Suda Ltd v Sims
[2013] FCCA 1833
•15 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUDA LTD v SIMS | [2013] FCCA 1833 |
| Catchwords: PRACTICE AND PROCEDURE – Interim application to strike out counterclaim alleging private right of action upon breach of criminal offence provisions under the Fair Work Act 2009 (Cth) for giving false or misleading evidence – whether counterclaim has any reasonable prospects of success – whether counterclaim frivolous or vexatious – whether counterclaim an abuse of process. |
| Legislation: Accident Compensation Act 1985 (Vic), s.122 Workplace Relations Act 1996 (Cth), ss.303(3), 658, 847(4)(e) Workplace Relations Amendment (Codifying Contempt Offences) Act 2003 (Cth) |
| Abela v Giew (1965) 65 SR (NSW) 485 British American Tobacco Exports BV v Trojan Trading Co Pty Ltd (2010) 90 IPR 392; [2010] VSC 572 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 Commonwealth Parliamentary Debates, House of Representatives, 26 June 2003, page 1761 |
| Applicant: | SUDA LTD |
| Respondent: | DOUGLAS ARTHUR SIMS |
| File Number: | PEG 251 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 November 2013 |
| Date of Last Submission: | 1 November 2013 |
| Delivered at: | Perth |
| Delivered on: | 15 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Ludlow |
| Solicitors for the Applicant: | HWL Ebsworth Lawyers |
| For the Respondent: | In Person |
ORDERS
Paragraph 3 of the Respondent’s Reply filed 26 September 2013 be struck out pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth).
The Respondent have leave to file and serve an Amended Reply, to be titled “Amended Response”, by 24 January 2014.
Matter is otherwise adjourned to 9.30am on 3 February 2014 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 251 of 2013
| SUDA LTD |
Applicant
And
| DOUGLAS ARTHUR SIMS |
Respondent
REASONS FOR JUDGMENT
Introduction – an oral interim application
At a first directions hearing on 9 October 2013,[1] the applicant, Suda Ltd[2] made an oral interim application to the Court[3] for the respondent’s[4] counterclaim,[5] alleging a breach of s.678 of the Fair Work Act 2009 (Cth),[6] to be struck out.
[1] “First Directions Hearing”.
[2] “Suda” (previously known as Eastland Medical Systems Limited).
[3] “Interim Application”.
[4] “Mr Sims”.
[5] “Counterclaim”.
[6] “FW Act”.
Suda submits that the basis for the Interim Application is that the Counterclaim has no reasonable prospects of success, is frivolous or vexatious in nature, or an abuse of process of the Court.
Suda now seeks orders that:
a)the Counterclaim be struck out or dismissed;
b)alternatively, judgment be entered for Suda on the Counterclaim; and
c)Suda’s costs of the Interim Application and of the Counterclaim be paid by Mr Sims on an indemnity basis.
The question of the costs of the Interim Application will be determined after delivery of these Reasons for Judgment.
Substantive Application, Reply and Counterclaim
The Substantive Application is one under the Workplace Relations Act 1996 (Cth)[7] by Suda alleging that Mr Sims has failed to comply with an order of the Fair Work Commission[8] dated 17 June 2013 which required that Mr Sims within 28 days pay costs to Suda in the sum of $4,597.60, pursuant to s.658 of the WR Act.
[7] “WR Act”.
[8] “FWC”.
The final orders sought by Suda in the Substantive Application are as follows:
1.Judgement in favour of the Applicant in the sum of $4,597.60.
2.Alternatively an order that the Respondent pay the Applicant the sum of $4,597.60.
3.The Respondent pay interest on the sum of $4,597.60 from 16 July 2013 until payment.
4.The Respondent pay the Applicant’s costs of this Application.
5.Such penalty or other relief as the Court sees fit.
Mr Sims filed a Reply in which:
a)he indicated an intention to defend the action and seek relief and damages; and
b)made the Counterclaim in the following terms:
… a judgment by the Court on the Breach of S 678 of the Fair Work Australia Act as defined in the Respondent’s Affidavit and the attachment to that Affidavit attached herewith.
In summary, the Counterclaim alleges that Suda breached s.678(1) of the FW Act when Suda filed, and relied upon in proceedings before the then Fair Work Australia,[9] a submission concerning the provision to Mr Sims of a motor vehicle as part of his employment package with Suda which was factually incorrect, and which Mr Sims says constituted evidence which was false and misleading.
[9] “FWA”.
Suda contends that the Counterclaim is without legal or factual foundation and is entirely misconceived.
The relationship between a substantive application made under the WR Act, and a costs order under the WR Act, being said to give rise to a breach of the FW Act, is not entirely clear to the Court, but does not need to be determined, as the matter was not raised in the hearing and not put in issue by the parties.
First Directions Hearing – orders made
At the First Directions Hearing the Court took the view that the Interim Application concerning the Counterclaim by Mr Sims ought to be dealt with as a preliminary matter. The Court therefore made orders (including appropriate procedural orders) for the hearing of the Interim Application, and adjourned the remainder of the matter.
Background Facts
The relevant background facts are as follows:
a)Mr Sims made an application to FWA (matter U2010/6815) alleging unfair dismissal by Suda;[10]
[10] “Unfair Dismissal Application”.
b)both Suda and Mr Sims were “advised” by the FWA “to provide any information” to the office of the presiding FWA member by 26 March 2010.[11] Accordingly, Suda filed the “Respondent’s Submissions to the Applicant’s Application to Extend Time to Apply” in the Unfair Dismissal Application[12] opposing Mr Sims’ application to extend time for lodging his Unfair Dismissal Application;[13]
c)in Suda’s FWA Submissions a submission was made that Mr Sims was provided with a “fully maintained motor vehicle” by Suda during the course of his employment with Suda.[14] The submission was made to support an argument that the FWA did not have jurisdiction to deal with the Unfair Dismissal Application because Mr Sims’ remuneration exceeded the statutory threshold prescribed by the WR Act, and that Mr Sims was, therefore, not able to make the Unfair Dismissal Application, and accordingly time for filing his Unfair Dismissal Application ought not to be extended. The form and content of Suda’s FWA Submissions is typical of submissions made in respect of an extension of time application addressing the statutory framework, the relevant principles, and then going on to address those relevant principles, including the merits of the case, in which part the submission was made that Mr Sims was supplied with a fully maintained motor vehicle. Suda’s FWA Submissions are signed by Mr Thomas as the “Respondent’s Counsel”;
d)Suda’s FWA Submissions were factually incorrect. The correct position was set out in Mr Sims’ further submissions to FWA filed 12 April 2010[15] in which Mr Sims denied he was ever supplied with such a “fully maintained motor vehicle” by Suda;[16]
e)FWA “considered the explanations given by the Applicant [Mr Sims] and the Respondent [Suda]” before making an order dated 14 April 2010 dismissing Mr Sims’ application to extend time in which to lodge the Unfair Dismissal Application;[17]
f)after a two and half year delay, Mr Sims appealed the FWA Dismissal Order made in Sims FWA, but that appeal was unsuccessful, a Full Bench of FWA taking the view that Mr Sims’ appeal sought to re-agitate matters raised in Sims FWA, and that any extension of time would most likely prejudice Suda, and that Mr Sims had not established any error in the decision in Sims FWA;[18]
g)on 5 April 2013, in Sims v Eastland Medical Systems Ltd[19] the Full Bench of the FWC ordered, under s.658 of the WR Act that Suda be paid its costs in respect of the application in Sims FWA, and the unsuccessful appeal in Sims FWA Appeal;[20]
h)on 17 June 2013 the FWC ordered that Mr Sims pay Suda’s costs in the sum of $4,597.60 within 28 days;[21]
i)despite correspondence between Suda’s solicitors and Mr Sims from 25 July 2013 onwards requesting payment of Suda’s costs, the FWC Costs Order has not been complied with;[22]
j)on 16 September 2013 Suda filed the Substantive Application in this Court seeking orders in respect of the FWC Costs Order; and
k)on 26 September 2013 Mr Sims filed a Response entitled “Reply”, containing the Counterclaim.
[11] Sims v Eastland Medical Systems Ltd (unreported, Fair Work Australia, matter U2010/6815, Print PR5996051) at para.4 per McCarthy DP (“Sims FWA”).
[12] “Suda’s FWA Submissions”.
[13] Affidavit of Keith Thomas, affirmed 16 October 2013 (“Thomas’ October 2013 Affidavit”), annexure KRT-7.
[14] Suda’s FWA Submissions, paragraph 18(c).
[15] “Mr Sims’ Further FWA Submissions”; Thomas’ October 2013 Affidavit, annexure KRT-8.
[16] Mr Sims’ Further FWA Submissions, para.18(c).
[17] Sims FWA at paras.8-9 per McCarthy DP (“FWA Dismissal Order”).
[18] Sims v Eastland Medical Systems Ltd [2012] FWAFB 10783 at paras.8-10 per O’Callaghan SDP and Cloghan and Rowe CC (“Sims FWA Appeal”).
[19] [2013] FWCFB 2042 (“Sims FWC Costs”).
[20] Affidavit of Keith Thomas, affirmed 16 September 2013 (“Thomas’ September 2013 Affidavit”), annexure KRT-1.
[21] Thomas’ September 2013 Affidavit, annexure KRT-2, being an order of Drake SDP of the FWC (Print PR 537861) (“FWC Costs Order”).
[22] Thomas’ September 2013 Affidavit, annexures KRT-3 to KRT-5.
Other relevant factual matters are set out, where necessary, below.
Law
Section 678 of the FW Act
The Counterclaim relies on s.678(1) of the FW Act which provided, at the relevant time,[23] that:
(1) a person (the witness) commits an offence if:
(a) the witness gives sworn or affirmed evidence; and
(b) the witness give the evidence as a witness; and
(i) in a matter before FWA; or
(ii) before a person taking evidence on behalf of FWA for use in a matter that the witness will start by application to FWA; and
[23] Section 678(1) of the FW Act now refers to the FWC in lieu of the FWA.
(c) the evidence is false or misleading.
Penalty: Imprisonment for 12 months.
In the Explanatory Memorandum introducing the Fair Work Bill 2008 (Cth)[24] the Explanatory Memorandum says as follows:
Clause 678(1) creates an offence of giving false or misleading evidence in connection with FWA proceedings. The penalty is 12 months imprisonment.
[24] “FW Bill”.
Element of offence
Physical element
Fault element
Conduct
Witness gives sworn or affirmed evidence
Intention (default)
Circumstance
Evidence given in a manner before FWA or before a person taking evidence on behalf of FWA for use in a matter that the witness will start by application to FWA
Recklessness (default)
Result
Evidence is false or misleading
Reckless (default)
[25]
[25] FW Bill, Explanatory Memorandum, para.2543.
Section 678(1) of the FW Act has its origins in what was s.303(3) of the WR Act. Section 303(3) of the WR Act provided that:
A person (the witness) is guilty of an offence if:
(a)the witness gives false sworn or affirmed evidence touching any matter material to that proceedings; and
(b)either:
(i)the evidence is given in a proceeding before the Commission; or
(ii)the evidence is given before a person taking evidence on behalf of the Commission either in a proceeding that has been instituted in the Commission by anyone or for use in a proceeding that will be instituted in the Commission by the witness.
Penalty: Imprisonment for 12 months.
Section 303(3) of the WR Act was enacted under the Workplace Relations Amendment (Codifying Contempt Offences) Act 2003 (Cth). In the Second Reading Speech of the Workplace Relations Codifying Contempt Offences Bill 2003[26] the then Minister said as follows:
The fourth offence in this bill is giving false evidence, which has been included to protect the integrity of the Commission and its proceedings. This offence is a form of perjury, rather than common law contempt, and has been included for completeness.[27]
[26] “WR Codifying Contempt Offences Bill”.
[27] Commonwealth Parliamentary Debates, House of Representatives, 26 June 2003, page 1761.
In the Explanatory Memorandum introducing the WR Codifying Contempt Bill into the House of Representatives the Explanatory Memorandum said as follows:
Giving False Evidence
1.30This item would insert two new offences relating to false evidence.
1.31Proposed subsection 303(3) will create a new offence of giving false evidence in the Commission. This is not a form of contempt at common law. This conduct is generally prohibited with respect to Courts by an offence of perjury.
1.32Section 35 of the Crimes Act prohibits the giving of false testimony in judicial proceedings. In Edwards v Director of Public Prosecutions (1987) 62 ALJR 38 the High Court found that it would be incorrect to interpret “testimony” in section 35(1) of the Crimes Act as including an unsworn statement. This decision was made even though subsection 35(2) provides that for the purpose of section 35 it is immaterial whether the evidence was given on oath or not on oath.
In Edwards v Director of Public Prosecutions of the Commonwealth of Australia[28] there was an application to the High Court of Australia for special leave in relation to a conviction before the Supreme Court of Victoria under the Crimes Act 1914 (Cth).[29] It was argued that s.35(1) of the Commonwealth Crimes Act, which provided as follows:
Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter, material in that proceeding, shall be guilty of an indictable offence. Penalty: Imprisonment for five years.
applied to unsworn statements.[30] The High Court disagreed, observing that:
Although an unsworn statement, like oral evidence, is capable of obtaining credence for what is stated: … it is not oral evidence. In the absence of a clear provision …, it would indeed be surprising if the crime of perjury were committed by making knowingly a false, unsworn statement in exercise of a right conferred on an accused person by … [statute] which is applicable to a person charged with a Commonwealth offence.
Section 35 of the Crimes Act (Cth) is a penal provision and, unless the context so requires, it would be wrong to construe “testimony” in that section as including an unsworn statement for that would alter the nature of the benefit which the availability of an unsworn statement has historically conferred on an accused person. The Court therefore refuses special leave to appeal.[31]
[28] (1987) 163 CLR 558 (“Edwards”).
[29] “Commonwealth Crimes Act”.
[30] Edwards at 559-560 per Brennan, Deane, Dawson, Toohey and Gaudron JJ.
[31] Edwards at 560 per Brennan, Deane, Dawson, Toohey and Gaudron JJ.
The legal basis for the Interim Application
Suda makes the Interim Application pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth)[32] and r.13.10 of the Federal Circuit Court Rules 2001 (Cth).[33]
[32] “FCCA Act”.
[33] “FCC Rules”.
Section 17A of the FCCA Act provides that:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 13.10 of the FCC Rules provides that:
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 prospects of successfully prosecuting the proceeding or claim; or
b) the proceeding or claim for relief is frivolous or vexatious; or
c) the proceeding or claim for relief is an abuse of the process of the Court.
The power to give summary judgment under s.17A of the FCCA Act can probably be exercised on wider grounds than the power under r.13.10 of the FCC Rules, since the latter is not qualified by the statement that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.[34]
[34] Rowe v Emmanuel College [2013] FCA 939 at para.12 per Rangiah J (“Rowe”).
The words of s.17A of the FCCA Act mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning.[35] The Court must embark upon a “practical judgment … as to whether the applicant has more than a ‘fanciful’ prospect of success”.[36] The task was described in Spencer as follows:
… The … Court may exercise power … if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.[37]
[35] Spencer v The Commonwealthof Australia (2010) 241 CLR 118 at 141 per Hayne, Crennan, Kiefel and Bell J; [2010] HCA 28 at paras.58-59 per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”); Ejueyitsi v Bond University [2012] FMCA 872 at para.25 per Jarrett FM.
[36] Spencer CLR at 132 per French CJ and Gummow J; HCA at para.25 per French CJ and Gummow J.
[37] Spencer CLR at 141 per Hayne, Crennan, Kiefel and Bell JJ; HCA at para.60 per Hayne, Crennan, Kiefel and Bell JJ; Bilaczenko v Financial Ombudsman Service Ltd [2013] FCCA 420 (“Bilaczenko”).
Consideration
As indicated above, Suda submits that the Counterclaim has no reasonable prospect of success, is frivolous or vexatious in nature, and is an abuse of process of the Court. It makes those claims on several bases, including that Mr Sims lacks standing to bring the Counterclaim in its present form, and further, that even if Mr Sims has standing to bring the Counterclaim there is a lack of substance to the factual allegations in the Counterclaim, and that, as a matter of fact, s.678(1) of the FW Act is not enlivened by the undisputed facts of this matter.
Whether Mr Sims lacks standing to bring the Counterclaim
Suda submits that:
a)section 678(1) of the FW Act:
i)provides that the giving of false or misleading evidence to the FWC is a criminal offence, and is a statutory provision giving rise to criminal liability; and
ii)does not provide grounds for a member of the public to raise the provision in support of a private right of action in relation to civil proceedings;
b)there is no legislative intent that s.678(1) of the FW Act provides a private right of action to an individual; and
c)accordingly, Mr Sims’ Counterclaim has no legal basis and, therefore, has no reasonable prospect of success.
Suda relied on Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority[38] where the Federal Court observed that:
As noted in Stuart by Crennan and Keifel JJ (at [142]) “[t]he requirement of legislative intention concerning the availability of a cause of action has been regarded as the defining feature of the action for breach of statutory duty.”[39]
[38] (2009) 263 ALR 93; [2009] FCA 1487 (“Repacholi Aviation”).
[39] Repacholi Aviation ALR at 128 per McKerracher J; FCA at para.157 per McKerracher J. The passage quoted in Repacholi Aviation is from the High Court judgment in Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15. An appeal from Repacholi Aviation was dismissed: Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2011] FCAFC 122, but no issue as to the availability of a cause of action for breach of statutory duty relevant to these proceedings was considered in the appeal.
Repacholi Aviation was a case concerned with the alleged injury of a person by the exercise of an administrative power by a statutory body established under Commonwealth legislation. The circumstances in this case are somewhat different in that Mr Sims seeks to establish a private right of action by way of the Counterclaim in relation to an alleged breach of s.678(1) of the FW Act by a party to the Unfair Dismissal Application, which is neither the Commonwealth nor an administrative body, but rather the private corporate respondent to the FWA proceedings.
The question in this case is, however, whether a breach of a statutory criminal offence provision, s.678(1) of the FW Act, creates a private right of action, and, if so, what that right of action is.
Mr Sims’ “Reply” did not specify what private right of action he sought to invoke for “the Breach of S 678” of the FW Act.[40]
[40] Reply, para.3.
Mr Sims’ affidavit sworn 26 September 2013,[41] which is an amalgam of facts, allegations and submissions, including that:
a)he is not liable to pay the FWC Costs Order by reason of an indemnity in respect of costs under his employment contract with Suda;[42]
b)Suda’s FWA Submissions concerning his entitlement to a motor vehicle were false, and the clarification in Suda’s Submissions to the Full Bench confirmed that Suda had misled FWA in an attempt to influence its decision;[43]
c)he had attempted to bring the Indemnity Claim and FWC Costs Order issues before the Federal Court by way of an originating process[44] supported by a sworn affidavit, but had been unsuccessful in doing so (it appears that the Federal Court Originating Process was not filed);[45] and
d)the directors of Suda had committed a criminal offence in the circumstances set out in an affidavit attached to his Federal Court Originating Process,
and by his Counterclaim seeks “the damages inflicted upon me as a ‘Victim of Crime’ Defamation and acute stress”.[46]
[41] “Sims’ 26 September 2013 Affidavit”.
[42] “Indemnity Claim”.
[43] Sims’ 26 September 2013 Affidavit, paras.8-13.
[44] “Federal Court Originating Process”.
[45] Sims’ 26 September 2013 Affidavit, para.19.
[46] Sims’ 26 September 2013 Affidavit, para.22.
In submissions before the Court Mr Sims was not able to advance his claim beyond an assertion that he was seeking to maintain his position that he had been prejudiced by a dishonest breach of obligations to FWA.[47] But, even if Mr Sims’ gallimaufry of facts, allegations and submissions were to reveal some right of action, that does not answer the question as to whether a breach of s.678(1) of the FW Act gives rise to a private right of action.
[47] Transcript, page 9.
As was observed in O’Connor v SP Bray Limited[48] when considering a cause of action for breach of statutory duty founded upon State legislation:
… the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of constructions, will rarely yield a necessary implication positively giving a civil remedy.[49]
[48] (1937) 56 CLR 464 (“O’Connor”).
[49] O’Connor at 477-478 per Dixon J.
Those difficulties are compounded when dealing with Commonwealth legislation by further observations of the High Court in Crimmins v Stevedoring Industry Finance Committee[50] where it was said that:
a)there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed;[51] and
b)where the legislation is a law of the Commonwealth, and the question is one respecting the creation of new rights and liabilities to engage Chapter III of the Constitution, it is to be expected that Parliament would clearly state its will.[52]
[50] (1999) 200 CLR 1; [1999] HCA 59 (“Crimmins”).
[51] Crimmins CLR at 58 per Gummow J; HCA at para.157 per Gummow J.
[52] Crimmins CLR at 58 per Gummow J; HCA at para.157 per Gummow J, citing Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 458 per McHugh and Gummow JJ.
If no other adequate remedy appears on the face of the legislation then an action for breach of statutory duty will more readily be allowed. But where the legislation prescribes a penal sanction for conduct “there is a ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy.”[53]
[53] Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J.
In the United Kingdom the House of Lords expressed similar views, indicating that:
a)normally, a statutory right providing for some means of enforcing a duty will indicate that it is enforceable by those means, and not by a private right of action, albeit that the existence of another statutory remedy is not necessarily decisive;[54] and
b)more specifically, it has been said that a criminal sanction indicates that any statutory obligation is imposed for the public benefit, and that the contravention of that statute is a public wrong rather than a private wrong.[55]
[54] X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 731 per Lord Browne-Wilkinson.
[55] Cutler v Wandsworth Stadium Ltd [1949] AC 398 at 408 per Lord Simonds.
In Chordas v Bryant (Wellington) Pty Ltd[56] the Full Court of the Federal Court heard an appeal involving s.79 of the Liquor Ordinance Act 1975 (ACT),[57] which provided that the holder of a liquor licence or permit was not to sell or supply liquor to a person “in respect of whom there are reasonable grounds for believing that he is intoxicated …”. The appellant plaintiff alleged he had been assaulted by another patron affected by intoxicating liquor, in a hotel for which the respondent held a liquor licence, and had sustained injuries. The Full Court of the Federal Court held that s.79 of the ACT Liquor Ordinance was intended to protect the public interest by regulating the sale of intoxicating liquor so as to protect those who by over-indulgence were at risk from its abuse. It did not confer a private right of action for damages resulting from any contravention, because it was enacted in the general public interest, not for the protection of persons who may be injured by the conduct of intoxicated persons.[58]
[56] (1988) 20 FCR 91 (“Chordas”).
[57] “ACT Liquor Ordinance”.
[58] Chordas at 102 per Davies, Kelly and Neaves JJ.
In Soutter v P & O Resorts Pty Ltd[59] the Queensland Court of Appeal dealt with s.78 of the Liquor Act 1912 (Qld)[60] which relevantly provided that any licenced victualler who suffered or permitted:
(b)Prostitutes, thieves, drug dealers, sexual perverts or deviants, child molesters or persons of notoriously bad character, or drunken or disorderly persons, to be in or upon such [licenced] premises or appurtenances ..
was guilty of an offence.
[59] [1999] 2 Qd R 106 (“Soutter”).
[60] “Queensland Liquor Act”.
In Soutter the plaintiff had been injured on the dance floor at the resort on Heron Island run by the respondent when she was struck from behind by a man who was drunk and was dancing wildly before colliding with Ms Soutter, who fell on her coccyx causing her pain and distress.
The Queensland Court of Appeal considered that the provisions of s.78(b) of the Queensland Liquor Act were so broadly framed as to be inconsistent with the imputation of a legislative intention to grant a private right of action. In Soutter it was observed that:
Where the statute prescribes a relatively modest penalty for breach it may sometimes seem harsh to impose upon the offender, as within the legislative intention, an unlimited liability for damages as well. It will not necessarily be right to do that where the offender would not otherwise be liable to pay damages, for example, on the ground of negligence.[61]
In the circumstances, the Queensland Court of Appeal further observed that “no sufficiently strong reason appears to treat the provision in question as giving rise to a civil action for its breach.”[62]
[61] Soutter at 112 per Pincus JA (with whom McPherson JA and Fryberg J agreed).
[62] Soutter at 112 per Pincus JA (with whom McPherson JA and Fryberg J agreed).
In Abela v Giew[63] a Full Court of the Supreme Court of New South Wales[64] held that regulations made under the Motor Traffic Act 1909 (NSW)[65] did not confer a private right of action upon persons injured by reason of a breach of those regulations. Having reviewed the MT Act and the regulations made thereunder the NSW Full Court observed that they were intended to secure the orderly movement of traffic and the safety of those engaged therein, and to that end dealt with a large variety of subject matters as part of a body of legislation, and observed that:
The scope of this legislation indicates … that its purpose is the control and regulation of traffic by way of securing a measure of order which will promote its free movement, and in the interest of safety, these ends being sought to be secured by appropriate penal sanctions; it is not the conferment of private rights of action upon injured individuals. Duties are not merely imposed upon one class of persons for securing the safety of another class of persons. The whole scheme of legislation is one of mutually reciprocal obligations imposed upon all who engage in traffic for the benefit and safety of all others so engaged as well as for their own benefit and safety. These have to be applied to an infinite number and variety of constantly and rapidly changing situations as between two vehicles or as between a vehicle and a pedestrian. In these circumstances the prescription of pre-appointed regulatory measures cannot be regarded as more than an attempt to secure in the general interest that order will obtain and that safety will be preserved. It cannot be regarded as an attempt to provide in advance a solution for every claim for damages which one person may make against another arising out of any of a variety of situations which may arise …[66]
[63] (1965) 65 SR (NSW) 485 (“Abela”).
[64] “NSW Full Court”.
[65] “MT Act”.
[66] Abela at 490-491 per Sugerman, Taylor and Moffitt JJ.
In Gardiner v State of Victoria[67] the Supreme Court of Victoria, Court of Appeal[68] considered the provisions of s.122 of the Accident Compensation Act 1985 (Vic)[69] which provided that an employer must provide employment to a worker who was no longer incapacitated or suitable employment to a worker who only had a partial incapacity for work, upon pain of a prescribed penalty. The Victorian Court of Appeal observed that where a penal sanction attached to a legislative prescription that ordinarily excluded the implication of additional civil liability.[70] Notwithstanding that s.122 of the AC Act provided for the benefit of employment to be conferred on a class of persons who were no longer incapacitated for work, or who were only partially incapacitated for work, the Victorian Court of Appeal held that it was part of an elaborate structure for the enforcement of rights under the AC Act. Thus, whilst it delivered compensation to the workers concerned, it also set limits on the compensation, and was part of an overall legislative scheme enacted primarily for the general good rather than the benefit of any particular persons or class of persons. It therefore followed that the AC Act evinced no intention that the employer should be civilly liable to a worker if the employer failed to comply with the provisions of s.122 of the AC Act, and an employer who did so fail to comply was liable only for the penalty prescribed.[71]
[67] [1999] 2 VR 461; [1999] VSCA 100 (“Gardiner”).
[68] “Victorian Court of Appeal”.
[69] “AC Act”.
[70] Gardiner VR at 469 per Phillips JA; VSCA at para.25 per Phillips JA (with whom Winneke P agreed: see VR at 462 per Winneke P; VSCA at para.2 per Winneke P).
[71] Gardiner VR at 470-473 per Phillips JA; VSCA at paras.28-31 and 36 per Phillips JA (with whom Winneke P agreed; see VR at 462 per Winneke P; VSCA at para.2 per Winneke P).
In McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd[72] the New South Wales Court of Appeal found that a regulation under the Dangerous Goods Regulations 1978 (NSW) which required an occupier of premises not to do any act that may cause fire was said to be one which prescribed the end but not the means, and that without the identification of any specific precaution or measure which the occupier was to take for the safety of others it amounted to a blanket prohibition on doing the act (causing a fire) in question, and did not tell the occupier what measures had to be taken. It was said that “the absence of identification of specific precautions means that [the] regulations … should not be construed as conferring a correlative private cause of action …”.[73]
[72] [2004] NSWCA 297 (“Girkaid”).
[73] Girkaid at para.177 per McColl JA (with whom Beazley JA and Young CJ in Eq agreed).
In British American Tobacco Exports BV v Trojan Trading Co Pty Ltd[74] the Supreme Court of Victoria refused to strike out a civil claim alleging the conferral of a private right of action in respect of breaches which were offences under s.148 of the Trade Marks Act 1995 (Cth). In that case the various arguments were canvassed, but no ultimate conclusion was reached with respect to the provisions of s.148 of the Trade Marks Act and whether or not the existence of a penalty precluded a private right of action, it being a matter which was said to be arguable, and sufficiently so as to not warrant the summary disposal of the action.[75] No final determination of the issue was arrived at in Trojan Trading.
[74] (2010) 90 IPR 392; [2010] VSC 572 (“Trojan Trading”).
[75] Trojan Trading IPR at 403 per Hollingworth J; VSC at para.62 per Hollingworth J.
It is relevant to observe that the Parliament has not expressly created a private right of action for any breach of s.678(1) of the FW Act.[76]
[76] Crimmins CLR at 58 per Gummow J; HCA at para.157 per Gummow J; Byrne at 458 per McHugh and Gummow JJ.
Ultimately, as the authorities indicate, the question of whether or not a private right of action can be implied is a matter of statutory interpretation. The Court must have regard to the nature, scope and terms of the statute, and the nature of the evil sought to be remedied, and whether that gives rise to a private right of action. As cases such as Abela and Gardiner make clear, it is necessary to have regard to the terms of the statute as a whole.
As to the FW Act some indication of its nature, scope and terms, and the ultimate evil sought to be remedied by it, can be ascertained by an examination of the objects and overview in ss.3 and 4(1) of the FW Act, which provide as follows:
3. The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
4(1) This Act is about workplace relations. It:
(a) provides for terms and conditions of employment (Chapter 2); and
(b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and
(c) provides for compliance with, and enforcement of, this Act (Chapter 4); and
(d) provides for the administration of this Act by establishing the Fair Work Commission and the Office of the FairWork Ombudsman (Chapter 5); and
(e) deals with other matters relating to the above (Chapter 6).
It is evident from the opening words of s.3 of the FW Act that it is a statute concerned with the workplace relations framework operative within a national economic and social context. The statute applies across the spectrum of workplace relations to employees, their employers, and organisations of both employers and employees, operating within the workplace relations framework. The National Employment Standards established by the FW Act are minimum terms and conditions that apply to all employees.[77] It also applies to employees, employers and organisations bound by modern awards and enterprise agreements, and provides for various protections (including a right for employees to make application with respect to unfair dismissals) to employees. It also deals with the processes of bargaining and industrial action. From this albeit brief overview it is evident that the FW Act is an Act concerned with the general or public good.
[77] FW Act, ss.3(b), 5(3) and Part 2-2.
The FW Act does, however, allow for a private right of action, or applications as they are generally described under the FW Act, in relation to a number of matters. Where it does so, the FW Act specifically, and sometimes in great detail, spells out who may bring an application in respect of particular kinds of remedies. Thus, Part 4-1 of the FW Act is concerned with civil remedies, and the contravention of civil remedy provisions. In s.539(2) of the FW Act there are set out 39 items in respect of at least 82 separate civil remedy provisions which secify the persons who have standing to bring an application in respect of a civil remedy provision. The categories of person include:
a)an employee;
b)an employer;
c)an employee organisation;
d)an employer organisation;
e)an inspector;
f)an employer organisation to which an enterprise agreement concerned applies;
g)an employee whom a proposed enterprise agreement will cover;
h)a bargaining representative for a proposed enterprise agreement;
i)an employer organisation to which a workplace determination concerned applies;
j)a person affected by a contravention;
k)an industrial association;
l)a person to whom costs are payable;
m)an employee organisation covered by an enterprise agreement or workplace determination concerned;
n)a person affected by industrial action;
o)an applicant for a protected action ballot order;
p)a protected action ballot agent;
q)a registered employee association; and
r)a transferring employee,
with the number of persons having standing varying (between one to six persons) depending upon the civil remedy provision concerned.
Significantly, s.678(1) of the FW Act is not a civil remedy provision.
Where it is alleged that a person was dismissed in contravention of a general protection under Part 3-1 of the FW Act, the FW Act, in s.365, provides that the person dismissed, or an industrial association entitled to represent the industrial interest of that person, may apply to the FWC to deal with a dispute concerning the dismissal.
Part 3-2 of the FW Act deals with the unfair dismissal of employees, and s.394(1) of the FW Act provides that a “person who has been dismissed may apply to the FWC for an order … granting a remedy” in respect of the alleged unfair dismissal.
Section 772 of the FW Act provides that an employee’s employment must not be terminated on certain grounds, and under s.773 of the FW Act an employee who alleges they have been so terminated, or an industrial association entitled to represent the industrial interests of the employee, may apply to the FWC to deal with a dispute concerning the allegation that the employee’s employment was terminated in contravention of s.772(1) of the FW Act.
The above provisions are significant because they demonstrate that where Parliament intended that a private right of action, or private application, be able to be made, it is expressly specified in the FW Act. Thus, it can be inferred that no private right of action, or right to make a private application, was intended to arise under s.678(1) of the FW Act. Further, the failure to include s.678(1) of the FW Act in the civil remedy provisions for which a person, including an employee, has standing to bring an action for contravention of a civil remedy provision, is a further indication that s.678(1) of the FW Act was not intended to give rise to a private right of action arising out of a contravention of its terms.
The terms of s.678(1) of the FW Act also indicate that there was no intention on the part of the Parliament to create a private right of action for the offence of giving false or misleading evidence in connection with FWA proceedings. The terms of s.678(1) of the FW Act make it clear that it is directed towards the giving of false or misleading evidence, either sworn or affirmed, and creates an offence in that regard, and not a civil remedy provision giving rise to a private right of action. The Second Reading Speech on the predecessor to s.678(1) of the FW Act, namely, s.303(3) of the WR Act, also makes it clear that a provision of this type is concerned, not with a private right of action, but with a penal sanction, akin to perjury under the criminal law, and in this case specifically designed to ensure the integrity of the then Australian Industrial Relations Commission, subsequently the FWA and FWC.[78]
[78] See para.17 and fn.27 above.
The Court observes that it appears that there is nothing to prevent a private criminal prosecution being instituted for a breach of s.678(1) of the FW Act,[79] but what Ms Sims seeks in these proceedings is not to prosecute a breach of s.678(1) of the FW Act, but to found some presently unarticulated other cause of action arising from an alleged breach of s.678(1) of the FW Act.[80]
[79] Having regard to s.9 of the Director of Public Prosecutions Act 1983 (Cth) (“DPP Act”) it appears that a private prosecution may be brought by a person other than the Commonwealth DPP, as the Commonwealth DPP is entitled under s.9 of the DPP Act to take over and carry on a prosecution instituted by a person other than the Commonwealth DPP.
[80] A separate private criminal prosecution for breach of s.678(1) of the FW Act cannot be brought in this Court. That is because the jurisdiction of this Court is restricted to civil matters under the FW Act: FW Act, s.566. Further, s.563 of the FW Act which specifies the jurisdiction conferred on the Court does not include a prosecution instituted under the FW Act. That can be contrasted with the position under s.847(4)(e) of the WR Act which expressly conferred jurisdiction on the Court to deal with prosecutions instituted for offences against the WR Act. With the enactment of the FW Act this Court’s jurisdiction to deal with prosecutions under the Commonwealth’s primary workplace law disappeared. That that was the intention of the parliament can be discerned from the contrast between the text of s.562 of the FW Act which retains specific criminal jurisdiction in the Federal Court and specifies that the Federal Court has jurisdiction in a prosecution instituted in the Federal Court under s.563(e) of the FW Act and s.566 of the FW Act limiting this Court’s jurisdiction to civil matters.
The FW Act is not an Act which, by reason of its terms, or the nature of the remedies set out therein in relation to civil penalty provisions, and a comparison of those provisions with s.678(1) of the FW Act, leaves any room for the implication that s.678(1) of the FW Act gives rise to a private right of action by any party or individual in civil proceedings. It follows from that that Mr Sims has no standing to bring the Counterclaim, and, therefore, the Counterclaim cannot succeed, and, indeed, in the circumstances is hopeless and bound to fail.
Lack of substance to factual allegations in Counterclaim
Suda submits that Mr Sims’ allegation that Suda provided false or misleading evidence to FWA is without factual basis or foundation because it relates to a written submission made by Suda, which was not put on affidavit or otherwise given as sworn evidence, and the erroneous nature of which was:
a)highlighted by Mr Sims in Mr Sims Further FWA Submissions;[81]
b)corrected by further written submissions by Suda in Sims FWA Appeal; and
c)a matter of which both the FWA at first instance, and the FWA Full Bench on appeal, were aware, and notwithstanding which still made orders dismissing the application to extend time for filing the Unfair Dismissal Application, confirming that on appeal, and subsequently making the FWC Costs Order.
[81] Mr Sims’ Further FWA Submissions, para.18(c).
Mr Sims points to the correction by Suda as proof that Suda provided false or misleading evidence to FWA. Suda submits that this is a patently incorrect conclusion to draw from the facts.
Because of the use of the conjunctive “and” after each of paragraphs (a) and (b) in s.678(1) of the FW Act, each of the elements of paragraphs (a), (b) and (c) of s.678(1) of the FW Act must be made out. In Australian Fisheries Management Authority v PW Adams Pty Ltd[82] the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular a provision which provided that certain objectives “must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions”. Each of the five objectives was then conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must” and the linking of each of the five objectives with the word “and” meant that each objective must be pursued by the Minister and by AFMA.[83]
[82] (1995) 61 FCR 314 (“Adams”).
[83] Adams at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed).
The first element of s.678(1) of the FW Act is that there must be a witness, and a witness who gives sworn or affirmed evidence. In Sims FWA there were no witnesses. The FWA requested “information” in response to which Suda submitted Suda’s FWA Submissions. That the witness referred to in s.678(1) of the FW Act is intended to be an individual is evident from the fact that for the purposes of a contravention the witness is required to give sworn or affirmed evidence. Only an individual, and not a corporation such as Suda, can give sworn or affirmed evidence. Therefore, any private right of action based on an alleged contravention of s.678(1) of the FW Act fails at the outset because there was no individual who was a witness in Sims FWA. It follows that the Counterclaim, which is against Suda and not an individual, could never, therefore, succeed. In the Federal Court Originating Process reference is made to directors of Suda who are alleged to have been dishonest in relation to the proceedings in Sims FWA, but there is no evidence of those persons either being witnesses or giving sworn or affirmed evidence in Sims FWA. Any action based on a breach of s.678(1) of the FW Act would also fail because there is no evidence of “sworn” or “affirmed” evidence given in the proceedings in Sims FWA. What is relied upon by Mr Sims is Suda’s Further Submissions, which are neither sworn nor affirmed evidence.[84]
[84] Edwards at 560 per Brennan, Deane, Dawson, Toohey and Gaudron JJ.
The second element of the offence in s.678(1) of the FW Act is, relevantly, that there be evidence given in a matter before FWA. For reasons set out above, what was submitted to FWA in Sims FWA was Suda’s Further Submissions, which are not evidence, and no sworn or affirmed evidence was given in the matter before FWA. This element of the offence under s.678(1) of the FW Act is, therefore, not made out.
The third element of the offence in s.678(1) of the FW Act is that the evidence is false or misleading. Great care needs to be taken before deciding that a person has given false or misleading evidence. As the High Court of Australia pointed out in Smith v New South Wales Bar Association:[85]
a)as a matter of logic and common sense something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that that person deliberately lied in the giving of that evidence;[86]
b)the distinction between the rejection of a person’s evidence and a positive finding that the person lied, is an important distinction to be observed, particularly in disciplinary cases involving legal practitioners (and it is to be borne in mind that in these proceedings the allegation of false or misleading evidence arises out of Suda’s FWA Submissions which were signed by Counsel);[87] and
c)the mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account, including the deterrent effect upon an innocent man with a strong case against him if he knows that if the jury does not accept his evidence he may receive a sentence heavier than otherwise would be imposed.[88]
[85] (1992) 176 CLR 256 (“Smith”).
[86] Smith at 268 per Brennan, Dawson, Toohey and Gaudron JJ.
[87] Smith at 268 per Brennan, Dawson, Toohey and Gaudron JJ.
[88] Smith at 268 per Brennan, Dawson, Toohey and Gaudron JJ, citing R v Richmond [1920] VLR 9 at 12 per Cussen J.
Because no witness gave sworn or affirmed evidence in the matter before FWA in Sims FWA, there is no evidence which was false or misleading in those proceedings. It does not assist Mr Sims that Suda’s FWA Submissions might have been false or misleading. They are not evidence. The third element of the offence under s.678(1) of the FW Act is, therefore, not made out.
In this case, none of the elements of the offence in s.678(1) of the FW Act are made out, and, therefore, no breach of s.678(1) can be made out by Mr Sims.
Having regard to all the above considerations, even if a private right of action had been held to arise in this case, the elements of the alleged breach of s.678(1) of the FW Act said by Mr Sims to found such a private right of action, are not made out, and therefore any private right of action could never have succeeded.
Whether Counterclaim is frivolous, vexatious and an abuse of process
Suda submits that Mr Sims’ lack of standing to bring the Counterclaim is, in all the circumstances of this case, sufficient to lead to a finding that the Counterclaim is frivolous, vexatious and an abuse of process. Those circumstances include:
a)Mr Sims’ previous unsuccessful attempts to seek relief based on s.678(1) of the FW Act, namely:
i)District Court of Western Australia proceedings CIV No. 3 of 2013 which were dismissed on 25 February 2013;[89]
ii)Supreme Court of Western Australia proceedings CIV No. 1506 of 2013, which were dismissed on 21 May 2013;[90] and
iii)Supreme Court of Western Australia proceedings CIV No. 1357 of 2013;[91]
b)the observations of Registrar Whitbread in Supreme Court of Western Australia CIV number 1357 of 2013 where Registrar Whitbread said to Mr Sims:
So in relation to your claim that there is a breach of section 678 of the Fair Work Australia Act, what you have pleaded there does not give rise to any duty to you or an arguable basis for an allegation that there is a private right of action for breach of statutory duty in respect to that offence … the authority is Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (2009) FCA 1487. So you have no private cause of action....[92]
c)a letter from FWA dated 20 October 2010 annexed to Mr Sims’ 26 September 2013 Affidavit,[93] referring Mr Sims to the Commonwealth Director of Public Prosecutions[94] or the Australian Federal Police[95] as being the appropriate Commonwealth officers to approach to pursue his allegations.
[89] Thomas Affidavit, annexures KRT-1 and KRT-2.
[90] Thomas Affidavit, annexures KRT-3 and KRT-4.
[91] Thomas Affidavit, annexures KRT-5 and KRT-6.
[92] Thomas Affidavit, annexure KRT-6 at page 2.
[93] Sims’ 26 September 2013 Affidavit, unnumbered annexure at final page of Attachment DAS(1).
[94] “Commonwealth DPP”.
[95] “AFP”.
In the Court’s view the proceedings cannot be described as frivolous: one need only look at the nature and form of these Reasons for Judgment to conclude that whilst Mr Sims has no standing, and could not have succeeded, the issues raised are far from frivolous. The Counterclaim might however be described as vexatious in the sense that it lacked reasonable grounds, and caused unjustifiable trouble or harassment because litigation which ought not to have been pursued, on any reasonable view, was pursued by Mr Sims, and pursued in the face of the rejection of similar claims by other courts, and specific observations of a Registrar of the Supreme Court of Western Australia that there was no private right of action in relation to the alleged breach of s.678(1) of the FW Act. Those facts, together with the fact that the Counterclaim does not give rise to a private right of action are sufficient for the Court to conclude that the Counterclaim would also be an abuse of process if it were allowed to proceed.
It does not assist in determining whether a court process is an abuse of process, or frivolous or vexatious, for the Court to be referred to the fact that Mr Sims had been referred to the Commonwealth DPP or the AFP by FWA. Those two bodies exercise independent prosecutorial discretion, and reasons for not proceeding may be as much evidentiary or administrative as they are based on an assessment of the validity of a cause of action. In any event, had either the Commonwealth DPP or the AFP instituted (and presumably the latter would do so through the former) proceedings for breach of s.678(1) of the FW Act those proceedings would have been criminal, and the failure to institute those proceedings does not assist in the determination of whether or not there is a private right of action in these civil proceedings.
Appropriate order – judgment, dismissal or strike out?
The question arises as to whether in circumstances where the Court has concluded that Mr Sims has no standing to bring the Counterclaim, that the Counterclaim has no prospect of success, and in any event, is vexatious and an abuse of process, the appropriate order is one for judgment for Suda on the Interim Application, or dismissal of the Counterclaim, or a striking out of the Counterclaim with leave to re-plead.
The Court has not dealt in any detail with two matters raised by some of Mr Sims’ material, namely:
a)the Indemnity Claim; and
b)an alleged entitlement to the supply of a motor vehicle and its transfer to him upon termination of employment.[96]
[96] “Motor Vehicle Claim”.
The Court has not dealt with the Indemnity and Motor Vehicle Claims in detail because they have not been pleaded as such in Mr Sims’ “Reply”, and do not form part of the Counterclaim in paragraph 3 of the “Reply”. Further, assuming without more that the Court has some form of jurisdiction in relation to the Indemnity and Motor Vehicle Claims, if there was intended to be a counterclaim or counterclaims on the basis of the Indemnity and Motor Vehicle Claims then they ought to have been put in a form that Suda and the Court could understand in order to adjudicate fairly between the parties.[97] It suffices to observe, that the Indemnity and Motor Vehicle Claims were not in such form. For the purposes of determining the appropriate order, the Court has, however, read the materials in relation to the Indemnity and Motor Vehicle Claims, and in particular Mr Sims’ contract of employment. The Court makes no observations as to the merits of the Indemnity and Motor Vehicle Claims, other than to observe that they may be arguable. Whether they can be raised as a counterclaim in a response relying upon the exercise of the ancillary jurisdiction of this Court might raise some interesting questions.[98]
[97] Sims v Jooste QC [2013] WASCA 245 at para.17 per Pullin and Newnes JJA (“Jooste QC”).
[98] See, by way of example of the sorts of considerations which might arise for assessment in any re-pleading, Matheson v Findex Australia Pty Ltd (2011) 252 FLR 197 at 202-204 per Lucev FM; [2011] FMCA 135 at para.13 per Lucev FM (and the numerous High Court and Federal Court authorities there cited).
In the circumstances, the Court does not consider that Mr Sims should be shut out from re-pleading any counterclaim. There will therefore be an order that Mr Sims have leave to re-plead the “Reply” (properly a Response), including any counterclaim. Given the manner in which this case has been pleaded, the Court notes, and respectfully adopts, the following observation of the Supreme Court of Western Australia, Court of Appeal in Jooste QC:
If the Appellant [Mr Sims] has genuine causes of action, then it appears that he requires the assistance of a lawyer before they will emerge.[99]
[99] Jooste QC at para.19 per Pullin and Newnes JJA.
The Court will allow a suitable lengthy period of time for Mr Sims to re-plead a counterclaim, if he decides to do so, and for the matter to then be the subject of a further directions hearing.
Conclusions and orders
The Court has concluded that:
a)Mr Sims has no standing to bring the Counterclaim;
b)in any event, the Counterclaim was hopeless and bound to fail, vexatious and an abuse of process;
c)the Counterclaim ought therefore be struck out pursuant to s.17A of the FCCA Act and r.13.10 of the FCC Rules; and
d)leave to re-plead a counterclaim, as part of an Amended Response, ought to be granted, having regard to the nature of the Indemnity and Motor Vehicle Claims.
There will be orders accordingly, and otherwise the matter will be adjourned to a further directions hearing.
The Court will hear the parties as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 November 2013
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