard that Ms Smith referred in her address to the Court to the fact that she will shortly be attending a hearing in the Fair Work Commission and I infer – but she did not say – that this relates to the termination of her employment. Were it to be a proceeding of that sort, s.725 of the FW Act would cause some difficulties for any allegations or any claims based on the termination of employment that might be made in this proceeding. But, at this point, there is no evidence before the Court that the Fair Work Commission proceeding does relate to Ms Smith’s termination and so that point need not be addressed further.
In all the circumstances, I find that the proposed allegations against Mr La Spina lack reasonable prospects of success and no purpose would be served by granting leave to make them.
Consequently, the application in a proceeding will be dismissed.
Before passing from the application in a proceeding, I should note that Ms Smith additionally complained about what she described as the joinder of the respondent’s solicitors to her “private contract” without paying something that she called a “joinder fee”. That submission misunderstands the role and the status of those solicitors in this proceeding. They are advisers and representatives, not participants in their own right.
SUMMARY DISMISSAL OF PROCEEDINGS
In anticipation of the order dismissing the application in a proceeding, Mr La Spina has applied to the Court for an order dismissing the proceeding as a whole under r.13.05(1) of the Rules. Ms Smith is now in the situation where she has no claim form before the Court supporting her application and, to that extent, is in default as that term is understood by virtue of r.13.04(1) of the Rules.
Given that today’s proceeding has concerned an application to file an amended claim form following the earlier striking out of the original claim form, it does not seem to me to be unreasonable or unfair to make the order that Mr La Spina seeks.
Consequently, there will be an order that the proceeding as a whole be dismissed.
COSTS
That being so, the question of costs arises. It has been submitted on behalf of Mr La Spina that it was unreasonable of Ms Smith to bring the proceeding in all the circumstances and that it had been instituted without reasonable cause. The proceeding has been dismissed for failure to properly plead a justiciable claim, Ms Smith having now failed on two occasions in that regard.
As an unrepresented litigant, I think that it was not unreasonable of Ms Smith to have brought the proceeding in the first place, but I do think that it was unreasonable, after the original claim form was struck out, to seek to file a further claim form which was, in many ways, similar to the original. I think that that aspect of the proceeding was unreasonable and so there will be an order for costs relating only to the application for leave to file an amended claim form.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 19 April 2022
0