Federal Court of Australia

Obel v Central Desert Regional Council [2022] FCA 1355

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s further amended interlocutory application dated 22 June 2022 is dismissed.

2.    Further consideration of the respondent’s interlocutory application dated 24 June 2022 (as amended in oral submissions today) be deferred to 10:15am (ACDT) 8 November 2022.

3.    There be a further case management hearing at 10:15am (ACDT) 8 November 2022.

4.    Liberty to apply.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

Introduction

1    The applicant, Mr Dennis Obel, was employed by the respondent, the Central Desert Regional Council (CDR) to perform the role of Activity Supervisor for a Community Development Program. His position was based in Willowra in the Northern Territory and was for a fixed term commencing on 1 July 2019 and terminating on 30 June 2022. Mr Obel brings this action against CDR and one of its officers in relation to matters affecting the employment relationship that appears to have been occasioned by the COVID-19 pandemic. He alleges that CDR repudiated the employment contract and that it acted in contravention of the Fair Work Act 2009 (Cth). He seeks declaratory relief and financial remedies, including damages and costs.

2    By an interlocutory application filed on 31 March 2022 (amended on 19 April 2022 and further amended on 22 June 2022), Mr Obel sought orders striking out CDR’s defence in full or in part, alternate orders for summary judgment and alternate orders for the trial of separate issues. The interlocutory application was dismissed by an order made on 24 October 2022. The Court delivered oral reasons on that day. The parties were subsequently provided with a transcript of the oral reasons pending the delivery of written reasons.

3    The Court subsequently proposed an order extending the period in which Mr Obel may commence an application for leave to appeal from the order, so as to provide for the period to expire 14 days following the publication of these written reasons. That order was not made because Mr Obel opposed it.

4    I now publish written reasons for the order dismissing Mr Obel’s interlocutory application consistent with the oral reasons delivered on 24 October 2022, albeit with some minor elaboration.

5    The originating application was filed on 27 January 2022 and was accompanied by a statement of claim. Mr Obel filed an amended statement of claim on 7 February 2022. The first case management hearing occurred on 1 March 2022. On that day I made the following orders:

1.    On or before 3 March 2022 the applicant is to serve on the respondent a proposed further amended statement of claim.

2.    On or before 10 March 2022 the respondent is to inform the Court as to whether it consents to the filing of the further amended statement of claim in the form proposed by the applicant.

3.    In the event that the respondent consents to the filing of the further amended statement of claim in the form proposed, the applicant is to file and serve the further amended statement of claim on or before 15 March 2022.

4.    In the event that a further amended statement of claim is filed, on or before 5 April 2022 the respondent is to file a defence.

6    CDR was represented at that case management hearing by its solicitor, Ms Ruth Morley. A notice of acting having been lodged for filing on its behalf on 28 February 2022.

7    Mr Obel filed a further amended statement of claim (FASC) on 14 March 2022. CDR filed its defence on 4 April 2022.

8    The matter then proceeded through a series of subsequent case management hearings. Following a case management hearing on 13 April 2022, I made orders progressing the matter to trial, including orders for the giving of discovery and the filing of trial affidavit material. A date was fixed by which Mr Obel was to file any application for summary judgment or like relief. Mr Obel’s interlocutory application was set down for hearing on 24 October 2022 together with an interlocutory application filed by CDR on 4 July 2022 seeking leave to make amendments to its defence in terms annexed to an affidavit of Ms Morley sworn on 22 June 2022 (amended defence application). Shortly before the hearing, CDR proposed an alternate amended defence. Given the late provision of that document to Mr Obel, CDR’s interlocutory application was adjourned part heard so as to give him a fair opportunity to consider it.

9    Mr Obel filed an affidavit on 21 October 2022 and by means of that affidavit, he made or sought to make an application for orders that judgment be entered in his favour under r 5.23 of the Federal Court Rules 2011 (Cth) by reason of certain defaults he alleged against CDR. I determined that I should hear and decide that application notwithstanding that relief under r 5.23 was not sought on the face of Mr Obel’s interlocutory application.

10    At the conclusion of the submissions and at the time of making submissions in reply, Mr Obel submitted that there should be an adjournment not only of CDR’s application to amend its defence, but of his own applications. He asserted that he had not been granted sufficient time without interruption to present his case on those applications.

11    Mr Obel must of course be afforded a fair opportunity to be heard. As observed by the Full Court in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 (at [51]):

Ordinarily, a self-represented litigant must be given a reasonable opportunity to present evidence and make submissions in support of his or her case:  Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335, 356 [106]. As observed by Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 86 [99], ‘[t]he basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her’. See also Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 [51]–[57].

12    Mr Obel is a self-represented litigant, but he has demonstrated some proficiency in understanding and articulating legal principles and in advancing arguments based on his preferred construction of the Rules.

13    The request for an adjournment was declined on the basis that I considered Mr Obel had been afforded sufficient time to advance his case, including by reliance upon the written submissions he had filed in advance of the hearing. The time dedicated to Mr Obel’s oral submissions totalled two hours and 10 minutes. Whilst the Court interrupted the course of Mr Obel’s submissions from time to time, the interruptions were of a kind that focussed his attention on the principles guiding the Court’s discretion, reminding him of the nature of the powers he sought to invoke and prompting him to address the Court on relevant issues. The Court also reminded him not to advance submissions on matters that were not relevant to the issues that arose on his application.

Application for Default Judgment

14    Rule 5.23 of the Rules provides that orders that may be made by a court where, as is asserted here, a respondent is in default:

5.23 Orders on default

...

(2)    If a respondent is in default, an applicant may apply to the Court for:

(a)    an order that a step in the proceeding be taken within a specified time; or

(b)    if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

(i)    the debt or liquidated damages; and

(ii)    if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

(c)    if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

(d)    an order giving judgment against the respondent for damages to be assessed, or any other order; or

(e)    an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

15    Rule 5.22 of the Rules provides:

5.22 When a party is in default

A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

16    In Prodata Solutions Pty Ltd v South Australian Fire and Emergency Services Commission (No 3) [2020] FCA 1210, I considered the principles guiding the exercise of the discretion under r 5.23, and a like power conferred under s 37P of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It is convenient to repeat what I said there:

81    In civil proceedings before this Court, directions may be given about the practice and procedure to be followed, including directions setting time limits for the doing of any thing:  FCA Act, s 37P(2), s 37P(3)(a) and (b). If a party fails to comply with a direction, the Court may make such order or direction as it thinks appropriate including an order dismissing the proceeding in whole or in part:  FCA Act, s 37P(5) and (6)(a). The powers of dismissal in s 37P(5) and (6) of the FCA Act do not affect any power the Court has apart from those subsections to deal with a party’s failure to comply with a direction.

82    A like power is contained in r 5.23 of the Rules. It provides that if an applicant is in default, a respondent may apply to the Court for an order that a step in the proceeding be taken within a specified time (r 5.23(1)(a)), or that the proceeding be (relevantly) dismissed for the whole or any part of the relief claimed by the applicant, either immediately or on conditions specified in the order (r 5.23(1)(b)). For the purposes of that rule, a party is in default if the party fails to (relevantly) comply with an order of the Court or prosecute the proceedings with due diligence:  r 5.22(b) and (d).

…

84    Section 37P, r 1.34, and r 5.23 each form a part of the Court’s practice and procedure provisions. They must be interpreted and exercised in a way that best promotes the overarching purpose, namely to ‘facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible’:  s 37M(1). The overarching purpose includes the objectives in s 37M(2). They are:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

85    The parties and their lawyers have a duty to conduct the proceeding in a way that is consistent with that overarching purpose:  FCA Act, s 37N.

…

89    The powers to be exercised on the present application are each discretionary in their nature. The respondents’ alternate applications give rise to a discretion in the different sense that there is a choice between alternative sources of power. As Gleeson CJ, Gaudron and Hayne JJ observed in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]:

‘Discretion’ is a notion that ‘signifies a number of different legal concepts’. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. …

(footnotes omitted)

90    Both textually and logically, the question of whether the exercise of a power in a particular way would ‘best promote’ the overarching purpose is a test that assumes the existence of that latitude as its starting point. In order for the command in s 37M to have any utility, the ‘overarching purpose’ must be understood as conveying a singular objective that is capable of being best promoted by a decided outcome, relative to other outcomes that might otherwise be open to the Court were it not for the enactment of s 37M(1). As such, I do not consider it appropriate to characterise the requirement in s 37M(1) as a consideration capable of being outweighed by other countervailing considerations. Nor is it to be understood as merely listing a variety of countervailing factors to be weighed in the balance in the exercise of the power in question. Rather, s 37M(1) conditions the manner in which all powers conferred by the Court’s practice and procedure provisions are to be interpreted and exercised. It confines the latitude that might otherwise be available to the Court in the exercise of those powers: given a choice between outcomes, the Court must choose the outcome that best promotes the overarching purpose. The task of identifying the manner of exercising a power that ‘best promotes’ the overarching purpose involves evaluative elements, but the task itself is mandatory. And the Court must exercise its powers according to the outcome of it.

91    The phrases ‘just resolution of disputes according to law’ and ‘the just determination of all proceedings before the Court’ are to be interpreted in that context and in a way that is harmonious with other elements of the overarching purpose. They must also be interpreted in a way that can be reconciled with s 37P of the FCA Act, conferring as it does a power to dismiss a proceeding in the event of a party’s failure to comply with a procedural order of the Court if the judge thinks appropriate. The very existence of that power contemplates a circumstance where it may be appropriate (and therefore just) to dismiss an originating application other than on its substantive merits and without first conducting a trial. As the High Court emphasised in AON Risk Services Australia Limited v Australian National University (2019) 239 CLR 175, the question of what is ‘just’ is not to be answered solely by reference to the interests of the applicant party in a civil proceeding, nor is the question to be answered solely by reference to whether prejudice caused to another party by the Court’s orders or indulgences can be compensated with an award of costs. The word ‘just’ in s 37M and s 37N of the FCA Act should be interpreted accordingly.

Consideration

17    Mr Obel submitted that there were three defaults made by CDR that are capable of constituting a “default” within the meaning of r 5.22 of the Rules.

18    Mr Obel relied on a failure on the part of CDR’s director to respond substantively to requests for documentation that Mr Obel had made prior to commencing these proceedings so as to assist him to draft a statement of claim. Mr Obel complains that he was not given a prompt reply, and that in any event, CDR did not cooperate and provide him with the documents that he had sought.

19    I am not satisfied that that state of affairs constitutes a default within the meaning of the Rules at all, let alone one that would justify the Court making an order entering judgment for Mr Obel (whether in whole or in part). An opponent party is under no legal obligation to provide documents requested by a prospective applicant. It is up to the prospective respondent to decide what to do in the face of such a request.

20    A person who asserts that they cannot properly prepare or plead their case because of the absence of documents may make an application for pre-action discovery from a prospective respondent:  Rules, r 7.23. If that application was successful, and a respondent party or prospective respondent was found to have withheld the documents improperly, that may well sound in an order for costs. But the circumstances described by Mr Obel do not constitute a default within the meaning of the Rules or the FCA Act.

21    Mr Obel then submitted that he received correspondence from CDR pushing back against his allegations. Again, that does not constitute a default by an opponent party in adversarial proceedings. A prospective respondent is entitled to assert a prospective defence in answer to a prospective claim.

22    Even if I accepted Mr Obel’s submission that CDR’s failure to provide documents constituted a “default”, for the purposes of r 5.23 of the Rules, I do not consider that circumstance would warrant the exercise of my discretion in Mr Obel’s favour.

23    The second default complained of by Mr Obel is an asserted failure of CDR’s lawyer to file and serve a notice of address for service on its behalf within the time specified in r 5.02 and r 11.06 of the Rules. Those rules require that a person who is required to file a notice of address for service in a proceeding must do so before the return date fixed in the originating application and before filing any other document in the proceedings. Rule 4.03 of the Rules provides:

4.03 Appointment of a lawyer—notice of acting

If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file a notice of acting, in accordance with Form 4.

24    Mr Obel’s submissions were not based on the distinction between a notice of address for service and a notice of acting.

25    The Electronic Court File shows that a notice of acting was filed on behalf of CDR on 28 February 2022 (the Notice). The first case management hearing was listed for hearing on 1 March 2022. I will proceed on the assumption that what occurred is that the document filed on 28 February 2022 was not subsequently served on Mr Obel after it had been accepted for filing and marked with the seal of the Court. Nonetheless, Mr Obel had been provided with an unsealed copy of the Notice by way of an email sent to my Chambers and to Mr Obel at 12:51pm on 23 February 2022.

26    I will proceed on the basis that the failure to serve the Notice endorsed with the seal of the Court constitutes a default within the meaning of r 5.22 of the Rules, and I will deal with the consequences of that default below.

27    The third default upon which Mr Obel relies is an asserted failure to file a defence within the time specified in the Rules. As I have mentioned, Mr Obel filed an originating application and statement of claim on 27 January 2022, an amended statement of claim on 7 February 2022 and a further amended statement of claim on 14 March 2022.

28    It is not disputed that Mr Obel personally served the originating application and statement of claim on CDR on 3 February 2022 and I will proceed on the basis that he effected service as required by the Rules on that day. On 1 February 2022, Mr Obel had provided those documents to a director of CDR by email. Mr Obel submits that this constituted valid service and that the time for filing a defence should be calculated from that day. I cannot accept that submission, however, as will soon become apparent, nothing of moment turns upon it.

29    Rule 16.32 of the Rules requires a defence to be filed within 28 days after service of the statement of claim.

30    Rule 1.61 provides for the calculation of time for doing an act or thing fixed by the Rules. Relevantly, r 1.61(2) provides that where the time is fixed by reference to a particular day or event, and the time fixed is one day or more, the particular day or the day of the particular event is not to be counted. Accordingly, as the originating application and statement of claim were served on 3 February 2022, time did not commence to run until 4 February 2022.

31    Assuming that service of the originating application and statement of claim was effected on 3 February 2022, then the time by which the defence was due to be filed had not arisen by the time of the first case management hearing on 1 March 2022, even if the Court were to ignore the circumstance that by that time Mr Obel had filed an amended statement of claim.

32    In any event, as I have mentioned, as at 1 March 2022, when the parties appeared before me, the Notice had been lodged on behalf of CDR and accepted for filing by the Registrar.

33    Mr Obel had filed an amended statement of claim on 7 February 2022. I do not accept the submission that CDR was required to file a defence in response to the statement of claim in its original form. The obligation of CDR was to file a defence in response to the amended statement of claim filed on 7 February 2022. On any reasonable view of the facts, as at 1 March 2022, the date for a defence to be filed in accordance with the Rules had not yet passed.

34    In addition, it is to be recalled that at the first case management hearing I made orders providing for Mr Obel to file and serve a further amended statement of claim on or before 15 March 2022. Paragraph 4 of those orders was to the effect that, if such a further amended statement of claim was filed, CDR was to file a defence on or before 5 April 2022. A defence was filed on 4 April 2022 in accordance with the Court’s orders.

35    Accordingly, there was no default in the filing of the defence, unless the failure is one that rests on the incorrect proposition that there had been service of the statement of claim that required a defence to be filed by way of email on 1 February 2022. If I am wrong in identifying the failure to serve notice on Mr Obel as being the only default capable of enlivening the Court’s jurisdiction to grant default judgment I would nonetheless dismiss the application for relief.

36    As I explained in Prodata, the rules relating to default judgments form a part of the Court’s practice and procedure provisions. I must, in accordance with s 37M(1) of the FCA Act, exercise and interpret those powers in a manner that best promotes the overarching purpose specified in s 37M(2). In exercising the Court’s powers, I must of course have regard to all of the facts and circumstances.

37    The Rules and the Court’s orders must be complied with. They are not merely ideas, invitations or suggestions to the parties. They are compulsive in their nature. Litigation cannot be conducted if the Court’s orders and the Rules are not taken seriously by the parties. The fact of a default not only enlivens the Court’s discretion but may also weigh in favour of its exercise.

38    Mr Obel’s submissions were to the effect that it was not necessary for him to demonstrate that he had suffered any prejudice by virtue of the defaults upon which he relied. The Court itself cannot identify any obvious prejudice to him. Mr Obel filed a reply on 19 April 2022 to the defence and the matters have proceeded through a series of case management hearings since the default upon which he now relies.

39    Mr Obel sought to persuade the Court that CDR’s asserted defaults are sufficient of itself to justify the exercise of the Court’s power under r 5.21, without any regard to matters of fairness or consideration of matters of substance over form.

40    Mr Obel referred me to my judgment in CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495 which, he said, supported the contention that he should have judgment awarded in his favour. The reasoning in CPJ17 does not assist Mr Obel. The judgment is concerned with the application of certain rules to barristers acting on a direct brief. The outcome is to the effect that the rules requiring the filing of an address for service or a notice of acting do not apply to barristers so acting, even if the absence of such a notice may in certain cases cause disruption to the Court’s case management processes.

41    I have, in previous cases, exercised powers in the event of a default so as to bring proceedings to an end:  see, for example Prodata. Repeated defaults may also be taken into account in determining whether a party should be granted an extension of time to do an act or thing, particularly where the defaults evidence an attitude of ambivalence or a failure to diligently defend a claim:  Hillier v Martin (No 8) [2021] FCA 1272; 155 ACSR 395; Mulvaney (liquidator), in the matter of Skymax Group Pty Ltd (in liq) v Wen [2021] FCA 1644.

42    The circumstances of this case are nothing like those that I have just described.

43    I place special weight on the circumstance that, despite my repeated prompting, Mr Obel could not articulate how it was that he was prejudiced by the defaults upon which he relied. I reject any submission that he was prejudiced by the failure of CDR to serve the sealed Notice upon him. Mr Obel has access to the Electronic Court File and it ought to have been readily apparent to him that a notice of acting had been filed. Additionally, he had been provided with an unsealed copy of such a document by CDR’s solicitors on 23 February 2022 and he could not have been under any misapprehension that CDR was represented in this proceeding by Ms Morley.

44    The default judgment was accordingly dismissed.

STRIKE OUT AND SUMMARY DISMISSAL

45    By [6] of his interlocutory application, Mr Obel seeks to have CDR’s defence filed on 4 April 2022 struck out in its entirety, on the bases that it does not disclose a reasonable defence, that it constitutes an abuse and that it is evasive or ambiguous or likely to cause prejudice, embarrassment or delay.

46    To the extent that orders are sought on the basis that the pleadings are evasive or ambiguous or likely to cause prejudice, embarrassment or delay, that basis has not been established by Mr Obel. The meaning of the defence is plain. The remaining aspect of the strikeout application is founded on the consequences of admissions made by CDR and may be dealt with in the course of the application for orders in terms of [7] and [9] of the interlocutory application. By those paragraphs, Mr Obel seeks an order for summary judgment pursuant to r 26.01 of the Rules and s 31A(1) of the FCA Act. That order is sought on the basis that CDR does not have a reasonable prospect of successfully defending “the whole of the statement of claim or part thereof”, including because of admissions pleaded in the defence. The “part thereof” is not identified.

Principles

47    The power of this Court to enter summary judgment for or against a party is conferred under s 31A of the FCA Act and r 26.01 of the Rules. The relevant principles in relation to summary judgment or dismissal under s 31A of the FCA Act were discussed by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118. Such a power is to be “sparingly employed”:  General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ at 129. It should only be exercised in cases that are so obviously groundless that they cannot, on any reasonable view, succeed:  see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90 – 92.

48    In his written submissions Mr Obel posed a question as to whether, given admissions by the respondent, judgment should be entered for vicarious liability.

49    I have not been taken to the pleadings with respect to vicarious liability. Mr Obel has not discharged his onus of demonstrating to the Court there have been admissions with respect to that subject matter that would warrant the relief that he seeks with respect to that part of the claim. It appears that Mr Obel might intend to argue that his assertion that there was a failure to file a defence had the consequence that all of his pleaded allegations must be taken to be admitted, so entitling him to judgment. If that is his submission, it must be soundly rejected. A defence has been filed in accordance with the timeframe stipulated in the Court’s orders.

50    Under a heading numbered C5 in his written submissions, Mr Obel relied upon admissions of the respondent concerning (among other things) the diminishment of his status as an employee.

51    To understand those submissions it is necessary to summarise Mr Obel’s pleaded case.

52    By his FASC, Mr Obel alleges that on the occurrence of the COVID-19 pandemic, he was compelled to perform duties of a nature that do not find expression in his position statement, which he asserts forms a part of his employment contract. He alleges that in accordance with the terms of the contract, he could not be compelled to perform duties other than those specified in the position description (relating to his position of an Activities Supervisor for a Community Development Program) whether in the circumstances of a pandemic or otherwise. He alleges that the actions of CDR constituted, or were equivalent to, demoting him to perform work as if he were an employee classified at Level 1 of the relevant pay structure. He alleges that his usual job classification was of an employee classified at Level 6, being a supervisory role. He alleges that CDR required or purported to require him to perform the lower level duties and that, in doing so, CDR repudiated the contract.

53    Mr Obel submitted that CDR has made sufficient admissions with respect to those aspects of his claim such that it does have any reasonable prospect of succeeding in its defence, at least (it seems) insofar as the claim is founded in contract.

54    In his affidavit of 22 June 2022, Mr Obel annexed correspondence which may well be interpreted to mean that the requirement that he perform the lower level duties, was just that: a requirement and not a request. Whether or not CDR required or requested that Mr Obel perform lesser duties is an issue in dispute. CDR has not, on this application, pointed to evidence that might dissuade the Court from a finding, able to be inferred from the material before me, that the “requests” did not have a compulsive nature or element about them. On CDR’s own case, the failure by Mr Obel to comply with what it says was a “reasonable direction” that he perform the lesser duties, was ultimately relied upon as a basis for CDR terminating his employment. That of itself suggests that there was an element of compulsion about the correspondence and the directions or instructions given to Mr Obel about the tasks that he was to perform. However, compulsion is not the only issue to be tried. The other issue is whether or not what occurred was a temporary deployment of Mr Obel to alternate duties, rather than a permanent deployment, and whether, by that deployment, CDR sought to unilaterally rewrite the employment contract.

55    The employment contract is in evidence before me. I am not satisfied by reference to the contract alone that it must necessarily constitute a breach of the contract to require Mr Obel to perform different duties (in the sense that it is not reasonably arguable otherwise). A number of interpretations of the contract might be open, and I do not propose in these reasons to discuss them at any length.

56    The test for an order under s 31A of the FCA Act must be borne firmly in mind. If Mr Obel were to proceed to trial, it may well suffice for him to (for example) establish that the written contract and position statement were an exhaustive statement of the tasks he could be contractually required to perform. However, the position statement refers to there being a requirement for Mr Obel to comply with reasonable requests, and the issue might arise at trial as to whether or not the tasks listed under that clause is an exhaustive list of tasks. All of that is for trial.

57    In addition, if there was a breach by CDR, a question will arise as to whether that breach was repudiatory in nature. There then arises an issue on the pleadings as to whether or not it was open to Mr Obel to accept that repudiation in circumstances alleged by CDR to amount to an election and waiver. CDR’s pleading with respect to this issue can be found, at least at [46] - [55] and [61] – [62] of the defence.

58    Mr Obel is correct that CDR has not in terms pleaded that there was a frustration of the contract by virtue of the COVID-19 pandemic, and I have taken that into account in determining his application for summary judgment.

59    It nonetheless seems to me to be plain on the face of the defence that the respondent is asserting that it had a contractual right to require Mr Obel to perform re-assigned duties in the circumstance of the pandemic. That too a question for trial.

60    As I have mentioned, there might indeed be some ambiguity in the pleading as to whether or not the respondent asserts that the requirement to undertake the additional or alternate duties was more in the nature of a request as opposed to a command. Paragraph 52 of the defence provides some indication that, what was asked for was the employee’s cooperation in the circumstances that were outlined in [46(1)] and [46(2)]. That reinforces the need to read the defence as a whole and not to select admissions to some paragraphs whilst ignoring others.

61    Mr Obel’s submissions placed particular emphasis on admissions made in [46] of the defence (responding to [46] of the FASC). Paragraph 46 of the defence concludes with the words “the matters pleaded in paragraph 46 are otherwise denied”. That is explained by the circumstance that, in [46] of the FASC it is alleged that Mr Obel was re-deployed as a labourer. The FASC might reasonably be interpreted to be an assertion by Mr Obel, that he was permanently deployed to a lesser job, being of a lower employee classification.

62    In [46] of the defence, the respondent admits some facts, however, whether or not those facts constituted re-deployment as a labourer is very much a disputed question to be tried. In addition, by reason of a plea at [54] of the defence, there is a question to be tried as to whether the request or requirement that Mr Obel perform the lesser duties temporarily.

63    Mr Obel submitted that “you can't have a temporary breach of contract”, but that ignores the circumstance that, on the respondent’s case a request to temporarily perform duties other than those set out in the position description fell within the authority of the employer under the employment contract and did not constitute a breach at all. Again, these are questions to be tried.

64    There is no basis to award summary judgment on that part of the claim concerning the re-deployment, for the reasons set forth above.

65    I do not consider that the defence, in its present form, is at all embarrassing or vague or ambiguous, although it might be that, there could be better particulars provided as to why it is that CDR says that the actions did not constitute a repudiation of the contract.

66    Mr Obel’s submission that the defence constitutes an abuse of process, as I understood his submission, was founded on an allegation that the respondent did not have a proper basis to defend his claim on the facts. That submission overlaps with those made on the summary judgment application, and I do not accept it.

67    I should not be understood to have expressed any views as to respective merits of the parties’ cases on any aspect of Mr Obel’s claim. It is sufficient to find that Mr Obel has not demonstrated to the Court that the respondent has no reasonable prospect of successfully defending the causes of action that were the subject matter of his submissions.

TRIAL OF SEPARATE ISSUES

68    By [8] of his interlocutory application, Mr Obel seeks an alternative order that certain questions be tried separately, including questions concerning the true construction of the employment contract and whether certain acts alleged against or admitted by CDR had the effect of terminating the employment relationship, or gave rise to a right in Mr Obel to terminate.

69    There might yet be an occasion to consider the trial of separate questions however Mr Obel did not, in his written submissions, make any suggestion as to how efficiencies might be achieved by the Court making any orders in the terms sought. He made no oral submissions on the topic at all.

70    On the material presently before me I am not satisfied that there is any efficiency to be gained by making an order for the trial of separate questions. I have had regard to the necessity to avoid the unnecessary fragmentation of proceedings, and the likely disruption that might occur by applications for leave to appeal in respect of matters that are only part heard. Fragmentation of the proceedings might only serve to defer the contest of facts in circumstances where the memories of the witnesses or the parties will only fade over time.

71    Moreover, there are multiple bases for Mr Obel’s claims, and at present am not satisfied that the determination of any single question might have the consequence that a trial will become unnecessary in respect of unrelated issues.

Associate:

Dated:    24 October 2022