FEDERAL COURT OF AUSTRALIA

Joyce v St George Bank Ltd

[2005] FCA 916

PETER JOYCE v ST GEORGE BANK LTD

NSD 1017 OF 2005

STONE J

5 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.      Leave to appeal from the order of the Federal Magistrate made on 1 June 2005 be granted.

2.      The costs of this application be costs in the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from the decision of a Federal Magistrate made on 1 June 2005.  His Honour dismissed an application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’) on the basis that no reasonable cause of action was disclosed; Joyce v St George Bank Ltd [2005] FMCA 868.

Background

2                     The applicant was employed by the respondent (‘the Bank’) for five years until his employment with the Bank was terminated on 27 October 2003.  The applicant complained to the Human Rights and Equal Opportunity Commission (‘Commission’) alleging disability discrimination under the terms of the Disability Discrimination Act 1992 (Cth) (‘DDA’).  The complaint was accepted by the Commission under ss 5, 6, 15 and 122 of the DDA. 

3                     The Federal Magistrate summarised the applicant’s complaint to the Commission at [6] of his reasons as follows:

‘Mr Joyce says that he was … suspended and subsequently dismissed from his employment on 27 October 2003.  The Commission treated the complaint made by Mr Joyce as one of disability discrimination as after Mr Joyce had allegedly taken sick leave on two occasions he was required to attend disciplinary interviews and subsequently the bank dismissed him on a basis that Mr Joyce asserts was linked to his taking sick leave.  At this point, I should note that in his complaint form made to the Commission Mr Joyce had ticked a box stating that he had been discriminated against by reason of his age and religious belief but he had also ticked a box and added handwritten material to the form which makes clear that he was concerned about what he saw as discrimination linked to his taking sick leave.  In the circumstances, it seems that the Commission properly treated the complaint as one of asserted disability discrimination.’

4                     In a letter to the applicant dated 30 April 2004, a delegate of the President of the Commission stated that she was not satisfied that the applicant had been able to demonstrate that he had ‘received less favourable treatment on the basis of taking sick leave’ and that consequently she had terminated the applicant’s complaint pursuant to s 46PH(1)(c) of the HREOC Act on the basis that the complaint was lacking in substance.

 proceedings in the federal magistrates court

5                     On 10 May 2004, the applicant filed an application in the Federal Magistrates Court under s 46PO of the HREOC Act essentially making the same complaint and seeking compensation and, by way of interim remedy, to be re-instated to his former employment.

6                     On 7 December 2004, the Bank filed a response to this application objecting to the jurisdiction of the Federal Magistrates Court on the basis that the applicant did not suffer from a disability within the terms of the DDA.  In the alternative, the Bank contended that even if the applicant did suffer from a disability this was not the reason for his dismissal from the Bank. 

7                     The matter came on for hearing before the Federal Magistrate on 1 June 2005.  His Honour referred to the evidence before him at [3]-[4] as follows:

‘Mr Joyce relies upon an amended application filed on 6 October 2004 and three affidavits by himself….  He was cross-examined on his affidavits.  I also received as evidence documents put to [the applicant] in the course of cross-examination. …

The other documents which I have before me are a copy of the employment contract between the parties … and the information sheet accompanying Mr Joyce’s application to the Court, to which was attached the notice of termination by the delegate of the President of the Commission dated 30 April 2004 and two attachments.  The first attachment is a letter to Mr Joyce by the delegate dated 30 April 2004 summarising his complaint and the response to it and explaining the reasons for the termination of the complaint.  Attachment B is a copy of the complaint form completed by Mr Joyce.’

8                     At the close of the applicant’s evidence, counsel for the Bank, Ms Eastman, sought an order that the application be summarily dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules on the basis that no reasonable cause of action was disclosed in the proceeding.  Rule 13.10(a) provides:

‘The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:

(a)    no reasonable cause of action is disclosed in relation to the proceeding or claim for relief;’

9                     The Federal Magistrate referred in his discussion with Ms Eastman as to whether his Honour ‘should treat the application as a no case submission and put the respondent to an election whether to make that submission and not call any evidence or to not make that submission’.  Ms Eastman submitted that the question of such an election is a matter for the discretion of the trial judge and referred the decision of French J in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458.  In this respect I also note the decision to the same effect of the Full Federal Court in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216. 

10                  Ultimately his Honour accepted Ms Eastman’s submission that he ‘should give her the opportunity to make further submissions on that issue depending on the outcome of the application based upon rule 13.10(a)’.  His Honour continued at [14]:

‘…I accepted that, while the making of an application for summary dismissal at a final hearing is most unusual, rule 13.10 leaves open that possibility and I should deal with the application.  I agreed that if the summary dismissal application failed for the reason that Mr Joyce’s application could succeed if supported by evidence adduced by cross-examination of the respondent’s deponents, then the interests of the administration of justice might require that I permit evidence by the respondents to be led.  That is the only reason why I would be minded to permit the respondent to lead evidence in this case if the application for summary dismissal were unsuccessful.  For reasons which follow, the issue does not need to be considered further, because the application for summary dismissal is successful.’

11                 His Honour then considered the applicant’s evidence and stated that he was prepared to accept that Mr Joyce suffers from bronchitis and upper respiratory tract infection and that these are disabilities are under the DDA.  His Honour also accepted that in 2003 Mr Joyce took four days sick leave attributable to those disabilities.  However, his Honour continued at [17]-[19] stating:

‘…Unfortunately for Mr Joyce, his case founders on his inability to establish any link between his suspension and subsequent dismissal from employment and either his taking sick leave or his disabilities.  It was plain in what Mr Joyce said under cross-examination that while he believes that his taking sick leave was the reason he was suspended and subsequently dismissed (or at least a reason), this is only his subjective belief.

The documentary evidence clearly points to concerns on the part of the employer about Mr Joyce’s behaviour.  Those concerns were raised with him, in part, at a performance appraisal interview.  They were raised with him again in a telephone conversation with the manager immediately preceding his suspension.  There was a further discussion prior to Mr Joyce’s dismissal.  Mr Joyce considers that he was treated unfairly.  He denies the allegations about his behaviour that were made to him.  He disputes the details of what occurred at the various interviews and conversations between him and his managers.  He, however, does not dispute that the allegations were made against him and he does not dispute the facts appearing on the face of the documents that were put to him.

There is nothing in the documentary evidence to suggest, let alone establish, that Mr Joyce’s taking of sick leave was in any way connected to his suspension from duty and his subsequent termination from employment. …’

12                  At [21]-22] his Honour concluded:

‘There is no possibility of Mr Joyce establishing that he was suspended or dismissed from his employment because he took sick leave by reason of his bronchitis or upper respiratory tract infection.  Because there is no possibility of Mr Joyce establishing either of those things his application is doomed.  It must necessarily fail.

I am persuaded in these circumstances that I should dismiss his application as disclosing no reasonable cause of action and I do so.’

This application

13                  On 21 June 2005, the applicant filed an application for leave to appeal from the judgment of the Federal Magistrate.  While the application for leave to appeal also seeks an order that compliance with O 52 r 5(2) of the Federal Court Rules be dispensed with, this is unnecessary as the application for leave to appeal was filed within the period required. 

14                  I am satisfied that the order made by the Federal Magistrate is an interlocutory decision; Hunt v Allied Bakeries Ltd [1956] 3 All ER 513 at 514 per Lord Evershed MR and Re Luck (2004) 203 ALR 1.  While the terms of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) confer an unfettered discretion in respect of the granting of leave to appeal, in the ‘general run of cases’, leave will be granted when, in all the circumstances, the decision is attended by sufficient doubt to warrant reconsideration and, assuming the decision to be wrong substantial injustice would result if leave were refused: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9 (‘Décor’) and the general principles set out in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 per Black CJ and Stone J at [2]-[4].

15                  It is also well accepted that the power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases;  see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J;  General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 per Barwick CJ.  In Rana v University of South Australia [2004] FCA 559 Lander J at [73] commented,

‘The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action.  That is for the reasons already mentioned.  There are no pleadings.  There is, therefore no concise document from which one can easily discern the existence or otherwise of a cause of action.’

16                  Lander J was considering the more usual case where the application for summary dismissal was being made before the applicant had filed all his evidence.  In this context his Honour said at [73]-[74]:

‘It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant’s evidence in order to determine whether the applicant could disclose a reasonable cause of action.  If that were the obligation, the hearing of the application would almost become the trial.

The Court, on hearing an application under FMC Rules 4.04(1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action.  Again, that would amount to a trial of the action.  What the applicant must disclose is a reasonable cause of action – not that on the evidence presently available the applicant will succeed on that cause of action.’

17                  Lander J stressed the impact of the absence of pleadings in the Federal Magistrates Court and said that an application should be summarily dismissed only ‘when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action’.  Although the present circumstances are different in that the applicant had put on all his evidence, nevertheless the question put to the Federal Magistrate was, in essence, the same. 

18                  While Mr Joyce’s supporting affidavit is not entirely coherent it seems to me to be sufficiently clear that his complaint was that he was suspended and subsequently dismissed from his position at St George Bank because of his taking sick leave attributable to his disabilities.  The Federal Magistrate’s comments about the documentary evidence quoted in [11] above, were, in part, a reference to documents that were exhibited to an affidavit filed but not read by the respondent.  Those documents might, in his Honour’s words, ‘point to concerns’ that the Bank had about the applicant’s behaviour but, in my view it is at least arguable that his Honour was in error in denying Mr Joyce the opportunity to hear the respondent’s evidence and cross-examine witnesses for the respondent.  I am certainly of the view that there is sufficient doubt attending his Honour’s decision to dismiss the application summarily to warrant the issue being considered on appeal.

19                  For these reasons I will grant the applicant leave to appeal and order that the costs of this application be costs in the appeal.

Associate:

Dated:              5 July 2005