Thomas v IBM Australia Ltd

Case [2013] FCCA 1993

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMAS v IBM AUSTRALIA LTD [2013] FCCA 1993

Catchwords:
HUMAN RIGHTS – Disability Discrimination – Applicant sought to abandon the original Notice of Termination and substitute a new Notice of Termination issued by Australian Human Rights Commission after proceedings had commenced.

PRACTICE & PROCEDURE – Summary dismissal of Application – no reasonable prospects of success.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Disability Discrimination Act 1992 (Cth), s.5, 6
Federal Magistrates Court Act 1999 (Cth), s.17A(2)

Federal Magistrates Court Rules 2001 (Cth), r.13.10

Chung v University of Sydney [2001] FMCA 94
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95
Oorloff & Anor v Lee & Ors [2004] FMCA 893
Otti v Commonwealth of Australia [2012] FMCA 1022
Paramasivam v University of New South Wales [2007] FCA 875
Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923

Price v Director-General, Departments of Education & Training (NSW) [2008] FMCA 1018
Purvis (on behalf of Hoggan) v State of New South Wales (Department of Education and Training) & Anor (2003) 217 CLR 92
Quall v Northern Territory [2009] FCA 18
Seers v Australia Post [2011] FMCA 659
Soreng v Victorian State Director of Public Housing [2002] FMCA 124
SZBBL v Minister for Immigration [2004] FMCA 185
Zoltaszek v Downer EDI Engineering Pty Ltd (No.2) [2010] FMCA 938
Applicant: OWEN THOMAS
Respondent: IBM AUSTRALIA LTD
File Number: SYG 1803 of 2012
Judgment of: Judge Lloyd-Jones
Hearing date: 19 April 2013
Delivered at: Sydney
Delivered on: 29 November 2013

REPRESENTATION

The Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr T. Glover
Solicitor for the Respondent: Ms K. Srdanovic of Ashurst

ORDERS

  1. The Application filed 20 August 2012 is dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) and s.17A of the Federal Circuit Court of Australia Act1999 (Cth).

  2. The Applicant is to pay the Respondent’s costs of and incidental to the Application as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1803 of 2012

OWEN THOMAS

Applicant

And

IBM AUSTRALIA LTD

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 20 August 2012 the applicant, Owen Thomas, filed an application (the “Application”) alleging unlawful discrimination by the respondent, IBM Australia Ltd (“IBM”). IBM then filed an application in a case on 1 February 2013 (the “Summary Dismissal Application”) seeking that the proceeding be dismissed pursuant to s.17A(2) of Federal Magistrates Court Act 1999 (Cth) (now the “Federal Circuit Court Act 1999 (Cth)) and rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (the “Rules”) (now the Federal Circuit Court Rules 2001 (Cth)). The Summary Dismissal Application came before the Court for hearing on 19 April 2013 for hearing and has been brought on the following bases:

    a)Taking the applicant’s own material at its highest the proceeding has no reasonable prospect of success; and

    b)The proceeding is frivolous, vexatious or an abuse of process…

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Details
AGLC
THOMAS v IBM AUSTRALIA LTD [2013] FCCA 1993
Case
[2013] FCCA 1993
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Owen Thomas (the applicant) initiated proceedings alleging unlawful discrimination against IBM Australia Ltd (the respondent). IBM subsequently filed an application seeking the summary dismissal of the proceeding.

The court was required to determine whether the applicant's proceeding had no reasonable prospect of success, or if it was frivolous, vexatious, or an abuse of the court's process, pursuant to s.17A(2) of the *Federal Circuit Court of Australia Act 1999* (Cth) and r.13.10 of the *Federal Circuit Court Rules 2001* (Cth). The court considered established principles for summary dismissal, including that such jurisdiction must be exercised with exceptional caution, the respondent bears the onus of proof, and dismissal is appropriate only if the claim is unarguable, frivolous, vexatious, or an abuse of process. The court also noted the need for particular care when an applicant is self-represented, while still considering the interests of all parties and the efficient use of resources.

The court found that the applicant's proceeding had no reasonable prospect of success and was frivolous, vexatious, or an abuse of process. Consequently, the application was dismissed. The applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1.

The Application filed 20 August 2012 is dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) and s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).

2.

The Applicant is to pay the Respondent’s costs of and incidental to the Application as agreed or taxed.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 1803 of 2012

OWEN THOMAS

Applicant

And

IBM AUSTRALIA LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1.

On 20 August 2012 the applicant, Owen Thomas, filed an application (the “Application”) alleging unlawful discrimination by the respondent, IBM Australia Ltd (“IBM”). IBM then filed an application in a case on 1 February 2013 (the “Summary Dismissal Application”) seeking that the proceeding be dismissed pursuant to s.17A(2) of

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Subsection 17A(2) of the Federal Circuit Court Act 1999 (Cth) states:17A Summary judgment (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. For the purposes of s.17A, a proceeding need not be (i) hopeless, or (ii) bound to fail for it to have no reasonable prospects of success; s.17A(3). Rule 13.10 of the Rules states: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. IBM submits that the relevant principles necessary to determine the Summary Dismissal Application are well settled and can be expressed in summary form as follows: Otti v Commonwealth of Australia [2012] FMCA 1022 at [15]:a)The jurisdiction to summarily dismiss a proceeding must be exercised with exceptional caution and is to be sparingly invoked: Seers v Australia Post [2011] FMCA 659 at [10]; b)IBM bears the onus of proof of showing that the proceeding is of a character that it should be dismissed;c)The proceeding should be dismissed on this basis only: i)If the claim may properly be characterised as unarguable; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; SZBBL v Minister for Immigration [2004] FMCA 185 and Oorloff & Anor v Lee & Ors [2004] FMCA 893; orii)Where the claim is otherwise objectionable as being frivolous or vexatious, or an abuse of process of the Court: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9];d)Where an applicant is self-represented, the court should use great care and consider independently whether an arguable case based on the material could be made out by the applicant: Oorloff v Lee (supra);e)In such circumstances, the Court must have regard not only to the litigant in person but also to the position of the other party concerned and to what is required in justice to prevent the unnecessary expenditure of public and private resources: Seers v Australia Post (supra) at [9]; andf)It is in the interests of the public and the parties that a proceeding which is clearly shown to be lacking in substance should be summarily terminated. It is “no kindness to a complainant to shrink from the exercise of the power… in circumstances where that exercise is clearly warranted”: Seers v Australia Post (supra) at [9]. IBM argues that the Application in a Case is brought on the following two bases:a)Taking Mr Thomas’ own material at its highest the proceeding has no reasonable prospect of success; andb)The proceeding is frivolous, vexatious or an abuse of process of the Court.

Ratio Decidendi

Legal Principle Established

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