Toma v Fair Work Commission

Case [2022] FCA 1261

FEDERAL COURT OF AUSTRALIA

Toma v Fair Work Commission [2022] FCA 1261  

File number: NSD 216 of 2022
Judgment of: RAPER J
Date of judgment: 25 October 2022
Catchwords:

HUMAN RIGHTS – application for leave to commence proceedings under s 46PO of the Australian Human Rights Commission Act 1976 (Cth) – where Australian Human Rights Commission terminated the complaint on the basis that an inquiry into the complaint was not warranted in all the circumstances – whether the applicant’s claims of unlawful discrimination are reasonably arguable – leave refused

PRACTICE AND PROCEDURE – interlocutory application by the respondent for summary judgment – whether the applicant has no reasonable prospects of success – summary judgment entered in favour of the respondent

Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PE, 46PF(1)(b), 46PH, 46PH(1)(b)(ii), 46PH(1)(c) 46PO, 46PO(1), 46PO(2), 46PO(3A)(a)

Fair Work Act 2009 (Cth) ss 386, 390, 570, 575(2), 576(1)(i), 577, 578, 580, 581A, 581A(2)(a)(i), 584B, 584B(1), 587, 589(2), 590, 592, 593, 601(2), 604, 612, 613, 625, 674, 676

Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2), 31A(3)

Judiciary Act 1903 (Cth) s 39B

Racial Discrimination Act 1975 (Cth) ss 9(1), 9(1A), 13, 18A

Federal Court Rules 2011 (Cth) rr 8.03(1), 26.01
Cases cited:

Budini v Sunnyfield [2019] FCA 2164

Chircop v Technical and Further Education Commission [2022] FCA 1015

Fingleton v The Queen [2005] HCA 34; 227 CLR 166

Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450

James v WorkPower Inc [2018] FCA 2083

Kimber v Owners of Strata Plan No. 48216 [2017] FCAFC 226; 258 FCR 575

Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 1564

Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWC 2963

Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWCFB 5811

Loi Toma v Workplace Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240

Matthews v Markos [2019] FCA 1827

Mpinda v Fair Work Commission [2022] FCA 1111

Re East; Ex part Nguyen [1998] HCA 73; 196 CLR 354

Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118

Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102

Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100

White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 87
Date of hearing: 12 September 2022
Date of last submissions: 18 October 2022
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr T Boyle (on 12 September 2022)
Mr S Reeves, solicitor of Australian Government Solicitor (on 18 October 2022)
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 216 of 2022
BETWEEN:

LOI TOMA

Applicant
AND:

FAIR WORK COMMISSION

Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

25 OCTOBER 2022

THE COURT ORDERS THAT:

1.Judgment is entered in favour…

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AGLC
Toma v Fair Work Commission [2022] FCA 1261
Case
[2022] FCA 1261
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Toma sought leave to commence proceedings against the Fair Work Commission (FWC), alleging unlawful racial discrimination and violations of the Racial Discrimination Act 1975 (Cth) and the Australian Human Rights Commission Act 1986 (Cth). Toma further alleged contraventions of the Fair Work Act 2009 (Cth) by the FWC, claiming that his matter was dismissed without a fair hearing, leading to hurt, humiliation, and distress. The FWC filed an interlocutory application for summary judgment, arguing that Toma had no reasonable prospects of successfully prosecuting his proceeding and that no reasonable cause of action was disclosed.

The court had to determine whether Toma's claims of unlawful discrimination were reasonably arguable, which is a necessary condition for granting leave under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). The court also had to consider whether the FWC had established that Toma had no reasonable prospects of success in his claim. The court found that Toma's claims were not reasonably arguable, as they were based on vague and unsubstantiated allegations. The court held that the FWC had satisfied the threshold for summary judgment, as Toma had no reasonable prospects of success in his claim. The court entered judgment in favour of the FWC, refused Toma's application for leave, and ordered that any party wishing to make an order for costs must file an application within seven days of the date of the judgment.

The court's decision was based on the principles established in previous cases, which held that the exercise of powers to summarily terminate proceedings must always be attended with caution and that the power to order summary or final judgment is one that should be exercised with great care. The court held that Toma's claims were not reasonably arguable and that he had no reasonable prospects of success in his claim. The court also held that the FWC had established that Toma had no reasonable prospects of success in his claim, as the FWC had identified significant deficiencies in Toma's originating application and supporting affidavit. The court's decision was based on a practical judgment as to whether Toma had reasonable prospects of success, which were "real" and not "fanciful."

Orders

Orders of the court

1. Judgment is entered in favour of the respondent against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2. The applicant’s application, filed on 22 July 2022, for leave to pursue his racial discrimination claim pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth), is refused.

3. Any party wishing to make an order for costs must, within seven (7) days of the date of this judgment, file any such application, any evidence in support of that application and written submissions (not exceeding two pages in length) which address the operation of s 570 of the Fair Work Act 2009 (Cth) and the reasons why a costs order can and should be made.

4. If no application is filed in accordance with order 3, this proceeding is deemed to be finally disposed of on the basis that no order is made as to costs.

4.

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

Background

Background to the litigation

For the reasons which follow, the applicant’s application for leave to pursue his racial discrimination claim should be dismissed. Further, the respondent’s application for summary judgment is upheld with respect to the applicant’s originating application, filed on 17 March 2022, pursuant to s 31A(2) of the FCA Act and r 26.01 of the Federal Court Rules.Background The following comprises an overview of the procedural history giving rise to the applicant’s claims which led to him filing the originating application in the Federal Court of Australia and his subsequent actions before the Australian Human Rights Commission (AHRC) which gave rise to him filing his own interlocutory application under s 46PO of the AHRC Act. The originating process made prior to the AHRC’s termination of the applicant’s complaint On 17 March 2022, the applicant commenced proceedings in this Court by originating application in which the entirety of his claim comprised the following:On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:1.Unlawful racial discrimination by the Respondent and violation of rights and protections afforded by the Racial Discrimination Act 1975 and Australian Human Rights Commission Act 1986.2.Contraventions of the Fair Work Act, by the Respondent, that denied me an opportunity to run my case before the Federal Court.3.Hurt, humiliation and distress suffered as a result of the Respondent’s actions and inactions. Quantum to be submitted later.4.Aggravated and exemplary damages. Quantum to be submitted later. No statement of claim was filed with the originating application. However, a supporting affidavit was filed which in essence claimed that the Fair Work Commissioner, “displayed… bias”, did not listen to the applicant’s support person “Nagan” and summarily dismissed his matter when it was ready for hearing and should have been heard, for which he would have “won the case .. and received compensation”. The applicant claimed that the Commissioner engaged in “racial discrimination and colonial attitude”. In addition, the applicant claims that he was the subject of discriminatory treatment by the Full Bench when it conducted his appeal (for which he was unsuccessful). At the time of the applicant filing his application before this Court, the AHRC had not terminated any complaint made by him. Such a termination is necessary for any person wanting to commence proceedings in the Federal Court with respect to claims of this kind: see s 46PO(1)(a) of the AHRC Act. The respondent’s interlocutory application for summary judgment As a consequence, on 2 June 2022 the respondent filed an interlocutory application seeking summary judgment on the following bases:(a)that the applicant has no reasonable prospect of successfully prosecuting the proceeding; and(b)no reasonable cause of action is disclosed. The respondent contended that such an application may be brought in this case because:(a)to the extent that the originating application amounts to a claim that the respondent breached the Racial Discrimination Act 1975 (Cth), such a claim can only be brought under s 46PO of the AHRC Act;(b)a claim may only be made under s 46PO of the AHRC Act if a complaint (regarding the same or substantially the same subject) has been terminated by the President of the AHRC under s 46PE, s 46PF(1)(b) or s 46PH and the President of the AHRC has given notice of that termination under s 46PH(2) (see s 46PO(1));(c)while the applicant had (at the time of the respondent’s application) made a complaint to the AHRC, the President had not terminated the complaint and therefore the applicant was precluded from bringing his racial discrimination claim in this Court; (d)where the originating application refers to contraventions of the Fair Work Act 2009 (Cth) (FW Act), no particular provision of the FW Act was identified in the originating application or supporting affidavit and no reasonable cause of action was disclosed. Furthermore, the applicant had not identified any basis on which he could be entitled to the relief he seeks in the originating application even if he was able to establish a breach of the FW Act by the respondent; and(e)the respondent contended in its interlocutory application that to the extent that the applicant was (at that time) seeking judicial review of the decisions of the respondent referred to in his supporting affidavit in separate proceedings in this Court, the applicant should be barred and estopped from re-litigating issues in those proceedings as part of this claim. The termination of the AHRC complaint (post-dating) the filing of the originating application

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 26.01(1) of the Federal Court Rules provides:26.01 Summary judgment(1) A party may apply to the Court for an order that judgment be given against another party because:(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or(b) the proceeding is frivolous or vexatious; or(c) no reasonable cause of action is disclosed; or(d) the proceeding is an abuse of the process of the Court; or(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.…(Emphasis added).Applicable principles In order for the Court to give summary judgment in favour of a respondent under s 31A(2) of the FCA Act, the respondent bears the onus of establishing that the applicant has no reasonable prospects of successfully prosecuting the proceeding: Kimber v Owners of Strata Plan No. 48216 [2017] FCAFC 226; 258 FCR 575 at [62]. It is not necessary for the respondent to establish that the claim is “hopeless” or “bound to fail” for it to have no reasonable prospects of success: s 31A(3). In this regard, the Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, namely prospects which are “real” not “fanciful”: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17] – [26] per French CJ and Gummow J. The real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded: Spencer at [23] citing White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [47] (per Lindgren J). As stated in Spencer, in the joint judgment of French CJ and Gummow J at [24]:The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such disposition is sought in a summary judgment application supported by evidence. As to the latter this Court in Fancourt v Mercantile Credits Ltd said:“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”(Footnotes omitted). Justices Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ, in Spencer, agreed with the result but explained their conclusion differently from French CJ and Gummow J, their Honours’ focus was whether the Court is satisfied that there was “no reasonable prospect” of success: at [60]. Accordingly, attention must turn to the applicant’s claimed breaches of the FW Act. To the extent that there is an articulation of those breaches, the amended originating application, extracted above at [11], contains a bald assertion of the same. However, as noted above at [37], a person is not required, in their originating application, to do anything other than identify the relief claimed and if relief is claimed under a provision of an Act, the Act and provision for which the relief is claimed: r 8.03(1) of the Federal Court Rules. However, for the purpose of a summary judgment application, the Court’s consideration draws from a wider net than the application or pleaded case (if there is one) to the manner in which the applicant has articulated his claim in his submissions and evidence. Alleged breaches of the FW Act

Ratio Decidendi

Legal Principle Established

In James, Mortimer J concluded (at [37]–[39]):37. I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38. There may be a range of other permissible considerations including:(1)the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;(2)the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4)whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and(8)other factors that are often considered in leave applications – such as prejudice to a party.39. As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaurv Minister for Immigration & Border Protection [2015] FCA 584; 233 FCR 507 at [28]–[31] and in DJS16 v Minister for Immigration & Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.Consideration of the applicant’s application for leave