Sun v EP2 Management Pty Ltd - [2016] FCCA 1381

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUN v EP2 MANAGEMENT PTY LTD

[2016] FCCA 1381

Catchwords:
INDUSTRIAL LAW – Application for summary judgment – whether the application has no reasonable prospect of success – applicant claims dismissal for reason of race, health and age – applicant resigned – proceedings dismissed under s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth).

Legislation:

Fair Work Act 2009, ss.12, 342, 351, 386

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), r.13.10
Federal Court of Australia Act 1999 (Cth), s.31A
Judiciary Act 1903 (Cth), s.25A

Cases cited:
Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499
Cook v CFP Management Pty Ltd (2006) 152 IR 358; [2006] QCA 215
Mohazab v Dick Smith Electronics Pty Ltd [No. 2] (1995) 62 IR 200
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
Spencer v Dowling& Anor [1997] 2 VR 127
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Applicant:

XIA ER (JACK) SUN

Respondent:

EP2 MANAGEMENT PTY LIMITED

File Number:

SYG 1869 of 2015

Judgment of:

Judge Smith

Hearing date:

18 March 2016

Date of Last Submission:

18 March 2016

Delivered at:

Sydney

Delivered on:

10 June 2016

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms P. Thew of Counsel

Solicitors for the Respondent:

Australian Hotels Association

ORDERS

The name of the respondent be amended to EP2 Management Pty Limited.
The proceedings be dismissed pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1869 of 2015

XIA ER (JACK) SUN

Applicant

And

EP2 MANAGEMENT PTY LIMITED

Respondent

REASONS FOR JUDGMENT

The applicant was employed by the respondent and its predecessors as a shift engineer from 8 March 1999 until 16 April 2015. In the applicant’s application, the respondent was identified as “Four Points Hotel by Sheraton trading as Four Points Hotel by Sheraton Sydney”; however, the correct respondent is EP2 Management Pty Limited.
The applicant claims that he was forced to resign because of his age, race and ill-health. He alleges that the respondent contravened s.351 of the Fair Work Act 2009 (Cth) (“FW Act”) and seeks, amongst other things, compensation for lost wages.
The respondent says that the application has no reasonable prospect of success or is frivolous and has sought that the matter be summarily dismissed under either s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) or rr.13.10(a) or (b) of the Federal Circuit Court Rules 2001 (Cth) (“Rules”).
Before turning to the parties’ contentions it is necessary to examine the power of the Court to dismiss proceedings before a final hearing.
Section 17A of the FCCA Act provides:
17A Summary judgment
(1)The Federal Circuit Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 1381
Decision Date: 10 June 2016

CaseChat Overview and Summary

This decision concerns an application for summary judgment brought by Sun against EP2 Management Pty Ltd. The specific nature of the dispute and the relief sought are not detailed in the provided text. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether EP2 Management Pty Ltd had any reasonable prospect of successfully defending the proceeding, or conversely, whether Sun had any reasonable prospect of successfully prosecuting its claim, within the meaning of section 17A of the Federal Circuit Court of Australia Act 1999 (Cth). This involved considering whether the proceeding was frivolous, vexatious, or an abuse of process, as contemplated by Rule 13.10 of the Rules.

In determining the application, the Court was required to assess the strength of the allegations by reference to the pleadings, affidavits, and any other adduced evidence, without conducting a full fact-finding exercise. The Court must draw all reasonable inferences in favour of the non-moving party and is to be more reluctant to dismiss a claim summarily where real questions of fact and credit arise. The onus rests on the moving party to persuade the Court that the opponent has no reasonable prospect of success.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 17A of the FCCA Act provides:17A Summary judgment(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. This, and analogous provisions in the Federal Court of Australia Act 1999 (Cth) (s.31A) and Judiciary Act 1903 (Cth) (s.25A) were introduced in response to what was perceived as an increase in unmeritorious litigation in Federal Courts, particularly migration cases. Nevertheless, they are of general application: Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (“Spencer”) at 129, [18] (French CJ and Gummow J). Rule 13.10 of the Rules provides:13.10 Disposal by summary dismissalThe 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 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. It is important to bear in mind that the power to dismiss an action summarily is not to be exercised lightly: Spencer at 141, [60] (Hayne, Crennan, Kiefel and Bell JJ). The relevant principles were summarised by Sundberg J in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] (a decision prior to Spencer but which has often been cited, with approval, after that decision):… · In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.· In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).· The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).· As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).

Ratio Decidendi

Legal Principle Established

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