Federal Court of Australia

Tulett v Yourtown Pty Ltd [2024] FCA 513

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the applicant may file an application for leave to appeal is extended to 3 June 2023.

2.    The application for leave to appeal is refused.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    On 1 October 2021, the applicant filed proceedings in the Federal Circuit and Family Court of Australia (FCFCoA), alleging, amongst other things, various contraventions of ss 340 and 351 of the Fair Work Act 2009 (Cth) (FWA).

2    The respondents filed two applications. The first on 8 December 2021 sought an order that the statement of claim be struck out. The second on 1 August 2022 sought orders either summarily dismissing the proceedings or in the alternative, that the applicant be required to file a further statement of claim.

3    The primary judge heard argument on 19 August 2022, following which his Honour ordered the claim be summarily dismissed: Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120.

4    By a notice of appeal filed 21 March 2023, the applicant sought to appeal from the decision.

5    Although the applicant filed a notice of appeal within time, since the decision is interlocutory, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

6    The application for leave to appeal was filed out of time. Accordingly, the applicant requires an extension of time within which to file the application for leave to appeal. The applicant filed an application seeking an extension of time on 2 June 2023 and filed an affidavit in support of that application.

7    It seems that the reason the applicant did not file an application for leave to appeal within time was because he considered, mistakenly, that he had a right to appeal.

8    There is no suggestion by the respondents that there is any prejudice to them in an extension of time being granted and, quite properly, the respondents do not resist an extension of time being granted in the circumstances.

9    In support of his application for leave to appeal, the applicant annexes a draft notice of appeal.

10    This matter proceeded on the basis that the question of leave to appeal and the merits of any appeal were heard at the same time.

11    It is for the reasons which follow that:

(a)    There will be an order extending the time within which the applicant may file an application for leave to appeal to 3 June 2023; and

(b)    Leave to appeal is refused.

Leave to appeal

12    The principles relating to an application for leave to appeal are well-settled. In Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, 399 the Full Court identified that for a grant of leave to appeal from an interlocutory decision, an applicant must demonstrate that:

(a)    The decision at first instance is attended with sufficient doubt to warrant being reconsidered on appeal; and

(b)    The applicant would suffer substantial injustice if leave was refused.

13    The two criteria are cumulative and both limbs need to be satisfied: Sekigawa v Minister for Immigration & Border Protection [2016] FCA 127, [12] (Flick J).

14    The primary judge’s decision entailed an exercise of discretionary power to summarily dismiss a proceeding, such that the applicant must demonstrate for the purpose of criteria (a) above that the exercise of that discretion is attended with sufficient doubt to warrant being reconsidered on appeal when considered against the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 449.

Background

15    The statement of claim filed on 1 October 2021 was 211 pages long and consisted of 389 paragraphs. It listed 19 discrete complaints in relation to alleged conduct of the first respondent and its employees and in turn raised 59 distinct claims arising under the FWA.

16    On 8 December 2021, the respondents filed an application seeking orders that the statement of claim filed in the proceedings be struck out (strike out application). The respondents’ position was that the applicant’s case was incomprehensible.

17    On 3 February 2022, the primary judge ordered the applicant to file and serve an affidavit setting out the salient facts supporting his assertion that he had been the subject of various incidents of adverse action in contravention of some form of workplace rights by the respondents.

18    The applicant filed an affidavit, as directed, comprising 114 pages containing 359 paragraphs and 54 annexures amounting to a further 164 pages. It reiterated the 19 complaints concerning the conduct of the first respondent and its various employees.

19    After a further hearing before the primary judge and having sought legal advice, the applicant filed a further affidavit on 8 July 2022 comprising 77 pages with 33 annexures amounting to a further 96 pages. The number of complaints had been reduced to seven.

20    On 1 August 2022, the respondents filed a further application (summary dismissal application) in which it sought the proceedings be dismissed summarily or in the alternative that the applicant be required to file a further statement of claim.

The Decision

21    The primary judge identified in the Reasons that the essential issue before him was whether the applicant’s various complaints had been defined with sufficient clarity and precision for the respondents to answer the various allegations and for the Court to adjudicate the controversy arising.

22    As best as the primary judge could determine, the applicant asserted that he had been subject to adverse action by the first respondent, which he alleged had contravened a number of workplace rights, pertinent to him, in breach of the provisions of the FWA. The applicant also asserted that he had been subject to some form of illegal discrimination relating to a psychiatric condition from which he suffered at a time relevant to his employment by the first respondent.

23    The primary judge set out the legislative background to the general protection and discrimination provisions of the FWA, before setting out the background to the matter.

24    The primary judge held:

13.    In this context, it is to be emphasized, that it is not the Court’s responsibility, nor that of the respondents, to subject Mr Tulett’s material to some degree of intense forensic scrutiny in order to enable it (and them) to identify some cause of action for Mr Tulett to pursue. It is Mr Tulett’s obligation to delineate the ground or grounds on which he asserts he has a cause of action against yourtown and specify the material facts which support such grounds.

14.    This obligation encompasses, in my view, an obligation to delineate his case in a coherent and rational manner, which is comprehensible to those who must respond to it – both the Court and respondent. Neither the Court nor yourtown is required to attempt to decipher massive amounts of documentation and put them into order.

15.    At the same time, the Court has an obligation to ensure any litigant, who has a proper grievance, is given an opportunity to ventilate such grievance so it can be fairly resolved. It is in this context only that I have attempted to read the very many and lengthy documents and annexures, which Mr Tulett has prepared, in order to ascertain what is the general nature of his complaint against yourtown and whether it is amenable to being resolved in the context of a general protection proceeding under the FWA, as Mr Tulett has presently framed it.

25    On the strikeout application, the primary judge considered the relevant rules, relevant provisions of the Federal Circuit & Family Court of Australia Act 2021 (Cth) (FCFCoA Act) and the authorities dealing with striking out pleadings.

26    Thereafter, in relation to the summary dismissal application, the primary judge considered the relevant rules, relevant provisions of the FCFCoA Act and the authorities dealing with summary dismissal of claims.

27    The primary judge embarked upon a detailed analysis of the documents filed in the proceedings to the time his Honour heard the argument on 19 August 2022 and the conduct of the proceedings to that point. The primary judge worked through the various iterations of the claim brought by the applicant, observing amongst other things that in relation to the initial statement of claim filed:

120.    As best I can glean, with the assistance of my own process of intuitive extrapolation, Mr Tulett asserts that he had a workplace right to complain about these various matters in accordance with the terms of his employment agreement with yourtown and pursuant to the provisions of the Work Health & Safety Act 2012 (SA). Thus, possibly, it is the case that section 341(1)(c) of the FWA is engaged.

121.    Given, ostensibly Mr Tulett resigned from yourtown and received his full complement of worker’s compensation benefits, a more challenging aspect of the statement of claim is to identify what are the specific incidents of adverse action, falling within the parameters of section 342 of the FWA, upon which he relies.

122.    Given the sheer volume of the statement of claim, which has the necessary consequence of leading to obfuscation rather than illumination, in my view, this task is analogous to the metaphorical search for a needle in a haystack. In this context, I confess that I submitted the statement of claim to a word search for section 342, which revealed, again as best I can glean it, the following:

(His Honour then set out 13 incidents in which s 342 was cited)

123.    Clearly, Mr Tulett has many complaints regarding his perception that he has been poorly used by the management of yourtown. However, as was pointed out in Khiani, (Khiani v Australian Bureau of Statistics [2011] FCAFC 109) it is not the function of the Court to examine various incidents, in the relevant workplace, which might have been handled better or which might conceivably be regarded as having been procedurally high-handed or insensitive. In this context, the purpose of these proceedings is not in the nature of an inquiry into whether yourtown is or is not a fair employer.

124.    In conducting the analysis, which I have done above, I found it difficult, if not impossible to ascertain, from the statement of claim, notwithstanding its length, what were the material facts, which led Mr Tulett to assert he had been subject to adverse action. In addition, in my view, the sheer number of paragraphs, in the statement of claim, made its overall comprehension difficult, if not impossible.

125.    Without in any way wishing to be discourteous or dismissive of Mr Tulett, the flavour of the statement of claim was of an inchoate claim that he had been subject to some species of unfairness whilst employed at yourtown, which had led to a disciplinary inquiry, in respect of a complaint made by him. Later, he had fallen ill and had been aggrieved at the manner in which his incapacity had been approached by management. Again, I concede these impressions may be erroneous but, at the end of the day, I found his application to be incomprehensible.

(Brackets in [122] & [123] provided, citations omitted]

28    The primary judge further noted:

137.    On 3 February 2022, counsel for the respondents, Mr McLean characterised the statement of claim in the following terms:

•    It was manifestly excessive and largely unintelligible;

•    It relied on sections of legislation that did not exist;

•    It pleaded contraventions of sections of statute that were definitional in nature;

•    It was replete with allegations that were irrelevant, embarrassing or not material;

•    It contained a number of conclusory assertions without the material facts necessary to sustain such assertions;

•    It contained a number of ill-defined allegations to which the respondents could not sensibly plead; and

•    It alleged accessorial liability against Ms Benoit, Ms Butterworth and Ms Jessie without any material facts to sustain such allegations.

138.    Given the various principles outlined above and in the light of the over-arching principle in which the Court is to conduct the litigation before it, whilst bearing in mind the fact that Mr Tulett was neither legally qualified or represented, perhaps naively, I considered that some, if not all of the objections outlined by Mr McLean might be remedied if Mr Tulett filed an affidavit setting out the salient facts supporting his assertion that he had been subject to various incidents of adverse action in contravention of some form of workplace right by yourtown.

139.    Somewhat clumsily, the relevant transcript reveals I said the following:

I appreciate the prejudice to your clients about a lengthy statement of – statement of claim. I just think this is – we will get an affidavit, then at least your clients know what the story is, and then they can consider their position, and I can make a direction whether the matter proceeds by way of affidavits, or by pleadings and whether your clients can just file a simple response, and the statement of claim can be dismissed.

The case was then adjourned until 31 March 2022.

(Citations omitted)

29    The primary judge observed that the applicant had retained solicitors in respect of the strikeout application that was then current leading to a further affidavit being filed by the applicant on 8 July 2022.

30    It was in response to that document that the respondents filed their further application on 1 August 2022 seeking summary dismissal or in the alternative the filing of a further statement of claim.

31    The primary judge considered the 8 July 2022 affidavit in detail dealing comprehensively with each of the seven complaints raised by the applicant against the respondents in that affidavit.

32    Prior to doing so, the primary judge reminded himself in the following terms:

151.    It is necessary for me to attempt to understand, as best I can, the allegations made by Mr Tulett in his July affidavit. In so doing, I am aware of my obligation to hear and determine a claim for relief which has been honestly made. At the same time, I must not lose sight of what Gleeson CJ characterised as the concept of practical injustice. This cuts both ways, for the respondents, as well as for the applicant.

152.    Significantly, in completing this exercise, I am not obligated to sift through the matters asserted by Mr Tulett in an attempt to discern some cause of action on his behalf. It is not my responsibility to construct a pathway through or provide an atlas for what would otherwise be an incomprehensible document. These considerations are more significant in cases potentially involving the imposition of civil penalties in individuals who were discharging their employment obligations.

(Citations omitted)

33    The primary judge concluded, in part:

171.    I accept that I may well not have accurately summarised Mr Tulett’s various complaints arising from his perception that he has been egregiously treated by yourtown. Indeed, it may well be the case that I have missed some nuance or subtly in his complaints. However, in my view, this potential for misconstruction or misinterpretation of the various documents filed by Mr Tulett arises as a consequence of a combination of their prolixity and repetition, which leads to them being generally incomprehensible.

172.    The only conclusion, which can be drawn from the documents, is that Mr Tulett feels greatly aggrieved at his perception that he has been unfairly treated by yourtown and various members of its management in the context of a workplace dispute, which ultimately led to an independent HR inquiry and Mr Tulett himself applying for worker’s compensation.

…

174.    In undertaking this exercise, I do not consider that the affidavits filed by Mr Tulett provide even the most rudimentary aids to the interpretation of what is the nature of his case in the context of the FWA. However, as was pointed out in Sabapathy [2021] FCAFC 25 a pleading should not “require an atlas to expose it”.

175.    As was pointed out in Khiani a general protection application cannot be utilised as a vehicle for a person to ventilate general grievances held by him or her regarding their perceptions as to the probity of their treatment in the workforce…

176.    In my view, the convoluted and legally unintelligible nature of Mr Tulett’s case, as presently framed, does fall within the purview of Part 16 of the Federal Court Rules, which can be applied as a consequence of rule 1.06(2) of the Division 2 Rules…

177.    Given the length of the documents filed by Mr Tulett it is apparent to me that his complaints have not been pleaded in anything approaching a simple and succinct matter and, in my assessment, there is a dearth of material facts to support the elements of his case. Rather, the various documents filed by him are filled with general assertions of law.

…

179.    More significantly, I am also satisfied that it has caused prejudice to yourtown and the three individuals named as further respondents to it.

…

181.    As the case presently stands, I am satisfied that it would not be procedurally fair to them and indeed yourtown to allow Mr Tulett’s case to stand as it is presently drafted. Naively, I had hoped that the filing of an affidavit might distil the complaints made by Mr Tulett into a form, which was more readily comprehensible. This exercise was not successful. Rather Mr Tulett’s approach to the exercise has resulted in an unsatisfactory amalgam, which is neither pleading nor affidavit.

…

184.    For these reasons, I have reached the conclusion that Mr Tulett’s statement of claim must be struck-out pursuant to the provisions of rule 16.02. A more difficult consideration arises in respect of what should occur as a consequence of this determination.

…

34    In relation to the summary dismissal, the primary judge held:

188.    It is a significant matter to summarily dismiss an application. However, as previously indicated, such an outcome is available if the Court is satisfied that a litigant is failing to prosecute an application with due diligence.

…

198.    In my view, the major problem with Mr Tulett’s claim is that, given he has not been subject to the form of adverse action represented by termination of employment, it falls to him to demonstrate one of the other applicable limbs contained in the second column of section 342(1) namely some form of injury in or alteration and discrimination of his employment with yourtown.

199.    In this context, I do not consider that he has provided material facts in support of his blunt assertion that he has been subject to any such a form of adverse action and more significantly evidence to support a finding that any of Ms Benoit, Ms Butterworth or Ms Jessie were abusing the power conferred upon them by yourtown to make his working life intolerable in the sense envisaged by Marshall J in Byrne. (Byrne v Australian Ophthalmic Supplies Pty Ltd (2008) 169 IR 236)

200.    This Court is not authorised by the FWA to conduct any such general inquiry nor, in my view, would it be fair to the respondents concerned or indeed in the interests of the administration of justice, for the Court to entertain the application, in the hope, quite possibly a vain one, that some cause of action may ultimately coalesce out of Mr Tulett currently diffuse allegations that he has been sorely treated. For all these reasons, I have reached the conclusion that the application should be dismissed.

(Brackets provided in [199])

35    In concluding that the applicant’s application should be summarily dismissed, his Honour specifically considered the option of striking out the current statement of claim and allowing the applicant to replead.

36    The primary judge noted that the FCFCoA (Division Two) is conferred with a discretion pursuant to r 13.05 of that Court’s Rules to dismiss an application if the applicant fails to prosecute proceedings with due diligence. His Honour noted that the discretion must be exercised judicially and according to the dictates of justice. His Honour noted further that it is a fundamental principle that the claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed: Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713, 720 (Dixon J). Nonetheless, the primary judge also noted it may be appropriate to bring proceedings to an end prematurely if those proceedings would amount to an abuse of process or the prolongation of those proceedings would “… clearly inflict unnecessary justice upon the opposite party”: Welsh v Digilin Pty Ltd [2008] FCAFC 149, (2008) 250 ALR 13 at [32] (Tamberlin, Greenwood and Collier JJ).

37    The primary judge reminded himself that the two considerations must be carefully balanced against one another in any application for summary dismissal in view of the implications of such an order.

38    His Honour referred to the observations of Wilcox and Gummow JJ in Lenjimar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745; (1990) 98 ALR 200, 208 where their Honours, whilst eschewing the making of any exhaustive statement of the circumstances in which the exercise of a power for summary dismissal is appropriate, identified what they described as two “obvious candidates” as being that in which there is a history of non-compliance by the applicant such as to indicate an inability or unwillingness to cooperate with the court and, the other party or parties having the matter ready for trial within an acceptable period in those cases in which non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

39    Next, his Honour referred to ss 143(1) and (3) of the FCFCoA Act which provides:

143    Summary judgment

(1)    The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

(5)    This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.

40    The primary judge noted that s 143 is in similar terms to s 31A of the Federal Court of Australia Act 1976 (Cth) which provides:

31A    Summary judgment

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.

41    It was in that context that the primary judge referred to Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, 131 [22] (French CJ and Gummow J) and their Honours observations that s 31A:

22    In the Federal Court and in the Court of Appeal of Queensland, the criterion of a “reasonable prospect” of success has been understood in analogous statutory settings to mean a “real” rather than “fanciful” prospect. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(Citation omitted)

42    The primary judge referred to the High Court’s clear warning that to order summary judgment, it must be exercised with exceptional caution and should never be exercised unless it is clear that there is no real question to be tried: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602, and the observations of Kirby J as to the principles applicable to summary judgment in Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251, 256 where his Honour was considering O 26, r 18 of the High Court Rules 2004 (Cth):

1.    It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.

2.    To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

3.    An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes tum an apparently unpromising cause into a successful judgment.

4.    Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5.    If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon’s statement of claim.

6.    The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

(Citations omitted)

43    Having identified the relevant principles, his Honour considered the documents filed by the applicant to that time and the conduct of the proceedings. The primary judge noted a balance must be struck between the caution in dismissing a case prematurely if there is some potential issue, or issues of substance arising in it but which are hidden as a consequence of the ineptitude of the party concerned but at the same time “… it is not the role of the Court to sift through prolix and/or impenetrable documents in the hope of discovering some kernel of a substantive case”.

44    Ultimately, the primary judge held that the case fell within the category of cases characterised by Bromberg J in Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] where his Honour said:

In a general protections claim brought pursuant to s 340 of the FW Act, success depends upon the Court being satisfied that the applicant has been subjected to adverse action for one or more of the specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the applicant may be taken. A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:

A general protections application is not intended to provide an opportunity for the applicant to raise whatever issues she wishes to about the validity of the steps taken before [her] dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.

(Square brackets provided)

45    The primary judge concluded that the applicant had not provided material facts in support of his “blunt assertion” that he has been the subject of a form of adverse action and more significantly “evidence to support a finding that any of (the named individuals) were abusing the power conferred upon them by Yourtown to make his working life intolerable” (brackets provided) in the sense envisaged by Marshall J in Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66; (2008) 169 IR 236 at [26].

46    The reference to “evidence” by the primary judge has to be seen against the observation by his Honour that he did not consider the applicant had provided the “material facts” necessary.

Legal principles - procedural fairness and self-represented litigants

47    A common theme running through the contentions in the draft notice of appeal is that he was denied procedural fairness because he was a litigant in person who was not given sufficient assistance by the primary judge.

48    In Lamont v Malishus Limited (No 2) [2022] FCA 237 at [78] and following, Burley J considered the same contention which had been advanced by the applicant in that matter following a trial in the then Federal Circuit Court of Australia.

49    His Honour identified the following principles:

(a)    A party does not have a right to representation in court, but where that party is not represented, courts have an overriding duty to ensure that the trial is fair: at [79]; Dietrich v The Queen [1992] HCA 57; 177 CLR 292;

(b)    A judge has a duty to ensure a fair trial by giving self-represented litigants assistance so as to help to ensure that the litigant is treated equally before the law and has equal access to justice: at [80]; Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [140]; Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]. This is to be balanced against the fact that the duty does not extend to advising an unrepresented litigant as to how his or her rights should be exercised: Hamod v New South Wales [2011] NSWCA 375 at [312]; a relevant contextual matter is the nature of the hearing such that the seriousness of the consequences to a person who is self-represented as a factor to be taken into account. The content of the duty will vary according to the circumstances: at [81]; Boensch v Somerville Legal [2021] FCAFC 79 at [88] (Katzmann, Markovic and Abraham JJ); Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] (McCallum JA, Basten and Leeming JJA agreeing).

(c)    A further contextual matter is the apparent capacity of the self-represented party concerned: at [82]; Abram v Bank of New Zealand [1996] FCA 635 (Hill, Tamberlin and Sundberg JJ). That includes an understanding of the circumstances and the characteristics of the litigant which includes his or her intelligence and literacy: at [85]; Flightdeck at [61]-[70].

50    In circumstances where there is an assertion of a denial of procedural fairness, appellate intervention will depend on whether any procedural fairness is such as to amount to a practical injustice on the applicant such as to warrant the court exercising its discretion to grant relief: Lamont at [84] citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 [36]-[38] (Gleeson CJ) and Flightdeck at [58].

Grounds in support of the application for leave and the proposed grounds of appeal

51    The applicant’s grounds in support of the application for leave are mirrored in the grounds set out in the draft notice of appeal. There are eight grounds.

52    The applicant’s outline of submissions, filed on 21 June 2023, addresses six grounds, however in addressing ground one, the applicant also deals with grounds two and four.

Ground one, two and four - the primary judge failed in his duty to inform the applicant of relevant court processes and procedures

53    The applicant contends under this ground in his written submissions that:

(a)    The primary judge denied the self-represented applicant procedural fairness at the directions hearing held on 3 February 2022 when he failed to inform the applicant about the practice and procedure of the Court that enabled the applicant to seek the Court’s permission, at that early stage of the proceeding, to agree to withdraw his statement of claim (and his request for pecuniary penalties) and proceed on the basis of affidavits that did not require the applicant to comply with the formal rules of pleading;

(b)    The primary judge denied the applicant procedural fairness by failing in his duty to inform the applicant that he could apply to the Court for permission to provide an oral submission to clarify any elements of his statement of claim and his 8 July 2022 affidavit and that his Honour misunderstood, had misinterpreted, or should have required further information to enable valid findings of fact to be made; and

(c)    The primary judge denied the applicant procedural fairness when he was not given an opportunity to submit an amended statement of claim to rectify or cure any defects in his pleading, or to amend his affidavit of 8 July 2022 when there is objective documentary evidence that the applicant had a reasonable cause of action and a reasonable prospect of success.

54    It is a relevant consideration when addressing the issue of the applicant being a self-represented litigant that the primary judge identified that the applicant holds a Masters Degree in Social Work, a Masters Degree in Political Science, and has other significant tertiary qualifications but was not legally qualified or trained: Lamont at [84].

55    The primary judge described the applicant as an obviously intelligent and articulate person.

56    The applicant contends that the primary judge ought to have made him aware of three matters.

57    The first is that the applicant should have been made aware at a case management hearing on 3 February 2022 that he could develop his claim by way of affidavit.

58    The applicant contends that he was not informed that he could make a submission to proceed on the basis of affidavit evidence notwithstanding he had submitted a statement of claim. Somewhat confusingly, the applicant then submits that on that occasion he was denied procedural fairness by being ordered to file and serve an affidavit based on ambiguous and confusing directions which failed to clarify the purpose of the affidavit.

59    The applicant filed two affidavits in which he addressed the basis of his claims. The first in an affidavit sworn and filed 22 March 2022 and the second is the 8 July 2022 affidavit.

60    The primary judge noted that in the lead up to the hearing on 19 August 2022, the applicant filed a further affidavit and brief submissions in which it was stated:

The Applicant has been made aware that his claim is more appropriately progressed without formal pleadings such as by submitting an Amended Statement of Claim, but by submitting an affidavit combining a full narrative of the facts and the documentary evidence. The Applicant asks the Court to accept his affidavit dated 8th July 2022 in which he has endeavoured to clarify the causes of action, and has consolidated the complaints into a shorter, more precise form that will enable the respondents to more clearly understand the case he is asking them to answer.

(Citations omitted, emphasis added)

61    The respondents submit that that affidavit demonstrates that the applicant was clearly aware of the option of filing an affidavit by at the latest 8 July 2022 for the purposes of clarifying his causes of action and enabling the respondents to understand the applicant’s case.

62    The respondents point to the fact that by the time of the hearing on 19 August 2022, the applicant had filed a 211 page statement of claim, as well as two affidavits of, respectively, 114 and 77 pages in length plus annexures.

63    The respondents submit that there was no error as contended for in ground one but in any event, if there was an error, it was not material to the decision such that leave to appeal, on this part of ground one, should be refused.

64    I accept the respondents’ submissions that there was no error for which the applicant contends.

65    Further, I do not accept the applicant’s contention that he misapprehended his opportunity. The primary judge had noted the applicant was aware of the need to identify a case in a “… more precise form that will enable the respondents to more clearly understand the case he is asking them to answer.”

66    It is apparent from the Reasons that the primary judge considered the materials that had been filed by the applicant in great detail and concluded that the applicant had not, either in his statement of claim or the affidavit of 8 July 2022, identified any “adverse action” within the meaning of the FWA and that he had explained that to the applicant.

67    It is also apparent that the primary judge highlighted to the applicant the technicality of the type of claim he was pursuing and encouraged the applicant to obtain legal advice. Indeed, at one stage the applicant engaged solicitors before seemingly withdrawing his instructions.

68    Nonetheless, notwithstanding three attempts to set out his claims of adverse action under the FWA, the primary judge was quite unable to ascertain what the alleged adverse action comprised.

69    The respondents submit that the appropriate assistance for a Court to afford to a self-represented litigant does not extend to providing the litigant with judicial advice, counselling the litigant as to how to exercise their rights, or conducting the case on a self-represented litigant’s behalf: Flightdeck at [56]. I accept that submission.

70    The second matter under ground one is, in fact, ground two in the draft notice of appeal.

71    The applicant contends that he was denied procedural fairness because he was not given an opportunity to make submissions as to the adequacy of the statement of claim. However, that opportunity was extended to the applicant by the orders of 7 July 2022 (which provided for the applicant to file any written submissions in response to the strike out application), and subsequently at the hearing of 19 August 2022.

72    The third matter under ground one is, in fact, ground four in the draft notice of appeal.

73    The applicant contends he was denied procedural fairness because he was not given the opportunity to amend his statement of claim.

74    That contention cannot be accepted. It is apparent that the primary judge went to great lengths to give every opportunity to the applicant to present his claim to the respondents in a way which would allow the respondents to understand the case being advanced against them.

75    Further, the respondents observed that they wrote to the applicant on numerous occasions asserting that his statement of claim was deficient and invited him to replead: Appeal Book - Part B, Tab 5. The applicant’s response on each occasion was to deny that the document was deficient and to decline that invitation.

76    In all the circumstances, there is no merit to grounds one, two and four of the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on these grounds.

Ground two (ground three in the application for leave to appeal and the draft notice of appeal) - failure to give reasons for judgment based on findings of fact

77    The applicant contends (under the heading ground two in his written submissions) that the primary judge neglected to make findings on material questions of fact for any of the 19 complaints contained in the statement of claim or the seven complaints contained in the applicant’s 8 July 2022 affidavit. The applicant contends further that the primary judge failed to explain his process of reasoning.

78    The respondents submit that the primary judge took the applicant’s case at its highest and concluded that the applicant had not identified material facts sufficient to support an assertion that he had been subject to any form of adverse action within the meaning of the FWA.

79    The respondents point to the observations by the primary judge that the applicant’s materials were “unintelligible” and “did not disclose a reasonable cause of action”.

80    The respondents submit that in those circumstances, no particular findings of fact were necessary in order for the primary judge to properly exercise his discretion to dismiss the claim.

81    I accept the respondents’ submissions.

82    It is readily apparent that the primary judge went to great trouble to try and identify the basis of the applicant’s claim that he was subjected to adverse action under the FWA and gave the applicant multiple opportunities to present his claim in a way which was intelligible to not just the primary judge but equally importantly, to the respondents.

83    Having embarked upon this exercise, the primary judge described the applicant’s claim as “inchoate”, “generally incomprehensible” and “convoluted and legally unintelligible”.

84    The primary judge concluded that the applicant had not identified material facts to support an assertion that he had been subject to any form of adverse action, as that term is used in the FWA. The primary judge’s reasons in reaching that conclusion are set out in a considered, reasoned, and comprehensive manner.

85    There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Ground three (ground six in the application for leave to appeal and the draft notice of appeal)

86    The applicant contends (under the heading ground three in his written submissions) that the primary judge denied the applicant procedural fairness when he did not take into account relevant materials that had been submitted by the applicant.

87    In his written submissions, the applicant alleges that the primary judge denied the applicant procedural fairness because the judgment did not explicitly refer to certain aspects of the applicant’s submissions.

88    The applicant submits that there was a prima facie case of breaches of specific sections and subsections of the FWA and other workplace legislation and then identifies a number of matters that the applicant contends were done unlawfully by the first and second respondents.

89    The respondents submit that the applicant should not be granted leave to appeal in reliance on these matters.

90    In substance, the applicant disagrees with the conclusions of the primary judge who had embarked upon a careful, considered and detailed examination of the numerous attempts by the applicant to present his case in an intelligible form.

91    There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave on this ground.

Ground four (ground five in the application for leave to appeal and the draft notice of appeal)

92    The applicant submits that the primary judge relied upon “irrelevant information” when he made reference to a psychiatric report of a Dr Asokan. The applicant submits that there was not sufficient material before the primary judge to enable him to make the finding that Dr Asokan’s report “succinctly details [the applicant]’s complaints”.

93    The primary judge referred to the report of Dr Asokan in a recitation of the factual background to the proceedings.

94    The respondents submit that to the extent the primary judge considered the report, it was in an attempt to distil and understand the applicant’s complaints about how he had been treated.

95    The applicant further expands on this ground in his submissions by claiming that the primary judge denied the applicant procedural fairness by not requiring the respondents to provide particularised details of each alleged deficiency in the statement of claim. The respondents submit that this is not a ground of appeal that arises from the draft notice of appeal, and for that reason, is not a ground in respect of which leave to appeal should be entertained.

96    I accept the respondents’ submissions.

97    As to the contention the primary judge relied upon “irrelevant information”, there is no basis to support that contention, far less that the primary judge did so at the expense of what was otherwise advanced by the applicant in his materials as the instances of what the applicant contended were adverse action.

98    It is clear the primary judge went to great lengths to try and understand the case being advanced by the applicant. The primary judge’s reference to the report of Dr Asokan was not such that his Honour relied on “irrelevant information”.

99    There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Ground five (ground seven in the application for leave to appeal and the draft notice of appeal)

100    The applicant contends the primary judge made an error at law when he found that the applicant does not have a specific workplace right to not be subjected to workplace bullying.

101    The workplace right to not be subjected to bullying is exercised on the making of an application to the Fair Work Commission for an order to stop bullying.

102    The respondents submit that the primary judge’s conclusion that the applicant did not have a workplace right to not be subjected to bullying was sound, for the reasons set out by the primary judge at [61]-[63] of his Reasons.

103    The respondents also submit that whether the applicant had or had not exercised a workplace right was of no moment, given the primary judge’s findings that the applicant had not identified any tenable case of adverse action and, more problematically, that the statement of claim was unintelligible.

104    I accept the respondents’ submissions.

105    There is no merit to this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Ground six (ground eight in the application for leave to appeal and the draft notice of appeal)

106    The applicant contends the primary judge denied him procedural fairness by misunderstanding and mischaracterising the applicant’s complaints, and by making findings not supported by the evidence.

107    The applicant’s submissions identify a long list of what he contends were errors of fact made by the primary judge.

108    The error alleged at [13] of the applicant’s submissions (AS) is not an error of fact. Rather, AS [13] is an expression of the applicant’s dissatisfaction with the primary judge’s ultimate findings.

109    The conclusions of the primary judge impugned at AS [14] are conclusions that were sound and open to the primary judge on the basis of the materials before him.

110    The error alleged at AS [15] is not an appealable error, and is an error of no materiality.

111    The errors alleged at AS [16] and [17] are not errors of fact.

112    The error alleged at AS [18] proceeds on the basis of a selective reading of the Reasons. The respondents submit that the error alleged is of no materiality.

113    The respondents submit that the errors alleged at AS [19], [20], and [21] suffer from the same deficiency as at AS [18] – the errors for which the applicant contends are immaterial insofar as if the applicant did not rely on the relevant complaints as instances of adverse action and under those circumstances, the primary judge’s conclusion that they did not constitute adverse action for the purposes of the FWA was of no consequence.

114    The errors alleged at AS [22] and [23] appear to entail a suggestion that the primary judge erred in failing to find that the applicant had been subjected to adverse action for the purposes of the FWA. This was not an error of fact, but a conclusion open to the primary judge on his consideration of the material before his Honour as to whether the applicant had identified a cause of action.

115    The respondents submit that the error alleged at AS [24] misapprehends paragraph [162 of the Reasons. There, the primary judge was not concerned with whether the applicant had made complaints in the sense of exercising a workplace right, but rather was observing, in assessing the veracity of the applicant’s alleged injury, that the applicant had not previously raised concerns about the injury he now claimed to have been subjected to.

116    The respondents submit the error alleged at AS [25] is not an appealable error. Not only is the relevant observation of the primary judge not a finding of fact, but moreover it was an observation reasonably open to the primary judge in the circumstances, and indeed represented a reasonable critique of the applicant’s materials.

117    The respondents submit the error alleged at AS [26] is misconceived. The applicant contends that the primary judge erred in “not finding that there was a prima facie case that his workplace right was contravened”. The concept of a contravention of a workplace right is a confused amalgam – a contravention of the FWA arises when adverse action is taken because a workplace right has been exercised.

118    I accept the respondents’ submissions. There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Leave to appeal

119    As I have noted above, the issue on whether the Court should grant leave to appeal depends upon the applicant satisfying the Court that:

(a)    The decision at first instance is attended with sufficient doubt to warrant being reconsidered on appeal; and

(b)    The applicant would suffer substantial injustice if leave was refused.

Decor at 399.

120    Self-evidently, there are two components to the test.

121    As to the first component, not only is there the question of whether the primary judge erred in his assessment of the applicant’s attempts to plead his case but also the exercise of the discretion. I am satisfied that the primary judge took a great deal of care and attention in considering the applicant’s attempts to plead his case and gave the applicant a number of opportunities to set out the basis upon which he brought his claim under the FWA.

122    As to the exercise of the discretion, an appellate court will not interfere with a decision involving the exercise of discretion unless an error of the kind described in the well-known passage in House at 504-505 is made out:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

123    As I have noted, the primary judge took extraordinary care to try and discern the basis upon which the applicant brought his claim against the respondents. Despite being given numerous opportunities, and indeed different formats, the applicant was unable to do so.

124    Under those circumstances, the primary judge considered the respondents were prejudiced in the sense that the Court was not authorised by the FWA to conduct a general enquiry. Further, the primary judge was correct to conclude that it would not be fair to the respondents or in the interests of the administration of justice for the Court to entertain the application in the hope that a cause of action may coalesce out of the applicant’s diffuse allegations that he has been badly treated.

125    In the exercise of his discretion the primary judge, for reasons he explained and none of which have been successfully impugned by the applicant, considered carefully whether he should strike out the current version of the statement of claim or dismiss the application summarily, ultimately dismissing the application.

126    I do not accept there is any merit in any of the grounds of appeal contained in the applicant’s draft notice of appeal and the applicant has not been able to demonstrate that the decision is attended with sufficient doubt to warrant it being reconsidered on appeal.

127    As to the second criterion, I do not accept that the applicant would suffer substantial injustice if leave was refused on the basis that there is no claim able to be articulated by the applicant. There is no injustice in being denied the opportunity to bring a claim where none exists. Further, any substantial injustice needs to be balanced against the prejudice to the respondents, which the primary judge considered specifically and carefully in the event that the applicant was given leave to re-plead his case before ordering summary dismissal.

Conclusion

128    It is for these reasons that there will be orders granting the applicant an extension of time within which to bring an application for leave to appeal but refusing the application for leave to appeal.

Associate:

Dated:    17 May 2024

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