Ansari v Commonwealth Bank of Australia Limited

Ansari v Commonwealth Bank of Australia Limited - [2007] FCA 1908 - FCA 2007 case summary — Zoe

[60]

16 At a directions hearing on 10 May 2007, the Bank sought, and was granted, leave to move on notice to be filed on or before 14 June 2007 and returnable on 27 July 2007 for summary dismissal of the proceeding. I also ordered that the matter be referred to mediation by a Registrar of this Court, with the outcome of the mediation to be reported to me by 25 July 2007. 17 At the directions hearing on 13 April 2007, the applicant intimated that she had brought the proceeding in this Court because she did not know the Bank's reason for terminating her employment on 11 August 2006. Ms Halpin, in her affidavit sworn 16 August 2007, deposes to having had a conversation with the applicant after the directions hearing, in which the applicant confirmed that she had received the letter from the Bank dated 11 August 2006. On 4 June 2007, Ms Halpin sent a further letter to the applicant, enclosing a copy of the letter dated 11 August 2006 and the previous letter from the Bank dated 31 July 2006 and again outlined the reasons why the Bank had terminated the applicant's employment. 18 On 18 May 2007, the applicant filed her notice of motion, which was returnable on 27 July 2007. On 4 June 2007, orders were made, amongst others, extending to 2 August 2007 the time for the report of the result of mediation and to 9 August 2007 the time for the filing of the Bank's notice of motion for summary dismissal with such notice to be returnable on 21 September 2007. A further order was made on the same day adjourning to 21 September 2007 the applicant's notice of motion filed 18 May 2007 and returnable on 27 July 2007. 19 On 5 June 2007, the Court listed the proceeding for mediation on 27 July 2007. The applicant failed to attend the mediation on that date and the Bank agreed to the mediation being adjourned to 2 August 2007 when it proceeded but was unsuccessful. 20 By letter dated 13 August 2007, a further offer of settlement was made to the applicant "without prejudice save as to costs". That offer was not accepted by the applicant. 21 On 9 August 2007, the Bank filed a notice of motion seeking the following orders; '1. That the whole of the proceeding be dismissed pursuant to Order 20, rule 2(1)(a) of the Federal Court Rules on the basis the that the proceeding discloses no reasonable cause of action and/or Order 20, rule 2(1)(b) on the basis that the proceeding is frivolous or vexatious.

[85]

23 Both the applicant's motion on notice dated 18 May 2007 and the Bank's amended motion on notice dated 18 September 2007 were returnable before this Court on 21 September 2007. At the hearing on 21 September 2007, the applicant requested that her motion on notice be adjourned, so that she might obtain legal advice. The Bank opposed this adjournment. As the applicant was unable to give any reason for the delay in seeking further legal advice and in seeking an adjournment, her application was refused. 24 Mr Felman of Counsel for the Bank, made oral submissions at the hearing of the motions on notice, and relied on his written outline of submissions filed in this Court on 19 September 2007. The Bank submits that, as sought by the amended notice of motion filed on 18 September 2007, the Court ought to exercise its discretion to dismiss the applicant's application pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), as the applicant has no reasonable prospect of success. Alternatively, Mr Felman submitted that the Court should exercise its discretion pursuant to O 20 r 5 of the Rules of this Court, to dismiss the applicant's proceeding as frivolous or vexatious. It was also contended on behalf of the Bank that the applicant should be ordered, pursuant to s 824 of the Act, to pay the Bank's costs of its motion on notice dated 18 September 2007 and of the proceeding. 25 In essence, the argument of the Bank is that, as the applicant's claim for relief from unlawful termination claim is founded solely on s 659(2)(e) of the Act, the applicant must establish that she participated, or engaged in, one of the activities outlined in that sub-section. Those activities, according to the Bank, are limited to actions external to the employer itself; see He v Lewin [2004] FCAFC 161 at [44] per Gray, Whitlam and Mansfield JJ, Zhang v Royal Australian Chemical Institute (2005) 144 FCR 347 at [25]-[30]; and Wang v University of New South Wales [2005] FCA 1040 at [15] per Wilcox J. In Zhang v Royal Australian Chemical Institute (2005) 144 FCR 347, Lander J, with whom Spender and Kenny JJ each agreed, said at [25], of the contention that a complaint to the employer would be caught by s 170CK(2)(e) of the Workplace Relations Act 1966, (the predecessor of s 659(2)(e)); 'In my opinion, that cannot be so on a plain reading of the subsection. Section 170CK(2)(e) speaks of 'filing' a complaint. An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal. That is consistent with reading the 'filing of a complaint' with the words that follow 'or the participation in proceedings', namely 'against an employer involving alleged violation of laws or regulations.' 26 In the Bank's submission, there is no evidence before the Court that the applicant, before her employment was terminated, had filed any complaint to an external agency, had recourse to an administrative authority or had participated in proceedings against the Bank. The Bank also submits that, although the applicant had filed a complaint whilst employed by the Bank, that had been done pursuant to an internal mechanism for the resolution of disputes. It follows, on the Bank's argument, that the applicant has not established, and will not be able to establish, that s 659(2)(e) of the Act has any application to the termination of her employment. Further, and alternatively, the Bank contends that the proceeding is frivolous and vexatious. 27 Mr Felman also submitted that, as the applicant has instituted these proceedings vexatiously or without reasonable cause, the Court should order her to pay the Bank's costs as allowed by s 824(1) of the Act. Alternatively, it is contended, the Court should exercise its discretion under s 824(2) of the Act, because it can be satisfied that the applicant has, by an unreasonable act or omission, caused the Bank to incur costs in connection with the proceeding. 28 Mr Felman argued that several circumstances made the instigation of this proceeding vexatious or without reasonable cause. First, it ought to have been apparent to the applicant that her case was hopeless, as s 659(2)(e) of the Act only applies to complaints to external authorities; see He v Lewin [2004] FCAFC 161; Zhang v Royal Australian Chemical Institute (2005) 144 FCR 347, at [55]. 29 Secondly, the applicant had been advised by the Financial Services Union ("the Union") that her claim did not have merit, and the certificate issued by the Commission ought to have alerted the applicant to the difficulties which she would confront if she were to pursue a remedy in this Court. Thirdly, the applicant has admitted, in a letter to this Court dated 27 December 2006, that her claim was without merit and would not be successful. Moreover, the applicant indicated at the directions hearing on 10 May 2007 that she had instituted the proceeding in order to find out the reason for her termination, which, the Bank submits, was an improper purpose for issuing proceedings. The applicant had received a letter from the Bank dated 11 August 2006 which outlined the reasons for termination, as well as a further explanatory letter from the Bank's solicitor. 30 Further, and in the alternative, the Bank contends that the applicant has conducted the proceeding in such a manner to cause it to incur costs unreasonably. This contention has been developed by pointing out that the applicant failed to lead any evidence of the filing of a complaint with an external authority. The Bank has previously advised the applicant, by way of letter dated 5 December 2006, that her case did not have merit and that it would seek an order for costs. The applicant has consistently failed to respond to offers to resolve the proceeding made by letters from the Bank's solicitor dated 17 January 2007, 4 April 2007 and 13 August 2007; cp the reasons of Marshall J in Sallehpour v Frontier Software Pty Ltd [2005] FCA 663, at [16]. Counsel for the Bank also refers to the applicant's failure to attend the mediation scheduled on 27 July 2007.

[93]

His Honour then went on to make the observations which is reproduced at [25] above. 36 There is evidence that the applicant had complained to the Bank before her employment was terminated. However, there is no suggestion in either of the affidavits sworn by the applicant that she had, before 11 August 2006, filed a complaint against the Bank with any external tribunal or other external entity or had participated in any proceedings against the Bank. Nor is there any allegation of that kind in her statement of claim. In her affidavit sworn 9 November 2006, the applicant deposes to having made a complaint under the Bank's Fair Treatment Review Policy. That complaint was by letter dated 12 May 2006 to Ms Joanne Anglim, an employee of the Bank. As I understand from Ms Halpin's affidavit sworn 16 August 2007, the Fair Treatment Policy affords an internal process whereby staff members can pursue complaints. Ms Halpin's affidavit sworn 16 August 2007 also deposes to a complaint made by the applicant on 1 May 2006 to the Chief Executive Officer of the Bank. In her first affidavit sworn 9 November 2006, the applicant deposed that, on 4 August 2006 she had attended at the office of the Union to seek advice about the response which she should make to a letter dated 31 July 2006 from Peter Griffiths, the Bank's Manager, Workplace Advice. That letter intimated to the applicant that "your ongoing failure to account for your absence also places your employment in jeopardy." 37 The effect of the advice which the applicant says she received from two officers of the Union, including one Mary Kost who had earlier visited the applicant at her workplace, was that it was best for her "to resign rather than fight it because I am going to lose and the Bank is going to ask for the cost(s) … it's not fair but it happens every day and the best thing for me is to let it go and move on." 38 Notwithstanding that advice, the applicant, by letter dated 8 August 2006 to Mr Griffiths of the Bank, indicated that she was sending to him "some of my issues which resulted in my conduct and made it impossible for me to be at work. I have already mentioned some of them to you on our meeting dated 26/07/06 and [am] frankly disappointed by your lack of response." Annexed to that letter was a lengthy résumé of incidents which had occurred during the applicant's employment by the Bank and in the course of her personal life. It concluded with this paragraph; 'As you can see from the events I have been subject to harassment, bullying, direct and indirect discrimination at workplace. I have been treated differently and less favourably than others, blocked promotion from one job to another. I have been treated with no respect and limited responsibilities and look very much forward to hear from you after reading all these.

[100]

43 In order to overcome the obstacle to an award of costs raised by s 824(1), the Bank must satisfy the Court that the applicant instituted the application vexatiously or without reasonable cause. I am not persuaded that, when she instituted the proceedings in this Court, the applicant was acting vexatiously or without reasonable cause. Sub-section 651(4) of the Act contemplates that, where conciliation is, or is likely to be unsuccessful in respect of a claim of an alleged contravention of s 659 of the Act, the applicant has a right to elect to begin proceedings in this Court for an order under s 665 in respect of the alleged contravention. That was a right exercised by the applicant in the present case. It is true that she made her election in the teeth of a certificate under s 650(4) of the Act that the Commission had concluded that her application had no reasonable prospects of success. However, there is no evidence before the Court of the terms in which the Commission, in accordance with s 650(3), had invited the applicant to provide further information in support of the ground afforded by s 659. Nor is there any evidence that the Commissioner supplied to the applicant any reasons or explanation for his conclusion that her invocation of s 659 had no reasonable prospect of success. In particular, there is nothing to indicate that the applicant should have understood that she could not rely on the reversal of the onus of proof effected by s 664 of the Act. Moreover, it appears that the applicant had no legal advice or representation while the conciliation process was being undertaken in the Commission. I presume that the greater complexity of which reliance on s 659 is capable is the reason for the extended time given by s 651(6)(b) in which an applicant can elect whether to begin proceedings in this Court in respect of an alleged contravention of s 659. That extended time would allow an applicant like the present one to seek legal advice on his or her prospects of success. I also infer that the present applicant did not avail herself of that opportunity but I am unable to conclude, in all the circumstances, that she exercised, vexatiously or without reasonable cause, the right of election which the Act gave her. 44 My inability to conclude affirmatively that the proceedings were instituted vexatiously or without reasonable cause does not entail that at no point while the proceedings have been pending has the applicant unreasonably caused the Bank to incur costs in connection with the proceeding. In my view, such a point was reached after the mediation by a Deputy Registrar of the Court had been unsuccessful and the applicant refused the Bank's last offer of settlement made on 13 August 2007. By then, the applicant had received the benefit of independent legal advice from pro bono Counsel experienced in industrial law. That advice, and the further exploration of the problems which confronted her which, I infer, occurred during the mediation, should have made it clear to the applicant that it was hopeless to continue her proceedings in this Court. Accordingly, I consider it a proper exercise of the discretion recognised by s 824(2) to order that the applicant pay such of the Bank's costs of the proceedings as have been incurred after 20 August 2007.

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