Suddhoo v Woolworths Ltd
[2019] FCCA 125
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUDDHOO v WOOLWORTHS LTD | [2019] FCCA 125 |
| Catchwords: INDUSTRIAL LAW – General protections claim – interlocutory application for summary dismissal of respondent’s defence and summary judgment – adverse action – workplace right – workers compensation claim – whether person a partner in a business – whether person an employee – whether compensation for loss suffered because of a contravention. PRACTICE AND PROCEDURE – Interlocutory application for summary judgment – explanation of no reasonable prospect of success – whether defence has reasonable prospects of success – reasonable prospects – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), s.340 Federal Circuit Court Act 1999 (Cth), s.5, 17A Federal Circuit Court Rules 2001 (Cth), r.7.01, 13.07, 13.10 Legal Profession Conduct Rules 2010 (WA), reg.37(1) |
| Cases cited: Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 |
| Applicant: | AKSHEYE SUDDHOO |
| Respondent: | WOOLWORTHS LTD ACN 000 014 675 |
| File Number: | PEG 449 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 16 October 2018 |
| Date of Last Submission: | 16 October 2018 |
| Delivered at: | Perth |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr A. Talbert |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The applicant’s application in a case filed 31 August 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 449 of 2017
| AKSHEYE SUDDHOO |
Applicant
And
| WOOLWORTHS LTD ACN 000 014 675 |
Respondent
REASONS FOR JUDGMENT
Introduction
On 18 August 2017, Aksheye Suddhoo (the applicant in these proceedings) filed an application (the “substantive application”) under the Fair Work Act 2009 (Cth) (the “FW Act”).
In his substantive application, Mr Suddhoo alleges that the respondent, Woolworths Ltd ACN 000 014 675 (“Woolworths”), took adverse action against him and injured him because he made various workplace complaints against Woolworths. He says, in effect, that he was humiliated and suffered offence, humiliation, distress, anxiety and depression, post-traumatic stress (resulting in various physical symptoms).
On 23 July 2018, Woolworths filed a defence to Mr Suddhoo’s substantive application.
In response to Woolworths’ defence, Mr Suddhoo filed an application in a case on 31 August 2018.
The Court is asked here to determine whether Mr Suddhoo’s application in a case should succeed.
Mr Suddhoo’s Application in a Case
In his application for a case, Mr Suddhoo seeks:
a)Summary dismissal of Woolworths’ defence filed on 23 July 2018 pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”);
b)Summary judgment as per Mr Suddhoo’s remedy sought in a Statement of Claim filed on the 25 June 2018 pursuant to r.13.07 of the FCC Rules; and
c)Cost of proceedings to be paid to Mr Suddhoo.
The application in a case was supported by an affidavit from Mr Suddhoo dated 27 August 2018. Mr Suddhoo also provided a considerable amount of documentation to support his application in a case.
In essence, the basis of Mr Suddhoo’s application in a case is that Woolworths has “no reasonable prospect of successfully” defending this matter and, as a consequence, summary judgment ought to be given. Relevantly, Mr Suddhoo submitted in his outline of submissions dated 25 September 2018 that the defence was “manifestly groundless as to be utterly hopeless”.
The applicant further submitted as follows in his written submissions:
24. With evidences contradicting 100% of the Defence, it can only be deduced that Respondent [sic] has no reasonable chance of successfully defending claim. Evidences [sic] also show that Respondent was aware and in possession of these evidences [sic] prior to responding to Applicant's claim. As listed below, the contradictions involve multiple groundless representations made by Respondent with a hopeless attempt to defend the claim.
Mr Suddhoo also made submissions in relation to “frivolous and vexatious” conduct and representations made by Woolworths in both his outline of submissions dated 25 September 2018 and his “Written statement of Applicant oral submission” filed on 17 October 2018. Relevantly, Mr Suddhoo also states in his outline of submissions:
35.A questionable unsolicited email (Annexure A) where [the] Respondent’s representative posing as Applicant’s counsel received on 30th August 2018. Its (sic) is to be asked whether this does not contravene Section 37 of the Legal Professional (sic) Conduct Rule[s] 2010?
Woolworths’ outline of submissions filed on 2 October 2018 in opposition to the application in a case provided the following overview of Woolworths’ position:
2.1 The Respondent submits that Rule 13.10 does not apply to a defence as it is not a ‘proceeding’ and therefore it cannot be summarily dismissed.
2.2 The Respondent submits that the Applicant has failed to demonstrate evidence of facts which could satisfy the Court that the Respondent has no reasonable prospect of successfully defending the claim.
2.3 The Respondent submits the Court should not exercise the discretion to enter summary judgment in favour of the Applicant as there are serious questions of fact and law to be determined which merit a substantive hearing.
2.4 The Respondent relies upon the materials it has filed before the Court to date in support of its position that its defence has reasonable prospects of success.
Woolworths also responded to Mr Suddhoo’s legal conduct allegation as follows:
3.7 Although not expressly stated, it appears the Applicant is referring to section 37(1) of the Legal Profession Conduct Rules 2010, which provides:
Communication with opponents
(1) A practitioner must not knowingly make a false and misleading statement to an opponent in relation to a matter (including its compromise).
3.8 The Respondent refutes the Applicant’s submission as baseless. The intention of the Respondent’s solicitor’s email was to draw the Applicant’s attention to the legal framework of summary judgment / summary dismissal applications and the lack of utility in pursuing the Application in a Case.
3.9 The Respondent’s solicitor did not purport to act as counsel for the Applicant and specifically recommended the Applicant seek legal advice.
Consideration
Relying on s.17A of the Federal Circuit of Australia Act 1999 (Cth) (“FCC Act”) and/or r.13.10 of the FCC Rules. Mr Suddhoo submits that summary judgment be given to him by way of dismissal of Woolworths’ defence to his substantive application.
Summary dismissal of the defence
Rule 13.10 of the FCC Rules provides that:
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar 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
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Section 5 of the FCC Act defines ‘proceeding’ as follows:
“proceeding” means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
Mr Suddhoo did not make express submissions in relation to the summary dismissal argument, other than to draw the Court’s attention to the law relating to summary dismissal generally. As noted above, Mr Suddhoo submits generally that the defence is manifestly groundless as to be utterly hopeless.
In relation to Mr Suddhoo’s application for an order to summarily dismiss the respondent’s defence under r.13.10 of the FCC Rules, Woolworths submitted that:
3.3 … its defence is not a proceeding for the purposes of the FCCA or the FCC rules;
3.4 … [A]s it does not have a proceeding or claim on foot against the applicant there are no grounds upon which the Court can exercise its discretionary power to grant summary dismissal in relation to the defence; and
3.5 For completeness, the Respondent denies any allegation of its defence being frivolous, vexatious, an abuse of process or embarrassing. The Respondent is entitled to vigorously defend its position. Denying the Applicant’s assertions or refusing to settle with the Applicant does not amount to an abuse of process. Further, the Respondent has complied with all Court orders and deadlines to date so as not to cause any delay in progressing the matter.
The Court agrees with the analysis provided by Woolworths in this regard. Division 13.3 of the FCC Rules outlines the avenues available for summarily disposing of a matter. In these circumstances, and as rightly pointed out by Woolworths, there are no grounds upon which the Court can exercise its discretionary power to grant summary dismissal in relation to the defence. Accordingly, Mr Suddhoo misapplies r.13.10 of the FCC Rules when he seeks to summarily dismiss Woolworths’ defence.
Furthermore, and in any event, any defects in Woolworths’ defence are capable of being cured as it remains open to Woolworths to apply for leave to amend its defence pursuant to r.7.01 of the FCC Rules.
In light of the above, the Court has considered the applicant’s submissions in the context of summary judgment only. This is discussed below.
Summary Judgment
Section 17A of the FCC Act provides that:
(1) 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 prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(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.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
Rule 13.07 of the FCC Rules provides:
Disposal by summary judgment
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.
(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.
In relation to the above, the Court notes the following comments made by Judge Lucev in Ellis v Grill’d Pty Ltd [2018] FCCA 3294:
22. Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
23. In Spencer it was observed that:
a) no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b) the expression “no reasonable prospect” cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c) the creation of a lexicon of words or phrases intended to capture the operation of the phrase “no reasonable prospect” is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d) where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e) the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f) the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g) full weight must be given to the expression as a whole, and 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: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
24. In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed, in relation to the phrase “no reasonable prospect of success”, that:
a) a court must be satisfied that the applicant has no reasonable prospect of success;
b) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c) it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f) a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g) the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h) what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
The party making an application for summary relief bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeves J.
Further, as stated by Judge Kelly in Singh v Minister for Immigration & Anor [2017] FCCA 2709 at [45]:
It is clear that caution must be exercised when considering whether to grant summary judgment. The power to grant summary judgment is expressed in permissive terms; the court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, the power is not engaged unless the court is satisfied that the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting the proceeding or claim.
In Stolt-Nielsen Australia Pty Ltd & Anor v Ausstar Commodity & Marketing Pty Ltd [2013] FCCA 602 Judge O’Dwyer set out the guiding principles for summary judgment as follows:
33. There is now much authority as to the interpretation and application of the expression "no reasonable prospect of success”, both as it is used in the FCC Act and the FCC Rules, but also in respect of s.31A of the Federal Court of Australia Act 1976 (“the FCA Act”) which has a like provision.
34. A useful summary of the present law can be found in the High Court's consideration of s.31A of the FCA Act in Spencer v The Commonwealth of Australia. In this decision, the majority of the Court observed that a power under s.31A of the FCA Act (in this instance, s.17A of the FFC Act or r.13.07 of the FCC Rules) may be exercised if:
a) the Court is satisfied that the defence has no reasonable prospect of success;
b) the power to dismiss an action summarily is not to be exercised lightly;
c) the legislative intent of the provision will be defeated if its application is read as confined to cases of the kind which fell within an earlier, different procedural regime;
d) it is not necessary to demonstrate certainty of failure (in the sense of the defence being hopeless or bound to fail) in order to show that the defence has no reasonable prospect of success, and in that respect there is now a less demanding assessment of the merit of a defence; and
e) the Court should nevertheless proceed with caution on an application for summary judgment.
35. In respect of s.31A of the FCA Act, the Federal Court has observed that:
a) a Court must be satisfied that the Respondent has no reasonable prospect of successfully defending the claim;
b) the Court need not be satisfied that the defence is hopeless and bound to fail;
c) Parliament’s intention of introducing the provisions concerning summary judgment was to lower the bar for obtaining summary judgment (including summary dismissal) below that previously fixed by authorities like Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW) and others which required that the allegations/defences to be so clearly untenable that they could not possibly succeed;
d) there was not an intention on Parliament’s part to remove the bar completely, and the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings or, in this case, summarily entering judgment;
e) evidence of an ambivalent character will usually be sufficient to amount to a reasonable prospect of success in a case where evidence can give colour and context to allegations. Where questions of fact and degree are important, a Court should be more reluctant to dismiss a proceeding (or enter judgment) on the face of the pleading;
f) it is not Parliament’s intention to require a Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospect of success. It may be necessary for opposing parties to provide more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application before a trial;
g) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
h) in determining if there are real issues of fact in dispute so as to preclude summary judgment, the Courts must draw reasonable inferences in favour of the non-moving party;
i) a summary judgment proceeding ought not be used to shut out proceedings where, like propositions of law, there may be real doubt; questions of law, and enquiry as to the merit, should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant the trial;
j) the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of summary dismissal power; and
k) what is required is a prediction of the outcome of the trial on its merits, but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
(footnotes omitted)
Is there a reasonable prospect of defending the claim?
Whether or not a matter should be dismissed because one party has no reasonable prospects of success is largely contextual and fact specific.
Mr Suddhoo alleges that Woolworths, in terminating his employment, contravened s.340(1)(a)(ii) of the FW Act which provides that a person must not take adverse action against another person because the other person has exercised a workplace right.
The word “because” in s.340 of the FW Act requires a causal link between the applicant’s workplace right and the adverse action: Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 at [60].
An applicant must establish that any alleged adverse action was taken “because” of the circumstances alleged and needs, further, to “establish the existence of the circumstances as an objective fact […]”: Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 321 ALR 305; (2015) 249 IR 440 at [119].
If an applicant can establish on the balance of probabilities that:
a)he or she has a “workplace right”; and
b)the employer took “adverse action”,
the onus then shifts to the employer to prove that the adverse action was taken for a reason unrelated to any workplace right held or exercised by the applicant: Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392 at [368]-[369].
As noted above, Mr Suddhoo alleges that the adverse action taken against him by Woolworths took the form of bullying and victimization of him as a result of his exercising a workplace right; namely, making workplace complaints to Woolworths’ management about the underpayment of employee entitlements and the denial of public holiday work. Mr Suddhoo summarised his claim against Woolworths in his outline of written submissions as follows:
1. The current proceeding involves Applicant's allegations about:
(.1) 6 misrepresentations viz. availability of work on public holidays, internal grievances/ complaints Applicant made, unpaid entitlements owed to the Applicant's employment, and Adjustment sheet regarded as an agreement to unpaid entitlements.
(.2) Unpaid overtime rate and contracted hours under the Agreement.
(.3) 8 adverse actions: Supervisor shift reduced because of complaint, work hours reduced, removal from supervisor duties, Applicant's usual duties altered to his detriment on 2 occasions, new shift opportunity refused without any reason, not paid his outstanding unpaid entitlements, Applicant threatened and injured.
(.4) Applicant was coerced to average his hours if he was to be put back to supervision duties again because of his complaint.
2. 16 provisions of the General Protection (GP) of the Fairwork Act 2009 (FWA) were thereby breached over period April 2015 to October 2016. As internal complaints made by the Applicant were to no avail and resulted only in adverse actions, he filed applications to FWC to have matters arbitrated.
3. Respondent conducted an investigation with the following results:
(.1) No grievances or complaints was made by Applicant
(.2) No monies were owed to Applicant
(.3) Adjustment sheet regarded as agreement to average overtime hours and unpaid contracted hours.
(.4) Notices of 'No Work' only put when there is no work on public holidays by Ms McKay.2
4. Applicant responded by filing 2 statements of facts dated 02 September 2015 with the following evidences:-
(.1) Text messages with managers indicating grievances/complaints were made on 3 occasions;
(.2) Relevant payslip/time records demonstrating the contrary to (3(2)) and (3) above;
(.3) Photographs showing the contrary of (3(4)) above.
5. Respondent submitted a second response, Investigation Report (IR2) two months later, implicitly admitting to (3(1)- (4)) above, and entered into an agreement, although not admitting liability, and settled part of the monies they now considered due; in so doing Respondent contradicts its Initial Response (IR).
6. It is to be noted that the outcome of the IR2 (in total contradiction to the IR) were based on evidences viz. witness statement minutes of meeting and case file notes dated prior to the IR and consistent with evidences adduced by Applicant.
7. The above is a typical example of Respondent's conduct throughout i.e stubbornly staying on their wrongful position in spite of blatant evidences pointing to the contrary; in so doing Respondent is being fanciful, trying to play tricks with the administration of law, shows total lack of seriousness, deliberately delaying matters to progress and thereby causing serious embarrassment to Applicant.
8. Represented by MKI legal, Applicant filed a GP claim for arbitration at the FWC to which Respondent refused participation on the 10th February 2017. The Respondent filed a Form 8A Response (Response) to the Applicant application made to the FCC. The IR2 was also filed in conjunction with response.
(Footnotes omitted)
In relation to whether Woolworths has any reasonable prospects of successfully defending the action against it, Mr Suddhoo submitted as follows:
9. Respondent repeated the same conduct at (6) in current proceedings and as such:
(.1) 94% of SOC denied by Defence (On 52 paragraphs, 49 was denied)
(.2) 8% was admitted (4 paragraphs); 3
(.3) 6% denied but having no cause of action (3 paragraphs);4
(.4) Without taking into consideration (9.2) and (9.3) above, out of the 45 paragraphs denied, all 45 are supported by evidences.
(.5) 100% of evidences support the 45 paragraphs under Relevant Conduct in SOC thus contradicting 100% of the Defence.
10. On 15 instances where managers' conducts contravened the Agreement, on 15% of these contraventions are also in contradiction with evidences.
Mr Suddhoo also submitted:
Whether defence is scandalous, oppressive and embarrassing?
11. Similar conduct at (6), Respondent had knowledge and was in possession of 99% these evidences since 27th October 2016 and yet persistently denied and rejected allegations.
12. On 86 % of the Defence where Respondent claim ignorance, unawareness, and denied allegations, evidences show that he was not only aware but in possession of those evidences.
13. Regarding 2015 allegations, evidences shows that on 59% of the matters pleaded in Defence relate to prior contradictory and inconsistent statements made by Respondent and managers in prior representations about same allegation.
14. Evidences submitted also contradicts 50% of theses inconsistent statements and as such on 8 instances matters pleaded in Defence were found to be irrelevant or having no defence to allegations.
15. Being a self insured employer, Respondent was well aware of Applicant condition and in possession of all his my medical records, and is of bad faith when claiming unawareness.
Whether Respondent conduct and representation is an abuse of process?
16. Respondent admitted in Defence that Adjustment sheet (previously admitted as being regarded as an agreement to average or not to pay contracted hours) is a time sheet so that staffs get paid correctly when working outside contracted hours and no reason given to why Applicant has not been paid the 2 outstanding unpaid entitlements.
17. Had the Respondent not involve in conducts as pleaded in (1) to (3) on both occasions, issues would have been resolved either at the FWC in 2015 regarding the underpayment and bullying issues or in 2016 if the Respondent agreed to participate in the GP Application made to the FWC.
18. Respondent did not participate in FWC conference and stated Applicant was re-agitating issues and allegations baseless and vexatious, thereby causing delay for Applicant's claim. As per section 611 of the FWA, cost can be ordered to aggrieved party if other party does not participate in conference.
(Footnotes omitted)
In response, Woolworths relevantly submitted in its outline of submissions as follows:
Evidence of an ambivalent character
4.6 For the Applicant’s claim to be successful, the Court must be satisfied of each of the following:
(a) the Applicant exercised a workplace right;
(b) the Respondent took adverse action; and
(c) a substantial and operative reason for the Respondent taking the adverse action was because the Applicant exercised a workplace right.
4.7 When determining whether or not adverse action was taken due to the exercise of a workplace right, the High Court has held that:
(a) the actual evidence of the decision-maker is crucial in determining the reasons for taking the adverse action and
(b) the decision-maker needs to demonstrate that their motivation for taking adverse action is free from any unlawful consideration.
4.8 The Applicant’s Submissions state:
Credibility of Respondent’s evidences [sic]
“100% of the evidence adduced by [the] Applicant that contradicts [the] defence, being documents, communication exchanged with managers or employment records, and were all in possession of [the] Respondent prior to submitting his [its] Defence. In spite of having access to more reliable sources of evidence, like CCTV footage, employment records, [the] Respondent has only relied on having multiple corroborating statements from managers involved, against [the] Applicant’s statement.”
“…with evidences contradicting 100% of the Defence, it can only be deduced that [the] Respondent has no reasonable chance of successfully defending [the] claim…As listed below, the contradictions involve multiple groundless representations made by [the] Respondent with a hopeless attempt to defend the claim.”
4.9 The Respondent submits the Applicant’s Submissions, simply put, allege that his ‘evidence’ is irrefutable. In Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014, Lucev J considered a summary dismissal application in which it was argued that the evidence of the decision-maker was irrefutable and therefore the Applicant’s application should be dismissed. Lucev J held at para 47:
“In this case Mr Tierney’s version of events is disputed. At final hearing Mr Tierney’s evidence may, or may not, be accepted by the Court…Furthermore to simply accept Mr Tierney’s evidence at this stage would be to ignore or reverse accepted propositions in respect of summary dismissal applications requiring Mr Jackson’s [the Applicant] evidence to be taken at its highest, or for evidence of an ambivalent character to amount to reasonable prospects, or to draw reasonable inferences in favour of the non-moving party…It follows, therefore, that the Court is not prepared to summarily dismiss the substantive application on the basis that Mr Tierney’s evidence is irrefutable.”
4.10 The Respondent submits analogously the Applicant’s version of events is disputed and the Respondent’s submissions and pleadings to date should be taken at their highest and amount to a reasonable prospect of successfully defending the claim if its evidence is to be preferred over that of the Applicant.
4.11 The Respondent submits neither party has filed evidence in relation to the substantive proceedings to date. If the matter proceeds to a substantive hearing the Respondent intends on calling a number of current and former employees to attest to their recollections of events involving the Applicant and their motives and intentions in relation to their interactions with the Applicant.
4.12 The Applicant alleges that the evidence of various Respondent employees he has named in his claim is inconsistent. It appears that the Applicant is alleging the evidence is inconsistent both with his version of events and the Respondent’s position in relation to the Applicant’s previous claims. The Respondent submits this supports its conclusion that the party’s positions at present are ambivalent in nature and requires determination of evidence to support each party’s position at a substantive hearing.
4.13 The Applicant asserts the Respondent has denied matters within its knowledge. The Respondent submits that it has denied or neither admitted or denied portions of the Applicant’s statement of claim as pleaded.
4.14 The Respondent appreciates that the Applicant is self-represented, however many of the issues he has raised with the defence filed on 23 July 2018 are as a result of the Respondent’s difficulties with pleading to a statement of claim which includes opinion and conclusions, rather than factual matters.
4.15 The Respondent intends on addressing the matters raised by the Applicant by way of witness evidence at the substantive hearing. The Respondent submits it would be premature to determine the significant factual discrepancies at this stage.
4.16 The Applicant has stated:
“It is evident considering the quantum and relevance of evidences adduced by [the] Applicant that [the] Respondent has conducted the proceeding with the (sic) only attempt to cause him detriment being self- represented. The evidences (sic) not only shows that [the] Respondent has been denying the Applicant’s allegations but his [its] own prior statements in a desperate attempt to delay proceedings.”
4.17 With due respect to the Applicant, the affidavit in support of this application in a case contains a number of annexures and exhibits which the Applicant purports to rely upon as evidence which are in fact documents created by the Applicant after the fact. The Respondent submits the substantive hearing will require the submission of verifiable originals or copies of originals in order to substantiate a number of the Applicant’s claims.
4.18 The Respondent submits the limited evidence before the Court at present is sufficiently ambivalent to amount to a reasonable prospect of success for the defence, in that it is necessary for evidence at the substantive hearing to give colour and context to the defence.
Real issue of fact and law to be decided
4.19 The Respondent submits there is a real issue of fact and law to be decided and the rights of the Respondent depend on it being provided the opportunity to adduce evidence at a substantive hearing.
4.20 This matter contains issues of both fact and law which will need to be determined by the Court.
4.21 The Applicant’s claim to date has evolved significantly since his Form 2. Relevantly, it continues to evolve and the Applicant’s Outline of Submissions introduces new allegations which were not included in his Statement of Claim.
4.22 The Respondent submits it is clear that this matter is one in which the veracity of each party’s evidence will need to be tested in order for the Court to make a determination of the facts upon which the law should be applied.
4.23 The Respondent respectfully submits that the Applicant’s ‘evidence’ of facts to date is required to be tested as it appears to draw inferences and conclusions based on the Applicant’s view of circumstances rather than factual circumstances.
4.24 Further, the evidence of the decision-maker in general protections claims is paramount. The Applicant has imputed intentions on various co-workers which can only be adequately assessed by way of witness evidence.
4.25 Once the Court has had an opportunity to consider the factual matters it will be required to determine, amongst other things:
(a) if the actions the Applicant complains of are ‘adverse actions’ for the purposes of the FW Act;
(b) whether or not the ‘injury’ the Applicant refers to is of the kind referred to under the general protections divisions or alternatively a literal injury which is to be correctly addressed in a workers’ compensation jurisdiction; and
(c) if the relief sought by the Applicant is of the type available in this jurisdiction. Specifically, if the claim for past and future loss, including medical costs, are a re-agitation of the Applicant’s declined workers’ compensation claim.
4.26 The above submissions support the Court exercising caution and refusing to grant summary judgment in the present circumstances.
(Footnotes omitted)
The Court is willing to accept that Mr Suddhoo exercised a workplace right when he made various complaints and was at all material times employed as a part-time employee by Woolworths.
However, what is unclear at this juncture is whether adverse action was in fact taken against Mr Suddhoo by Woolworths. The Court does not have any affidavit evidence from individuals related to the purported adverse action. What ‘evidence’ the Court does have is conflicting.
Having reviewed the evidence currently before the Court it is clear that there are real issues of fact to be determined and room for doubt as to the contentions presently before the Court. In this case, it is argued by Mr Suddhoo that adverse action was taken against him after he made complaints to Woolworths’ management about the underpayment of employee entitlements and the denial of public holiday work.
Woolworths has, by way of its response and defence, refuted many of the allegations made by the applicant as pleaded. As was the case in Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 (“Jackson”), the applicant’s version of events in this matter is clearly disputed.
Accordingly, the Court is persuaded by and accepts Lucev J’s comments in Jackson at [47], namely that the evidence of an ambivalent character amounts to reasonable prospects. The Court also notes that in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading: Stafford v Automotive Distributors Limited [2018] FCCA 2768 per Lucev J at [27].
The Court is satisfied that the evidence before it is sufficiently ambivalent to amount to a reasonable prospect of success for the defence. It is necessary for evidence to be aired at a substantive hearing to give context to the defence. Therefore, the Court is satisfied after its necessarily preliminary assessment that Woolworths’ defence has reasonable prospect of defending the Claim.
Further, if there is an issue of fact or law to be decided, and the rights of the parties depend upon it, it is appropriate that the matter goes to hearing. Even a cursory review of the above shows that any determination of the substantive matter will turn on credibility findings of relevant witness evidence and a detailed analysis of some fairly complex factual summaries about what did or did not happen.
In the circumstances, the Court is not prepared to exercise its discretion under r.13.07 of the FCC Rules and to award summary judgment to the applicant in relation to his substantive application.
Mr Suddhoo’s allegation of a false and misleading statement by Woolworths’ legal representative
Mr Suddhoo has made some very serious allegations against Woolworths solicitors. At [35] of his Outline of Submissions he states:
“A questionable unsolicited email (Annexure A) where [the] Respondent’s representative posing as Applicant’s counsel received on 30th August 2018. Its (sic) is to be asked whether this does not contravene Section 37 of the Legal Professional (sic) Conduct Rule[s] 2010?”
In response to this allegation, Woolworths submitted as follows:
3.7 Although not expressly stated, it appears the Applicant is referring to section 37(1) of the Legal Profession Conduct Rules 2010, which provides:
Communication with opponents
(1) A practitioner must not knowingly make a false and misleading statement to an opponent in relation to a matter (including its compromise).
3.8 The Respondent refutes the Applicant’s submission as baseless. The intention of the Respondent’s solicitor’s email was to draw the Applicant’s attention to the legal framework of summary judgment / summary dismissal applications and the lack of utility in pursuing the Application in a Case.
3.9 The Respondent’s solicitor did not purport to act as counsel for the Applicant and specifically recommended the Applicant seek legal advice.
(Footnotes omitted)
Here, the Court adopts this submission advanced by Woolworths.
As noted by Judge Brown in Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114 (“Fassina”) at [44]:
44. Particular care must be taken in respect of applications for summary dismissal in cases in which the applicant concerned is self-represented. Such persons are very often at a significant disadvantage because of a lack of legal knowledge and an ignorance of pleading practices. As such, they may experience difficulty in properly formulating otherwise valid legal claims because of a lack of legal vocabulary and capacity to identify salient legal issues and express them in appropriate form.
While Judge Brown’s comments relate primarily to the Court’s dealings with applications for summary dismissal in circumstances where the applicant concerned is self-represented, these observations may equally be applied to lawyers dealing with a self-represented applicant to a summary judgment application. This is so given the very similar outcomes that may arise from both summary dismissal and summary judgment applications.
The correspondence from the solicitors for Woolworths (the subject of Mr Suddhoo’s allegation) shows that they brought to Mr Suddhoo’s attention (he being self-represented at the time) the law relating to summary dismissal and summary judgment and suggested that if he wished to proceed with his application in a case that he seek legal assistance. It appears, in the Court’s opinion, that the solicitors acting for Woolworths were attempting to interact with a self-represented applicant in a manner consistent with Judge Brown’s comments in Fassina.
To the extent that Mr Suddhoo takes issue with the conduct of Woolworths’ legal representatives in these proceedings, this is not a matter that can be resolved by this Court. Any concerns in that regard are better directed to the state’s Legal Profession Complaints Committee. This Court will not comment on this issue any further other than to say that on the face of it, Woolworths solicitor’s correspondence of 30 August 2018 does not appear to reveal conduct that is untoward or in contravention of s.37(1) of the Legal Profession Conduct Rules 2010.
Conclusion
For the reasons provided above, Mr Suddhoo’s application in a case is dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 23 January 2019
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