Tulett v Yourtown Pty Ltd
[2023] FedCFamC2G 120
Federal Circuit and Family Court of Australia
(DIVISION 2)
Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120
File number(s): ADG 298 of 2021 Judgment of: JUDGE BROWN Date of judgment: 24 February 2023 Catchwords: INDUSTRIAL LAW – Application for summary dismissal of proceedings or strike out – general protection proceedings – adequacy of pleadings – whether pleading alleges viable causes of action – considerations relating to striking out of pleadings – considerations relating summary dismissal – application dismissed – no order as to costs Legislation: Fair Work Act 2009 (Cth) Pts 3-1, 6-4, ss 12, 340, 341, 342, 351, 361, 550, 570, 789FC, 789FD
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 143, 174, 190
Federal Court of Australia Act 1976 (Cth) s 5, 31A, 37M
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 1.06, 4.04, 13.04, 13.05, 30.04
Federal Court Rules 2011 (Cth) Pt 16, rr 8.05. 16.02, 16.21
Return to Work Act 2014 (SA)
Work Health & Safety Act 2012 (SA)
Cases cited: Adachi v Qantas Airways Limited [2019] FCCA 1107
Australian Workers Union v Leighton Contractors Pty Ltd & Ors(No2) [2013] FCAFC 23
Banque Commerciale SA (En Liquidation)v Akhil Holdings Ltd (1990) 169 CLR 279
Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR
Bruce v Oldhams Press Ltd [1936] 1 KB 697
Byrne v Australian Ophthalmic Supplies Pty Ltd (2008) 169 IR 236
CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298
Community and Public Sector Union v Telstra Corp Ltd (2000) 99 IR 238
Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v I.E. Enterprise Pty Ltd [2020] FCA 848
Gaven & Gaven (No 2) [2012] FMCAfam 1005
Gupta v Menulog Pty Ltd [2022] FCA 1247
Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Kakayzich v Santa Sabinda College & Anor [2020] FCCA 11
Kanan v Australian Postal & Telecommunications Union [1992] FCA 539
Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Kutlu v Director of Professional Services Review [2011] FCAFC 94
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502
Ryan v Primesafe [2015] FCA 8
Sabapathy v Jetstar Airways [2021] FCAFC 25
Saxena v PPF Asset Management Ltd [2011] FCA 395
Shea v TRUenergy Service Pty Ltd (No 6) (2014) 314 ALR 346
Spencer v Commonwealth of Australia (2010) 241 CLR 118
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081
Tomvald v Toll Transport [2017] FCA 1208
Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650
Webster v Lampard (1993) 177 CLR 598
Welsh v Digilin Pty Ltd [2008] FCAFC 149
Division: Division 2 General Federal Law Number of paragraphs: 214 Date of hearing: 19 August 2022 Place: Adelaide Applicant: Appeared in person Counsel for the Respondents: Mr McLean Solicitor for the Respondents: Colin Biggers & Paisley ORDERS
ADG 298 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JONATHAN TULETT
Applicant
AND: YOURTOWN PTY LTD
First Respondent
CARA BENOIT
Second Respondent
KERRY-ANNE BUTTERWORTH (and another named in the Schedule)
Third Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
24 February 2023
THE COURT ORDERS THAT:
1.The application filed 1 October 2021 is dismissed.
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 BROWN:
INTRODUCTION
The applicant, Jonathan Charles Tulett, holds a master’s degree in social work and a master’s degree in political science. He is obviously an intelligent and articulate person, with other significant tertiary qualifications. However, he is not legally qualified or trained and has prepared his own application and supporting affidavit material in the proceedings currently before the Court. That material is voluminous.
These proceedings, from his perspective, are directed towards securing legal redress in respect of a wide range of complaints Mr Tulett has against his former employer yourtown (sic). There can be no doubting the vehemence of these complaints, on Mr Tulett’s part, nor the passion which motivates them.
The essential issue, for the Court, at this stage, is whether these various complaints have been defined with sufficient clarity and precision to enable firstly, yourtown and three individuals associated with it, to answer, in a fair and transparent way, the various allegations apparently made against them by Mr Tulett and secondly, for the Court to adjudicate appropriately the controversy arising according to readily identifiable principles of law.
It is yourtown’s position that it cannot fairly respond to Mr Tulett’s application because of its inchoate nature, which it asserts renders it incomprehensible to it and any other reasonable respondent. In particular, it contends that it is unable to identify the legal provisions on which Mr Tulett can base his claims, from his application or tie them to any factual contention made by him.
In these circumstances, by way of application filed 8 December 2021, yourtown seeks the striking out of Mr Tulett’s statement of claim and subsequent documents prepared by him, in which he has attempted to recapitulate or clarify aspects of his case. It remains yourtown’s position that it finds Mr Tulett’s case incomprehensible, notwithstanding the amount and the length of the documents filed by him.
Ostensibly, Mr Tulett has enlisted the general protection provisions contained within Part 3-1 of the Fair Work Act 2009 (Cth).[1] Essentially, as best can be presently determined, Mr Tulett asserts that he has been subject to adverse action by yourtown, which has contravened a number of workplace rights, pertinent to him, in breach of the provisions of the Act.
[1] Herein after referred to “the FWA” or “the Act”.
Mr Tulett also asserts that he has been subject to some form of illegal discrimination relating to a psychiatric condition from which he suffered at a time relevant to his employment by yourtown. Again this discrimination resulting in him being subject to some form of adverse action by yourtown in contravention of section 351 of the Act.
The general protection and discrimination provisions of the FWA are characterised by the relevant legislation as being pecuniary penalty provisions. In broad terms, this means that if the Court finds that there has been a breach of any such provisions, it is empowered to impose significant fines on the individuals concerned in the breach.
In CFMEU v BHP Coal Pty Ltd[2] the Full Court indicated the necessity for any party bringing such a penal proceeding to delineate with clarity the incidents said to justify the imposition of such penalties and for the individuals who were the subject to them were entitled to know with some precision the case to be made against them. This was characterised as a matter of procedural fairness. The Court went on to say as follows:
The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met.[3]
[2] CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298.
[3] CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298 at 311 [65].
This is the gist of the present matter. Mr Tulett commenced his proceedings on 1 October 2021 with a statement of claim of 211 pages and some 389 paragraphs. Besides the imposition of civil penalties, he seeks damages from yourtown. Thereafter he has filed subsequent statements of claim and other lengthy affidavits, to which are attached a multiplicity of documents.
It is the position of yourtown and the individuals named in the suit against them, brought by Mr Tulett that they are unable to delineate with sufficient clarity the cause of action because of the prolixity and repetitious nature of Mr Tulett’s pleadings and the affidavits relating to them. In these circumstances, they seek the dismissal of Mr Tulett’s application and the imposition of costs against him. It is this issue to which these reasons for judgment are directed.
As indicated above and as will be delineated in more detail as these reasons for judgment develop, there is no doubt that Mr Tulett has provided many documents to the Court and to the respondents. These include the following:
·His employment agreement with Boystown;
·His job description;
·Various policy documents produced by yourtown, including its workplace bullying prevention policy and employee grievance resolution procedure;
·Medical reports relating to Mr Tulett;
·Correspondence and memoranda passing between Mr Tulett and various managers at yourtown between June of 2017 & May 2018; and
·Documents relating to Mr Tulett’s claim for worker’s compensation.
In this context, it is to be emphasized, that it is not the Court’s responsibility, nor that of the respondents, to subject Mr Tulett’s material to some degree of intense forensic scrutiny in order to enable it (and them) to identify some cause of action for Mr Tulett to pursue. It is Mr Tulett’s obligation to delineate the ground or grounds on which he asserts he has a cause of action against yourtown and specify the material facts which support such grounds.
This obligation encompasses, in my view, an obligation to delineate his case in a coherent and rational manner, which is comprehensible to those who must respond to it – both the Court and respondent. Neither the Court nor yourtown is required to attempt to decipher massive amounts of documentation and put them into order.
At the same time, the Court has an obligation to ensure any litigant, who has a proper grievance, is given an opportunity to ventilate such grievance so it can be fairly resolved. It is in this context only that I have attempted to read the very many and lengthy documents and annexures, which Mr Tulett has prepared, in order to ascertain what is the general nature of his complaint against yourtown and whether it is amenable to being resolved in the context of a general protection proceeding under the FWA, as Mr Tulett has presently framed it.
BACKGROUND
In 2009, Mr Tulett took up a position of clinical practice supervisor of the South Australian based operations of Boystown, on a permanent part-time basis. Boystown changed its name to yourtown in 2016. Yourtown is a registered charity, established by the Lasallian Brothers in 1961. Its head office is in Brisbane, where it is incorporated. Mr Tulett’s employment was regulated by an enterprise agreement.
Yourtown provides a range of services, on a national basis, to disadvantaged and vulnerable young people, who seek assistance in respect of issues relating to employment, education, training, emotional counselling and welfare services. In South Australia it has premises at Elizabeth, Smithfield, Salisbury, Kilkenny and Enfield, all of which are located in suburban Adelaide. It also has an office at Port Pirie. It operates the Kids Helpline, a free telephone and online counselling service for young people.
Mr Tulett resigned his position at yourtown most recently on 2 March 2021. This followed him being absent from the workplace, whilst in receipt of worker’s compensation payments, pursuant to the provisions of the Return to Work Act 2014 (SA). However, he seems to have withdrawn from the workplace somewhat earlier, in or around March of 2018, in the context of significant controversy arising between him and management about his work performance, leading to him suffering some form of severe psychological collapse. Some of the material indicates he may have been stood down at this this stage.
Again, as best I can understand it, from the material filed by him, it appears to be Mr Tulett’s assertion that he had been subjected to some form of bullying and harassment, by one particular person at yourtown, the practice manager, Ms Louise Davis. He submitted a medical certificate, at this stage, indicating an incapacity to work. Initially, his claim for worker’s compensation was rejected by the relevant insurer.
However, pursuant to an order of the South Australian Employment Tribunal, made on 6 March 2019, Mr Tulett was found to be entitled to receive compensation for a period of 104 weeks following him suffering an injury at work described as an adjustment disorder with anxiety, which injury was said to have occurred on 23 March 2018, leading to an incapacity to work thereafter.
There is some suggestion, in the material, as best I can decipher it, that Mr Tulett tendered his resignation at this stage, but I acknowledge I may be in error about this. As I understand it, 104 weeks is the maximum period, available under the relevant legislation, for any person injured at work to receive weekly payments of compensation referable to salary.
On 1 October 2021, Mr Tulett commenced proceedings against yourtown and two of its employees, who had managerial responsibility, in this Court. They are Cara Benoit, who is described as Head of People & Culture and Kerry-Anne Butterworth, who formerly was the Acting Employment Relations Manager at yourtown. Both Ms Benoit and Ms Butterworth are based in Brisbane.
The fourth respondent to Mr Tulett’s application is Tracy Jessie. Ms Jessie is a solicitor, who practices in Brisbane. She was contracted by yourtown, on 1 December 2017, through the agency of Ms Benoit, to conduct an enquiry into the complaints made by Mr Tulett that he had been subject to bullying, harassment and discrimination, whilst employed by yourtown.
As best I can understand, Mr Tulett’s employment responsibilities, at yourtown, was to offer support and education to clinical staff and team leaders, at the organisation, to ensure their adherence to appropriate clinical and professional practice, particularly within the context of providing services to vulnerable young people.
At relevant times, Mr Tulett reported to Louise Davis, who was the manager of the Clinical Practice Unit. It seems relatively uncontroversial that issue arose between Ms Davis and Mr Tulett regarding how the latter performed his duties from time to time and this led to friction in the workplace.
In mid-July of 2017, Mr Tulett consulted his general medical practitioner, complaining he had been bullied in the workplace. He was subsequently referred, by yourtown’s worker’s compensation insurer, to a psychiatrist, Dr Asokan, who diagnosed him as suffering from a chronic adjustment disorder with depressed and anxious mood.
Dr Asokan took a history from Mr Tulett, in which was set out a number of incidents said to have occurred in his workplace, which had precipitated what was described as significant psychiatric injury. Dr Asokan’s report is helpful in that it succinctly details what were Mr Tulett’s complaints about how he had been treated. These included the following:
·Controversy between Mr Tulett and a manager from the Brisbane head office in respect of issues relating to Mr Tulett’s expenses in respect of visiting the Port Pirie office.
·Controversies regarding the use of a corporate credit card to purchase coffees for staff members at a local café, which was used by Mr Tulett for some supervisory sessions.
·A team leader designing a form in respect of his supervision, which he perceived to be controlling and not trusting of him.
·Controversies relating to his reporting being changed from Brisbane to a more frequent weekly basis to a manager based in Adelaide.
·A team leader having cancelled the after-hours support, which Mr Tulett had hitherto provided to staff.
·A negative performance review provided by a team leader.
·Criticism of Mr Tulett, by a team leader, that he had breached a client’s confidentiality by requesting police make a welfare check of the client concerned.
·Concerns that Mr Tulett’s performance, whilst conducting a training workshop, had been subject to criticism at another staff meeting.
·In July 2017, another staff member had attempted to solicit from individuals supervised by Mr Tulett whether they wished to raise concerns about their supervision and to replace Mr Tulett as the supervisor.
·Mr Tulett was concerned that his raising of these various issues, in emails sent to the human relations department, had been referred for investigation.
·Mr Tulett had been stood down from work in November 2017 but had subsequently been cleared to return to work.
·In March of 2018, he had been criticised for not referring a staff member’s use of marijuana, at a Christmas party, to the human relations department.
·It had been alleged that he exceeded the boundaries of his role.
Ultimately, as a consequence of these various controversies, in his workplace, when combined with his psychiatric issues, Mr Tulett resigned his employment, at yourtown, in the early portion of 2018. However, thereafter, there seems to have been some discussion as to whether he could return subject to some conditions. This followed an investigation conducted by Ms Jessie, which found various allegations of harassment and bullying of Mr Tulett, in his workplace, to be unsubstantiated.
As I understand things, amongst other matters, Mr Tulett now complains that he did not wish these various incidents to be formally investigated. Essentially, it would appear to be Mr Tulett’s position that he was coerced into making some form of complaint in respect of issues which he had raised in correspondence with management were perceived to be complaints, when they were not. As best I can understand, Mr Tulett is aggrieved that he was deprived of the opportunity to have his concerns ventilated pursuant to an internal grievance procedure, rather than by an external inquiry.
However, I confess that I may be mistaken about these various issues, as the prolixity of Mr Tulett’s documents, in my view, makes it difficult, if not impossible, to determine what his complaint is other than he is stringently critical of how he has been treated by yourtown, both before and after his workers’ compensation claim was made.
LEGAL PROVISIONS APPLICABLE TO GENERAL PROTECTION PROCEEDINGS
In general terms, in order to establish that any person has suffered a contravention of a general protection provision, under section 340 of the FWA, they must establish:
·That they have a workplace right protected under the Act, as defined by section 341(1) of the FWA;
·That they have suffered a form of adverse action, as defined by section 342 of the FWA; and
·There is a sufficient degree of connection between the relevant workplace right asserted and the adverse action taken against them.
Again, in general terms, pursuant to section 341(1) defines the expression workplace right. It encompasses the following:
·An individual has a workplace right if entitled to the benefit of or hold a role under a workplace law or workplace instrument;
·Is able to initiate or participate in a proceeding workplace law or workplace instrument;
·Is able to make a complaint or inquiry to:
·to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
·if the person is an employee—in relation to his or her employment.
The expression workplace law or workplace instrument is definitively defined in section 341(2). It includes things such as protected industrial ballots, industrial action, Commission conferences and Court processes under the FWA and enterprise agreements and the like. Section 12 defines workplace law which means the FWA itself and any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
In this matter, it would seem that Mr Tulett places emphasis on his right to complain about incident in his workplace. As will be delineated in greater detail, it the position of the respondents that he has not delineated sufficiently what is the nature of his workplace right said to have been infringed by yourtown.
In Shea v TRUenergy Service Pty Ltd (No 6)[4] Streeton-Dodds J defined the concept of being able to make a complaint, in the industrial context, in the following terms:
(a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
[4] Shea v TRUenergy Service Pty Ltd (No 6) (2014) 314 ALR 346 at [29].
At a later stage, Streeton-Dodds J indicated the making of such a complaint was not restricted to a person who had the capacity to seek compliance with a legal obligation but extends to complaints about an employer made to the employer itself in relation to the person’s employment. In addition such a complaint need not be factual correct or ultimately substantiated to be a complaint falling within the purview of section 341(1)(c)(ii).[5]
[5] Shea v TRUenergy Service Pty Ltd (No 6) (2014) 314 ALR 346 at [600].
In Henry v Leighton Admin Services Pty Ltd[6] Judge Manousaridis said the following of the same provision:
A person has a workplace right within the meaning of s 341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employee rights and obligations or about matters which may prejudice the person in his or her employment. A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations, or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment.
[6] Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 at [77].
Recent Full Court authority confirms that to be able to make a complaint about one’s employment there must be an identifiable source of entitlement. These can include contractual terms providing a right to make a complaint and the general law. In the case, the majority held as follows:
An employee is “able to complain” to his or her employer within s 341(1)(c)(ii) of the FW Act concerning the employer’s alleged breach of the contract of employment. The source of that ability is the general law governing contracts of employment. Further, an employee is “able to complain” to the employer or to a relevant authority of their employer’s alleged contravention of a statutory provision relating to the employment. That ability derives from at least the statutory provision alleged to have been contravened. The statute need not expressly or directly confer a right to bring proceedings or to complain to an authority.[7]
[7] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [26].
A related general protection is created by section 351, which prohibits the taking of adverse action against an employee on the basis of one of other of a number of specified attributes, which in general terms, refer to discrimination in respect of matters relating to a person’s ethnicity, sex or level of disability and so on and so forth, which applicable Commonwealth legislation has rendered illegal.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:
Meaning of adverse action Item Column 1
Adverse action is taken by …Column 2 if … 1 an employer against and employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer
The concept of dismissal from employment and discrimination in employment are relatively simple in their construal. More complexity arises in respect of injury and alteration of employment.
In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors[8] the High Court discussed the expression injure an employee in his or employment and concluded that the expression encompassed:
…a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
[8] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1 at 18.
In Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd[9] Perry J characterised the prejudicial alteration of a person’s position as a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
[9] Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650 at [33]
Necessarily, it is necessary to compare the position of the employee, before the impugned conduct with their position afterwards, in order to determine whether there has been a detrimental alteration occasioned to him or her.[10]
[10] McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at [349].
An injury may include a reduction in an employee’s take home pay, a change in an employee’s shifts and/or hours or a diminution of the opportunity to obtain work. As Finkelstein J observed in Community and Public Sector Union v Telstra Corp Ltd:[11]
Injury is concerned with an actual adverse effect, usually by the loss or alteration of a legal right, in the position of an employee, in his capacity as an employee.
[11] Community and Public Sector Union v Telstra Corp Ltd (2000) 99 IR 238 at [20].
The expression prejudicial alteration is a broader concept, which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee in question prior to the conduct in question, which is alleged to constitute adverse action.
In Jones v Queensland Tertiary Admissions Centre Ltd (No.2) (“Jones”)[12] Collier J said as follows:
The term “alters the position of the employee to the employee’s prejudice” appears to refer to an intentional act directed to an individual employee or prospective employees … [which include] circumstances which result in the employment of employees becoming less secure, in a real and substantial manner, than it had been previously, constitutes an alteration in their position to their prejudice. (citations removed)
[12] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [65].
The types of conduct that have fallen within injury in employment or alteration to one’s prejudice have included discriminatory allocation of less congenial shifts or rosters. A change to working arrangements (in the relevant case, a transfer to a different position) was found by Marshall J in Byrne v Australian Ophthalmic Supplies Pty Ltd (“Byrne”)[13] to be:
… “an injury” and “an alteration” because it was part of a plan devised by [the employer] to make the [employee’s] working life so intolerable that she would have no alternative but to resign. It was nasty and egregious conduct and involved an abuse of power by [the employer] in a relationship where the employer held all the power and [the employee] was doing no more than asserting her right to her correct entitlements.
[13] Byrne v Australian Ophthalmic Supplies Pty Ltd (2008) 169 IR 236 at [26].
As a consequence of the use of the word because in section 340 (and section 351) of the Act there must be a factual link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
For obvious reasons, it is a very difficult task for an applicant to prove what was occurring in the mind of any person alleged to have taken the adverse action in question. The task is made more difficult in the case of decisions made in a corporate or managerial environment, as in the present matter. These difficulties, arising in the context of beneficial legislation directed toward remedying injustices, against employees, in an industrial setting.
Considerations of this kind inform the rationale for the implementation of one of the central features of the general protection provisions, namely the creation of what is invariably referred to, by lawyers, as the reverse onus. The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which any alleged adverse action was taken.
Essentially, if it is established, by any applicant, that there their employment is subject to a relevant workplace right and they have also established that they have been subject to adverse action, the onus passes to the employer to provide the substantive and operative reasons for the adverse action, particularly that it was not for a reason protected by the FWA.
Section 361 of the Act comes into operation only after it has been established “that adverse action was taken” and “that a relevant workplace right exists” “as an objective fact”.[14]In Jones Collier J explained the operation of section 361 in the following terms:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[15]
[14] See CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].
[15] See Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10].
Necessarily, after adverse action has been established and its relation to a workplace right, the reverse onus must involve an analysis, by the Court, of the reason or reasons why the adverse action was taken by the person or persons who made the relevant decision to take the adverse action.
These were issues which were subject to detailed analysis, by the High Court, in Board of Bendigo Regional Institute of Technical & Further Education v Barclay. In order to determine whether the onus has been discharged, French CJ and Crennan J made it clear that the Court is required to take into account all the relevant facts and circumstances of the case, as established by the evidence. They said as follows:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[16]
[16] See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500, 517 at [45] per French CJ and Crennan J (footnotes omitted).
In similar vein, Gummow and Hayne JJ said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under section 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[17]
[17] See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500, 542 at [127] per Gummow and Hayne JJ.
In this case, it is the position of the respondents that they are placed at a significant level of disadvantage by what they would characterise as the gross inadequacy of Mr Tulett’s pleadings. If they are unable to ascertain, with certitude the nature of the adverse action which each is alleged to have taken against Mr Tulett, they are hardly likely to be able to indicate to the Court the substantive and operative reasons for their impugned actions. On this basis, each asserts that it is unfair to allow the action to subsist as currently couched by Mr Tulett.
The applicable principles are summarised by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant[18] as follows:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[19]
[18] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
Accordingly, the most important aspect of any pleading alleging a cause of action under the general protection provisions is firstly to identify what is the precise adverse action taken against the applicant concerned and does it fall within the purview of section 341 of the Act and secondly, was such adverse action taken because of the applicant’s exercise of a workplace right or because such a right attached to him.
Fundamentally, this is the task which Mr Tulett must fulfil in his pleadings. It is not sufficient for him to present some inchoate or inarticulate sense of grievance that he has been harshly or unfairly dealt with. Rather, he must demonstrate that he has been penalised, in a way sanctioned by the Act, because of his exercise of a right as defined by the legislation.
Mr Tulett does not have a specific right not to be subject to bullying. Part 6 – 4B of the FWA, which is headed Workers bullied at work details the provisions of the legislation relevant to bullying, including a definition of bullying [section 789FD] and the remedies available to a worker, if subject to bullying [section 789FC].
A worker is bullied if an individual or group of individuals subjects the person concerned to repeatedly unreasonable behaviour. Thereafter, a worker may apply to the Fair Work Commission for an order to stop the bullying. The Commission is obliged to deal with such an application promptly within fourteen days with the application.
In this context, it needs to be pointed out that the Act does not specifically provide a right not to be bullied. It provides remedies distinct from those provided by Part 3-1 to apply for a cessation order in respect of bullying, whilst the complaint of bullying remains employed.
As indicated above, Mr Tulett has commenced proceedings against three employees of yourtown asserting that each bear accessorial liability for the actions of yourtown pursuant to the provisions of section 550 of the FWA.
Section 550(1) of the Act provides that a person who is involved in a contravention of a civil remedy provision of the Act is also taken to have contravened that provision. Section 550(2) provides a definitive list of the circumstances in which a person is taken to be involved in a contravention. A person is so involved only if the person concerned:
·has aided, abetted, counselled or procured the contravention; or
·has induced the contravention, whether by threats or promises or otherwise; or
·has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
·has conspired with others to effect the contravention.
In Fair Work Ombudsman v Devine Marine Group Pty Ltd[20] White J explained the concept of a party being knowingly concerned in a contravention under the FWA in the following terms:
The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention…
[20] See Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [178].
It is important to note what a general protection proceeding is not. They are not a broad inquiry as to whether Mr Tulett has been subjected to a procedurally fair or substantially unfair outcome[21] during the course of his employment by yourtown. Essentially, as the Full Court observed in Khiani v Australian Bureau of Statistics (“Khiani”):
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[22]
[21] See Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J.
[22] See Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ.
LEGAL CONSIDERATIONS RELATING TO THE STRIKING OUT OF PLEADINGS
As a consequence of the inception of Division 2 of the Federal Circuit and Family Court of Australia, the respondents’ application is to be determined by reference to the Federal Circuit & Family Court of Australia Act 2021 (Cth).[23]
[23] Hereinafter referred to as “the FCFCOA Act”.
Section 174 of the FCFCOA Act authorises the Court to make rules to govern its practice and procedure but in circumstances in which those rules prove to be deficient it may apply the Federal Court Rules 2011 (Cth).[24] The Court is entitled to modify these rules to suit its own idiosyncratic jurisdiction. In this context, section 190 of the FCFCOA Act is germane.
[24] Hereinafter referred to as “the FC Rules”.
As previously indicated, it provides a directive to the Court to, in the application of its practice and procedure, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. This reflects the objects of the FCFCOA Act as contained in section 5 and is referred to as the Court’s overarching purpose.
The relevant rules of Division 2 of the Court are the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).[25]Rule 1.04 delineates the obligation of parties to assist the Court to achieve its objectives delineated in the overarching purpose. Parties are required to avoid undue delay, expense and technicality. They are also directed to consider options for primary dispute resolution as early as possible.
[25] Hereinafter referred to as “the Division 2 Rules”. Rule 1.06 provides that these Rules principally govern general federal law proceedings in Division 2 of the Court.
Rule 30.04 stipulates the manner in which an application in respect of a general protection matter is to be commenced. It is to be made with the approved form and a claim. It need not be accompanied by a statement of claim or points of claim. Pursuant to rule 4.04 an affidavit is be filed unless an applicant opts to file a statement of claim.
In this case, Mr Tulett elected to commence the proceedings with a statement of claim without an affidavit. In these circumstances, it is pertinent to point out what is the nature of a pleading. The term pleading refers to the formal documents, in which litigants set out the presentation of their claims and defences to those claims, in the suit, which they wish the Court to determine. They are filed and served sequentially, according to the rules of the particular court in question. In Takemoto v Moody’s Investors Service Pty Limited,[26] Flick J observed that as a general proposition the function of pleadings is to state with sufficient clarity the case that must be met.
[26] Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081 at [23] (Flick J).
A statement of claim must identify a set of alleged facts that have a particular quality, which if established at trial, will entitle the applicant to the remedy or remedies claimed. A defence is the formal rebuttal of those alleged facts. Pleadings are required to contain statements of material fact, which a defence, in turn, will either admit or deny.
An admission will have the effect of ending factual controversy about an allegation made in a statement of fact. The intent is to confine the issues to be determined by the Court invoked to resolve the dispute between the parties concerned.
Essentially, a respondent is made aware of the case it is required to meet, and an applicant knows which elements of that case are in dispute. From the Court’s perspective, the controversies that it is required to adjudicate are clearly delineated at an early stage. The object being, for all concerned, the ready clarification of issues and a saving of time and resources as any need for investigation of superfluous issues is avoided.
Material facts, in this context, have been defined as facts, whose existence is necessary for the purpose of formulating a complete cause of action.[27]By necessary implication, to provide a legal answer to the cause of action so raised, a defence must provide a rebuttal of each such material fact. Accordingly, there must be a connection between the material fact alleged and a legal principle, which founds the relevant cause of action.
[27] Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712 (Scott LJ).
In Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd[28] Mason CJ and Gaudron J described the function of pleadings as being to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him, her or it, and incidentally, to define the issues for decision.
[28] Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.
In Gaven & Gaven (No 2) Judge Jarrett, of this Court, succinctly summarised the distinction between an affidavit and a pleading in the following terms:
An affidavit is a statement, sworn or affirmed, by a deponent who gives evidence. The purpose of an affidavit is to provide evidence. An affidavit is different to a pleading. A pleading alleges facts and facts alone (or at least is intended so to do). An affidavit, however, is of a quite different character.[29]
[29] Gaven & Gaven (No 2) [2012] FMCAfam 1005 at [8] (Jarrett J).
Formal pleadings are not mandated in Division 2 of the Court pursuant to the Division 2 Rules. However, at the same time, the Rules recognised that some types of proceedings are likely to be better served by the use of pleadings. The Division 2 Rules do not specifically indicate which type of cases is better suited to the use of affidavits and which is more amenable to pleadings.
This, in my view, is the source of what I have termed the perennial problem of whether it is better for applicants to set out what they assert is their case in affidavit form, which is the more usual course as stipulated in the rule 4.04, or take the option of not providing any affidavit evidence and proceeding by way of a statement of claim, as is open pursuant to rule 4.04(3), when read in conjunction with rule 30.04.
In my experience, the former course is usually the more productive one, so far as self-represented litigants are concerned, for providing the prerequisite information, for both the Court itself and the relevant respondent, about what is the basis of any particular case being undertaken.
In this context, comments made by Judge Driver in Kakayzich v Santa Sabinda College & Anor are pertinent. His Honour said as follows:
[I]t is pertinent to note that the Federal Circuit Court, unlike the Federal Court, is not generally a court of pleadings. Matters most commonly proceed in the absence of pleadings on the basis of written evidence. It is with this in mind that this Court has simply adopted the rules of the Federal Court in relation to pleadings for the relatively small number of cases in which pleadings are necessary. The Parliament has tasked this Court to deal with matters of less complexity than those dealt with by the Federal Court and the Family Court... Drawn out interlocutory disputes as to the quality of a pleading so sought and provided are alien to the normal practice and procedure of the Court and should, in my view, be discouraged.[30]
[30] Kakayzich v Santa Sabinda College & Anor [2020] FCCA 11 at [134] (Driver J).
In a later case, Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd, Judge Driver after having noted the Court’s remit as a lower level court directed towards resolving cases in a quick and cost effective manner with as little adherence to legal technicality as possible, observed further as follows:
The Court has, as I have noted, taken a liberal attitude to the drafting of pleadings, and I have myself had cause to express some frustration with demands for different pleadings on the basis of perceived technical defects.[31]
[31] Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552 at [8] (Driver J).
The Federal Court, pursuant to section 37M of the Federal Court of Australia Act 1976 (Cth),[32] is subject to a broadly similar overarching purpose in respect of how it is directed to conduct civil proceedings coming before it, as is this Court. It is also subject to the direction that it consider the proportionality of the cost to the importance and complexity of the matters in dispute.
[32] Hereinafter referred to as “the FC Act”.
In this context, by necessary implication, it seems to me to be self-apparent that parties are required to consider which of the mechanisms of pleadings, on the one hand or the filing of affidavits of evidence, on the other, in general protection proceedings, will best fulfil the aspirations of the overarching purposes, both in terms of reducing delay, the expense and technicality, and achieving the expeditious application of primary dispute resolution.
The Division 2 Rules do not provide a mechanism for the striking out of pleadings. In these circumstances, the Court is conferred with a discretion, pursuant to rule 1.06(2) of the Division 2 Rules to apply the FC Rules.
Part 16 of the FC Rules, as befits a court conferred with the jurisdiction of a superior court of record,[33] contains a specific part dealing with the issue of pleadings and requires that applications more often than not be commenced with a statement of claim, in distinction to the Federal Circuit and Family Court of Australia.[34] Rule 16.02 of FC Rules provides that pleadings are required, amongst other things, to detail:
·The issues required to be resolved by the Court;
·To state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial but not the evidence by which such facts are to be proved; and
·The provisions of any statute relied upon.
[33] See Federal Court of Australia Act 1976 (Cth) s 5.
[34] See Federal Court Rules 2011 (Cth) r 8.05.
The formality of this process of pleadings results in the Court being able to know what specific allegations are admitted and which are denied, thus allowing the parameters of the applicable case to be defined well in advance of trial.
Rule 16.21 of the FC Rules provides a specific mechanism for the striking out of a pleading. It provides as follows:
(1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b)contains frivolous or vexatious material; or
(c)is evasive or ambiguous; or
(d)is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f)is otherwise an abuse of the process of the Court.
Other complimentary provisions, in both the FC Act and the FCFCOA Act, emphasise the importance of the expeditious settlement of the parameter of the dispute the Court is required to resolve. These are the provisions for summary disposal of cases found to have no reasonable prospects of being successfully prosecuted.[35]
[35] Federal Court of Australia Act 1976 (Cth) s 31A; Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143.
It is the interests of both the efficient administration of justice and the overarching purpose that unmeritorious cases are identified expeditiously before either a prosecuting or defending party is put to unnecessary expense. Clearly, before the Court can exercise its discretion to award summary judgment, it must know the cases on which each party depends, in terms of what are the material facts, either admitted or denied.
It is in this context that the rules in respect of pleadings must be examined. Pleadings should be an aid rather than a hindrance in determining what a party’s case is. Judge Barnes pointed to some of the bases on which a pleading can be struck out in Adachi v Qantas Airways Limited.[36]They include:
•If the pleading is susceptible to various meanings, contains inconsistent allegations, alternatives which are confusingly intermixed;
•The pleading contains defects which result in it being unintelligible, ambiguous, vague or too general;
•The pleading does not disclose a reasonable cause of action in the sense that it does not set out the material facts necessary to formulate a complete cause of action.
[36] Adachi v Qantas Airways Limited [2019] FCCA 1107 at [23]-[26] (Barnes J).
All these deficiencies lead to a situation in which a pleading has failed to define the issues with sufficient clarity to enable the other party to understand the case which it has to meet.
Relevant authorities indicate that the power to strike out pleadings is discretionary and, as such, is to be used sparingly and only in a clear case. In Gupta v Menulog Pty Ltd O’Sullivan J said as follows:
The authorities make it clear that the power to strike out a pleading because it discloses no reasonable cause of action is only exercised in plain and obvious cases, where it is clear no reasonable amendment can cure the alleged defect, and there is no reasonable question to be tried…[37]
[37] Gupta v Menulog Pty Ltd [2022] FCA 1247 at [20].
In the context of the current matter, the respondents rely on the comments of the majority of the Full Court in Sabapathy v Jetstar Airways (“Sabapathy”).[38] As with this matter, the case concerned general protection claims and related accessorial liability of other employees of the primary respondent.
[38] Sabapathy v Jetstar Airways [2021] FCAFC 25.
In that case, the Full Court, whilst conceding the relevant legislation establishing Division 2 of the Federal Circuit & Family Court of Australia was supportive of proceedings, within the Court being conducted with a minimum of formality, noted the serious nature of civil penalty proceedings and indicated, in such cases, the rules of pleading should be applied.[39]
[39] Sabapathy v Jetstar Airways [2021] FCAFC 25 at [42].
The Full Court also noted that there needs to be a level of proportionality between the issues required to be tried and the length and apparent complexity of the resulting pleadings. In essence, a statement of claim should simply and succinctly as possible, state the material facts giving rise to the claim.[40]
[40] Sabapathy v Jetstar Airways [2021] FCAFC 25 at [32].
The obvious import of the respondents’ position is that it is axiomatically clear, given the nature of the issues arising from Mr Tulett’s case, that a 211 page statement of claim cannot conceivably secure such an objective and the pleading itself is therefore irremediably compromised.
In Sabapathy, reference was made to Re Minister for Immigration & Multicultural Affairs: Ex parte Lam.[41]In the case, Gleeson CJ said as follows in respect of a concept which he referred to as practical injustice:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[41] See Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502 at [37].
In this context, as I understand it, it the submission of each of the respondents that the manner in which Mr Tulett has currently pleaded his case, given the structure of the FWA and their potential liability for civil penalties, has resulted in a situation of such practical injustice for each of them.
In Sabapathy the Full Court determined so far as each of the respondents in that case was concerned that they were entitled to a pleading in which the case [they had] 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.[42]
[42] Sabapathy v Jetstar Airways [2021] FCAFC 25 at [87].
LEGAL CONSIDERATIONS RELATING TO SUMMARY DISMISSAL
In my view, the current case throws up a dilemma. If the Court elects to strike out the current statement of claim, but allows him to re-plead, can it have any sense of satisfaction that Mr Tulett will be capable of rectifying his pleading, given his lack of formal legal representation and the manner in which the case has proceeded thus far. As such, will a strike-out merely lead to a further strike-out application and the wastage of still more court resources and the respondents in question being put to further unwarranted expense.
In response to this dilemma, in its most recent application in a case, the respondents seek the summary dismissal of the application on the assumption that Mr Tulett is incapable of re-pleading the case.[43] In these circumstances, it is necessary to outline the principles relevant to summary dismissal.
[43] See Application in a Case filed 1 August 2022.
The Court is conferred with a discretion, pursuant to rule 13.05 of the Division 2 Rules to dismiss an application if the applicant concerned fails to comply with one of its orders; file and serve a document; or prosecute the proceedings with due diligence.[44]
[44] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.04.
As with all discretions, the discretion provided by rule 13.05 must be exercised judicially and according to the dictates of justice. At a fundamental level, the Court has an obligation to investigate and determine a claim for judicial relief, which has been honestly made in the proceedings before it, by the suitor concerned.
On the other hand, the Court retains it may be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.[45] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[45] Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32] (Tamberlin, Greenwood and Collier JJ).
In Lenijamar Pty Ltd v AGC (Advances) Ltd (“Lenijamar”),[46] the Full Court of the Federal Court indicated that it was undesirable [for the court] to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised. In this context, Wilcox and Gummow JJ identified what they considered to be two obvious candidates for the exercise of the power, which can be summarised as follows:
·Cases characterised by a history of non-compliance such to indicate an inability or unwillingness to co-operate with the other party or the Court to bring the proceedings to hearing within an acceptable period;
·Cases in which non-compliance was continuing and occasioning unnecessary delay, expense or other prejudice to the other party concerned.
[46] Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200 at 208.
In a separate but concurring judgment Pincus J said as follows in respect of the exercise of the relevant discretion:
[T]he Court may, in my opinion, take into account such matters as whether the claim or defence of the party in default appears to have substance, whether the case is one in which delay in hearing is likely to be particularly damaging to prospects of correctly deciding the dispute, whether the party applying for dismissal has itself transgressed, whether the party in default has gained some advantage by delay (for example, where it has had the benefit of an interlocutory injunction), whether credible assurances (supported, perhaps, by arrangements to commit the conduct of the matter to another firm or other counsel) have been given as to the prompt carrying out of future steps and whether the delay has been such as to induce the party not in default to think that the matter has probably gone to sleep;[47]
[47] Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200 at 214-5 (Pincus J).
In addition to its power to dismiss an application on the basis that its proponent is not advancing it with due diligence, pursuant to the provisions of section 143 of the FCFCOA Act the Court is endowed with a discretion to grant summary judgment (either allowing a defence or dismissing a claim without hearing evidence) if it is;
Satisfied that the other party has no reasonable prospects of successfully defending or prosecuting the proceedings concerned.
However, in this context, section 143(3) provides the admonition that a case need not be hopeless or bound to fail to have no reasonable prospects of success. Section 143 is in similar terms to section 31A of the Federal Court Act 1976 (Cth).
In this context, the court is conferred with a discretion, pursuant to rule 13.13 of the Division 2 Rules to summarily dismiss an application if satisfied that the relevant proceedings have no reasonable prospects of success and significantly or can be characterised as being frivolous or vexatious; or an abuse of process. The power to dismiss an application summarily has been frequently described as being one which is to be invoked sparingly even in cases which can be characterised as being inherently weak.
The provision of section 143 of the FCFCOA Act is directed towards the expeditious disposal of unmeritorious proceedings and a concomitant saving of costs to the parties and court resources. However, laudable those aims are, the Court must be careful to avoid becoming a slave to expediency.
In Spencer v Commonwealth of Australia,[48] French CJ and Gummow J said of section 31A of the Federal Court Act 1976 (Cth) that it:
[A]uthorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.[49]
[48] Spencer v Commonwealth of Australia (2010) 241 CLR 118.
[49] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 131 [22] (French CJ and Gummow J).
In Webster v Lampard,[50] the High Court said as follows:
The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[51]
[50] Webster v Lampard (1993) 177 CLR 598.
[51] See Webster v Lampard (1993) 177 CLR 598, 602 (Mason CJ, Deane and Dawson JJ).
In Lindon v Commonwealth of Australia (No 2),[52] Kirby J provided a list of principles applicable to summary judgment:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is just.
[52] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
Kirby J said further in Lindon:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[53]
[53] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 256.
DOCUMENTS FILED THUS FAR & THE CONDUCT OF THE PROCEEDINGS
Mr Tulett commenced the proceedings with a statement of claim filed on 1 October 2021. As previously indicated, it is 211 pages long and consists of 389 paragraphs. The major component of the statement of claim is in Part C under the heading Breaches of the Fair Work Act. Thereafter are listed 19 discrete complaints regarding the conduct of yourtown and its employees, which are said to raise 59 distinct claims arising under the Act. These complaints take up some 203 pages.
The complaints are as follows:
(1)A failure to consult prior to changing his position description, before a decision was made that he was not to provide an after-hours duty of care service for staff;
(2)The applicant was directed to perform a demeaning and humiliating task when told he had to assist another employee to present a workshop;
(3)A failure to consult the applicant before a decision was made to cancel his group clinical practice;
(4)The applicant was unreasonably accused of breaching one of yourtown’s client’s confidentiality;
(5)The applicant was the subject of a prejudicial and defamatory email;
(6)The applicant was subject to unreasonable criticism of his work performance;
(7)The applicant was subject to unreasonable criticism concerning historical issues;
(8)The applicant was subject to false and misleading representations concerning his workplace rights;
(9)The applicant’s privacy and confidentiality was breached and his employment was threatened;
(10)The applicant was coerced to make a formal complaint of workplace bullying;
(11)The applicant was unlawfully and unreasonably directed not to attend work;
(12)The applicant was coerced to take sick leave;
(13)The applicant was subject to a procedurally unfair and abusive investigation, which I assume was conducted by Ms Jessie;
(14)The applicant was subject to unlawful and unreasonable coercion to attend a team meeting;
(15)The applicant was subjected to an unreasonable and unlawful performance management process;
(16)The applicant was given a second unlawful and unreasonable direction not to attend at work;
(17)The applicant was given an unlawful and unreasonable direction to maintain confidentiality;
(18)The applicant was given a third unlawful and unreasonable direction not to attend at work;
(19)False and misleading representations were made to EML regarding the applicant’s worker’s compensation claim.
As best I can glean, with the assistance of my own process of intuitive extrapolation, Mr Tulett asserts that he had a workplace right to complain about these various matters in accordance with the terms of his employment agreement with yourtown and pursuant to the provisions of the Work Health & Safety Act 2012 (SA). Thus, possibly, it is the case that section 341(1)(c) of the FWA is engaged.
Given, ostensibly Mr Tulett resigned from yourtown and received his full complement of worker’s compensation benefits, a more challenging aspect of the statement of claim is to identify what are the specific incidents of adverse action, falling within the parameters of section 342 of the FWA, upon which he relies.
Given the sheer volume of the statement of claim, which has the necessary consequence of leading to obfuscation rather than illumination, in my view, this task is analogous to the metaphorical search for a needle in a haystack. In this context, I confess that I submitted the statement of claim to a word search for section 342, which revealed, again as best I can glean it, the following:
·In the context of complaint (7) his position was subject to prejudicial alteration when his past work performance was criticised by Ms Davis and he was subject to discrimination by her because two other employee’s performance was not subject to such criticism.
·In the context of complaint (8) his position was subject to prejudicial alteration by reason of the fact that he was subject to criticism by Ms Davis after having made a complaint about an email sent to staff.
·In the context of complaint (9) his position was subject to prejudicial alteration by reason of the fact that Ms Davis indicated to him her view that he may not be able to perform his duties because of stress.
·In the context of complaint (10), his position was subject to prejudicial alteration and he was subject to discrimination by reason of the fact that, after having made a complaint about his treatment in the workplace, he was denied the opportunity to take part in an informal employment grievance resolution process but rather was directed to take part in a formal investigation of his complaint.
·In the context of complaint (10), Ms Benoit and Ms Butterworth had accessorial liability for the decision to institute a formal investigation of his complaint.
·In the context of complaint (11) the applicant asserts that he was denied his workplace right not to be injured, have his position altered or discriminated against when he was directed not to attend at work. Again Ms Benoit is asserted to have accessorial liability for this conduct.
·In the context of complaint (11) the applicant asserts he was injured in his employment by being involuntarily placed on sick leave, which he asserts relates to his complaint of having being bullied. He also asserts that he was discriminated against in this regard.
·In the context of complaint (13), the applicant asserts that he was injured in his employment by reason of the fact that the independent inquiry was not conducted in a reasonable manner. In this context, Ms Jessie bears accessorial liability for the manner in which the inquiry was conducted.
·In the context of complaint (15) he asserts that he was injured in his employment and subject to discrimination by being subject to a confected form of performance management review in which Ms Butterworth bears accessorial liability.
·In the context of complaint (16) he asserts that his employment was detrimentally altered when he was directed not to attend at work, whilst the disciplinary inquiry took place.
·In the context of complaint (17) he asserts that his employment was detrimentally altered when he was directed to maintain confidentiality about the relevant disciplinary inquiry.
·In the context of complaint (18) he asserts that his employment was detrimentally altered when he was directed not to attend at work as this denied him the opportunity to fulfil his contractual obligations with yourtown.
·In the context of complaint (19) he asserts that his employment was injured and detrimentally altered because yourtown provided incorrect information to the relevant worker’s compensation insurer denying him the expeditious granting of compensation.
Clearly, Mr Tulett has many complaints regarding his perception that he has been poorly used by the management of yourtown. However, as was pointed out in Khiani, it is not the function of the Court to examine various incidents, in the relevant workplace, which might have been handled better or which might conceivably be regarded as having been procedurally high-handed or insensitive. In this context, the purpose of these proceedings is not in the nature of an inquiry into whether yourtown is or is not a fair employer.
In conducting the analysis, which I have done above, I found it difficult, if not impossible to ascertain, from the statement of claim, notwithstanding its length, what were the material facts, which led Mr Tulett to assert he had been subject to adverse action. In addition, in my view, the sheer number of paragraphs, in the statement of claim, made its overall comprehension difficult, if not impossible.
Without in any way wishing to be discourteous or dismissive of Mr Tulett, the flavour of the statement of claim was of an inchoate claim that he had been subject to some species of unfairness whilst employed at yourtown, which had led to a disciplinary inquiry, in respect of a complaint made by him. Later, he had fallen ill and had been aggrieved at the manner in which his incapacity had been approached by management. Again, I concede these impressions may be erroneous but, at the end of the day, I found his application to be incomprehensible.
Whilst Mr Tulett may perceive that he has been injured in his employment and aspects of his previous position altered to his prejudice, I struggle to ascertain the salient matters of fact which support his perceptions. In addition, although Mr Tulett may perceive he has been treated differently to other employees in his circumstances, I am not readily able to ascertain why.
This is significant given the fact that Mr Tulett is seeking the imposition of pecuniary penalties on individuals who were engaged in discharging their jobs. It falls on Mr Tulett to establish that he has been subject to adverse action by yourtown and Ms Benoit, Ms Butterworth and Ms Jessie were knowingly involved in what Mr Tulett would characterise as the unlawful activities of yourtown.
If Mr Tulett is able to establish adverse action, in the sense envisaged by section 342(1), as a consequence of the reverse onus created by section 361, it falls to each of the respondents to demonstrate, on the balance of probabilities, what each asserts was the substantive and operative reason or reasons why each decided to do what is comprised in the various incidents amounting to adverse action asserted against them by Mr Tulett.
In the present case, Ms Butterfield and Ms Benoit were based in Brisbane, where each held executive roles in yourtown. Ms Jessie was engaged to conduct an independent review of a number of issues in respect of which Mr Tulett was in conflict with the management in Adelaide.
For obvious reasons, each is likely to assert that the substantive and operative reasons for their actions related to their respective positions in the management structure of yourtown or, in the case of Ms Jessie, the terms of her retainer from it. It is a very significant allegation to make that each, in some way has engaged in a tacit undertaking to undermine Mr Tulett’s employment in a manner rendered illegal by the FWA.
As was observed by Bromberg J in Celand v Skycity Adelaide Pty Ltd[54]allegations of contravention of the general protection proceedings are inherently serious and, as such, as a matter of fairness, need to be pleaded with sufficient precision to enable each respondent to know the case against it.
[54] Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 at [102].
The sheer length of the statement of claim poses challenges for the Court. Essentially, how is it to separate what is wheat from what is chaff? I do not consider it the obligation of either the Court or the respondents to deal with this cumbersome document and subject it to detailed scrutiny in an attempt to discern some kernel of a cause of action. In my view, given the fact that these are civil remedy provisions that has the potential to be fundamentally unfair to the second, third and fourth respondents.
In Sabapathy the Full Court indicated that, in some cases, it was appropriate for the Court, in respect of an application to strike out a pleading to deal with the relevant pleading on a piecemeal fashion and attempt to salvage what could be salvaged. But it was equally open to it, in appropriate cases, to strike out the whole of the pleading.[55]
[55] See Sabapathy [2021] FCAFC 25 at [33].
The case first came before the Court on 17 November 2021, on which occasion, in light of the respondents’ indication that it would object to the statement of claim the matter was adjourned. The case returned on 3 February 2022.
The respondents rely on an affidavit of their solicitor, Ms Tsukimori to set out what occurred following yourtown’s receipt of the initiating application.[56] She deposes that her office wrote to Mr Tulett pointing out at some length what were asserted to be the manifest deficiencies in the statement of claim and invited Mr Tulett to re-plead. An invitation, which he declined.
[56] See affidavit of Allisa Tsukimori filed 26 July 2022.
Essentially the respondents submit that they have been mindful of the difficulties facing Mr Tulett, as a self-represented litigant. However, it is their current position that Mr Tulett has exhausted their forbearance and that of the Court by the manner in which he has continued to prosecute the matter.
On 3 February 2022, counsel for the respondents, Mr McLean characterised the statement of claim in the following terms:
·It was manifestly excessive and largely unintelligible;
·It relied on sections of legislation that did not exist;
·It pleaded contraventions of sections of statute that were definitional in nature;
·It was replete with allegations that were irrelevant, embarrassing or not material;
·It contained a number of conclusory assertions without the material facts necessary to sustain such assertions;
·It contained a number of ill-defined allegations to which the respondents could not sensibly plead; and
·It alleged accessorial liability against Ms Benoit, Ms Butterworth and Ms Jessie without any material facts to sustain such allegations.
Given the various principles outlined above and in the light of the over-arching principle in which the Court is to conduct the litigation before it, whilst bearing in mind the fact that Mr Tulett was neither legally qualified or represented, perhaps naively, I considered that some, if not all of the objections outlined by Mr McLean might be remedied if Mr Tulett filed an affidavit setting out the salient facts supporting his assertion that he had been subject to various incidents of adverse action in contravention of some form of workplace right by yourtown.
Somewhat clumsily, the relevant transcript reveals I said the following:
I appreciate the prejudice to your clients about a lengthy statement of – statement of claim. I just think this is – we will get an affidavit, then at least your clients know what the story is, and then they can consider their position, and I can make a direction whether the matter proceeds by way of affidavits, or by pleadings and whether your clients can just file a simple response, and the statement of claim can be dismissed.[57]
The case was then adjourned until 31 March 2022.
[57] See Transcript dated 3 February 2022 at Annexure AT-11 to affidavit of Allisa Tsukimori filed 26 July 2022.
On 22 March 2022, Mr Tulett filed his affidavit of evidence as directed. It is a document of 114 pages and 359 paragraphs to which are attached 54 annexures amounting to a further 164 pages. As with the earlier statement of claim, it reiterates the nineteen complaints regarding the conduct of yourtown and its various employee of which Mr Tulett complains.
When the matter returned to Court on 19 April 2022 it remained the formal position of the respondents that they continued to find Mr Tulett’s application and the evidence asserted to support it legally incomprehensible. In these circumstances, a further application to strike out the relevant statement of claim was mounted.
It was the submission of Mr McLean, counsel for the respondents, that the affidavit filed by Mr Tulett had not advanced the matter. He contended as follows:
·The allegations against the various respondents remained terminally imprecise;
·It was unclear what was the connection between the various asserted exercise of workplace rights, by Mr Tulett, and the alleged adverse action taken against him;
·He asserted causes of action unrelated to the FWA, namely that he had been defamed;
·The various complaints, outlined by Mr Tulett, did not disclose a cause of action. In this context, it was submitted the most glaring examples of these were the complaint Mr Tulett made of having to perform a demeaning and humiliating task and being subject to unwarranted feedback.[58]
[58] See Outline of submissions of the respondents filed 14 April 2022.
In this context, whilst not conceding that any actual cause of action had been delineated, Mr McLean submitted that it was undesirable for either the Court or the respondents to try to sift out the necessary parts from the unnecessary and embarrassing passages.[59] This remains the respondents’ position.
[59] See Dahler v Australian Capital Terrriory [2014] FCA 946 at [106].
Mr Tulett had not filed a response to the application in a case which sought to strike out his pleadings. In these circumstances, the case was adjourned until mid-June of 2022. This hearing was later administratively adjourned on the basis that Mr Tulett wished to seek legal advice. The new date allocated being 19 August 2022.
On 14 June 2022, a firm of solicitors wrote to the respondents’ solicitors indicated they were retained only in respect of the strike-out application. The solicitors denied that there were any deficiencies required to enable yourtown to comprehend the nature of Mr Tulett’s claims against it. Subsequently the solicitors concerned withdrew from the matter.
In the lead up this hearing Mr Tulett filed a further affidavit and a brief submission in the following terms:
The Applicant has been made aware that his claim is more appropriately progressed without formal pleadings such as by submitting an Amended Statement of Claim, but by submitting an affidavit combining a full narrative of the facts and the documentary evidence.
The Applicant asks the Court to accept his affidavit dated 8th July 2022 in which he has endeavoured to clarify the causes of action, and has consolidated the complaints into a shorter, more precise form that will enable the respondents to more clearly understand the case he is asking them to answer.[60]
[60] See outline of submissions of the applicant filed 8 July 2022 at [5] – [6].
The 8 July 2022 affidavit is 77 pages long and supported by 33 annexures amounting to a further 96 pages. Like the earlier documents, it delineates what Mr Tulett characterises as his complaints regarding how the respondents’ conducted themselves in the relevant workplace. There are seven such complaints. As such, in my opinion, it more analogous to a statement of claim than an affidavit.
Following its receipt of this document, the respondents filed a further application in a case, on 1 August 2022, in which it seeks the following orders in the following terms:
·Mr Tulett’s application be dismissed summarily and costs be granted against him in the respondents’ favour;
·In the alternative, Mr Tulett file a further statement of claim and pay the respondents’ costs to date on an indemnity basis.
Underpinning this application is the respondents’ contention that the document is bereft of material facts on which to hang the relevant cause of action. It is the submission of Mr McLean that the July affidavit has not assisted in rendering his claims any more intelligible. He characterises the document as a lengthy allegation that Mr Tulett was treated unfairly in his employment with yourtown.
In his response, Mr Tulett has indicated that he does not object to his statement of claim being struck out so long as he can either re-plead or proceed on the basis of affidavit material. He opposed the granting of any order for costs against him.
It is necessary for me to attempt to understand, as best I can, the allegations made by Mr Tulett in his July affidavit. In so doing, I am aware of my obligation to hear and determine a claim for relief which has been honestly made. At the same time, I must not lose sight of what Gleeson CJ characterised as the concept of practical injustice.[61] This cuts both ways, for the respondents, as well as for the applicant.
[61] In Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502.
Significantly, in completing this exercise, I am not obligated to sift through the matters asserted by Mr Tulett in an attempt to discern some cause of action on his behalf. It is not my responsibility to construct a pathway through or provide an atlas for what would otherwise be an incomprehensible document. These considerations are more significant in cases potentially involving the imposition of civil penalties in individuals who were discharging their employment obligations.
Complaint 1 – failure to consult and failure of duty of care. Mr Tulett asserts that he had a workplace right to be consulted before any changes were made to his position. In this regard he relies upon his contract of employment which stipulates as follows:
When you commence with BoysTown you will receive a position description detailing the general tasks and duties associated with your position. This is a description of the position as it is presently constituted, however BoysTown reserves the right to vary the position from time to time after consultation with you.[62]
[62] See Annexure 3 to affidavit of Jonathan Tulett filed 8 July 2022.
Mr Tulett asserts he complained to his line manager in Sydney when he was directed to cease providing an after-hours service for staff. He further asserts that he complained to his line manager at the requirement that he assist another employee in a training session rather than present the session alone as a lead trainer. Finally, as best I can understand, he asserts that he complained that he was no longer able to provide group clinical practice supervision.
I appreciate that a requirement to consult, in an enterprise agreement is not to be treated perfunctorily or as a mere formality.[63] However, apart from asserting that he should have been consulted, I am at a loss to understand what is the adverse action which he contends has been taken against. In my view a failure to consult in itself is not adverse action, some injury must be demonstrated.
[63] See Kutlu v Director of Professional Services Review [2011] FCAFC 94 at [71].
In addition, no indication is provided as to what is the specific adverse action that was taken by the respondent in respect of his complaints made by him in respect of these alleged changes to his position.
Complaint 2 – subjected to workplace bullying. Mr Tulett asserts that he had a workplace right to be provided with a safe system of work, which did not expose him to bullying. As previously indicated, this Court does not have specific authority to deal with claims of bullying. He further alleges breaches of South Australian legislation relating to occupational health and safety. As far as I can ascertain, he does not assert which aspect of section 341 provides him with a specific workplace right and again what is the adverse action complained of.
Complaint 3 – failure to prevent unlawful adverse action. As far as I can ascertain, Mr Tulett asserts he was subject to adverse action when he took part in a feedback process on 10 August 2017, which had provided staff with a public forum to express their personal views about him. He subsequently complained to Ms Davis about this in a lengthy email dated 19 November 2017, to which was attached a letter from his doctor in which the doctor concerned indicated the he was aware of Mr Tulett’s complaints of being bullied at work and Mr Tulett himself was described as having very strong ethical beliefs and to be suffering from a situational adjustment disorder.[64]
[64] See Annexure 11 & 13 to affidavit of Jonathan Tulett filed 8 July 2022.
The adverse action is said to be the facilitation of public criticism of him and Ms Davis’ decision to escalate his complaint to the Employment Relations Manager of yourtown. The relevant letter indicated that there would be an independent investigation until he provided a medical clearance. He was directed to take personal leave until this occurred. Although Mr Tulett does not specifically specify it as such, I take it that is the adverse action of which he complains.
Mr Tulett also complains that the decision to hold an inquiry into the issue of bullying raised by him was also an incident of adverse action because he had not made a formal complaint of having been bullied, yet his email was approached on this basis. He asserts that he never agreed to any formal employee grievance resolution procedure being invoked. Ms Benoit is said to hold accessorial liability for this decision, which caused him psychological distress in breach of the duty of care to provide him with a safe system of work.
He further complains, as best I can gather, that he was subject to unlawful discrimination by being excluded from his workplace because he had been diagnosed with a mental health condition. He also complains that he was coerced into having to consult with his doctor because of the report he had provided to yourtown and further coerced into providing an authority to his doctor to provide a medical report to his employer. He also complains about the construction of his subsequent return to work plan.
Whilst accepting that it is conceivable that such occurrence could, in some circumstances, represent an injury to Mr Tulett’s employment or a prejudicial alteration to it, in the sense envisaged by Marshall J in Byrne, Mr Tulett does not provide any material facts to support such a conclusion or indeed indicate that these matters were subject to complaint, in situ, at the workplace.
Complaint 4 – disability discrimination. With due respect to Mr Tulett, I found this complaint to be particularly convoluted. Mr Tulett’s doctor apparently recommended that Mr Tulett could return to work provided he did not engage directly with either Ms Davis or Ms Thomson. In March of 2018, he was invited to attend a meeting of the Southern Area Team, which Ms Davis would be in attendance. He declined to attend the meeting in an email to Ms Butterworth.
On 14 March 2018, Ms Butterworth wrote to Mr Tulett raising with him what were characterised as alleged performance concerns, which included that he had failed to report an incident regarding the smoking of an illicit substance at work event; the provision of inappropriate advice to a staff member outside of his responsibilities to provide supervision; a failure to respect professional boundaries; and the failure to attend the team meeting.
As I understand it, the invocation of performance concerns is alleged to have been adverse action. The second, third and fourth respondents are alleged to have accessorial liability for these events. As far as I can ascertain, apart from the assertion of this state of affairs, no material facts have been advanced to support the allegation of accessorial liability other than Ms Butterworth invited Mr Tulett to provide her with a response to the issues raised by her.
Complaint 5 – unlawfully subjected to performance management. This complaint, as best I can understand it, is related to complaint 4. It is asserted that yourtown, Ms Benoit and Ms Butterworth has a duty to comply with section 340 of the FWA. Mr Tulett asserts that he was subject to an unreasonable performance management because he complained about a workplace situation. Again Ms Benoit and Ms Butterworth are alleged to have accessorial liability for this breach.
Complaint 6 – being subject to unlawful adverse action. This is a rolled up allegation, which assert, as best I can tell, that yourtown, Ms Benoit and Ms Butterworth breached their duty to comply with section 340 of the FWA. This seems to relate to Mr Tulett’s response to a letter sent to him by Ms Butterworth on 23 March 2018 as a consequence of a medical certificate submitted on Mr Tulett’s behalf by his doctor.
The doctor concerned indicated that it would be inappropriate for Mr Tulett to attend any team meetings as this would result in an unsafe situation for him. In this context, Ms Butterworth formed the view that, as Mr Tulett was employed as the senior practice manager it was necessary for him to communicate with his line manager and the management team. This was asserted to be consistent with his job description.
Complaint 7 – being subject to false and misleading representations regarding his workplace right to worker’s compensation. Mr Tulett asserts that he was deprived of his workplace right to receive worker’s compensation because Ms Benoit provided false and misleading information to the relevant insurer. This information is provided in a lengthy chronology compiled by Ms Butterworth, which concludes with the following statement:
Mr Tulett was offered access to EAP (Employee Assistance Program), a confidential counselling service provided by an external provider, throughout the process.
yourtown does not dispute that Mr Tulett may have a medical condition, yourtown maintains that Mr Tulett’s condition is not attributable to work or to unreasonable management action taken in an unreasonable way, and that the injury therefore is not compensable.
yourtown recommends strongly that the claim be one for non-acceptance.
The information provided in this document is a chronology of events only that occurred before Mr Tulett submitted a claim for workers compensation. The information is provided without the benefit of knowing My Tulett’s stated factors in support of his claim.
The chronology of events is provided with the understanding that yourtown may provide additional information including documentary evidence, following (i) an interview with the appointed investigator, and (ii) on receipt of Mr Tulett’s stated factors to support his claim.
yourtown is committed to working with Mr Tulett to support his return to the workplace. This is evidence by the last discussion with Mr Tulett on 6 June 2018 whereby a return to work plan was proposed that accommodates the restrictions outlined by his medical practitioner.[65]
[65] See affidavit of Allisa Tsukimori filed 26 July 2022 at page 306.
For obvious reasons, it is likely to be the case that Mr Tulett on the one hand and members of yourtown’s human relations department on the other, are likely to disagree about many aspects of their involvement with one another in the latter stages of Mr Tulett’s employment. However, in my view, the provision of information to the relevant insurer does not easily fall within the parameters of adverse action, if at all.
CONCLUSIONS
I accept that I may well not have accurately summarised Mr Tulett’s various complaints arising from his perception that he has been egregiously treated by yourtown. Indeed, it may well be the case that I have missed some nuance or subtly in his complaints. However, in my view, this potential for misconstruction or misinterpretation of the various documents filed by Mr Tulett arises as a consequence of a combination of their prolixity and repetition, which leads to them being generally incomprehensible.
The only conclusion, which can be drawn from the documents, is that Mr Tulett feels greatly aggrieved at his perception that he has been unfairly treated by yourtown and various members of its management in the context of a workplace dispute, which ultimately led to an independent HR inquiry and Mr Tulett himself applying for worker’s compensation.
Apart from those bare bones, the rest of his case, in my perception, has arisen from my attempts to synthesis what it may be. This synthesis has occurred as a result of my reading the many documents which he has provided. Into this melange, Mr Tulett has inserted reference to the general protection provisions of the FWA, claiming to have been the subject of adverse action.
In undertaking this exercise, I do not consider that the affidavits filed by Mr Tulett provide even the most rudimentary aids to the interpretation of what is the nature of his case in the context of the FWA. However, as was pointed out in Sabapathy a pleading should not require an atlas to expose it.
As was point out in Khiani a general protection application cannot be utilised as a vehicle for a person to ventilate general grievances held by him or her regarding their perceptions as to the probity of their treatment in the workforce. Given the structure of the applicable provisions, particularly the reverse onus provisions, such matters need to be carefully and specifically pleaded so that those who are the subject of the allegations made against them may fairly respond to them.
In my view, the convoluted and legally unintelligible nature of Mr Tulett’s case, as presently framed, does fall within the purview of Part 16 of the Federal Court Rules, which can be applied as a consequence of rule 1.06(2) of the Division 2 Rules. As is axiomatic from these lengthy reasons for judgment, and the fact that many documents have been filed, and the case adjourned on multiple occasions, the manner in which Mr Tulett has proceeded with his case has caused delay.
Given the length of the documents filed by Mr Tulett it is apparent to me that his complaints have not been pleaded in anything approaching a simple and succinct matter and, in my assessment, there is a dearth of material facts to support the elements of his case. Rather, the various documents filed by him are filled with general assertions of law.
As such, his case is confusing and the documents are which it is founded replete with alternative complaints, which are confusingly intermixed. In these circumstances, it is to be characterised as being unintelligible in a legal sense. The documents are not sufficient to found a general protection application.
More significantly, I am also satisfied that it has caused prejudice to yourtown and the three individuals named as further respondents to it. Mr Tulett alleges that each of them bears accessorial liability for what I regard as the inchoate complaints he has made against yourtown for breaching provisions of the FWA. As a consequence, he seeks the imposition of pecuniary penalties against each of them.
The authorities are clear that, in such cases, there is a greater need for rigour to ensure that allegations are clearly enunciated so that the respondent to them can respond as effectively and efficiently as possible. This is because in general protection proceedings, invariably it will be the case that respondents, such as Ms Benoit, Ms Butterworth and Ms Jessie, are required to provide the substantive and operative reasons why they took the various actions for which they are liable to be criticised and potentially penalised. For this reason, they are entitled to know specifically what they have done so that they can respond.
As the case presently stands, I am satisfied that it would not be procedurally fair to them and indeed yourtown to allow Mr Tulett’s case to stand as it is presently drafted. Naively, I had hoped that the filing of an affidavit might distil the complaints made by Mr Tulett into a form, which was more readily comprehensible. This exercise was not successful. Rather Mr Tulett’s approach to the exercise has resulted in an unsatisfactory amalgam, which is neither pleading nor affidavit.
As I have already indicated, it is not the responsibility of the Court or any of the respondents to attempt to intuit what is the nature of Mr Tulett’s case. I appreciate that he is self-represented and although clearly a well-qualified and intelligent person, he is not legally trained. I also appreciate that the general protection provisions are not without their intellectual challenges, even for the legally trained, due to the complexity of the relevant legislative provisions.
However, in my view, such considerations do not authorise the Court to allow the continued presentation of cases which do not disclose a reasonable cause of action, in the sense that the allegations made are readily or reasonably intelligible by those potentially affected by them.
For these reasons, I have reached the conclusion that Mr Tulett’s statement of claim must be struck-out pursuant to the provisions of rule 16.02. A more difficult consideration arises in respect of what should occur as a consequence of this determination. It is the position of the respondents that Mr Tulett’s case should be summarily dismissed and costs awarded against him.
Mr Tulett elected to commence these proceedings with a statement of claim. It is his case that he did so because such an approach was mandated by his interpretation of the applicable rules of the Court. It is the position of the respondents that the complexity of the issues in this case require the utilisation of pleadings.
As indicated above, in my assessment, my attempt to invoke the use of affidavits has thus far failed to lead to any greater degree of clarity in respect of the discernible legal elements of what is the actual nature of Mr Tulett’s case. Certainly, I do not think the affidavits provided by Mr Tulett are sufficient to enable the respondents to be able to fairly respond to the case brought against them.
Since October of 2021, there have been several appearances before the Court, which have resulted in Mr Tulett filing further lengthy documents, which in my view, have not added any great degree of illumination as to what is the legal basis of his case. He has also been given the opportunity to seek legal advice. In all these circumstances, it is the submission of Mr McLean that the prospect of Mr Tulett being able to satisfactorily formulate his case is negligible and this, of itself, provides grounds for the summary dismissal of his application.
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.
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.
This is the nub of Mr McLean’s submission and, in this context, he relies on the following comments of Anderson J in Fair Work Ombudsman v I.E. Enterprise Pty Ltd:[66]
Default judgment may be entered where a party’s participation in the proceedings is such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial in an acceptable period, or where non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the other party.
[66] Fair Work Ombudsman v I.E. Enterprise Pty Ltd [2020] FCA 848 at [20].
As was noted by the Full Court in Lenijamar it is impossible to exhaustively delineate all the circumstances which may justify the striking out of an application. However, issues of delay, expense and prejudice to the other party concerned remain preeminent considerations for the Court.
In Mr McLean’s submissions, Mr Tulett has demonstrated that he is incapable of pleading his case in a manner, which conforms to the applicable rules of Court and which will fairly enable each respondent to mount a defence to it. This has resulted in the respondents incurring expense.
In addition, Mr Tulett has been given several opportunities to recapitulate his case and been advised to seek legal advice to assist him with this task. The evidence indicates that Mr Tulett has indeed sought legal assistance but for reasons which have not been disclosed has elected to proceed without representation.
In all the circumstances, it is Mr McLean’s submission that Mr Tulett has demonstrated an incapacity and/or an unwillingness to prosecute his application to the standard and in the form warranted by the nature of his application – a civil penalties application and one seeking damages. Given these factors and the length of time the proceedings have been on foot, it is his case that the dismissal of the application is warranted.
As Pincus J pointed out in Lenijamar the merits of the case concerned may be a relevant consideration in respect of whether the discretion to summarily dismiss a case should be utilised. However, for obvious reasons, the Court should be slow to dismiss a case prematurely, if there at there at least some potential indicia of issues of substance arising in it, in circumstances in which it appears those matter are hidden as a consequence of the ineptitude of the party concerned.
At the same time, it is not the role of the Court to sift through prolix and/or impenetrable documents in the hope of discovering some kernel of a substantive case. A balance must be struck between these two poles. The Court’s responsibility being to be fair to each of the parties concerned, whilst maintaining the confidence of the public in the administration of justice. In my view, it is not congruent with the maintenance of such a degree of confidence that inchoate claims are kept on foot.
As matters stand, this seems to me to be a case which falls within the category of cases characterised in Ermel v Duluxgroup (Aust) Pty Ltd (No 2)[67] as one which seeks, from Mr Tulett’s perspective, a broad inquiry into whether he has been treated fairly by yourtown in the context of a controversial workplace dispute and resulting worker’s compensation proceedings.
[67] Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17.
In my view, the major problem with Mr Tulett’s claim is that, given he has not been subject to the form of adverse action represented by termination of employment, it falls to him to demonstrate one of the other applicable limbs contained in the second column of section 342(1) namely some form of injury in or alteration and discrimination of his employment with yourtown.
In this context, I do not consider that he has provided material facts in support of his blunt assertion that he has been subject to any such a form of adverse action and more significantly evidence to support a finding that any of Ms Benoit, Ms Butterworth or Ms Jessie were abusing the power conferred upon them by yourtown to make his working life intolerable in the sense envisaged by Marshall J in Byrne.
This Court is not authorised by the FWA to conduct any such general inquiry nor, in my view, would it be fair to the respondents concerned or indeed in the interests of the administration of justice, for the Court to entertain the application, in the hope, quite possibly a vain one, that some cause of action may ultimately coalesce out of Mr Tulett currently defuse allegations that he has been sorely treated. For all these reasons, I have reached the conclusion that the application should be dismissed.
The next issue for determination is whether an order for costs should follow the summary dismissal of Mr Tulett’s application. This matter engages the considerations contained in section 570 of the FWA. Section 570(1) confers upon the Court a discretion to order the payments of a party’s costs, in respect of proceedings under the Act, but only if satisfied of the matters contained in section 570(2), which reads as follows:
(2) The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c)the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.
The discretion conferred by section 570(2) is one which is to be exercised cautiously.[68]This caution is warrant when the legislative purpose behind section 570(1) is considered within the context of the principles and objects of the FWA, as a whole. Mortimer J in Ryan v Primesafe[69] characterised the provision as an access to justice provision. Essentially, the fear of being subject to a costs order should not be used to deter an applicant, in the industrial context, from being able to ventilate a genuine grievance in Court.
[68] See Saxena v PPF Asset Management Ltd [2011] FCA 395 at [5] per Bromberg J.
[69] Ryan v Primesafe [2015] FCA 8 at [64].
Clearly, this principle must be balanced against other general provisions within the FCFCOA Act and the rules made under it, particularly the overarching principle, regarding the desirability of the Court managing the cases coming before it to reduce expense and delay, including to other court users. In Ryan Mortimer J indicated that such a reconciliation occurred
… through a focus on the reasonableness of parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put.[70]
[70] See Ryan v Primesafe [2015] FCA 8 at [66].
Flick J commented on this balance, which he characterised as being subject to an ever growing level of tension, in the following terms:
The need for caution and the objective sought to be achieved by provisions such as section 570 may readily be accepted. But there is also a need to keep constantly under scrutiny the manner in which proceedings are conducted, including proceedings under the Fair Work Act, to ensure that costs are not “unreasonably” incurred and that the public interest in the orderly and cost-effective administration of justice is not too readily placed to one side.[71]
[71] See Tomvald v Toll Transport [2017] FCA 1208 at [315].
In the context of the current matter, it is clear that the respondents rely on section 570(2)(b) as providing justification for the Court to depart from the general rule that proceedings under the FWA do not attract costs orders. They assert that they have incurred costs as a consequence of what they would characterise as Mr Tulett’s unreasonable actions in the case to date.
The particulars of this characterisation are as follows:
·The length and deficiencies in the original statement of claim;
·Mr Tulett refusing to re-plead his case after these deficiencies were pointed out to him at length;
·The filing of further prolix and unsatisfactory affidavits;
·The applicant missing deadlines, asking for extensions to seek legal advice and then not being represented;
·The lack of any concessions made by Mr Tulett leading to the respondents having to bring the current proceedings.
In Australian Workers Union v Leighton Contractors Pty Ltd & Ors (No2)[72] the Full Court said as follows:
… In our view the authorities establish the following principles:
1.The purpose or policy of the sections to free parties from the risk of having to pay their opponent’s costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable course.
2.It follows from the protection offered by section 570(2) that a person will rarely be ordered to pay the costs of a proceedings but it is not necessary to prove that there are exceptional circumstances warranting the making of an order …
3.The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed …
We would emphasise however, that these principles relate to the question of whether the jurisdiction to award costs is enlivened. Even if the court has jurisdiction to make a costs order, it retains the discretion to refrain from exercising it in an appropriate case.
[72] See Australian Workers Union v Leighton Contractors Pty Ltd & Ors(No2) [2013] FCAFC 23 at [7]-[8].
In the case, the Full Court approved the following passage of Wilcox J in Kanan v Australian Postal & Telecommunications Union:[73]
If success depends on the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceedings, as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceedings must fail, it may properly be said that the proceedings lack a reasonable course.
[73] See Kanan v Australian Postal & Telecommunications Union [1992] FCA 539.
I do not consider that the circumstances indicate that Mr Tulett commenced these proceedings with an intention to be vexatious or difficult. I do not doubt the sincerity of his perception that he has been egregiously treated by yourtown. Accordingly, I do not consider that it can be said that he commenced the proceedings without reasonable cause.
However, it is also the case that yourtown has been put to expense as a consequence of what I have found to be an inchoate allegation involving that the general protection provisions of the FWA have been breached. Over a significant period of time, efforts have been made to assist Mr Tulett to re-consider the manner in which he had hitherto elected to put his case. These efforts have not borne fruit.
I must be careful not to overlook the beneficial nature of the relevant legislation and the need for the Court not to deter bona fide applicants from seeking redress pursuant to its provisions. As a consequence, costs do not routinely follow an unsuccessful application but are rarely ordered.
What is noteworthy about the current proceedings is that it is the applicant who has provided the greater proportion of the significant documents filed to date. The respondents have not been troubled with having to prepare and file any formal pleadings. The material provided by them has arisen solely in the context of their various interlocutory applications seeking either amendment or dismissal.
In addition, although the proceedings have been on foot for a significant period of time, the case cannot be regarded as having been significantly advanced from the respondents’ point of view. In all these circumstances, I have come to the conclusion that an order as to costs should not be made.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and fourteen (214) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 24 February 2023
SCHEDULE OF PARTIES
ADG 298 of 2021 Respondents
Fourth Respondent:
TRACEY JESSIE
[19] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32].
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