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) |
| 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…
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Details
- AGLC
- Suddhoo v Woolworths Ltd [2019] FCCA 125
- Case
- [2019] FCCA 125
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Kendall of the Federal Circuit Court of Australia concerning a claim brought by the Applicant, Mr. Suddhoo, against Woolworths Ltd. The dispute centred on allegations of adverse action taken by Woolworths against Mr. Suddhoo, allegedly because he exercised a workplace right. Woolworths sought to have the Applicant's claim summarily dismissed.
The central legal issues before the Court were whether the Applicant had exercised a workplace right, whether Woolworths had taken adverse action against him, and crucially, whether a substantial and operative reason for any such adverse action was the Applicant's exercise of a workplace right. The Court was required to determine if there was evidence of facts supporting the Applicant's claim and, in considering Woolworths' application for summary judgment, whether the Applicant had no reasonable prospect of successfully prosecuting his claim.
Judge Kendall considered the principles governing summary judgment applications, particularly under Rule 13.07 of the FCC Rules and relevant High Court authority. The Court noted that the evidence presented by both parties was of an ambivalent character, with significant factual discrepancies requiring determination at a substantive hearing. Citing precedent, the Court emphasised that summary dismissal is not to be exercised lightly and that where there is a real issue of fact or law to be decided, and the rights of the parties depend on its resolution, the matter should proceed to trial. The Court found that the Applicant's version of events was disputed and that drawing all reasonable inferences in favour of the non-moving party (the Applicant), there were reasonable prospects of success.
Consequently, the Court refused to grant summary judgment and ordered that the matter proceed to a substantive hearing.
The central legal issues before the Court were whether the Applicant had exercised a workplace right, whether Woolworths had taken adverse action against him, and crucially, whether a substantial and operative reason for any such adverse action was the Applicant's exercise of a workplace right. The Court was required to determine if there was evidence of facts supporting the Applicant's claim and, in considering Woolworths' application for summary judgment, whether the Applicant had no reasonable prospect of successfully prosecuting his claim.
Judge Kendall considered the principles governing summary judgment applications, particularly under Rule 13.07 of the FCC Rules and relevant High Court authority. The Court noted that the evidence presented by both parties was of an ambivalent character, with significant factual discrepancies requiring determination at a substantive hearing. Citing precedent, the Court emphasised that summary dismissal is not to be exercised lightly and that where there is a real issue of fact or law to be decided, and the rights of the parties depend on its resolution, the matter should proceed to trial. The Court found that the Applicant's version of events was disputed and that drawing all reasonable inferences in favour of the non-moving party (the Applicant), there were reasonable prospects of success.
Consequently, the Court refused to grant summary judgment and ordered that the matter proceed to a substantive hearing.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In response, Woolworths relevantly submitted in its outline of submissions as follows:Evidence of an ambivalent character4.6 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 decided4.19 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)
Decision
Reasons for decision
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; andg) 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; andh) 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.
Ratio Decidendi
Legal Principle Established
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