FEDERAL COURT OF AUSTRALIA

Hossain v Restuccia [2018] FCA 1383

ORDERS

THE COURT ORDERS THAT:

1.    Summary judgment be entered for each of the respondents under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

2.    The applicant pay each of the respondents’ costs of and incidental to this proceeding.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The respondents seek the early termination of this proceeding. The applicant, Mr Seikh Hossain, commenced the substantive proceeding on 24 January 2018 by way of an originating application and statement of claim. Broadly speaking, it is an employment-related claim. Mr Hossain makes various allegations of breaches of the Fair Work Act 2009 (Cth) (FW Act) and seeks relief including damages and payment of penalties. He also makes allegations of tax fraud, but without any particulars to render those allegations meaningful or intelligible.

2    The respondents seek orders dismissing this proceeding on an interlocutory basis. In particular, they seek:

(1)    summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth);

(2)    striking out of the originating application and statement of claim under r 16.21 of the Federal Court Rules; and

(3)    default judgment under r 5.23 of the Federal Court Rules, the applicant having failed to comply with the timetabling orders made by the Court.

3    For the reasons that follow, each of the respondents should have summary judgment entered against the applicant, with costs. While a sufficient case was also advanced for the originating application and statement of claim to be struck out in their entirety, and an ample case for default judgment was also made out by reason of Mr Hossain’s non-compliance with orders of the Court, summary judgment is the more appropriate remedy in all of the circumstances. This is because I am satisfied that Mr Hossain has no reasonable prospect of successfully prosecuting any part of the proceeding against any of the respondents, thus meeting the test in both s 31A(2) of the Federal Court of Australia Act and r 26.01(1)(a) of the Federal Court Rules 2011.

Facts and circumstances

4    The following facts are derived from affidavits filed by the respondents, from the pleadings and from events that have taken place in this Court or in the course of the proceeding. Ordinarily, a decision on summary judgment would at least need to be made on the pleadings alone, with evidence providing no more than context or background. However, Mr Hossain provided no useful information beyond his pleadings, and those pleadings were far from illuminating. Some history and background was necessary to be able to understand, so far as is possible, the case that Mr Hossain brings in this Court.

5    In 2016 and 2017, Mr Hossain worked on a temporary or casual basis for two different pizza restaurants in Sydney.

6    The first of those restaurants is called Lipari Pizza Bar Hunters Hill and is located in the Sydney suburb of Hunters Hill. It is owned by a partnership comprising Ms Elena Restuccia, who is the first respondent, and Ms Michelle Totaro. It will be convenient to refer to this restaurant as Lipari Hunters Hill.

7    The other pizza restaurant is called Lipari Pizza and is located in the Sydney suburb of Rozelle. It is owned by the fourth respondent, Tryclown Pty Ltd. All the shares in Tryclown are owned, in equal proportions, by a husband and wife, Mr Frank Restuccia and Ms Elizabeth Restuccia. It will be convenient to refer to Tryclown’s restaurant as Lipari Rozelle.

8    Whatever other personal or familial connections might exist, there is no commonality of ownership or legal identity between the legal entity that owns and runs Lipari Rozelle, being Tryclown, and the legal entity that owns and runs Lipari Hunters Hill, being the partnership.

9    Allianz Australia Workers Compensation (NSW) Limited, the second respondent, is the workers compensation insurer for the partnership in respect of Lipari Rozelle.

10    Mr Song Bai, the third respondent, is the business accountant for the partnership and for Tryclown, and is thus the accountant for both pizza restaurants. His only involvement with any of the employees of the partnership or of Tryclown is to prepare annual payment summaries for income tax purposes.

11    Mr Hossain worked for Tryclown at Lipari Rozelle as a cook on a casual basis from August 2016 to June 2017. He has not worked there since June 2017.

12    Mr Hossain worked for the partnership at Lipari Hunters Hill in the second half of 2017. He initially worked as a casual assistant cook for about three months from 16 June 2017 until sometime in September 2017, filling in for another employee who was overseas. He then worked in various casual roles for about 18 hours per week, between September 2017 and 17 December 2017. He has not worked at Lipari Rozelle since. However, he has received workers compensation benefits, between 4 January 2018 and 21 March 2018.

13    On 29 July 2017, Mr Hossain suffered a minor workplace injury when he incurred a one-centimetre cut to the middle finger of his left hand. Ms Elena Restuccia administered first aid and sought advice from a medical centre. She was told that it did not sound like stitches were needed, and that Mr Hossain could see a doctor the next day. Mr Hossain told Ms Elena Restuccia that he did not wish to see a doctor. He continued to work as normal.

14    Almost four months later, on 21 November 2017, Mr Hossain sent a text message to Ms Restuccia advising that he would not be able to work. The message was in the following terms:

Sorry I was at the court.

But there is a major problem. That injured finger of mine got swollen and my whole hand and arm is in pain (nerve pain). I won’t be able to work tomorrow let alone tonight.

The whole day today gone behind the court, half day tomorrow will go too. Then I must go see my doctor as I’m losing functionality of my left hand.

I’m even having hard time to hold my phone.

I’m truly sorry for the inconvenience.

15    Ms Elena Restuccia was surprised to receive the above text message, given the apparently minor nature of the injury that had been suffered and the length of time that had elapsed. Be that as it may, even minor cuts can become infected or otherwise result in complications.

16    Late in November 2017, Mr Hossain asked Ms Elena Restuccia about workers compensation as a result of this having been raised with him by a doctor. She helped him to fill out the necessary forms that the doctor had given him to complete. On 27 November 2017, she received a Certificate of Capacity, which indicated that he was fit to work for eight hours a day, four days a week, but was not to use his left hand. On 5 December 2017, a workers compensation claim was lodged with Allianz. Thereafter, Ms Elena Restuccia received further Certificates of Capacity, including one dated 14 December 2017. The last such certificate she received was dated 25 January 2018, for the period from that date until 20 February 2018. At no time was Mr Hossain required to perform any duties inconsistent with the certificates.

17    On 20 December 2017, Ms Elena Restuccia received a letter from Mr Hossain setting out various grievances. These included:

(1)    accusations that she had breached various legal obligations arising from his workplace accident;

(2)    complaints about the extent of his physical injury;

(3)    reference to very substantial financial damage arising from the need to have an operation in January;

(4)    accusations that her workplace demands constituted slavery;

(5)    accusations that she had not paid him sick leave or holiday pay (I note that there is no suggestion that he was other than a casual employee who is not entitled to those benefits); and

(6)    accusations of bullying and that she had forced him to do work while injured.

18    In Mr Hossain’s 20 December 2017 letter, he also referred to being behind in his rent and facing possible homelessness. He described psychological damage, professing to feel terror when using knives, and having been in tears many times at her restaurant. He said that his letter was not a resignation letter; and that he only wanted justice.

19    On 25 December 2017, Mr Hossain sent Ms Elena Restuccia an email wishing her a Merry Christmas and reminding her of her legal and moral obligations to him and making reference to his workers compensation payments. She responded in writing in relation to the claims he had made. She indicated that she would make an ex gratia payment of two weeks’ pay. She says in her evidence that she did this because she felt sorry for him.

20    On 31 January 2018, Allianz advised that it would commence payment of weekly benefits and medical expenses on a provisional basis for the period starting 4 January 2018. Payments were received by the partnership on 2 and 9 February 2018 and Ms Elena Restuccia arranged for those amounts to be paid into Mr Hossain’s bank account, sending text messages to confirm that this had occurred.

21    On 28 February 2018, Ms Elena Restuccia was advised by Allianz not to process a payment to Mr Hossain after 20 February 2018, as he did not have any further coverage by way of a Certificate of Capacity.

22    In relation to Mr Bai, Ms Elena Restuccia said that he was a tax accountant and registered taxation agent who provides tax services to her partnership, but is not an employee. She said that he had no involvement in the management of Mr Hossain’s workers compensation claim and had, to her knowledge, no direct dealings with him.

The originating application and statement of claim

23    The originating application and statement of claim, which are both dated 16 January 2018, were filed on 24 January 2018. The originating application claims the following relief (verbatim):

1.    No limit shall apply on Applicant’s treatment;

2.    Each Respondent shall pay the maximum penalty for every provision they have breached;

3.    Each Respondent pay the Applicant adequate damages;

4.    Costs;

5.    Any further or other orders that the Court considers necessary or appropriate.

24    The statement of claim pleads as follows (verbatim, including as to grammar, punctuation and spelling):

Grounds

1.    The First and Forth Respondents (the Employers), with the help of the Third Respondent (the Accountant), have committed tax fraud and have breached s 44(1) of the FAIR WORK ACT 2009 (Cth) (the ACT) by contravening provisions of the Employment Standards;

Particulars

a)    On 29 July 2017 while working as a chef at the restaurant “Lipari Pizza Bar”, owned by the First Respondent, the Applicant had cut his left middle finger. The injury damaged the tendons, bones, ligaments and nerves of that finger, which rendered permanent disability to the his nervous system for about 80% of the body. The First and Forth Respondents did not fulfil their legal obligations as well as denied duty of care as employers to the Applicant;

b)    The First and Forth Respondents have breached s 88(2) of the Act by denying paid annual leave;

c)    The First and Forth Respondents have breached s 99 of the Act by denying paid person (sick/ workplace injury) leave;

2.    The respondents have conspired against the Applicant, committed insurance fraud and took multiple adverse actions; hence breached ss 340(1), 351(1) of the Act;

Particulars

a)    The respondents have been withholding the Applicant’s legal rights and aggravated the injury;

b)    The First Respondent has breached ss 340(1)(a)(i), (b), 351(1), in multiple counts, as she tried to compel the Applicant to resign voluntarily so that she does not have to deal with the workplace rights he has regarding disability, job security, medical and financial aid to the First and Second Respondents;

c)    All of the Respondents have breached ss 340(1)(a)(i)-(iii), (b), 351(1), individually and/or collectively in multiple counts, as they collectively compelled and tried to continue compelling the Applicant to work involuntarily with injury while he did not have the capacity to work (and the Applicant) proposed to exercise some of his workplace rights regarding disability, medical and financial aid;

3.    The respondents have organised and took multiple actions against the Applicant to coerce him to be amenable to their (unlawful) interests; hence breached s 343(1) of the Act;

a)    All of the Respondents have breached s 343(1)(a) individually and/or collectively in multiple counts, as they have made sure that the Applicant falls into financial hardship (by never starting and postponing the weekly pay indefinitely) to coerce him not to exercise his workplace rights, specifically sick/injury leave and legal proceedings (s 341(1)(b));

b)    All of the Respondents have breached s 343(1)(b) individually and/or collectively in multiple counts, as they have compelled and tried to continue compelling the Applicant to work involuntarily with injury (even when he did not have the capacity to work) to coerce him to give up his workplace rights.

Opportunities given to Mr Hossain to amend his pleadings

25    On 8 March 2018, the solicitors for the first and fourth respondents sent a letter to Mr Hossain, the relevant text of which was as follows:

With respect to your statement of claim, the first and fourth respondents do not understand the claims made against them as presently pleaded. As you are aware, your employment was on a casual basis. Accordingly, you have no entitlement to paid annual leave or paid sick leave. You have made a number of serious allegations (eg tax fraud and insurance fraud) without pleading a proper basis. It seems to us that your claim has no reasonable prospect of success and is liable to be summarily dismissed or struck out. Accordingly, we invite you to provide an amended statement of claim or withdraw the proceedings by 5 pm, Thursday 8 March 2018.

In the absence of a revised and clear statement of claim that sets out allegations that have a reasonable prospect of success, we will make application to the Court to dismiss or strike out the proceedings.

We also direct your attention to s 570(2) of the Fair Work Act 2009 (Cth) which provides that the Court may order a party to pay the costs incurred by another party to the proceedings in certain circumstances, including where the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause. We give you notice that we will rely on that provision in the event that we successfully make an application to dismiss or strike out your proceedings.

26    On 9 March 2018, the matter came before the Court for case management. In light of various legitimate issues having been raised about the pleadings, I made orders that Mr Hossain file and serve, on or before 6 April 2018, an amended statement of claim with further and better particulars of the claim, including how it was alleged that Allianz or Mr Bai were involved in the claimed contraventions. No amended pleading was filed by 6 April 2018. That order has been ignored and no explanation has been provided. Given the manifest inadequacy of the pleadings in relation to Allianz and Mr Bai, that failure to comply is, without more, sufficient grounds for entering default judgment in favour of them. In any event, there is nothing before the Court to indicate any basis for alleging, let alone the faintest prospect of establishing, that Allianz or Mr Bai had anything to do with any of the matters complained of by Mr Hossain.

27    The matter returned before the Court on 27 April 2018. Because Mr Hossain had not filed any amended statement of claim, the respondents sought a hearing date for interlocutory applications. I made orders for the filing of any further interlocutory applications by any party, including Mr Hossain, with any evidence and submissions to be filed in support, and for all such applications to be heard on 22 June 2018.

28    It may be noted that, apart from an affidavit in which he sought to explain why the Court should refer to him by a royal title, and certain written submissions handed up in court on 27 April 2018 that referred to his supposed injuries without any supporting evidence, Mr Hossain did not furnish any application, evidence or submissions by the time of the hearing list on 22 June 2018.

The interlocutory applications

29    All of the respondents now have interlocutory applications before the Court, which include:

(1)    an interlocutory application dated 4 May 2018 by Ms Restuccia and Tryclown seeking:

(a)    summary dismissal of the originating application and statement of claim as against them and Mr Bai;

(b)    striking out of the originating application and statement of claim; and

(c)    costs;

(2)    an interlocutory application by Allianz dated 20 April 2018 seeking:

(a)    summary dismissal of the originating application and statement of claim as against it;

(b)    striking out of the originating application and statement of claim; and

(c)    costs;

(3)    an affidavit sworn by Mr Bai on 6 March 2018 in which he denies there being any basis for him to be a party to this proceeding, this affidavit having been treated as constituting an interlocutory application to the same effect as those listed above.

30    Further to the above, Ms Restuccia, Tryclown and Allianz have also filed interlocutory applications seeking default judgment on the basis that Mr Hossain did not comply with the orders made on 6 April 2018 and 27 April 2018.

The interlocutory hearing

31    On 22 February 2018, the day appointed for the hearing of the interlocutory applications filed by Ms Restuccia and Tryclown, and by Allianz, Mr Hossain rang the Court’s reception to indicate that he was ill and to seek an adjournment. I did not accede to that request, but considered that Mr Hossain should be given a final opportunity to make any submissions on the respondents’ interlocutory applications. The events of that day, and the process that was adopted, were summarised in a detailed email sent to Mr Hossain a short time after the hearing:

Dear Mr Hossain

Federal Court Matter – Hossain v Restuccia & Ors – NSD72/2018

As you are aware, the first, second and fourth respondents to this proceeding brought by you, filed interlocutory applications for summary judgment, or strike out of proceedings.  Those interlocutory applications were, on 27 April 2018, and in your presence, listed for hearing today, 22 June 2018.  You were ordered to file and serve any submissions and evidence in response to those interlocutory applications by 8 June 2018, giving you additional time that you sought.  You did not file anything.  Further interlocutory applications for default judgment, consequent on you not complying with the orders of the Court, were filed by the first, second and fourth respondents and made returnable today. 

This morning, shortly before 10.15 am, you rang the Court’s reception and left a message to the effect that you were ill and asked Justice Bromwich to have the hearing of the interlocutory applications adjourned.  No evidence of any illness has been provided by you.  Nor was any prior warning given that you would be seeking an adjournment.  You did not appear when the matter was called on for the hearing of the interlocutory applications.  Counsel and solicitors appeared for the first and fourth respondents, and for the second respondent.  The third respondent, Mr Bai, appeared in person. 

Justice Bromwich advised the parties of the contact that you had made with the Court, and of the application that had been made by message for the listed hearing of the interlocutory applications to be adjourned.  His Honour told the parties he was not proposing to adjourn the hearing of the interlocutory applications in all the circumstances, but rather to have the parties move on those interlocutory applications, and encourage them to rely only on evidence and submissions in documentary form so that you would not be at any disadvantage in not attending court.  His Honour proposed to give you a further four weeks, until 20 July 2018, to make any submissions in writing that you wished to have the Court consider.  The first, second and fourth respondents agreed to that course, and Mr Bai did not disagree.  Accordingly, that was what took place.  His Honour also received in evidence, tendered by counsel for the first and fourth respondents, a letter sent by Integroe Partners to you on behalf of the first and fourth respondents, dated 8 March 2018.  That letter is relevant to the question of costs.  Counsel for the first and fourth respondents advised the Court that a further copy of that letter would be sent to you. 

Additionally, his Honour determined that the affidavit of the third respondent, Mr Song Bai, sworn 6 March 2018 would be treated:

•    as an interlocutory application by him for summary judgment, or strike out of proceedings or default judgment;

•    as evidence in support of that application; and

•    as submissions in support of that application. 

It follows that Justice Bromwich will decide all of the interlocutory applications on behalf of all of the respondents for summary judgment, or strike out of proceedings or default judgment in relation to this proceeding based on the material listed below, and not on anything that was said in your absence in court today, together with any written submissions that you may choose to provide by no later than 20 July 2018:

Process

•    Originating application dated 16 January 2018, filed 24 January 2018 (note that the name of the second respondent was changed by consent by order made on 9 March 2018 to Allianz Australia Workers Compensation (NSW) Limited

•    Statement of claim dated 16 January 2018, filed 24 January 2018

•    Interlocutory application by the second respondent dated 20 April 2018

•    Interlocutory application by the first and fourth respondents dated 4 May 2018

•    Interlocutory application by the first and fourth respondents dated 18 June 2018

•    Interlocutory application by the second respondent dated 19 June 2018

•    Affidavit of the third respondent, Mr Song Bai, sworn 6 March 2018 and treated as an interlocutory application for summary judgment, or strike out of proceedings or default judgment

Orders

•    Orders made on 9 March 2018

•    Orders made on 27 March 2018

•    Orders made 22 June 2018 for you to provide any further submissions in writing by no later than 20 July 2018

Evidence

•    Affidavit of Jennifer Nichols sworn 19 February 2018, including annexures

•    Affidavit of Jennifer Nichols sworn 19 April 2018, including annexures

•    Affidavit of Song Bai sworn 6 March 2018

•    Affidavit of Frank Restuccia sworn 4 May 2018, including annexures

•    Affidavit of Elena Restuccia sworn 7 May 2018, including annexures

•    A letter sent by Integroe Partners to you on behalf of the first and fourth respondents, dated 8 March 2018

•    Three affidavits of […] Seikh Tanveer Hossain, sworn 16 January 2018, 22 February 2018 and 3 May 2018, including annexures

Submissions

•    Written submissions for the first and fourth respondents stated 16 May 2018

•    Written submissions for the first and fourth respondents dated 18 June 2018

•    Written respondents for the second respondent dated 4 May 2018

•    Written submissions for the second respondent dated 19 June 2018

•    Affidavit of Mr Song Bai, sworn 6 May 2018, also treated as a submission

•    Written submissions by Mr Hossain dated 27 April 2018 and handed up in court on that day

A copy of each of these documents (save for the submissions handed up by you in court on 27 April 2018, and the letter from Integroe Partners dated 8 March 2018) will also be sent by post to you.

Mr Hossain’s further material

32    On Sunday, 22 July 2018, Mr Hossain provided by email to my chambers an affidavit sworn on the same date. On Tuesday, 24 July 2018, he provided an interlocutory application seeking the following relief (verbatim):

1.    Appropriate department of the government be instructed to provide medical treatment to the Applicant with complete confidentiality;

2.    The respondents be prohibited to obtain or inquire about any information regarding applicant’s treatment until it is finalised;

3.    The respondents must not, in any event and in any way, try to influence the integrity of the Doctors, Specialists, institutions or any other body or person relevant to the Applicant;

4.    The respondents must not, in any event and in any way, try to prevent proper medical treatment or cause misdiagnosis of the Applicant or cause any harm to him;

5.    The Second respondent be billed periodically without disclosing any information until treatment is finalised;

6.    The Second respondent pay the Applicant weekly payments since the date of injury and continue in the future at the rate of 1,500.00 AUD per week, clear after tax;

7.    Costs

8.    Such other orders as the Court may deem fit.

33    Mr Hossain’s affidavit acknowledges receipt of the Court’s email, as reproduced at [31] above. For the most part, the affidavit makes further assertions about the medical reasons that are said to have precluded Mr Hossain from attending court on 22 June 2018. Mr Hossain describes having collapsed to the floor, unconscious, and having woken to find himself sitting on the ground with chest pain, breathlessness and paralysis. He describes having been taken to the Royal Prince Alfred Hospital and treated for about 8 hours before being released. The affidavit annexes a discharge letter, which purports to have been issued by a Dr Randall of the Emergency Department. The letter sets out the symptoms Mr Hossain described in his admission. Among other things, the letter notes that Mr Hossain underwent a number of tests, all of which were unremarkable. The notes in the letter indicate that the patient was deemed safe for discharge.

34    It would appear that Mr Hossain’s interlocutory application is an attempt to further particularise the final relief that Mr Hossain seeks in these proceedings. I have taken this material into account to the extent that it may impact upon the interlocutory issues before the Court, noting that this material did not, on its face, address any of those issues. In those circumstances, I did not consider it appropriate to order any separate hearing of Mr Hossain’s interlocutory application. Instead, on 26 July 2018, I ordered the respondents to file and serve any submissions as to the impact of Mr Hossain’s further material on the interlocutory applications seeking summary dismissal of this proceeding by 31 July 2018. I ordered Mr Hossain to file and serve any submissions in reply by 7 August 2018.

35    Mr Bao did not file any further submissions. Ms Elena Restuccia and Tryclown filed further submissions on 31 July 2018, to the effect that the further material had no impact on their summary dismissal application, and adhering to their prior written submissions. Allianz filed further submissions on 31 July 2018, to the effect that the further material had no impact on its summary dismissal application, and adhering to its prior written submissions.

36    On 8 August 2018, Mr Hossain filed further submissions dated 7 August 2018 as follows (verbatim):

1.    Unless [counsel for the first & forth respondents] … and/or the first & forth respondents are Islamophobic and has something against Muslims and/or habitually frauds, it is hard to explain their audacious attempt to mislead the court at the last line of paragraph 4 of their submissions dated 31 July 2018. I might have to report him to the bar council. In any event, this behaviour is consistent with the first and forth respondents’ characteristics.

2.    Because I lost consciousness before on that day, the doctors tested my alertness at the hospital. Hence, later that day “on examination alert looks very well” (p2 of 4). Doctors wanted to rule out that my nervous system illness did not cause me a heart attack; hence serially tested my blood for a particular enzyme increase as well as did ECG and chest xray – all of which was unremarkable (p1 of 4). Which means I did not have a heart attack (yet). But, though my life was not in danger at that very moment, it is an urgent matter which can cause lethal damage anytime, hence the dctors referred me to Rapid Access Neurology Clinic to get treatment ASAP.

3.    I humbly apologies to the court for my slow speed. Please appreciate that I can only type for a few minutes a day. Unfortunately, my health, my fingers are not cooperating with my will.

4.    It seems like expecting a marathon from a coma patient; the only difference is that I have consciousness most of the time and only about 80% of my nervous system are malfunctioning, not 100%.

5.    Most of the documents are almost read and within a few more days, I believe, I can finish them; through which I will try to make the case crystal clear for the court.

6.    I can assure the court (and soon will prove so) that there is no ground for them to defend this case.

7.    The court must appreciate that – all of my slow speed, default, terrible & extreme sufferings has caused by the respondents.

8.    I seek few more days to finish the paper works and a hearing for my interlocutory application.

37    Mr Hossain’s further request at [8] of his submissions for a hearing of his interlocutory application was not acceded to for the reasons set out at [34]. The references at [5] and [8] of his submissions above to further documents being prepared and almost being ready, and seeking further time in which to furnish them, did not result in any further material being provided. At the time of finalising these reasons, over four weeks had elapsed since Mr Hossain’s further submissions were filed on 8 August 2018, yet nothing more had been provided by him. Mr Hossain has had ample time and ample opportunity to present any evidence or submissions in opposition to the interlocutory relief that the respondents seek. There is no justification for any further delay in proceeding to judgment.

The submissions and evidence for Mr Hossain

38    Mr Hossain’s evidence consists of the following:

(1)    An affidavit sworn 16 January 2018 annexing correspondence sent to Ms Elena Restuccia, the first being the 20 December 2017 letter (referred to at [17] above), and the second being an email dated 25 December 2017 (referred to at [19] above). The latter email “reminds” Ms Elena Restuccia of her legal and moral obligations to Mr Hossain, and insists upon payment of holiday and personal leave entitlements.

(2)    An affidavit sworn 22 February 2018, in which Mr Hossain asserts that his “health and capacity to work remains the same”. Annexed to the affidavit are two letters. The first purports to have been sent to Mr Hossain’s psychologist. The letter makes reference to the psychologist having been “compromised” by the respondents, and purports to revoke all permissions Mr Hossain that has given to him to communicate with Allianz. The second letter is in similar terms and is addressed to several general practitioners.

(3)    An affidavit sworn 3 May 2018, in which Mr Hossain makes various assertions about the titles that the Court should use to address him. The nature of these assertions is best illustrated by Mr Hossain’s statement that he has been anointed as “The Prince of Justice for the whole creation”.

(4)    The abovementioned further affidavit sworn 22 July 2018.

39    Importantly, Mr Hossain has not provided any meaningful response to the submissions in writing on behalf of the respondents in relation the interlocutory relief that they seek, as summarised and considered below.

The submissions for Ms Elena Restuccia and Tryclown

Paragraph 1 of the statement of claim

40    Ms Elena Restuccia and Tryclown submit that the allegations contained in paragraph 1 of the statement of claim disclose no reasonable cause of action and are embarrassing and liable to be struck out. First, they submit that the opening words of paragraph 1 allege tax fraud, but are not accompanied by any particulars that are capable of supporting this allegation, contrary to r 16.42 of the Federal Court Rules. That rule requires a party pleading fraud to state the particulars of the facts relied upon.

41    Secondly, they submit that the opening words of paragraph 1 allege that Mr Bai assisted Ms Restuccia and Tryclown in committing the pleaded acts, but are not accompanied by any particulars that are capable of supporting this allegation.

42    Thirdly, they submit that the allegation in the particulars that Ms Elena Restuccia and Tryclown breached their duty of care when Mr Hossain injured his finger are not relevant to the claim made in paragraph 1. It is said that, even taking these allegations at their highest, they cannot establish tax fraud or contravention of the National Employment Standards.

43    Fourthly, they submit that it is unsatisfactory for Mr Hossain to plead, in a conclusory manner, that Ms Elena Restuccia and Tryclown have denied him paid annual leave and personal leave. It is said that the liability for paid annual leave arises only if Mr Hossain can establish that he was unreasonably refused a request to take paid annual leave: see s 88(2) of the FW Act. Similarly, it is said that the liability for paid personal leave arises only if Mr Hossain can establish that he took paid personal leave because he was not fit for work: see s 97 of the FW Act. Ms Elena Restuccia and Tryclown point out that no facts are pleaded to establish either of these matters.

44    On this basis, Ms Elena Restuccia and Tryclown seek to have Mr Hossain’s pleadings struck out.

45    In the alternative, they submit that there is no reasonable prospect that Mr Hossain will establish that Ms Elena Restuccia, Tryclown and Mr Bai breached ss 88(2) and 99 of the FW Act by denying Mr Hossain paid annual leave and sick leave. It is pointed out that Ms Restuccia has given uncontradicted affidavit evidence that Mr Hossain was engaged as a casual employee. Summary dismissal of Mr Hossain’s case is therefore said to be warranted. In this regard, it is submitted that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; 167 FCR 372 at [127] per Gordon J.

Paragraphs 2 and 3 of the statement of claim

46    Ms Elena Restuccia and Tryclown submit that paragraphs 2 and 3 of the statement of claim disclose no reasonable cause of action and are embarrassing and liable to be struck out. First, they submit that the allegations in these paragraphs involve broad assertions without pleading any material facts. Paragraph 2 alleges that the respondents “took multiple adverse actions”, but does not state the nature of those actions. Paragraph 3 again states that the respondents “took multiple actions” without specifying those actions. A pleading in this form is said to be vague and embarrassing.

47    Secondly, they submit that the opening words of paragraph 2 allege insurance fraud, but are not supported by any pleading of the facts relied upon, again contrary to r 16.42 of the Federal Court Rules.

48    Thirdly, they submit that, by reason of the following, the particulars do not support the allegation that adverse action was taken, for the following reasons:

(1)    Particular 2(a) states that “The respondents have been withholding the Applicant’s legal rights and aggravated the injury”, but the pleading otherwise does not specify how the conduct constitutes “adverse action” within the meaning of s 342 of the FW Act, and does not plead facts about what involvement each respondent had in the conduct, what legal rights were withheld and how the injury was aggravated by that conduct.

(2)    Particular 2(b) states that Ms Restuccia “tried to compel the Applicant to resign voluntarily” so that she did not have to deal with his workplace rights. However, there are no facts pleaded to support this allegation, nor is it specified how the alleged conduct constitutes “adverse action”.

(3)    Particular 2(c) states that all of the respondents “collectively compelled and tried to continue compelling the Applicant to work voluntarily with injury while he did not have the capacity to work”, which is in similar form to particular 3(b). However, there are no facts pleaded in either particular about what involvement each respondent had in the alleged conduct and what acts are said to constitute this allegation. Similarly, it is not specified how the alleged conduct constitutes “adverse action”.

(4)    Particular 3(a) states that all of the respondents breached s 343 of the FW Act “as they have made sure that the Applicant falls into financial hardship (by never starting and postponing the weekly pay indefinitely) to coerce him not to exercise his workplace rights”. However, this allegation appears to be one that is, in substance, levelled only against the second respondent, who suspended Mr Hossain’s weekly compensation.

49    In the alternative, Ms Restuccia and Tryclown submit that there is no reasonable prospect that Mr Hossain will establish that Ms Restuccia, Tryclown and Mr Bai breached ss 340, 343 and 351 of the FW Act. It is submitted that the evidence of Ms Elena Restuccia establishes that:

(1)    Mr Hossain voluntarily continued to work for almost five months after his injury;

(2)    Ms Elena Restuccia assisted Mr Hossain in filling out his workers compensation forms;

(3)    Ms Elena Restuccia asked Mr Hossain whether he wished to work, but did not insist on him doing so;

(4)    Ms Elena Restuccia gave Mr Hossain two weeks’ gratuitous pay over the Christmas period; and

(5)    Ms Restuccia has not threatened to terminate Mr Hossain’s employment or change his role at any time.

It is submitted that Mr Hossain has failed to respond to this prima face case by pointing to any specific factual or evidentiary disputes that make a trial necessary.

Default judgment

50    Default judgment is also sought against Mr Hossain under r 5.23(1) of the Federal Court Rules. It is submitted that Mr Hossain is in default of the order made on 9 March 2018 that he file and serve, on or before 6 April 2018, an amended statement of claim with further and better particulars, including how it was alleged that the second and third respondents are involved in the claimed contraventions. That default is said to be a significant continuing default occasioning unnecessary delay and expense to the other parties, citing Geneva Laboratories v Prestige Premium Deals (No 4) [2016] FCA 867; 120 IPR 133 at [57] and [60].

51    It is submitted that the default is serious for at least two reasons. First, the statement of claim in its present form is said to be manifestly defective for the reasons already identified, not least because there is no basis stated for joining Mr Bai. Secondly, it is said that Mr Hossain’s failure to amend the statement of claim has caused months of delay and unnecessary expense to the other parties. It is pointed out that Mr Hossain has filed no evidence or submissions justifying his pleading and has not amended his statement of claim. He is said to be either unable, or unwilling, to cooperate with the Court and the other parties to progress the matter.

The submissions for Allianz

52    The allegations made against Allianz are confined to paragraphs 2 and 3 of the statement of claim.

Paragraphs 2 and 3

53    Allianz submits that paragraphs 2 and 3 of the statement of claim do not establish a reasonable cause of action against it, and contain matters that are embarrassing and liable to be struck out. In relation to both paragraphs, Allianz submits that:

(1)    the pleading is broad and generalised in form, and does not give proper particulars of matters such as the adverse action claimed, the detriment suffered by Mr Hossain, and the particular acts that are alleged to constitute the claimed breaches; and

(2)    there are insufficient facts pleaded to support the alleged contraventions of the FW Act, making it effectively impossible to understand the substance of the case brought against Allianz.

54    In relation to paragraph 2, in particular, Allianz submits that:

(1)    to the extent that the paragraph is premised on breach of s 340(1) of the FW Act, Allianz is not a “person” of a type that can take adverse action as provided for in s 343 of that Act;

(2)    to the extent that the paragraph is premised on breach of s 351(1) of the FW Act, Allianz is not an employer of Mr Hossain; and

(3)    to the extent that Mr Hossain may be attempting to attribute accessorial liability to Allianz, he does not plead the relevant sections of the FW Act, nor does he provide any material facts to establish how it is that Allianz is “involved in” the claimed contraventions.

55    In relation to paragraph 3, in particular, Allianz submits that:

(1)    there is no specificity of the alleged “multiple actions” in breach of s 343(1) of the FW Act, nor specificity as to how the respondents have “individually and/or collectively” breached s 343(1)(a) and (b) of the FW Act; and

(2)    to the extent that the pleading raises issues about payments, and may be taken to refer to benefits under the Compensation Act 1987 and the Compensation Act 1998, subject to the management of Allianz, the pleadings misstate or do not properly represent the facts. Moreover, it is suggested by Allianz that Mr Hossain is seeking to pursue a dispute in relation to his workers compensation claim other than in accordance with the compensation legislation. In this regard, Allianz points out that weekly benefits were provided on a provisional basis to Mr Hossain in the period from 4 January 2018 to 21 March 2018, and ceased thereafter upon Mr Hossain having failed to comply with certain obligations under the legislation.

Default judgment

56    Allianz adopts the submissions made by Ms Elena Restuccia and Tryclown on default judgment.

The submissions for Mr Bai (per his affidavit)

57    In his affidavit, Mr Bai said that he did not understand the claim as it was made against him, noting that he was not an employer of the applicant. He said that he is the business accountant for Ms Restuccia and Tryclown, and does not have any contact with any of the employees of Ms Restuccia and Tryclown, save only that he prepares and sends payment summaries annually. On this basis, he says that Mr Hossain’s case against him is misconceived and asks for the Court to dismiss the proceedings against him. That should be understood as seeking summary judgment, default judgment or a strike out of the pleadings.

Consideration

58    I accept the submissions for the respondents summarised above. Each submission made is balanced, restrained, helpful and accurate. Each asserted defect or failing in the pleadings has been made out. Mr Hossain’s manifest and repeated failures to comply with orders to amend those pleadings is equally clear.

59    An ample basis has been made out for any of summary judgment, striking out or default judgment to be granted in favour of all four respondents. The option that most fully and appropriately addresses the manifest deficiencies in Mr Hossain’s case is summary judgment, not least because this is not a case in which re-pleading should be contemplated because of the lack of any apparent proper foundation for the proceeding. That should be granted for the following reasons:

(1)    in the case of Mr Bai, there is no apparent basis, factual or legal, for Mr Hossain to sue him for anything at all;

(2)    in the case of Allianz, there is no apparent basis, factual or legal, for Mr Hossain to sue it at all, although at least some unrevealed basis might, conceivably, have existed;

(3)    in the case of Tryclown, while it did employ Mr Hossain at one point in time, it did not do so at any material point in time and there is no suggestion of anything untoward having happened during the time that it did employ him; and

(4)    in the case of Ms Elena Restuccia, while she could, as a member of the partnership that did employ Mr Hossain at the times during which his complaints arose, be responsible for actionable conduct against him, there is nothing to suggest in the pleadings or anywhere else, that any coherent allegation has been made that she has done anything wrong to or in relation to Mr Hossain at any time or in any way.

Costs

60    This proceeding has, at all times, been vexatious, baseless and without reasonable cause. Mr Hossain has refused to make amends in any way. Mr Hossain must pay the costs of each of the respondents, the limitation on costs being awarded in s 570 of the FW Act having been clearly overcome.

Associate:

Dated:    7 September 2018