Sullivan v North West Crewing Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Sullivan v North West Crewing Pty Ltd [2016] FCA 1130

File number(s): WAD 158 of 2016
Judge(s): MCKERRACHER J
Date of judgment: 16 September 2016
Catchwords:

INDUSTRIAL LAW – practice and procedure – application for summary dismissal – where self-represented litigant – where significant procedural difficulties –  whether no reasonable cause of action – whether no reasonable prospects of success – whether abuse of process

COSTS – whether respondent entitled to costs – whether application governed by s 570 of the Fair Work Act 2009 (Cth)

Legislation:

Fair Work Act 2009 (Cth) ss 394, 563, 570

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules 2011 (Cth) rr 8.05(1)(a), 16.02, 26.01, 40.01

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113

Sullivan v North West Crewing Pty Ltd [2015] FWC 8559

Sullivan v North West Crewing Pty Ltd [2016] FWCFB 1068

Date of hearing: 8 September 2016
Registry: Western Australia
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 43
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Ms H Millar
Solicitor for the First Respondent: Herbert Smith Freehills
Counsel for the Second  Respondent: The Second Respondent submits to any order the Court may make in the proceeding, save as to costs

ORDERS

WAD 158 of 2016
BETWEEN:

MICHAEL SULLIVAN

Applicant
AND:

NORTH WEST CREWING PTY LTD

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

16 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.Unless within one month the applicant files a minute of proposed further amended originating application addressing the difficulties discussed in these reasons, the applicant’s originating application filed on 28 July 2016 be dismissed with costs, to be assessed if not agreed. 

2.Costs be reserved. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MCKERRACHER J:

A LITIGANT IN PERSON

  1. Mr Michael Sullivan essentially wishes to challenge decisions of the Fair Work Commission either at first instance or on appeal or both in relation to his dismissal from employment.  There have been significant procedural difficulties encountered in the case being advanced.  It has been unclear whether Mr Sullivan was challenging the decision of the Commission at first instance or only the decision of the Full Bench.  In part, he relied upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) until it was pointed out to him that decisions of the Commission are not subject to that Act. He also sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and an extension of time to pursue that relief. He was informed that an extension of time was unnecessary.

  2. The first respondent applies for summary judgment on the three bases that, first, there is no cause of action revealed in the very extensive materials filed by Mr Sullivan,…

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Details
Case
[2016] FCA 1130
Decision Date

CaseChat Overview and Summary

In Sullivan v North West Crewing Pty Ltd, the applicant, Mr Sullivan, sought judicial review of a decision made by the Fair Work Commission, among other claims. The first respondent, North West Crewing Pty Ltd, applied for the originating application to be dismissed summarily on the grounds that it had no reasonable prospects of success and was an abuse of process. The applicant was self-represented and faced significant procedural difficulties. The court had to determine whether the application had any reasonable cause of action and whether it had reasonable prospects of success.

The court found that Mr Sullivan’s application was fundamentally flawed and did not address the inadequacies pointed out by the first respondent. He made claims without a statement of claim or other form of pleading and against an entity that he had not identified as his employer. The court noted that the claims were not clearly referable to any element of the relevant statute, and the legal bases for the claims had not been articulated. The applicant had not provided any relevant supporting documentation, which made it impossible for the first respondent to properly prepare for or defend itself at a hearing. The court held that the application made bare demands and lacked the necessary particulars to proceed.

The court concluded that the application had no reasonable prospects of success and was an abuse of process. It ordered that unless Mr Sullivan filed a minute of proposed further amended originating application within one month addressing the difficulties discussed, the originating application would be dismissed with costs. The court reserved costs pending further orders.

The court’s decision highlights the importance of proper pleadings and the need for applicants to clearly articulate their claims and legal bases. The court also emphasised that self-represented litigants must still comply with court rules and procedures, and failure to do so may result in their applications being dismissed summarily.

Orders

Orders of the court

1. Unless within one month the applicant files a minute of proposed further amended originating application addressing the difficulties discussed in these reasons, the applicant’s originating application filed on 28 July 2016 be dismissed with costs, to be assessed if not agreed.

2. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The first respondent contends that the originating application should be dismissed summarily pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01 of the Federal Court Rules 2011 (Cth) (FCR). It is sufficient to refer to s 31A FCA, which provides:31A Summary judgment(1)The Court 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 Court 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 Court has apart from this section.(5)This section does not apply to criminal proceedings. It is necessary to say a little bit more about the relevant sequence of events since the proceeding was commenced. On 21 April 2016, Mr Sullivan submitted an application for an extension of time and a draft originating application for judicial review pursuant to the ADJR Act as well as an application for relief under s 39B of the Judiciary Act. On 28 June 2016, after inter partes correspondence in which the first respondent indicated that it believed there were procedural and substantive flaws in the application, the Court suggested to Mr Sullivan that his application was not amenable to the ADJR Act, dismissed the application for an extension of time and granted leave to amend the application for relief under s 39B of the Judiciary Act. Orders were made directing Mr Sullivan to file and serve an amended application within 28 days. A little after the deadline had expired, Mr Sullivan filed the amended application in the form of a document entitled ‘Amended Originating Application for Relief under s 39B Judiciary Act1903’. It was unaccompanied by a statement of claim or an affidavit. On 5 August 2016, through correspondence with my chambers, Mr Sullivan indicated an intention to file further documentation in relation to the application. On 31 August 2016, he emailed to my chambers an ex parte interlocutory injunction application along with additional material which purported to relate to that application. That application has not been filed. The week before this summary judgment application was heard, Mr Sullivan asked for it to be listed urgently as he needed money. That request was accommodated. On the day before the application he filed a document entitled ‘Originating application/interlocutory injunction/ex parte’ claiming a most extensive list of entitlements, none of which could properly be addressed before this application was determined. He claimed, in summary, breach of the enterprise agreement, breach of a substantial number of the Fair Work Act provisions, together with a number of other statutes, negligence, professional negligence, misleading conduct, serious misconduct, and discriminatory conduct.

Ratio Decidendi

Legal Principle Established

Mr Sullivan did not squarely address any of the inadequacies raised by the first respondent in his reply. He did raise the suggestion that the wrong enterprise agreement had been relied upon, the correct enterprise agreement had not been produced by the first respondent and that he was not required to be tested in the manner he was tested under the enterprise agreement by which he was bound. None of these matters appeared to have been raised in the Commission on the face of the reasons. He said he had not received procedural fairness. It was difficult to see how these matters (raised only from the bar table and as far as I could discern, for the first time in open court), were responsive to the fundamental deficiencies identified by the first respondent.CONSIDERATION The foundation for Mr Sullivan’s Judiciary Act application is extremely difficult to discern. As noted above, he was, according to the Commission’s records, at one time an employee of Westug and was dismissed in 2015. This dismissal was the subject of challenges in the Commission. Mr Sullivan seeks the relief set out above (at [24]) without a statement of claim or other form of pleading and against an entity that neither he nor anyone else has identified as being his employer. Even assuming in his favour there is some link to the first respondent as an employer and/or even assuming some other enterprise bargaining agreement has application to him, there is not presently the slightest glimmer of enlightenment as to what cause of action for the purposes of s 39B of the Judiciary Act may be pursued by Mr Sullivan. The claims are not currently clearly referable to any element at all of s 39B of the Judiciary Act. The deficiency is uncured by pleadings, affidavits or submissions. This despite the substantial volume of written material pressed on the Court and the first respondent. Pursuant to the FCR, there is a requirement under r 8.05(1)(a) FCR that a statement of claim accompany any originating application in which the applicant seeks relief that includes damages. When a statement of claim is filed, it is required to comply with r 16.02 FCR which stipulates the permissible content of pleadings. Rule 16.02 FCR requires that parties set out in their pleadings the material facts on which they intend to rely and the provisions of any relevant statute. Pleadings must identify the issues that the party wishes the Court to resolve and give the opposing party or the affected party an opportunity to understand with clarity the case put against that party. In a matter of this nature pleadings should accompany an originating application as they define the issues and clarify the claim. Without pleadings or any relevant supporting documentation, the application simply makes bare demands. The legal bases for the claims have not been articulated, despite ample opportunity to do so, in particular, through correspondence from the first respondent. It is impossible for the first respondent in these circumstances to properly prepare for or defend itself at a hearing. The grievances appear to be at large.