Taj v Western Health (No 2)
[2014] FCA 339
•19 March 2014
FEDERAL COURT OF AUSTRALIA
Taj v Western Health (No 2) [2014] FCA 339
Citation: Taj v Western Health (No 2) [2014] FCA 339 Parties: DR SALAHUDDIN TAJ v WESTERN HEALTH and ST JOHN OF GOD HEALTH CARE INC File number: VID 1031 of 2013 Judge: BROMBERG J Date of judgment: 19 March 2014 Catchwords: PRACTICE AND PROCEDURE – interlocutory application – whether statement of claim should be struck out – whether s 570(2) of the Fair Work Act 2009 (Cth) applies to permit costs being awarded to the successful parties Legislation: Fair Work Act 2009 (Cth) ss 340, 340(1) 342(1), 351(1), 352, 570(1) and (2)(b)
Federal Court of Australia Act 1976 (Cth) ss 37N and 43(3)(f)
Equal Opportunity Act 2010 (Vic) s 18
Federal Court Rules 2011 (Cth) r 16.21Date of hearing: 19 March 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr JRM Tracey Solicitor for the First Respondent: TressCox Lawyers Counsel for the Second Respondent: Mr G Pauline Solicitor for the Second Respondent: Service Industry Advisory Group (Legal) Pty Ltd
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1031 of 2013
BETWEEN: DR SALAHUDDIN TAJ
ApplicantAND: WESTERN HEALTH
First RespondentST JOHN OF GOD HEALTH CARE INC
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
19 MARCH 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The amended statement of claim filed on 21 February 2014 be struck out.
2.The first respondent’s interlocutory application of 14 March 2014 and the second respondent’s interlocutory application of 17 March 2014, be otherwise dismissed.
3.The applicant pay the costs of and incidental to the first and second respondents’ interlocutory applications.
4.The applicant have liberty to apply for an order that the costs payable under order 3 be paid by Taylor & Preston Lawyers.
5.The applicant have leave to file a further amended statement of claim on or before 9 May 2014.
6.On or before 30 May 2014, the respondents file their defences.
7.The proceeding be referred to mediation before a Registrar of the Court on a date to be fixed not before 9 June 2014.
8.Should the matter not resolve at mediation, the matter be listed for a scheduling conference on a date to be fixed.
9.The first respondent serve the applicant with a copy of these orders. Such service is to be effected personally on the applicant on or before 16 April 2014.
10.Should the applicant fail to comply with order 5, and subject to the Court being satisfied of compliance with order 9, the applicant’s originating application be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1031 of 2013
BETWEEN: DR SALAHUDDIN TAJ
ApplicantAND: WESTERN HEALTH
First RespondentST JOHN OF GOD HEALTH CARE INC
Second Respondent
JUDGE:
BROMBERG J
DATE:
19 MARCH 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
I have before me an interlocutory application made by the first respondent dated 14 March 2014, which seeks an order pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (the Rules) that the applicant’s amended statement of claim filed on 21 February 2014 (the amendment statement of claim) be struck out on the ground or grounds that it:
(a)contains frivolous or vexatious material;
(b)is evasive or ambiguous;
(c)is likely to cause prejudice, embarrassment or delay in the proceeding;
(d)fails to disclose a reasonable cause of action; and
(e)is otherwise an abuse of the process of the Court.
An interlocutory application seeking the same relief and based on the same grounds was made by the second respondent on 17 March 2014.
When the interlocutory applications were called on for hearing, there was no appearance by the applicant. The applicant has been represented by solicitors and I am satisfied, on the basis of the affidavit of Nicholas Duggal of 18 March 2014, that the applicant was served with the first respondent’s interlocutory application at 8.54 am on 18 March 2014. Service was effected through Taylor & Preston Lawyers who were the solicitors for the applicant at the time. I am also satisfied, by reason of the evidence given by Ms McCowan, that the applicant through his solicitors was served with the second respondent’s interlocutory application on 17 March 2014.
Paragraphs 1 to 33 of the amended statement of claim set out a narrative of sorts in relation to a range of conversations, events and other circumstances upon which the applicant seemingly wants to rely. Insofar as many of those acts, facts and circumstances are sought to be relied upon as material facts, the amended statement of claim wrongly categorises those material facts as particulars of what appear to be a number of conclusions asserted in the pleading. Apart from that difficulty, the narrative is hard to follow, ambiguous and, at various points therefore, unintelligible.
However, the real problem with the pleading comes with the pleading’s attempt to identify the causes of action that the applicant relies on. The purported causes of action are set out in paragraph 34 to 40 of the amended statement of claim.
Paragraph 34 asserts that the second respondent contravened s 341(1) of the Fair Work Act 2009 (Cth) (the Fair Work Act). Section 341 of the Fair Work Act provides the meaning of the term “workplace right”. It is a definitional section not capable of being contravened.
Paragraphs 35 and 36 of the amended statement of claim plead contraventions by the first and second respondent, respectively, of s 342(1) of the Fair Work Act. Section 342(1) of the Fair Work Act provides the meaning of the expression “adverse action”. It too is a definitional section not capable of being contravened.
It is likely, although I cannot be certain, that what the applicant intends to plead are contraventions of s 340(1) of the Fair Work Act. However, if that is the intention, the pleading fails to identify the “workplace right” relied upon and any of the other elements of a s 340(1) cause of action. In my view, paragraphs 34, 35 and 36 do not disclose a reasonable cause of action.
Paragraph 37 alleges that the second respondent contravened s 351(1) of the Fair Work Act. That provision is a provision capable of being contravened. It deals with adverse action taken against a person because of that person’s attribute or attributes including race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibility, pregnancy, religion, political opinion, national extraction or social origin. The pleading at paragraph 37 suggests that the attribute being relied upon is physical disability. However, the amended statement of claim does not identify what, if any, physical disability is suffered or has been suffered by the applicant and which is therefore to be regarded as the attribute relied upon. For that reason, at least, the paragraph fails to disclose a reasonable cause of action.
Paragraph 38 alleges that the second respondent contravened s 352 of the Fair Work Act in that the second respondent dismissed the applicant on the ground of the applicant’s temporary absence from work due to illness. Section 352 provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. There is no pleading as to what illness, of the kind prescribed by the regulations, the applicant relies on. In addition, insofar as the pleading cross-references other paragraphs of the amended statement of claim, the matters dealt with by those paragraphs suffer from the problem that material facts are pleaded as particulars. Whilst paragraph 38 arguably does raise a cause of action, I regard the pleading as inadequate including because it is likely to cause prejudice, embarrassment or delay in the proceeding. The pleading does not, in my view, enable the respondent to properly understand the case the second respondent has to meet.
Lastly, paragraphs 39 and 40 of the pleading allege that the first respondent and second respondent contravened s 18 of the Equal Opportunity Act 2010 (Vic). Putting to one side the issue raised by the respondents as to whether the Court has jurisdiction to deal with such a claim, a matter which I do not regard as necessary to decide today, it seems to me that the respondent’s complaint about the way this claim has been pleaded has merit. The pleading is glib and uninformative. It fails to even identify the attribute held by the applicant which is said to be the reason for the discriminatory conduct which is alleged. I regard paragraphs 39 and 40 as failing to disclose a reasonable cause of action.
In my view, the difficulties that I have identified with the amended statement of claim justify the entirety of that pleading being struck out. I will make an order striking out the amended statement of claim.
The respondents seek that the applicant pay the costs of and incidental to their interlocutory applications. The respondents acknowledge that s 570(1) of the Fair Work Act provides a potential bar to the awarding of costs in a matter arising under that Act. It is necessary if the Court is to award costs in a matter arising under that Act, for the Court to be satisfied, inter alia, that the party the subject of a costs order has committed an unreasonable act or omission which has caused the other party or parties to incur the costs the subject of the order: s 570(2)(b). I am satisfied that the applicant has, by filing the amended statement of claim, acted unreasonably in a manner which has caused the respondents to incur the costs of and incidental to their applications to have the amended statement of claim struck out.
There will be many occasions when success on a pleadings application, such as those before me today, will not result in s 570(2)(b) of the Fair Work Act being engaged. However, where a pleading is so defective as to be incapable of being characterised as involving a reasonable attempt to plead a case, it seems to me that the Court’s power to order the payment of costs pursuant to s 570(2)(b) of the Fair Work Act is engaged. I do consider that the amended statement of claim is capable of being characterised as an unreasonable attempt to plead a case. The pleading, in my view, not only fails to properly disclose a cause of action, the attempt made to identify a cause of action is so inept as to be capable of being characterised as unreasonable.
It follows that I am prepared to make orders that the applicant pay the costs of and incidental to the respondents’ interlocutory applications.
I am conscious the power conferred on the Court by ss 37N and 43(3)(f) of the Federal Court of Australia Act 1976 (Cth) to award costs personally against a party’s legal practitioner in appropriate circumstances. This may be an occasion where the exercise of the discretion conferred on the Court may be warranted. I propose to provide the applicant with liberty to apply to the Court should the applicant seek to persuade the Court that the cost order to be made against him should instead be directed to his solicitors.
As the attempt by the applicant to plead his case has been the subject of a series of difficulties, including non-compliance with the Court’s orders as to the filing and service of the amended statement of claim, I consider this to be an appropriate occasion where a self-executing order should be made. Therefore, I will order that should the applicant fail to file and serve a further a mended statement of claim in accordance with the liberty I intend to provide and in compliance with the time for service that I intend to order, the applicant’s originating application be dismissed. To ensure that the applicant is aware of that potential risk, I will also make an order that the first respondent serve the applicant with a copy of these orders. As there is some doubt as to whether the applicant is or will continue to be represented by his solicitors, I intend to require that service on the applicant be affected personally. The self-executing order I will make will be subject to the Court being satisfied that the applicant has been duly served.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 4 April 2014
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