Suddhoo v Woolworths Ltd (No.3)

[2020] FCCA 1866

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUDDHOO v WOOLWORTHS LTD (No.3) [2020] FCCA 1866

Catchwords:
INDUSTRIAL LAW – Absence of evidence to support the alleged causes of action advanced by the applicant – affidavit evidence rejected – application dismissed.

Legislation:

Evidence Act 1995 (Cth), ss 55, 135

Fair Work Act 2009 (Cth), ss 340, 341, 343, 345, 361, 566

Applicant: AKSHEYE SUDDHOO

Respondent: WOOLWORTHS LTD

File Number: PEG 449 of 2017

Judgment of: Judge Street

Hearing date: 8 July 2020

Date of Last Submission: 8 July 2020

Delivered at: Sydney

Delivered on: 8 July 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Counsel for the Respondent: Ms R Cosentino via Microsoft Teams

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The application in a case filed on 14 February 2020 is dismissed.

Date of order: 8 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 449 of 2017

AKSHEYE SUDDHOO

Applicant

And

WOOLWORTHS LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”).

2. The applicant alleged contravention of ss 340, 343 and 345 of the Act. The pleading on its face suffered from a number of issues, however, the matter was the subject of orders made both by Judge Kendall and Judge Vasta providing the applicant an opportunity to put on affidavit evidence. The matter was fixed for hearing by this Court.

3. Objection has been taken to the whole of the applicant’s affidavits. That objection included both grounds of irrelevance under s 55 of the Evidence Act 1995 (Cth) as well as identifying that the affidavit’s content otherwise fell within s 135(b) of the Evidence Act 1995 (Cth) so as to be misleading and confusing. The objections were well-taken. The Court upheld the objections.

4. Whilst there were business records annexed to the applicant’s affidavits, none of the business records were capable of having any probative significance in respect of any fact in issue unsupported by other admissible evidence.

5. The applicant’s affidavits otherwise reflect in substance submissions and assertions, rather than articulating and identifying any fact capable of trial referable to the issues of alleged contravention of ss 340, 343 and 345 of the Act.

6. The pleadings are such that there is no admission of the taking of any adverse action so as to give rise to any presumption under s 361 of the Act. There is, in that regard, no evidence of the taking of adverse action taking into account s 341 of the Act as well as the language in s 340 of the Act. Equally, there is no evidence of any coercion falling within s 343 of the Act or any evidence of misrepresentation within s 345 of the Act.

7. In February or March 2020, the applicant ceased to be an employee of the respondent.

8. Given the nature of these proceedings, the application must fail for want of any evidentiary foundation. The appropriate course is for the proceedings to be dismissed.

9. The Court notes that there was an application in a case filed on 19 February 2020 by the applicant seeking an adjournment of the hearing. An adjournment was granted in respect of the hearing fixed for 20 February 2020 and the matter was fixed for hearing today.

10. The respondent also moved for summary judgment by an application in a case filed on 14 February 2020. It is unnecessary for the Court to deliberate in respect of the summary judgment application, given the rulings that have been made in relation to the evidence and the absence of any evidence to support the alleged causes of action advanced by the applicant. In these circumstances, the appropriate course is to dismiss the application in a case filed on 14 February 2020.

I certify that the preceding ten (10) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 6 August 2020