Taiki v Pilbara Iron Company Services Pty Ltd (No 2)
[2024] FedCFamC2G 744
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Taiki v Pilbara Iron Company Services Pty Ltd (No 2) [2024] FedCFamC2G 744
File number: PEG 241 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 16 August 2024 Catchwords: PRACTICE AND PROCEDURE – application to strike out a statement of claim – where statement of claim contains content that is likely to cause prejudice, embarrassment or delay in the proceeding – appropriate to strike out statement of claim – whether proceeding should be summarily dismissed. Legislation: Fair Work Act 2009 (Cth) ss 340, 342, 351, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 190
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05
Federal Court Rules 2011 (Cth) r 16.21
Cases cited: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25
Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25
Taiki v Pilbara Iron Company Services Pty Ltd [2023] FedCFamC2G 1183
Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 15 April 2024 Place: Perth Applicant: The applicant appeared in person Counsel for the Respondent: Mr J McLean Solicitor for the Respondent: Mills Oakley ORDERS
PEG 241 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GEOFREY TAIKI
Applicant
AND: PILBARA IRON COMPANY SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The statement of claim filed by the applicant on 29 January 2024 is struck out.
2.The costs, if any, of the application in a proceeding are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
On 13 December 2023 I delivered judgment in relation to an application in a proceeding filed by the respondent to the substantive proceeding, Pilbara Iron Company Services Pty Ltd (PICS) and made an order striking out an Amended Statement of Claim filed on 12 September 2023 by the applicant to the substantive proceeding, Mr Taiki: see Taiki v Pilbara Iron Company Services Pty Ltd [2023] FedCFamC2G 1183 (Taiki).
Mr Taiki was given an opportunity to file a new statement of claim and did so on 29 January 2024 (New Statement of Claim). I now have before me a further application in a proceeding, filed by PICS on 9 February 2024 (further strike out application), pursuant to which PICS seeks the following orders:
1. The New Statement of Claim filed 29 January 2024 be struck out.
2. Proceeding PEG 241 of 2022 be dismissed.
3. In the alternative to Order 2 above:
(a) the Applicant have leave to replead within 28 days of this Order; and
(b) the Applicant pay the Respondent’s costs of the Application.
The further strikeout application is supported by an affidavit of Elizabeth Tacey Moran affirmed on 9 February 2024.
The relevant background to the proceeding was set out in Taiki and I do not repeat it here.
SHOULD THE NEW STATEMENT OF CLAIM BE STRUCK OUT?
Legislation and principles relating to the strike out of pleadings
I referred to some of the relevant legislation and principles relating to the strike out of pleading at [11]-[16] of Taiki and I have regard to the legislation and cases referred to in Taiki without repeating them here.
Counsel for PICS referred the Court to three further authorities relied upon by PICS in bringing the further strike out application.
The first is Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25, in which the Full Court of the Federal Court (Logan, Bromberg and Katzman JJ) said at [63]:
Even so, a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. Furthermore, although the civil standard of proof applies, where (as here) the resolution of an issue exposes a respondent to a penalty, satisfaction on the balance of probabilities is not achieved by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Evidence Act 1995 (Cth) now requires that the court take into account the nature of the cause of action in deciding whether it is satisfied that a party’s case has been proved on the balance of probabilities: Evidence Act 1995 (Cth), s 140(2)(a) (“Evidence Act”).
The second, which Counsel for PICS emphasised in his oral submissions, is Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25, where Logan, Flick and Katzmann JJ said at [87]:
Care should be taken to ensure that any further amended pleading avoids the vices of the previous versions and complies with the pleading rules. Each of the respondents is entitled to a pleading in which the case he has to meet is clearly and precisely outlined by reference to material facts only, is not obscured by extraneous evidentiary matters, and does not require an atlas to expose it. If any subsequent pleading does not adhere to these basic principles, Mr Sabapathy risks facing another strike-out application. While we were not persuaded that it would be futile to quash the primary judge’s removal order, before a further amended statement of claim is filed we encourage Mr Sabapathy and his lawyers to carefully consider the strength of the evidence he is likely to be able to marshal against each of the natural person respondents in order to establish his case and exercise judgment about whether all potential actions should be pleaded. Not every reasonable cause of action is worth pursuing.
The third is Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83, in which Tracey, Reeves and Bromwich JJ said at [49]-[50]:
49.One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286–287 in the joint judgment of Mason CJ and Gaudron J as follows:
The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Brown v Dunn [(1893) 6 R 76]; Mount Oxide Mines [(1916) 22 CLR 490 at 517-518].
(Emphasis added.)
50.In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.
PICS referred to these authorities in submitting that the nature of Mr Taiki’s claim as one alleging a contravention of the general protections is significant, as such a claim relates to civil penalty provisions and attracts the operation of the reverse onus under s 361 of the Fair Work Act 2009 (Cth) (Fair Work Act). PICS submitted that in this context, it is essential that Mr Taiki’s claim identifies, with clarity and precision, the particular action(s) said to constitute ‘adverse action’, and the particular reason(s) alleged to have motivated each of those action(s).
The New Statement of Claim
The New Statement of Claim is divided into three parts. The substantive content of the New Statement of Claim is repeated under each part, with Part A purporting to be a copy for the Court, Part B purporting to be a copy for Mr Taiki, and Part C purporting to be a copy for PICS. Part A also contains an introduction that is not reproduced in Part B or Part C. In this judgment I will refer only to the content produced under Part A, but the comments made in respect of the content under Part A would apply to the other parts to the extent that the content of Part A is repeated in those parts.
Under the heading ‘Introduction’ in the New Statement of Claim, Mr Taiki outlines the details of his employment and duties, and refers to his dismissal in September 2022. There are no numbered paragraphs in this section and the information is presented in incomplete sentences.
Under the heading ‘The Applicant Claims’, Mr Taiki states (reproduced without alteration):
1. He was never compensated for the 8 additional shifts he worked back in March 2020, the first Covid19 Lockdown at Marandoo Mine Western Australia.
2. He received a written warning letter from the Respondent in an Incident Investigation for performing an unauthorised U Turn on a haul road at Marandoo Mine Worksite February 22, 2022, the Applicant submitted that at no time did the Applicant perform a U turn on the Northern Haul Road at the worksite
3.The Incident investigation into the Level 4 Proximity event that occurred July 23, 2022, the Applicant claims it was his first one and that people who have had more than 1 level 4 proximity event are still working there at Marandoo Mine Site today .
4. The termination Letter the Applicant received from the Respondent mentions: Section 5.2.5 EMV/AHT 50-meter rule, the Applicant claims he was operating a 24M Grader at the time of the Level 4 proximity event not an EMV( Equipped Mine Vehicle ) a light 4-wheel drive.
Under the next two headings in the New Statement of Claim, ‘Material facts’ and ‘Particulars to the Claim’, Mr Taiki provides further details in respect of each of the four paragraphs reproduced above.
In respect of the first paragraph of his claims, Mr Taiki refers to a meeting held in March 2020 in which PICS informed Mr Taiki that he would need to work eight additional shifts, and the various instances in 2020 and 2021 when Mr Taiki raised with PICS that he had not been compensated for the additional shifts he worked. Mr Taiki refers to various emails and meetings with management and human resources employees of PICS, in which representations were made to him that a $3,000 ex gratia payment made to all full-time employees was compensation for the additional shifts. Mr Taiki also refers to documents that the management and human resources employees of PICS were looking for but never provided to him.
In respect of the second paragraph of his claims, Mr Taiki refers to an incident investigation in which he was asked for his interpretation of a U-turn on a haul road. He also refers to video footage and an investigation report which demonstrates that he did not perform a U-turn on the haul road as described.
In respect of the third paragraph, Mr Taiki refers to an investigation conducted by telephone conference at the end of which Mr Taiki repeatedly said he had nothing more to say. Mr Taiki also refers to an email sent to a supervisor in which Mr Taiki claims that he was given a written warning not because of the U-turn but because he had previously been given a written warning for something else, and that he did not have anything else to say.
In respect of the fourth paragraph, Mr Taiki sets out a paragraph of his termination letter which refers to Equipped Mine Vehicles. Mr Taiki states that video footage held by PICS will show that he was operating a 24M Grader, and not an Equipped Mine Vehicle. Mr Taiki also states that the incident with the U-turn on the haul road and the ‘Level 4 proximity event’ was a way that PICS could stop him from exercising his workplace right.
Mr Taiki then outlines in the New Statement of Claim the ‘adverse action’ that PICS took against him, including that PICS took a prejudicial stance against his ongoing employment because he exercised his workplace rights, suspended him during an investigation, subjected him to a disciplinary process, dismissed him, stood him down, and subjected him to more drug and alcohol testing than ‘normal’.
Submissions of the parties
The perceived deficiencies in the New Statement of Claim which underlie the further strike out application are outlined in detail in the submissions filed on behalf of PICS on 11 March 2024. At [19]-[24] of its written submissions, PICS submitted (emphasis in original, footnotes omitted):
19. The deficiencies in the [Further Amended Statement of Claim (FASOC)] are material, are likely to cause prejudice and embarrassment, and ultimately preclude the Respondent from drawing a defence.
20. First and most fundamentally, the FASOC fails to expressly allege that the Respondent took adverse action against the Applicant because he exercised a particular workplace right. At its highest, the Applicant’s claim alleges that the Respondent took a “prejudicial stance” against the Applicant because he exercised his workplace rights. However, the FASOC neither identifies which particular exercise(s) of workplace rights are said to have motivated that stance, nor how that stance manifested itself in actionable adverse action. Having regard to the operation of the reverse onus, it is neither just nor practicable that the Respondent be required to infer the case that may be being advanced against it. The Respondent is entitled to be put on notice of the particular exercise(s) of workplace rights that are said to have motivated each particular instance(s) of adverse action in respect of which relief is sought. The ambiguity in the FASOC not only occasions material prejudice, but would also result in a gross inefficiency in the conduct of the proceeding.
21. Second, the FASOC appears to include an allegation that the Respondent discriminated against the Applicant. Even if it were assumed that this allegation was intended to engage section 351 of the FW Act, it is not clear what protected attribute the Applicant claims he possesses that made the alleged discrimination unlawful.
22. Third, it is entirely unclear whether the Applicant is seeking relief in respect of the eight shifts he asserts he was not paid for, or is instead simply referencing those shifts for the purpose of establishing the factual context of some complaint he contends he subsequently made. If the Applicant is intending to seek relief in connection with those shifts, it is not clear what relief is sought, nor the basis on which the relief is claimed. The case the Respondent would be required to meet would be markedly different if the claim was advanced under, for example, contract, as distinct from if it were advanced in reliance on statute or equity. It is not appropriate that the Respondent be required to draw a defence in circumstances where the basis of the asserted entitlement to payment is not disclosed.
23. Fourth, a large number of paragraphs in the FASOC contain allegations that are vague, irrelevant, discursive, or are not allegations of material fact. Perhaps even more significantly as it relates to the Respondent’s capacity to draw a defence:
(a) a number of the paragraphs of the FASOC are, with respect, simply indecipherable: see, without limitation or concession that the balance of the FASOC is not objectionable, paragraphs [7], [8], [16], [18], [22], [33], [41] and [45]; and
(b) a number of paragraphs of the FASOC are rolled up such that they cannot be properly pleaded to: see, again without limitation or concession that the balance of the FASOC is not objectionable, paragraphs [2], [3], [4], [6], [10], [11], [17], [21], [23], [24], [30], [35], [37], and [46].
24.The FASOC does not comply with the requirements of the FCFCOA Rules, and fails to give the Respondent fair notice of the particular case it is required to meet. The prejudice that would be occasioned were the FASOC allowed to stand is only amplified by the nature of the claim the Applicant appears to be attempting to advance. The FASOC should accordingly be struck out.
Mr Taiki filed an affidavit annexing a response to the further strike out application on 25 March 2024. Mr Taiki also filed an application in a proceeding on 25 March 2024 seeking orders relating to the production of documents and evidence. I previously indicated to the parties that I propose to deal with issues relating to the pleadings before dealing with the production of documents and evidence. The pleadings define the issues in the proceeding. It is not practicable to form a view about whether particular evidence is relevant to the issues until such time as the issues can be clearly identified. I do not propose to consider Mr Taiki’s application in a proceeding unless and until the issues in this proceeding are sufficiently clear.
Mr Taiki in his written submissions questioned how PICS is going to prove various matters to the Court if it cannot plead in response to the New Statement of Claim. Mr Taiki also referred to various provisions of the Fair Work Act and gives information as to why he considers those provisions to be relevant on the facts in this matter. With respect, most of the information provided is a repetition of information provided elsewhere and does not meaningfully assist the Court to understand Mr Taiki’s claims. It is also worth noting that the submissions purport to address the substance of Mr Taiki’s claims and do not directly address whether or not the New Statement of Claim should be struck out.
Should the New Statement of Claim be struck out?
I have carefully considered the submissions of the parties and the New Statement of Claim and I have determined that it is appropriate to strike out the whole of the New Statement of Claim. This is primarily on the basis that the New Statement of Claim is likely to cause prejudice, embarrassment and delay in the proceeding: r 16.21(1)(d) of the Federal Court Rules 2011 (Cth).
In reaching this finding, I have largely accepted the submissions advanced on behalf of PICS and my reasons are explained below.
There is no clearly articulated connection between adverse action and workplace rights
If the cause of action relied upon by Mr Taiki is that PICS took adverse action against him because he had a workplace right or because of the exercise or non-exercise, or proposed exercise or non-exercise, of a workplace right in contravention of s 340(1) of the Fair Work Act, then, at the very least, Mr Taiki would need to put PICS on notice of the particular instance of adverse action that he asserts was taken against him and the workplace right that he had, exercised, or proposed to exercise (or not exercise) that he asserts is the reason for taking the adverse action.
The New Statement of Claim fails to do this. Mr Taiki refers at [38]-[46] of the New Statement of Claim to various actions that he says amount to adverse action by PICS, without giving any indication of the reason he says the adverse action was taken. He then pleads at [47]:
It is the Applicants position that the Respondent took prejudicial stance against the Applicants ongoing employment because he exercised his workplace rights
I accept the submission advanced by Counsel for PICS that this paragraph was the only instance in which Mr Taiki purports to establish a connection between adverse action and the exercise of workplace rights, but the paragraph is articulated in a rolled up way which does not clearly indicate with precision or particularity the connection between the adverse action and the asserted workplace right. I also accept the submission advanced on behalf of PICS that there are many paragraphs in the New Statement of Claim that may or may not be seen as amounting to an allegation of adverse action and other paragraphs which may or may not be seen as alleging the exercise of a workplace right, but the pleading at [47] is insufficient to draw any relevant connection between them.
A possible discrimination claim
In the New Statement of Claim, Mr Taiki pleads at [43]:
Discriminating between the Applicant and other employees of the Respondent by making an conscious decision to subject him to a disciplinary process and subsequent dismissal on the basis that he allegedly breached safety regulations and participation in the Proximity 4 event, when multiple of employees who have engaged in behaviour that breached safety regulations including multiple level 4 proximity events have not been subject to a disciplinary process nor dismissed from their employment
PICS has interpreted this paragraph as a possible allegation intending to engage s 351 of the Fair Work Act. My immediate impression of this paragraph is that Mr Taiki is attempting to assert that a particular action amounted to ‘adverse action’ within the meaning of item 1(d) of s 342(1) of the Fair Work Act, namely, that adverse action is taken by an employer against an employee if the employer ‘discriminates between the employee and other employees of the employer’. The very fact that PICS’s legal representatives and the Court have interpreted the paragraph differently may demonstrate the ambiguity in the paragraph. In any event, the reason or attribute that is said to give rise to the alleged discrimination is unclear and the pleading is lacking in detail as to the facts relied upon to assert discrimination.
The basis upon which relief is sought is not clear
I accept PICS’s submission that it is not clear from the New Statement of Claim whether Mr Taiki is seeking relief in respect of the eight shifts he claims he has not been paid for, and further, if Mr Taiki is intending to seek relief in connection with those shifts, it is not clear what relief is sought or the basis on which the relief is claimed.
At the hearing, Mr Taiki submitted that he still had not been paid for the eight days he worked back in March 2020. Counsel for PICS acknowledged that it would appear from Mr Taiki’s submission at the hearing that it was his intention to claim relief in respect of the eight shifts, and this was supported by the first paragraph of the New Statement of Claim, which states:
He was never compensated for the 8 additional shifts he worked back in March 2020…
I accept that Mr Taiki is seeking compensation for eight shifts that he worked in March 2020, which he says were ‘additional’ shifts. I also accept the submission made by Counsel for PICS that the basis upon which this claim is advanced is not clear, and the case that PICS would need to meet would be very different if the relief sought by Mr Taiki, being payment for the eight additional shifts, is advanced, for example, in contract or in equity or in reliance on some representation that was made.
Parts of the New Statement of Claim are vague, irrelevant, discursive and are not allegations of material fact
There are many parts of the New Statement of Claim that are appropriately described by PICS as vague, irrelevant, discursive or otherwise not allegations of material fact. There are many matters referred to in the New Statement of Claim that appear to be unrelated to the claims advanced by Mr Taiki or in relation to which the relevance is not apparent. The New Statement of Claim gives the impression that Mr Taiki has tried to refer to as many instances as possible from his employment that might amount to an exercise of workplace rights or which might amount to adverse action or some other aspect of his employment relationship that caused him some dissatisfaction, without any meaningful consideration of the relevance of these issues to the cause of action Mr Taiki is attempting to pursue in this Court.
There are also many paragraphs that are difficult to understand, either from a grammatical perspective or because they are vague or otherwise ambiguous. I do not propose to set them all out in this judgment, but I will give a couple of examples.
The first example is one given by Counsel for PICS. At the hearing, I asked Counsel for PICS to explain in more detail to Mr Taiki why it was not clear to PICS how to respond to the New Statement of Claim. Counsel responded by using [6] of the New Statement of Claim as an example. This paragraph reads:
The Applicant challenged the written warning letter he received from the Respondent and that he did not agree with the warning letter but felt he had no choice but to sign the letter
Counsel for PICS explained at the hearing that there are a number of difficulties with this paragraph, including:
(a)there are a number of seemingly different allegations or different facts advanced in a single paragraph;
(b)there seems to be a suggestion that Mr Taiki challenged the warning letter although it is not clear how he is said to have challenged the warning letter;
(c)it seems to be suggested that Mr Taiki did not agree with the warning letter, but it is not clear whether Mr Taiki is suggesting that he advised PICS he did not agree with the warning letter or simply as a matter of fact he did not agree; and
(d)Mr Taiki suggested that he felt he had no choice but to sign the letter but it is not clear whether he suggesting he told PICS he had no choice but to agree or whether he simply held that view and signed the letter anyway.
Counsel for PICS explained that this gives rise to difficulties for PICS because it does not know what allegations it is responding to or what the allegations are intended to convey and because there are a number of things bundled up in the paragraph, it is difficult to admit or deny the paragraph as one would usually do in response to a statement of claim. I agree with the concerns raised by Counsel for PICS.
Another example is [8] of the New Statement of Claim, where is it pleaded:
Mentioned in the termination Letter the Applicant received from the Respondent September 23, 2022, Section 5.2.5 EMV/AHT 50-meter rule
a)EMV is an Equipped Mine Vehicle ( a Light 4-wheel drive)
b)24M Grader is a grader with a 24-foot blade used frequently in the Mining sector
c)The Video footage the Respondent holds will show the Applicant was operating a 24M Grader at the time of the level 4 Proximity event not an EMV.
It is impossible to know how to interpret this paragraph, including whether Mr Taiki is simply identifying what is in the termination letter, attempting to explain the terms in the termination letter or purporting to challenge the truth of the representations made in the termination letter.
There are numerous other paragraphs in the New Statement of Claim that are likewise unclear, vague, not asserting a material statement of fact or in relation to which the relevance is unclear. Given the large number of paragraphs that are problematic, it is appropriate to strike out the whole of the New Statement of Claim, rather than striking out only the problematic paragraphs. I do not consider that there are any parts of the New Statement of Claim that could meaningfully be preserved if only certain paragraphs were struck out.
SHOULD THE PROCEEDING BE SUMMARILY DISMISSED?
PICS seeks an order that the substantive proceeding be summarily dismissed.
Legislation and principles of summary dismissal
Section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) empowers the Court to give summary judgment in favour of PICS in relation to the substantive proceeding if the Court is satisfied that Mr Taiki has no reasonable prospect of successfully prosecuting the proceeding. The substantive proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 143(3) of the FCFCOA Act.
PICS alternatively submitted that the Court is vested with power under r 13.05(1)(a) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) to dismiss a proceeding where an applicant is ‘in default’. An applicant is ‘in default’ if, among other things, the applicant fails to prosecute the proceeding with due diligence: r 13.04(1)(e) of the GFL Rules.
PICS referred in its written submissions to Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120, in which Judge Brown observed at [188]-[189]:
188.It is a significant matter to summarily dismiss an application. However, as previously indicated, such an outcome is available if the Court is satisfied that a litigant is failing to prosecute an application with due diligence. These are ordinary English words. Due in the sense of rightful or proper. Diligence in the sense of careful and persistent application.
189.It cannot be said that Mr Tulett does not care about his application nor that he has not put in a significant degree of effort into preparing his various documents. However, in my view, in the legal context, a lack of diligence may also arise in circumstances in which it is evident a litigant, for whatever reason, is unable to participate efficiently with the Court process.
Should the substantive proceeding be summarily dismissed?
Summary dismissal is a serious step to take following the striking out of pleadings.
PICS submitted that it is now appropriate to exercise power to dismiss the application. PICS submitted that, as a consequence of the nature of the claim Mr Taiki is seeking to advance, his successful prosecution of the proceedings is contingent on him preparing a pleading that properly conforms with the Rules of the Court and articulates his actions with clarity and precision. After multiple opportunities, Mr Taiki has been unable to do this and it appears that he does not have the capacity, without legal assistance, to prosecute his claim in the manner and form required. PICS submitted that Mr Taiki has been afforded more than a reasonable opportunity to advance his case and it is now appropriate for the proceeding to be dismissed.
There were two further matters addressed in oral submissions that are relevant to whether the application should now be summarily dismissed.
The first of these arises from a question that I asked of Counsel for PICS as to whether Mr Taiki had been notified of the possibility that the substantive proceeding may be dismissed if he fails to file a statement of claim that complies with the relevant Rules. Counsel for PICS indicated that Mr Taiki had not been put on notice of the possibility of summary dismissal prior to filing the New Statement of Claim.
The second relevant matter raised in oral submissions arises from Mr Taiki’s submissions, in which Mr Taiki suggested that if he is given a further opportunity to file another statement of claim, he is likely to reproduce the same type of document again because he does not know how to speak like a lawyer and he does not know how to express this case differently.
There is a lot of merit in PICS’s submission that the application should be dismissed. Mr Taiki has now had several opportunities to articulate his case and it would be neither fair to PICS nor consistent with the overarching purpose of the civil practice and procedure provisions set out in s 190 of the FCFCOA Act for Mr Taiki to be given unlimited opportunities to file a statement of claim that complies with the relevant rules or otherwise articulate his case. For this application to proceed in any sort of meaningful way, PICS needs to be put in a position where it can understand the case against it and be able to respond to it. It would not be fair to PICS to allow the matter to proceed to hearing without it knowing the case it has to answer or without the issues in the proceeding being clearly identified. Mr Taiki’s acknowledgements at the hearing that he does not know how to articulate his case in any different way and that he would probably do the same thing again give rise to a possible inference that Mr Taiki would be unable to progress this case in a meaningful way.
I am, nevertheless, unwilling to dismiss the proceeding on this occasion for two main interrelated reasons.
The first is that Mr Taiki does not appear to have been on notice, prior to filing the New Statement of Claim, that it was possible that his whole application may be dismissed if he fails to file a statement of claim which is sufficiently compliant with the relevant rules or which otherwise sufficiently puts PICS on notice of the case it needs to answer.
The second reason is that I am not satisfied that Mr Taiki has no reasonably arguable cause of action. Mr Taiki has struggled to articulate his case in a single document and has at times changed the way that he has articulated his case. The more he has tried to include in his statement of claim, the more difficult it has become to understand what he is seeking and this has perhaps been complicated further by him raising in his oral submissions at the hearing of the further strike out application an assertion that he was unfairly dismissed. This proceeding was commenced as a general protections matter rather than an unfair dismissal matter.
Nevertheless, if one disregards extraneous material and looks at the heart of the case as it has been articulated at various points over time, it is possible to discern at least one cause of action that may be reasonably arguable, even if it does require some clarification. Mr Taiki has in his documents identified actions by or on behalf of PICS that would, if accepted, amount to adverse action within the meaning of s 342(1) of the Fair Work Act, and he has identified actions he has taken that would amount to the exercise of a workplace right, such as making complaints or inquiries in relation to payments for the eight additional shifts that he says he was required to work in March 2020. Mr Taiki appears to be asserting that the reasons given by PICS for the termination of his employment were inaccurate or false in some way, and at least in some of his documents he asserts that there was a ‘prejudicial stance’ taken against him because he exercised workplace rights. Mr Taiki has also asserted that he is seeking compensation for eight additional shifts he was required to work in March 2020, and, based on the clarification in his oral submissions at the hearing of the further strike out application, the basis upon which he believes he is entitled to compensation for these shifts is a representation that was made to him.
Significant work needs to be done to articulate the claim in a way that can be properly understood and meaningfully responded to. However, there is enough of a potential cause of action discernible that I do not consider it appropriate to summarily dismiss the application without Mr Taiki being on notice of that possibility.
NEXT STEPS IN THE PROCEEDING
I propose to list this matter for further case management after the parties have had an opportunity to consider these reasons. I do not consider it appropriate to simply require Mr Taiki to file another statement of claim without first giving both parties an opportunity to consider these reasons and consider the possible options for progressing this matter.
I should note that the Court does not expect a self-represented litigant to be able to articulate their case in the same language that one would expect a lawyer to use in pleadings. Nevertheless, the case needs to be articulated in a way that sufficiently puts PICS on notice of the case it needs to meet. Mr Taiki has not yet been able to do that. While I propose to give Mr Taiki one further opportunity to do that, it would not be appropriate to give Mr Taiki unlimited opportunities. Mr Taiki should therefore be aware that if, after another attempt, it is still not possible to sufficiently understand his claim, there is a very real possibility that his application will be summarily dismissed.
It would be prudent for Mr Taiki to seek legal advice in relation to his application prior to taking further steps. I will hear from the parties before setting a date for a directions hearing in this matter.
COSTS
In the further strike out application, PICS sought an order that Mr Taiki pay its costs if the application is not struck out. At the hearing, PICS requested that costs be reserved with a view to dealing with them at a later stage.
I am satisfied that it is appropriate to reserve the costs of the further strike out application. I am mindful that PICS will have incurred costs as a result of the deficiencies in the New Statement of Claim. If costs are pursued, it would be appropriate to hear submissions from the parties as to whether Mr Taiki’s conduct is properly regarded as an unreasonable act or omission that has caused PICS to incur costs, for the purposes of s 570(2) of the Fair Work Act.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 August 2024
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