defendant. Proceedings dismissed; plaintiff to pay the defendants' costs.
Key principles
The Court will dismiss proceedings served on persons outside Australia under r 11.6 UCPR where it is satisfied that the claim has insufficient prospects of success to warrant...
Non‑compliance with r 11.7 (failure to serve the prescribed Form 161) does not automatically require dismissal where defendants are represented, aware of their rights and do not...
Where the lex causae is Australian law and the cause of action arose in Australia (representations received and relied upon in NSW), the local court is not necessarily an...
The statutory enquiry under r 11.6(2)(c) into 'insufficient prospects of success' is a different and broader enquiry from the General Steel 'no reasonable cause of action' test:...
Issues before the court
Whether service abroad was authorised when Form 161 (r 11.7 UCPR) was not served and a Service and Execution of Process Act notice was used instead.
Whether this Court was an inappropriate forum (forum non conveniens) for trial of claims brought by plaintiff against UAE defendants.
Plain English Summary
Davies J dismissed the plaintiff's NSW proceedings against four UAE defendants served overseas. Although the plaintiff failed to serve the prescribed Form 161, the Court found that the defendants were represented and not prejudiced by that omission. On the merits, examining admissible evidence and contemporaneous documents, the Court found the plaintiff had signed an employment contract and obtained an entry permit and residency in Abu Dhabi, undermining claims of misleading or unconscionable conduct under the Australian Consumer Law. The Court treated the prospects‑of‑success test under r 11.6(2)(c) as a distinct interlocutory enquiry requiring review of evidence (different from General Steel 'no reasonable cause' test) and concluded the claims had insufficient prospects to justify defendants mounting a defence. Proceedings were dismissed and costs were awarded to the defendants.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Proper test for 'insufficient prospects of success' under r 11.6(2)(c) and relation to General Steel 'no reasonable cause of action' test.
Whether representations supporting s 18 ACL claim were false/misleading and made in trade or commerce where plaintiff obtained contract, work permit...
The plaintiff sued four defendants resident or located in the United Arab Emirates, alleging representations about prospective employment that induced him and his family to relocate to Abu Dhabi. The pleaded causes of action were principally contraventions of s 18 (misleading or deceptive conduct) and s 21 (unconscionable conduct) of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)), together with contract‑based allegations. The factual core was that the first defendant (Fox Fire Security System LLC) purportedly offered the plaintiff employment through communications involving the second, third and fourth defendants (family members), and that the plaintiff relied on those representations to obtain a visa, move to Abu Dhabi, and undertake arrangements (rent, schooling etc).
The proceedings were served on the UAE defendants, but the plaintiff did not serve the prescribed Form 161 notice required by r 11.7 Uniform Civil Procedure Rules (which explicates rights and grounds for challenging service when persons are served outside Australia). Instead the plaintiff’s solicitors used a notice under the Service and Execution of Process Act 1992 (Cth). The defendants applied under r 11.6 UCPR for dismissal (or alternatively, striking out) on grounds that service was unauthorised, the NSW court was an inappropriate forum, and the claims had insufficient prospects of success to warrant the defendants defending the claim.
Davies J conducted an interlocutory assessment (evidence read on the application, with objections) and dismissed the proceedings under r 11.6(2)(c) finding the claims had insufficient prospects of success; costs were awarded to the defendants. The judge also addressed the other grounds, holding that failure to serve Form 161, while a breach, did not in the circumstances of the case justify dismissal alone.
Key operative facts: the plaintiff signed a written employment contract (4 December 2017), was granted an entry permit (11 January 2018) and residency (14 January 2018) in the UAE, moved to Abu Dhabi with his family and later returned to Sydney (25 January 2018). The plaintiff’s evidentiary material contained significant inadmissible content (conclusions, indirect speech and non‑contemporaneous hearsay), and contemporaneous documents (the contract, emails and government permits) undermined the plaintiff’s pleaded case.
Why the court decided this way
Davies J’s decision turned on two linked pillars:
The statutory test and proper approach under r 11.6(2)(c) UCPR (the “insufficient prospects” limb), and
The evidence (including contemporaneous documents) demonstrating that the plaintiff had in fact obtained the contract, entry permit and residency he alleged he had been denied, thereby damaging the merits of the s 18/s 21 claims.
On test and approach, the Court emphasised that the r 11.6(2)(c) enquiry is a distinct interlocutory assessment of prospects of success and is not the same as the General Steel 'no reasonable cause of action' test used for a summary dismissal under other rules. The judge explained that r 11.6(2)(c) ordinarily requires examination of the plaintiff’s evidence and contemporaneous documentation to form a view of whether the claim’s prospects justify forcing a foreign defendant to incur the time, expense and trouble of defending the action. That assessment does not typically involve deciding contested factual disputes by cross‑examination but does require admissible evidence and documents to be considered. Where the evidence shows the plaintiff obtained the contractual benefits alleged to have been misrepresented, the core misleading conduct claim lacks prospects.
On forum, Davies J followed the High Court’s discussion in Regie (and earlier authorities such as Voth and Henry v Henry) to the effect that 'inappropriate forum' under the rules is a less emphatic concept than the 'clearly inappropriate forum' test. Davies J concluded that where the lex causae is plausibly Australian law and the representations were received and relied upon in New South Wales, NSW was not an inappropriate forum. Thus forum non conveniens was not a basis for dismissal here.
Finally, and pivotally, the evidential record undermined key elements of the plaintiff’s case. The plaintiff actually signed the contract and received the immigration documents he alleged had been representations only, and his later departure from Abu Dhabi (and the existence of pre‑booked return travel) raised questions about causation and reliance. Many of the plaintiff’s statements were objectionable in form and thus of limited weight. On that evidential basis the Court assessed the prospects of success as insufficient to justify forcing the UAE defendants to defend in NSW.
Before and after state of the law
Before: The High Court authorities (Voth, Regie, Henry) and Federal/State authorities provided the framework for forum non conveniens inquiries and the exercise of discretion to decline jurisdiction or stay proceedings. The pre‑existing distinction between the 'no reasonable cause of action' summary dismissal test (General Steel) and other interlocutory standards was well understood, but how r 11.6(2)(c) should be approached in practice required explication at the interlocutory evidence‑review stage.
After: Davies J clarified and applied the following points in the NSW Supreme Court context:
r 11.6(2)(c) is a distinct statutory gateway allowing dismissal where prospects of success are insufficient; courts should normally examine admissible evidence and contemporaneous documents to assess prospects, while avoiding determination of contested facts without cross‑examination.
Failure to serve Form 161 (r 11.7) does not inevitably lead to dismissal where the defendant is represented and not prejudiced by omission.
If the lex causae is Australian law and the cause of action arose in Australia (representations received and relied upon here), the local court is not automatically an inappropriate forum merely because defendants and other witnesses are abroad.
This decision therefore provides useful procedural guidance on the evidence required at interlocutory stage under r 11.6 and on the interplay between service irregularities and substantive merits.
Key passages with plain-English translation
"The enquiry concerning prospects of success is a different enquiry from determining whether a reasonable cause of action is disclosed.", Plain English: The court’s job under r 11.6(2)(c) is not just to ask whether the pleading could ever amount to a viable cause of action; it must look at the available evidence and documents to decide if the claim is sufficiently likely to succeed to justify making foreign defendants defend it.
"To give full effect to the words in sub‑r(2)(c) it will ordinarily be necessary to examine the evidence upon which the plaintiff relies. It will ordinarily not be appropriate to resolve disputed factual matters because the assessment to be made will not involve cross‑examination...", Plain English: The court should review the plaintiff’s affidavits and documents to assess prospects, but should not try to decide disputed facts that would require witnesses to be tested orally on oath.
"Non‑compliance with r 11.7 ... I do not consider ... should result in any order under r 11.6. The defendants are represented ... and do not claim to be prejudiced by that omission.", Plain English: Failing to serve the specified overseas notice is not automatically fatal; if defendants know their rights and aren't prejudiced, dismissal for that alone is not required.
On unconscionability (citing Scully): "A distinctive quality of unconscionable conduct ... is that it is unethical ... some degree of moral tainting ...", Plain English: To win an unconscionability claim the plaintiff needs to show unethical or morally tainted conduct, not merely that a party broke a promise or breached a contract.
What fact patterns trigger this precedent
This judgment will be triggered in interlocutory contests where:
A plaintiff serves proceedings on foreign defendants and fails to comply with r 11.7 Form 161, and defendants apply under r 11.6 to have proceedings dismissed or stayed; or
The dispute involves alleged misleading conduct said to have been made overseas but received and relied upon in Australia; or
The court must weigh the costs and burden on foreign defendants of defending in Australia against the plaintiff’s prospects of success; or
The plaintiff’s evidentiary case relies heavily on indirect, inadmissible or conclusionary statements without contemporaneous documentary support.
Particular red flags include where contemporaneous documents (contracts, governmental permits, emails) directly undermine allegations of misrepresentation, and where plaintiff’s evidence is heavily conclusionary or in inadmissible form.
How later courts have treated it
This deep dive is limited to the text of Davies J’s judgment and the authorities it cites. The judgment itself cites Regie, Voth, General Steel, Scully and other authorities. Davies J follows Regie’s approach to 'inappropriate forum' questions and explains the distinct nature of the r 11.6(2)(c) enquiry. Subsequent courts considering r 11.6 arguments would be likely to follow the practical approach outlined here: examine admissible evidence and contemporaneous documents for prospect assessment, and do not treat mere omission of Form 161 as automatically dispositive where no prejudice is shown. Users should check later reported authorities for adoption or qualification of these directions.
Still-open questions
How rigorously should courts examine contested factual disputes at interlocutory stage under r 11.6(2)(c) without cross‑examination? Davies J stresses restraint, but the boundary between legitimate document‑based assessment and impermissible fact‑finding is fact‑sensitive.
What quantum of prejudice is required before non‑service of Form 161 becomes a decisive basis for relief under r 11.6(2)(a)? Davies J accepted representation and lack of prejudice as decisive here; other cases may require a different factual matrix.
To what extent will the 'juridical advantage' analysis influence forum assessments where the foreign forum lacks an equivalent statutory remedy (Davies J noted the plaintiff's claim to a juridical advantage due to absence of an ACL equivalent in the UAE, but proceeded to dismiss on merits)?
How will costs assessments be approached where dismissal is made under r 11.6(2)(c) without resolving all pleaded causes of action? Davies J ordered costs against the plaintiff; practice may vary with complexity and steps taken.
Final reminder: This is general legal information only, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis or any draft document, get a qualified Australian lawyer to check it.
The plaintiff brings proceedings against four defendants who are located in the United Arab Emirates (UAE) claiming damages for representations alleged to have been made by them, and which were said to be false, misleading and deceptive concerning the proposed employment of the plaintiff with the first defendant. The statement of claim alleges that the first defendant made representations to him concerning the entry into a contract of employment through the agency of the second, third and fourth defendants. The second defendant was the plaintiff's father in-law at the time, the third defendant was his mother in-law and the fourth defendant was his wife. Since the commencement of the proceedings the plaintiff and his wife have been divorced.
The proceedings were served on the defendants in the UAE. Instead of serving a Form 161 pursuant to r 11.7 Uniform Civil Procedure Rules 2005 (NSW), the solicitors for the plaintiff served a notice under the Service and Execution of Process Act 1992 (Cth).
The defendants by notice of motion filed 8 January 2020 now seek an order under 11.6 UCPR that the proceedings be dismissed, alternatively an order under r 14.28 UCPR that the amended statement of claim be struck out.
[3]
Background
The plaintiff and the fourth defendant were married on 28 March 2004 and have two children. The plaintiff alleges that the marriage became strained in June 2016 and resulted in the plaintiff seeking a divorce in 2019.
The plaintiff's principal claim, in reliance on what is said to be s 18 of the Consumer Act (sic) and s 42 of the Fair Trading Act, is set out in paragraphs 11-17 of the amended statement of claim. The reference to the Consumer Act seems to have been intended as a reference to the Competition and Consumer Act 2010 (Cth). The reference to the Fair Trading Act was misconceived since that section was repealed by the enactment of the Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW). The provisions of s 18 of the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)) govern the matters formerly contained within s 42 of the Fair trading Act.
Paragraphs 11 to 17 of the amended statement of claim are as follows:
11. In the period prior to and on and from 22 December 2015 up to the end of February 2018 2D and 3D insofar as 3D supported him, together with 4D who also lent support, represented to the Plaintiff that 2D was able to offer employment with a contract from his company the 1D of which he was a manager, i.e. Fox Fire Security System LLC, and that such contract would have a Residency Visa for the requirements of Abu Dhabi UAE to enable the Plaintiff to emigrate with his wife and family to work in Abu Dhabi.
Particulars
The representation was oral and made in the period referred to above, by phone calls to the Plaintiff from Abu Dhabi and from Australia to Abu Dhabi, with words to the effect as pleaded coupled with, from time to time, support by way of verbal assurance from 3D and 4D that the job offer was genuine and available to the Plaintiff provided he left Australia and moved to reside in Abu Dhabi.
12. In the period prior to and on and from 22 December 2016 up to and including the end of January 2017, 4D represented to the Plaintiff that she was able to leave her employment with Etihad Airlines which she was undertaking in Australia and move to Abu Dhabi to continue working with Etihad Airlines and that the offer of employment from 1D to the Plaintiff, together with her ability to continue her career with Etihad Airlines in Abu Dhabi would assist the family and aid the marriage, and the Plaintiff should consider taking up the offer of employment by 1D. At all material times ID acted through its agent 2D as its manager in making the representations as pleaded.
13. In September 2017, 4D further represented that the opportunity to work with Etihad Airlines in Abu Dhabi was still available but that she had to take up that position in early 2018 and that she was required to resign from Etihad Airlines in Australia, upon which she would obtain a redundancy package, and thereafter move to Abu Dhabi where Etihad would pay for housing, schooling for the children and that she would obtain a position similar to her sister's position with Etihad Airlines in Abu Dhabi, and that 1D'S offer of work to the Plaintiff was still available provided he acted on it immediately.
Particulars
The representation was given orally by 4D and in circumstances where she was acting with the approbation of 2D in making the representation to the Plaintiff concerning the offer of employment in Abu Dhabi apart from her representation to the Plaintiff that she had work opportunities in Abu Dhabi with Etihad Airlines in a position similar to her sister provided she resigned and moved to Abu Dhabi sooner rather than later. The Plaintiff will give evidence of the representations at the hearing of this trial in terms of the pleading and the particulars supplied.
14. Acting in reliance on the representations made by ID, through its manager 2D and with support from 3D and 4D:
(a) The Plaintiff applied for a Visa to work in Abu Dhabi by responding to ID's invitation to contact Awad Hanna El Sallak and forwarding to him the sum of AUD3.328.19 transferred via Western Union to enable preparation of the visa and the required relevant certificates for application for an employment visa to work in Abu Dhabi.
(b) In or about early December 2017 the Plaintiff, in receipt of emails from 1D, i.e. 2D's company Fox Fire Security System LLC, supplied authenticated certificates from the Department of Foreign Affairs and Trade in Sydney and from the UAE Embassy in Canberra, accepting a contract, signing it and scanning it to ID in purported performance of the application for a contract to work in Abu Dhabi.
(c) On 11 December 2017 the Plaintiff's estranged wife and children left Australia for Abu Dhabi and the Plaintiff, with his mother and siblings, packed up the Plaintiff's belongings and the Plaintiff left Australia for Abu Dhabi following his wife and children on 27 December 2017.
(d) Upon arrival in Abu Dhabi the Plaintiff travelled to Lebanon on 9 January 2018 in compliance with the requirement to further evidence as to his completion of high school education, returning to Abu Dhabi on 13 January 2018.
(e) On 11 January 2018 the Plaintiff was granted an Entry Permit - Employment No 101/2018/2/0010042 and UID No 43731114 from the UAE Ministry of Interior, with the nominated sponsor Fox Fire Security System LLC.
(f) On 14 January 2018 the Plaintiff was granted Residency in Abu Dhabi pursuant to UID No 43731114 for the period 14 January 2018 up to and including 13 January 2020.
(g) On 17 January 2018 the Plaintiff enrolled his children in schools in Abu Dhabi.
15. The aforementioned representations made by 1D were false, misleading and deceptive and were made in trade or commerce, contrary to s.18 of the Consumer Act and s.42 of the Fair Trading Act because;
(a) the Plaintiff did not have any opportunity to work in the company Fox Fire Security System LLC as represented or at all, and there was no opportunity available to him to so work;
(b) 1D did nothing to ensure that there was an opportunity for work despite executing a contract of employment with the Plaintiff, contrary to the representations as made and provided;
(c) 1D did not ensure that the Plaintiff was given a visa commensurate with the alleged opportunity to work in the company as represented;
(d) the offer of employment was untrue insofar as it was never offered but was used as a means to effect the Plaintiff's repatriation from Australia with his wife and children to live with 2D and 3D. In the premises, 4D was a party to the representation being made to enable her to effect a breakdown of the marriage where she would be settled with her parents and children in Abu Dhabi where she was born and where she wanted to return to live with her family, acting on the false representation that the Plaintiff would have an offer of employment with 1D as a result of the representation made by 2D to him and supported by 3D and 4D to the Plaintiff, which he acted upon to his detriment by moving from Australia to Abu Dhabi.
16. The representations made by 4D were false, misleading and deceptive and contrary to s. 18 of the Consumer Act and s.42 of the Fair Trading Act in that:
(a) 4D represented to the Plaintiff as her husband that he should realise his assets and move to, Abu Dhabi to resettle and find alternate employment, and this was done in circumstances where she did not have a position with Etihad Airlines in Abu Dhabi as represented or at all;
(b) the representations made, concerning the offer of employment with Etihad Airlines in Abu Dhabi was done to ensure that the Plaintiff would move by realising the matrimonial assets, and in moving to Abu Dhabi with the children and 4D, thereby enabling 4D to resume living with her parents in view of the breakdown of the matrimonial relationship, forcing the Plaintiff to reside with her by acting on the false representations.
17. The contraventions by 2D, 3D and 4D referred to in paragraphs 15-16 above severally and collectively:
(a) caused;
(b) continue to cause; and/or
(c) are likely to cause,
the Plaintiff to suffer loss and damage.
[4]
Service outside Australia
Rule 11.7 UCPR provides:
11.7 Notice to person served outside Australia
If a person is to be served outside of Australia with an originating process, the person must also be served with a notice in the approved form informing the person of -
(a) the scope of the jurisdiction of the court in respect of claims against persons who are served outside Australia, and
(b) the grounds alleged by the plaintiff to found jurisdiction, and
(c) the person's right to challenge service of the originating process or the jurisdiction of the court or to file a conditional appearance. (emphasis added)
The Notice in the approved form is a Form 161 which provides:
SERVICE OUTSIDE THE JURISDICTION
FORM 161
(Rule 11.7)
Uniform Civil Procedure Rules 2005
(Notice to defendant served outside of Australia)
To the Defendant:
1. You have been served with an originating process outside Australia under Rule [specify the rule (#11.4 and Schedule 6 / #11.5)] of the Uniform Civil Procedure Rules 2005 which apply in the Supreme Court of New South Wales. A copy of the Rule is enclosed for your information. Rules 11.3 to 11.8AC show the scope of the jurisdiction of the Court in respect of claims against persons who are served outside Australia.
2. The grounds alleged by the plaintiff to support its claim to be entitled to serve you outside of Australia and in the case of rule 11.4, the paragraph/s of Schedule 6 relied upon are:
[specify grounds]
3. The Court may, on application made by you in accordance with the rules of Court, dismiss or stay the proceeding or set aside the service on you of this originating process. Without limiting the Court's powers in this regard, the Court may dismiss or stay the proceeding or set aside the service on you if satisfied that -
(a) the service was not authorised by the rules of the Court; or
(b) this Court is an inappropriate forum for the trial of the proceedings; or
(c) the claim has insufficient prospects of success to warrant putting you to the time, expense and trouble of defending the claim.
4. Alternatively you may file an unconditional notice of appearance (in the form prescribed by the rules of the Court) within the time required under the rules of the Court.
5. If you file an unconditional notice of appearance, additional procedural obligations (such as an obligation to file a defence or an affidavit) may apply to you in accordance with the Rules of the Court.
6. If you do not make an application to set aside service referred to in paragraph 3 or file an unconditional notice of appearance, the Court may give leave to the plaintiff to proceed against you without further notice.
[5]
Submissions
Counsel for the defendants submitted that all of the defendants were either registered in or reside in the UAE. In particular, the first defendant had no connection with Australia at all, having no offices, staff, assets or business undertakings in Australia and deriving no revenue in Australia. Counsel submitted that all relevant witnesses save for the plaintiff resided in the UAE and that the defendants would be put to great expense to continue to engage Australian solicitors and counsel and to travel to Australia for the hearing.
Counsel submitted that the substance of the claim, although not pleaded by the plaintiff, is that there is an alleged breach of contract by the first defendant. Counsel submitted that that contract is governed by UAE labour law. Further, any loss for the breach of that contract occurred in the UAE. Counsel submitted that expense would be incurred by having to retain an expert in UAE labour law. If, as the plaintiff suggested, evidence could be given by AVL from the UAE, there would need to be interpreters at either end which would be added expense.
The plaintiff submitted that the pleaded cause of action, as opposed to the claim which the defendants say ought to have been brought, is a claim based on a breach of s 18 of the Australian Consumer Law. In that regard, the plaintiff submitted that the representations were received and relied upon by the plaintiff in New South Wales. Any damage sustained by the plaintiff as claimed was sustained in New South Wales. In that way, the plaintiff submitted that the cause of action based on s 18 of the Australian Consumer Law arose in New South Wales.
Associated with that, the plaintiff submitted that the plaintiff would be deprived of a significant juridical advantage if the proceedings were not heard and determined in New South Wales. That is because there is no corresponding right in the UAE to make a claim such as s 18 allows.
The plaintiff submitted that the matter of witnesses giving evidence could be dealt with by AVL and that would ameliorate any inconvenience and oppression arising from those witnesses having to come to Australia.
[6]
Determination
The High Court made clear in Regie that the ultimate consideration is the prevention of injustice. In Henry v Henry (1996) 185 CLR 571 at 576 the High Court reiterated that the test is that a stay should be granted if continuation of the proceedings in the Local Court would be oppressive in the sense of being "seriously and unfairly burdensome, prejudicial or damaging", or vexatious, in the sense of "productive of serious and unjustified trouble and harassment". It is also necessary to consider "connecting factors" and whether there is "a legitimate personal or juridical advantage" in the proceedings remaining in the court where they commenced. A material consideration is whether it is fairly arguable that the substantive law of the forum is the lex causae.
The claims as pleaded invoke ss 18 and 21 of the Australian Consumer Law. On the balance of probabilities, the causes of action pleaded arose in New South Wales inasmuch as the representations were received in New South Wales and acted upon to the plaintiff's detriment. Nor, on the pleaded claim, would evidence need to be given about UAE labour law. It is no answer to those matters for the defendants to assert that the claim amounts to, or should be, a claim for breach of contract.
Where the lex causae for the claim would be Australian law and where the cause of action arose in Australia, it cannot be said that proceedings in this Court were brought in an inappropriate forum. I note also that it was accepted in O'Reilly v Western Sussex Hospitals NHS Trust [2010] NSWSC 909 at [39]-[40] that, even if foreign law is to be applied, that will not necessarily mean that the local court is an inappropriate forum: see also Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 at [2] and [49].
[7]
Prospects of success
The majority of the time at the hearing was taken up with this aspect of the matter. That was not surprising because, as I have said, it is necessary to examine the plaintiff's evidence and contemporaneous documents which might help to clarify what would otherwise be conflicting matters of fact as a result of evidence filed by the defendants.
The principal allegation is found in paragraph 11 of the amended statement of claim. For ease of reference I will set out that paragraph again as follows:
In the period prior to and on and from 22 December 2015 up to the end of February 2018 2D and 3D insofar as 3D supported him, together with 4D who also lent support, represented to the Plaintiff that 2D was able to offer employment with a contract from his company the 1D of which he was a manager, i.e. Fox Fire Security System LLC, and that such contract would have a Residency Visa for the requirements of Abu Dhabi UAE to enable the Plaintiff to emigrate with his wife and family to work in Abu Dhabi.
Paragraph 14 then alleges that the plaintiff, acting in reliance on the first defendant's representations, did the following things:
(a) Applied for a visa to work in Abu Dhabi;
(b) Supplied documents to the UAE so that he could obtain a contract to work in Abu Dhabi;
(c) Left Australia with his family and travelled to Abu Dhabi;
(d) Travelled to Lebanon to get further evidence of his high school education;
(e) Was granted an entry permit for employment with the nominated sponsor being the first defendant;
(f) Was granted residency in Abu Dhabi; and
(g) Enrolled his children in schools in Abu Dhabi.
Significantly, the plaintiff does not plead that, acting in reliance on the representations, he entered into a contact of employment with the first defendant, as he now acknowledges that he did.
Paragraph 15 pleads that the representations by the first defendant were false, misleading and deceptive and were made in trade or commerce because:
(a) The plaintiff did not have the opportunity to work for the first defendant as represented or at all;
(b) The first defendant did nothing to ensure that there was an opportunity for work despite executing a contract of employment;
(c) Did not ensure that the plaintiff was given a visa commensurate with the alleged opportunity to work; and
(d) The offer of employment was untrue because it was never offered, but was used as a means to effect the plaintiff's repatriation from Australia with his wife and children.
[8]
The misrepresentation claims
The evidence in support of the claim against the first defendant, which is said to involve the second defendant, is chiefly to be found in paragraph 21 of the plaintiff's evidentiary statement. That paragraph relevantly says:
I say that prior to and on 4 December 2017 the second defendant told me with words to the effect that he was employed by the first defendant and was able to make an offer to me for a position with the first defendant as a building consultant.
The plaintiff then identifies and annexes a number of documents which are said to be "in support of this".
The defendants objected to the quoted sentence on the basis of its form. In my opinion, the evidence is inadmissible in that form. It is a summary in indirect speech of what was supposed to have been said, and it suffers from the further vice that it was said to have been made "prior to and on 4 December 2017".
The documents said to support the job offer by the second defendant as an employee of the first defendant are as follows.
The first group of documents consisted of an email from Waleed Al Kashef Abdel Aleem who is a human resources officer employed by the first defendant. The email, apart from the email addresses, was in Arabic, but the plaintiff has translated it as saying, relevantly, "Please find attached the job offer related to you", and asking him to sign it and return it so the company could issue the work permit for him.
The second group of documents consisted of emails between the plaintiff and Mr Waleed, where the plaintiff asked Mr Waleed to correct his name in Arabic on the job offer. Mr Waleed said he would do that. On 5 December 2017 he sent him a revised document with the plaintiff's name adjusted. The plaintiff then signed the contract and returned it to Mr Waleed on 5 December 2017 at 1:09am.
The plaintiff seems to have believed that the second defendant was employed by the first defendant partly because he asserts, in inadmissible form in paragraph 20 of his evidentiary statement, that the second defendant had said that he was employed by both Asfar Hotels and the first defendant. He also seems to have formed that view because he believed that the second defendant had two email addresses being george.samia@asfarhotels.com and . In fact, that second email address did not belong to the second defendant at all but to Georges Mikel El Hajj who was the general manager of the first defendant and who swore the affidavits on behalf of the first defendant in these proceedings.
[9]
The unconscionability claims
The plaintiff pleads a further cause of action which is said to be based on unconscionability in equity as well as in contravention of s 21 of the ACL. Damages are claimed only by reason of the breach of s 21. The pleading of this claim is set out at [8] above.
It may be seen from this pleading that the basis for this claim is, what is here called "the Assumption", that the plaintiff would be given a contract of employment with the first defendant and a residency visa. This is the same claim made in a different form to the earlier causes of action discussed. The claim is made only against the first defendant.
There are a number of problems with the cause of action. The first problem is that, whatever the second defendant is supposed to have done, he was not the manager of the first defendant and, for reasons earlier given, there is no evidence that the first defendant held the second defendant out as an employee or agent.
Secondly, when the plaintiff obtained a contract of employment and a work permit and visa, it is difficult to see where there is any unconscionability. The only implied wrongdoing, assuming the plaintiff pleaded it and led admissible evidence of it, is a breach of contract by the first defendant. Even if that was proved, it would not amount to unconscionable conduct. However, such a claim is not pleaded.
Thirdly, as the plaintiff now accepts, the matters said to constitute the Assumption have come to pass; that is, the plaintiff was given a contract of employment with the first defendant and a residency visa with appropriate entitlements to reside in Abu Dhabi. In that way, it cannot be said (as paragraph 24 of the amended statement of claim implies) that the first defendant has departed from the Assumption. Nor does the plaintiff plead any actual departure from the Assumption on the first defendant's part. He does plead that the first defendant engaged in unconscionable conduct "in the manner in which it contracted with the Plaintiff" without specifying how. Where the whole of this cause of action is dependent on the first defendant departing from the Assumption, and where the evidence shows that the Assumption has not been departed from, the plaintiff fails to demonstrate a reasonable cause of action.
Fourthly, where unconscionable conduct is asserted, ordinarily one would expect to see unethical conduct. In Director of Consumer Affairs Victoria v Scully [2013] VSCA 292, Santamaria JA (with whom Neave and Osborn JJA agreed) said:
[48] Ninth, a distinctive quality of unconscionable conduct as against unreasonable or unfair conduct is that it is unethical. The characteristic of unreasonableness or unfairness may form the basis (or a significant part of the basis) of a conclusion that conduct is unconscionable. As Allsop P said, in Tonto Home Loans Australia Pty Ltd v Tavares [[2011] NSWCA 389] at [293]] it is necessary to show at least "some degree of moral tainting in the transaction of a kind that permits the opprobrium of unconscionability to characterise the conduct of the party".
[49] Tenth, it is a noticeable feature of all the cases, thus far, in which conduct has been held to be "unconscionable" that the conduct has been found to be unethical in some manner or other. …
[10]
The third defendant
The claim against the third defendant, at least on the first claim in paragraphs 11 to 17 in the Amended Statement of Claim, is confined to an allegation that the third defendant supported the second defendant. That may be seen from the terms of paragraph 11 of the amended statement of claim and from the opening words of paragraph 14 which say:
Acting in reliance on the representations made by 1D, through its manager 2D and with support from 3D and 4D.
The same reference appears in paragraph 15(d).
Section 236 of the ACL enables a claim to be made against "any person involved" in a contravention of a provision of Ch 2 or Ch 3. Section 2 defines "involved" in this way:
A person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:
(a) Has aided, abetted, counselled or procured the contravention; or
(b) Has induced, whether by threats or promises or otherwise the contravention; or
(c) Has been in any way, directly or indirectly, knowingly concerned or in, or party to, the contravention; or
(d) Has conspired with others to effect the contravention.
The amended statement of claim does not allege that the third or fourth defendants were persons involved in the contravention, nor does it allege any of the matters set out in the definition of "involved". The phrase "with support from", employed by the plaintiff in his pleading, has no legal meaning. To the extent that the cause of causes of action against the third and fourth defendants are those pleaded in paragraphs 11-17 of the amended statement of claim, they do not disclose any reasonable cause of action against the third and fourth defendants.
Even if one has regard to the evidence, the plaintiff's evidentiary statement only mentions the third defendant in two contexts. First, at paragraphs 28 and 29, the plaintiff gives evidence that the third defendant introduced him to an estate agent and helped him and his family to find somewhere to live. Secondly, at paragraphs 28 and 34 the plaintiff said that the third defendant spoke to him about what the second defendant had done. In paragraph 28 the following appears:
Soon after my arrival in Abu Dhabi in (sic) had discussions with the Third Defendant. She said to me words to the effect that the Second Defendant had been successful in securing me employment with the First Defendant, and that I should be grateful for what he had done for me.
[11]
The fourth defendant
Further claims are made against the fourth defendant. Those claims are set out in paragraphs 12, 13 and 16 of the amended statement of claim.
It may be noted that these representations are pleaded separately from representations concerning the provision of a contract of employment to the plaintiff. They refer to the obtaining of a job by the fourth defendant with Etihad Airlines in Abu Dhabi.
The evidence in support of this part of the claim is to be found in paragraphs 16-18 of the plaintiff's evidentiary statement as follows:
16. At that time the Fourth Defendant had represented to me with words to the effect that she was going to apply for a position in Abu Dhabi working for Etihad Airways. In Australia in the latter part of our marriage she had taken up a position with Etihad Airways and was working for them at the Kingsford Smith International Airport at check-in and in the First-Class Lounge.
17. In the period July 2016 to November 2017 the Fourth Defendant said to me on several occasions, the exact dates of which I cannot recall, words to the effect that she was hoping to get a position in Abu Dhabi through her sister Natalie Sarnia, who worked for Etihad Airways in Abu Dhabi as a manager and who she said had a close relationship with the Vice President for Airport and Network Operations, Mr Chris Youlten. She also said to me words to the effect that her sister had secured her job in Australia in 2013. In the same period the Fourth Defendant also told me that she was confident she would have a job offered to her to work in the Etihad office when we went to Abu Dhabi. I relied on her statements to me knowing that she had got her position in Australia through her sister. Exhibited to this my statement at pp.27-30 are copies of the text messages sent for 2 November 2017, 3 November 2017 and 4 November 2017.
17. I further say that I was aware that the Fourth Defendant's sister had given her assistance to pass an interview and exam to become an Etihad Airways representative in Australia by supplying her with answers to questions, thereby giving her an advantage over other candidates to enable her to successfully complete the examination and become employed by Etihad in Australia. She had supplied me with the email sent by her sister commencing on 7 May 2013 wherein she gave the Fourth Defendant the answers to the examination questions, and this led me to come to the view that when she said she would be getting a job through her sister in the Abu Dhabi office of Etihad, that was going to happen. I further relied upon that statements made to me by the Fourth Defendant that not only would I have employment in Abu Dhabi, but she would have employment as well, and we could manage financially.
[12]
Remedy
The plaintiff did not comply with r 11.7 UCPR. In that way, the service on the defendants was not authorised by the rules. I do not consider in the present case that such non-compliance should result in any order under r 11.6. The defendants are represented by local lawyers, and fully apprised of their rights as foreign defendants, including making the present application. That is what the Form 161 notifies them about. It is true that clause 2 of the Form 161 requires the specification of the grounds alleged by the plaintiff to support his claim to be entitled to serve the defendants outside Australia. However, the defendants do not claim to be prejudiced by that omission. If that was the only basis for the present application, I would not make any order under the rule.
I have determined that the prospects of success of the various claims against the various defendants range from no prospects to poor prospects, with most claims having negligible prospects. On that assessment, the discretion given by the rule arises because the claims have insufficient prospects of success.
This case involves a foreign company with no connection to Australia. It involves three defendants, two of whom only appear to have a connection to Australia by virtue of their daughter marrying the plaintiff. The fourth defendant, lives permanently in the UAE. On the basis of the evidence adduced at the hearing of the present application, a hearing in Australia with all witnesses present here will take a minimum of three days, and probably more. If, as seems more likely, a number of witnesses give evidence by AVL from the UAE, the hearing will take longer. It was suggested that there will be a need for interpreters, although I note that all the affidavits relied upon in the present application were sworn in English. I can envisage, however, that the defendants may need to call employees from the first defendant, apart from Mr El Hajj who, as the General Manager of the first defendant, gave evidence on this application about other employees' involvement.
In my opinion, the prospects of success are insufficient to warrant putting the defendants to the time, expense and trouble of defending the claim. In those circumstances, the proceedings should be dismissed. No purpose would be served by merely staying them. Such an order might be appropriate if the court was an inappropriate forum.
[13]
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Decision last updated: 03 April 2020
Proceedings dismissed; plaintiff to pay the defendants' costs.
An alternative case was then pleaded in paragraphs 18-21 as follows:
18. Further, the representations made above were made pursuant to an agreement between the 1D and the Plaintiff, such agreement being partly oral, partly in writing and partly implied.
Particulars
The written part of the agreement is comprised of the following:
(i) the documents completed in respect of the application for a work permit and a residency permit in the company Fox Fire Security LLC made to the government of Abu Dhabi UAE dated 11 January 2018;
(ii) all emails and correspondence between the Plaintiff and 1D and such other government bodies and/or departments situate in Australia and Abu Dhabi.
The oral part of the agreement is comprised of the following:
(a) discussions between the Plaintiff and 2D, 3D and 4D on and from December 2016 up to and including November 2017;
(b) telephone discussions between the Plaintiff and 2D;
(c) telephone discussions, text messages/SMS and face-to-face discussions generally between the Plaintiff and 4D during the relevant period.
19. The following were express terms of the Agreement;
(a) 1D would offer to the Plaintiff a contract of employment with Fox Fire Security System LLC in Abu Dhabi;
(b) 1D would ensure that the Plaintiff had a work permit to work at Fox Fire Security System LLC in Abu Dhabi.
20. Alternatively, it was an implied term of the Agreement that 1D would ensure that all steps were taken to enable the Plaintiff to be given a work permit and a contract of employment with Fox Fire Security System LLC to enable him and his family to move from Australia to Abu Dhabi UAE to undertake the contract of employment as represented and to which the Plaintiff agreed.
21. As a result of the breach of the Agreement, the Plaintiff has suffered loss and damage.
Particulars
The Plaintiff repeats the particulars of damage referred to above.
Finally, paragraphs 22-26 pleaded a cause of action based on s 21 of the Consumer Act (sic):
22. If, contrary to the allegations above, the Agreement failed to include terms as pleaded, then all parties to the Agreement assumed ("the Assumption") at all material times that:
(a) The Plaintiff would be given a contract of employment with Fox Fire Security System LLC and a residency visa with appropriate entitlements to reside in Abu Dhabi.
(b) The Assumption was derived from the representations pleaded in support of contravention of the Consumer Act and the Fair Trading Act respectively ("the Representations").
(c) In reliance on the Assumption, the Plaintiff entered into the Agreement with 1D and undertook steps to leave Australia to work in Abu Dhabi for 2D's company Fox Fire Security System LLC.
(d) But for the Assumption, the Plaintiff would not have left his home and employment in Australia, repatriating his family to Abu Dhabi, and would have continued to undertake his work in Australia and earn his livelihood. The Plaintiff acted in reliance on the Assumption and thereby acted to his detriment.
(e) There was no obligation on the Plaintiff to enter into the Agreement with 1D and he did so in reliance on the Assumption. At all material times the Plaintiff adopted the Assumption referred to herein for the purpose of a legal relationship between himself and 2D as the manager of Fox Fire Security System LLC.
23. In light of the matters set out above, 1D knew or ought to have known of the reliance by the Plaintiff on the Assumption in entering into the Agreement.
24. In the circumstances set out above, it would be unconscionable and unjust for 1D to depart from or be permitted to depart from the Assumption.
25. 1D engaged in trade or commerce for the supply and/or acquisition of goods and services, and in doing so, in equity and in contravention of s.21 of the Consumer Act, 1D engaged in conduct that was in all the circumstances unconscionable in the manner in which it contracted with the Plaintiff and the manner in which he acted after the provision of the visa and residency permit with the Plaintiff.
Particulars
The Plaintiff will rely on:
(i) the inequality of the bargaining strengths in that 2D was in a far stronger bargaining position than the Plaintiff;
(ii) 2D's position as his father-in-law and the manager of Fox Fire Security System LLC, and his knowledge of the business and residency and work requirements for foreign workers, to make the representations and entice the Plaintiff to leave his employment and residency in Australia to come to Abu Dhabi;
(iii) the attitude of 2D evinced by its decision not to enable the Plaintiff to work in Fox Fire Security System LLC in circumstances where he was able to obtain and enjoy employment at a fair and just remuneration in Abu Dhabi;
(iv) in respect of the conduct of 2D, ID was vicariously liable for the conduct of 2D insofar as 2D acted as ID's agent, apart from acting in the manner in which he has been sued as a make of the representation in concert with 3D and 4D.
26. The Plaintiff has sustained damage and loss as a result of the contravention by ID of s.21 of the Consumer Act.
The defendants were all jointly represented. They filed a single defence which denied the representations, and which then said:
11. The defendants deny paragraph 11 and say that:
(c) the second defendant, the third defendant and the fourth defendant were not employees or agents of the first defendant and had no authority to act on behalf of the first defendant;
(d) even if the representations were made as alleged (which is denied):
i. the representations were not made by the first defendant;
ii the representations were not made in Australia;
iii the representations were not made in trade and commerce.
Extensive evidence from the plaintiff and all four defendants was read on the application. The plaintiff had prepared an evidentiary statement in accordance with the Practice Note and also swore an affidavit. Both of those documents included a great deal of material that was not admissible whether on an interlocutory or final basis.
After the hearing of the motion commenced, I was handed extensive objections by the defendants to the plaintiff's evidence. In the time available, it was not possible to go through all of those objections and rule upon them in advance. It was apparent, and I indicated to the parties, that a good deal of the evidence was not in admissible form. That was accepted by counsel for the plaintiff. Much of the evidence given by the plaintiff was conclusionary. Conversations were given in indirect speech and summarised. It also became apparent that not all of the evidence which was read, including many parts that were objected to, was relevant for what I had to decide on the present application. When I was taken during submissions to particular parts of the evidence to which objection was made, I then indicated how I would deal with that evidence. The matter became significant in a few areas which will be discussed later in the judgment.
The evidence disclosed, and it was not disputed by the plaintiff, that on 4 December 2017 the plaintiff and the first defendant entered into a written employment contract for an unlimited term. The contract was written in both English and Arabic. It was accepted that what was written in English correctly represented the terms of the contract.
The contract provided that the plaintiff was to work in the job of "office in charge" within the UAE. The term of the contract was said to commence from the date the plaintiff entered the UAE and there was to be a six month probation period. The plaintiff's monthly wage was to be $10,000 AED which at the time of the hearing of the application was approximately AUD $3,700 per month. The contract provided for the giving of one month's notice by either party to terminate the contract.
There was in evidence in English a document entitled:
UAE LABOUR LAW
FEDERAL LAW NUMBER (8) of 1980
LABOUR LAW AND ITS AMENDMENTS
Article 120 relevantly provided:
The employer may dismiss the employee without notice in the following cases:
…
10. If he absents himself without lawful excuse for more than 20 intermittent days or for more than seven successive day (sic) during one year.
There was evidence that on 10 December 2017 the plaintiff booked four flights with Etihad Airways, flying from Sydney to Abu Dhabi on 26 December 2017, from Abu Dhabi to Beirut on 9 January 2018, from Beirut to Abu Dhabi on 13 January 2018 and from Abu Dhabi to Sydney on 25 January 2018. After returning to Sydney at that time, the plaintiff did not return to the UAE. His employment was subsequently terminated.
As noted earlier, that Notice was not served on the defendants.
Rule 11.6 provides:
11.6 Court's discretion whether to assume jurisdiction
(1) On application by a person on whom an originating process has been served outside of Australia, the court may dismiss or stay the proceeding or set aside service of the originating process.
(2) Without limiting subrule (1), the court may make an order under this rule if satisfied -
(a) that service of the originating process is not authorised by these rules, or
(b) that the court is an inappropriate forum for the trial of the proceeding, or
(c) that the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim.
The first matter to determine is how this rule operates. The power given in subr (1) is wide, and is not limited to the matters set out in subr (2). If any of the matters in subr (2) are made out, the court can decide which remedy is to be provided. The matters in subr (2) are to be considered individually. The disjunctive "or" points against determinations being made on the basis of any combination of them. In that way, for example, the court is either an inappropriate forum or it is not. It does not become inappropriate because, as here, there has been a breach of r 11.7 if it was not an inappropriate forum absent such a breach. Nor does it become inappropriate depending on how poor the prospects of success are found to be. In the same way, the fact that the service was not authorised by the rules will not add anything to the consideration of the prospects of success.
In the present matter, the defendants rely on each of the matters set out in sub-r (2).
The reference to "these rules" in paragraph 2(a) is principally a reference to Pt 11 but may also, in certain circumstances, be a reference to the rules in Pt 10. Reference to Pt 10 is likely to be minimised either because r 11.8AC does not require personal service so long as the process is served on the person in accordance with the law of the country in which service is effected, or because a number of the rules in Pt 10 (e.g. rules 10.23 - 10.25) are specific to service within Australia. In the present case the defendants assert, and the plaintiff accepts, that service was not authorised by Pt 11 of the Rules because a notice pursuant to r 11.7 (Form 161) was not served on the defendants when the rule prescribes that such service "must" occur. The issue of what, if any, remedy under r 11.6(1) should be given will be dealt with later in this judgment.
The term "inappropriate forum" is different from the expression "clearly inappropriate forum" which was held by the majority in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 as the test to be applied when a party to proceedings in an Australian forum seeks a stay of those proceedings in order to permit the same matter to be determined in a foreign forum having the necessary jurisdiction.
In Regie National des Usines Renault SA & Anor v Zhang [2002] HCA 10; (2002) 187 ALR 1, the High Court considered the provisions of Pt 10 r 6A of the Supreme Court Rules 1970 (NSW) That rule was the forerunner of r 11.6 UCPR. Part 10 r 6A set out two situations, without limiting the generality of the Court's power, where an order setting aside or staying or declining to exercise jurisdiction might be made. Those two situations corresponded with r 11.6(2)(a) and (b), with subrule (2)(b) of r 6A reading:
"that this Court is an inappropriate forum for the trial of the proceedings."
The majority judgment said this about the expression "inappropriate forum":
[24] The expression "inappropriate forum" in par (b) of Pt 10, r 6A(2) is less emphatic than the expression "clearly inappropriate forum", the latter being the term adopted in Voth to determine whether an Australian court should decline to exercise its jurisdiction. The formulation in Voth, as Spigelman CJ pointed out in James Hardie Industries Pty Ltd v Grigor, was adopted in preference to the "clearly more appropriate forum" test favoured in the United Kingdom. Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate.
[25] Because a court's power to stay proceedings is an aspect of its inherent or implied power to prevent its own processes being used to bring about injustice, the same concepts and considerations necessarily inform the test of "inappropriate forum" in par (b) of Pt 10, r 6A(2) as inform the "clearly inappropriate forum" test adopted in Voth. And because the ultimate consideration is the prevention of injustice, they inform it in the same way. Thus, it is appropriate to note what was said by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry. Their Honours said:
"In [Voth], this Court confirmed its rejection, in [Oceanic Sun], of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd. The Spiliada principle allows that a court may stay proceedings which are pending before it if that court is not the natural forum and there is another available forum which is clearly or distinctly more appropriate. The result is that, in the United Kingdom, a stay will be granted in favour of a clearly more appropriate forum or, which is much the same thing in practice, the natural forum, that being the forum 'with which the action [has] the most real and substantial connection'. ...
In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or, vexatious, in the sense of 'productive of serious and unjustified trouble and harassment. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, 'the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance'. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being 'where the case may be tried "suitably for the interests of all the parties and for the ends of justice"."
[26] In Voth, the majority joint judgment also identified as a material consideration whether it is fairly arguable that the substantive law of the forum is the lex causae.
It is then necessary to consider the scope of the test set out in r 11.6(2)(c). The words chosen are deliberately different from what is contained in r 13.4 and r 14.28. The comparison is, of course, with the words "no reasonable cause of action", the test for which is accepted as being that set out General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and the cases which have followed it.
In relation to sub-r (2)(c) the defendants submit that the appropriate test is a different and wider one than the test on an application under r 13.4 for summary dismissal of the proceedings. The defendants submitted that the principles from General Steel Industries do not apply where r 11.6(2)(c) is relied upon. The plaintiff submitted that the principles from General Steel Industries apply, and that disputed questions of fact cannot be determined from conflicting affidavit evidence.
In my opinion, the enquiry concerning prospects of success is a different enquiry from determining whether a reasonable cause of action is disclosed. In the first place, if it were determined that no reasonable cause of action was disclosed, a defendant would show that the claim had insufficient prospects of success to warrant putting the defendant to the time, expense and trouble of defending the proceedings. However, even if a reasonable cause of action was demonstrated, the prospects of success of that claim might not be sufficient to warrant a need for the defendant to defend that claim because of the undoubted time, expense and trouble of defending the claim.
I do not consider that a balancing exercise is involved in the determination of the prospects of success. It can be accepted that the defence of a claim made by any defendant involves time, expense and trouble, and that the time, expense and trouble are likely to be significantly greater for a foreign defendant. Such a defendant would need to engage local lawyers. If the defendant came to Australia to defend the claim, there would be considerable time, expense and trouble for that person. Even if the defendant did not come to Australia, the cost of engaging those lawyers is likely to be increased because of the costs associated with communication. The need for interpreters and audio-visual links results in increased costs.
Once the prospects of success have been determined, there may be some cases where the amount in question in the proceedings is sufficiently modest that, at the stage where the discretion provided in both subs (1) and (2) is to be exercised, a balancing exercise is involved. Such cases are likely to be rare.
To give full effect to the words in sub-r(2)(c) it will ordinarily be necessary to examine the evidence upon which the plaintiff relies. It will ordinarily not be appropriate to resolve disputed factual matters because the assessment to be made will not involve cross-examination of witnesses. However, contemporaneous documents may be of considerable assistance in assessing the prospects of success. There may be some evidence dealing with the time, expense and trouble of defending the claim, but this is likely to be of limited usefulness, because an estimate of the costs will be difficult at such an early stage of the proceedings.
The plaintiff also pointed to the fact that the second defendant was copied into emails he received from Mr Waleed as evidencing a holding out by the first defendant of the second defendant to make representations on its behalf.
Statements by the second defendant that he was employed by the first defendant could not amount to a holding out by the first defendant of that fact. Further, the inclusion of the second defendant in emails is demonstrated on the evidence to have been because the second defendant was assisting the plaintiff in relation to the forwarding of documentation to obtain a visa and work permit in the UAE.
However, none of those matters is ultimately relevant because, as the plaintiff now accepts, he entered into a contract with the first defendant for employment. The terms of that contract are clear. It is contained in the signed form of the agreement which the plaintiff has annexed to his evidentiary statement. Further, the plaintiff obtained a residency visa enabling him to work in Abu Dhabi and for him and his family to emigrate to the UAE. In that way, the plaintiff fails to establish that the representations were misleading and deceptive or false.
The plaintiff's real complaint, as it appears in paragraph 15 of the amended statement of claim, is that there was no work available for him, despite his having executed a contract of employment. He does not, however, assert that the contract he entered into was a sham.
The evidence put forward by the plaintiff in relation to the absence of a job was first contained in paragraphs 29 and 30 of his evidentiary statement. In paragraph 29 the plaintiff made reference to signing a rental agreement on 25 January 2018. He said that "According to Abu Dhabi law I was required to hand over four post-dated cheques." He said he did so. He then went on to say in paragraph 30:
Soon after entering into the letting contract I became aware that there was no employment to be given to me, despite the offer of employment that had been indicated in both the entry permit and the work permit given to me. I questioned the second defendant who told me that there was no job and I immediately became angry. This conversation occurred on about 25 January 2018. I realised that with no offer of employment eventuating, I had given post-dated cheques which could render me liable for prosecution if they were not met.
All of that evidence was objected to by counsel for the defendants. The evidence is inadmissible by reason of its form and the fact that it contained conclusions and beliefs only.
In similar fashion, the following evidence was given in the plaintiff's affidavit sworn 25 February 2020. In paragraph 13 he said:
When I realised there was no position, I left, and I rely upon my passport which shows that I departed the UAE Abu Dhabi on 25 January 2018 and not before.
He also said in paragraph 15:
I never commenced employment and no position was ever made available to me.
Except for the words "I never commenced employment", all of that evidence was objected to by counsel for the defendants, and it is in inadmissible form.
Even if that evidence was admissible, all it would show was that there had been a breach by the first defendant of its obligations under the contract of employment it entered into with the plaintiff. The plaintiff does not make any claim in that regard against the first defendant.
In relation to the reason the plaintiff left the UAE on 25 January 2018, I note that the e-ticket with Etihad Airways purchased by the plaintiff on 10 December 2017 in Sydney (paragraph [15] above) included a return flight from Abu Dhabi to Sydney on 25 January 2018. It did not include a flight back from Sydney to Abu Dhabi in order to take up the job that was the subject of the contract of employment. Since the plaintiff had entered into a contract of employment almost a week prior to the purchase of this ticket, I would have expected an explanation from the plaintiff about why no return flight to the UAE had been booked. His reason for leaving the UAE was that he was concerned that he had given the post-dated cheques and might be prosecuted. However, he had already booked the flight back to Sydney before giving the post-dated cheques.
In my opinion, the plaintiff has poor prospects of success on the claim under s 18 of the ACL against the first and second defendants. The representation was that he would be given a job, a work permit and a visa in the UAE. On his own evidence, he obtained all three.
The plaintiff makes a further claim in relation to the representations. This claim is to be found in paragraphs 18-21 of the amended statement of claim. The claim appears to be based on an agreement which predates the contract of employment between the plaintiff and the first defendant. So much is evident from paragraph 19(a) and the first part of paragraph 20. The representations are said to have been made pursuant to this earlier agreement. In that way, they must have been made subsequent to the earlier agreement and prior to the contract of employment.
Although the pleading sets out what are said to be express terms, alternatively, an implied term, it does not plead any breach of those terms. The evidence also shows clearly that the plaintiff obtained a work permit to work with the first defendant which enabled him to move to Abu Dhabi, and he obtained a contract of employment with the first defendant.
Further, the evidence shows that the documents, emails and correspondence, as well as the telephone discussions and texts, all concerned the same matters that formed the basis of the principal claim dealt with above. Those documents and discussions do not demonstrate that any agreement was made prior to the execution of the contract of employment. Rather, they show steps along the way to securing the contract, which was ultimately signed by the plaintiff, and the work permit and visa which was ultimately issued by the government of the UAE.
In my opinion, the claim made in these paragraphs does not disclose a reasonable cause of action judged by the principles from General Steel Industries. Where no reasonable cause of action is disclosed when considered in terms of the principles in General Steel Industries, the conclusion must be that the prospects of success on this claim are non-existent.
The evidence discloses that, not only did the first defendant enter into the employment contract with the plaintiff, it also sponsored him and his family so that they could reside in the UAE.
The plaintiff does not identify any unethical conduct or behaviour on the part of the first defendant, nor does he show that the transaction (the entry into the contract of employment and the obtaining of the entry permit and visa) was morally tainted in any way.
In my opinion, the plaintiff's prospects of success on this third claim are between very poor and negligible.
The sentence was correctly objected to by counsel for the defendant as being in inadmissible form. However, even if it was admitted, that statement cannot be evidence supporting the representation pleaded in paragraph 11 of the amended statement of claim, because by the time of the plaintiff's arrival in Abu Dhabi he had entered into the contract of employment. Further, by that time, the plaintiff had already left Australia and moved to Abu Dhabi. Any reliance by him must have been on a representation which pre-dated what the third defendant said.
In paragraph 34, the plaintiff said this:
I further say that the Third and Fourth Defendants assisted the Second Defendant in representing to me that I had a job opportunity in Abu Dhabi and that I would be gainfully employed.
That sentence was also correctly objected to by counsel for the defendants. It is not located in time. It is conclusionary in asserting that they "assisted" without setting out the facts. Finally, as had been observed more than once above, the plaintiff had entered into a contract of employment which he does not assert was a sham.
In his affidavit of 25 February 2020, the plaintiff in paragraph 26 responded to the third defendant's evidence that she had no connection with the first defendant. He said:
In respect of paragraphs 5-7, I say that Ms Baradihi [the Third Defendant] together with the Second and Fourth Defendants represented to me that there was a position available for me with the First Defendant which the Second Defendant would arrange. The representation occurred, as best I recall, in conversations had with the Fourth Defendant and her mother, the Third Defendant, over the phone and when I arrived in Abu Dhabi on and from 27 December 2017 in conversations she said to me words to the effect that I should be very grateful her husband had arranged for employment for me with the First Defendant to enable me to make a better life for her daughter and myself.
It seems likely that the conversation is the same one as is dealt with at [##73] above. I have set out above the problems with any such representation forming the basis of a claim with any prospects of success.
The plaintiff's prospects of success against the third defendant on the first claim are negligible.
The third defendant is also mentioned in paragraph 18 of the amended statement of claim in relation to the second claim. Her involvement is said to derive from "discussions" between her and the plaintiff from December 2016 to November 2017.
I have set out at [78], [80] and [82] above the sole references to the Third Defendant in the plaintiff's evidence. The occasions referred to at [78] and [82] above cannot be the evidence for this second claim because they post-date November 2017. That leaves only what is referred to at [80] above. The difficulties I have discussed at [63]-[65] and [80] above mean that this claim has negligible prospects of success.
Putting aside the fact that some of that material is in inadmissible form, the significant matter is that, whereas the allegations in paragraphs 12 and 13 of the amended statement of claim were that there was employment for the fourth defendant with Etihad Airlines, the material in the evidentiary statement does not go that far. Paragraph 17 only has the first defendant saying she was "hoping to get a position" and "she was confident she would have a job offered to her". It seems the fourth defendant's sister had been able to assist her in the past, and that led the plaintiff to the conclusion that a job was secured for the fourth defendant with Etihad in Abu Dhabi. His belief is not supported by the evidence he puts forward.
In any event, nowhere does the plaintiff plead any reliance on these representations of the fourth defendant.
The further difficulty for the plaintiff for the cause of action against the fourth defendant is identifying how the representations were made in trade and commerce. The representations in paragraph 16, alleged to have been made by the fourth defendant, are unrelated on their face to any offer of employment by the first defendant to the plaintiff. They concern personal matters between the plaintiff and the fourth defendant. In no sense could the plaintiff be said to be a consumer in relation to the fourth defendant. The representations fall outside what constitute acting in trade and commerce: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 at 603-604; Murphy v Victoria [2014] VSCA 238; (2014) 313 ALR 546 at [91]-[92]; Taylor v Crossman (No 2) [2012] FCAFC 11 at [39]-[47].
In my opinion, the prospects of success of this claim against the fourth defendant are poor.
To the extent that the fourth defendant is said to be involved in the claim set out at paragraphs 18 to 21 of the amended statement of claim, I have already held that the pleading does not disclose a reasonable cause of action, and that the claim has no prospects of success.
Accordingly, I make the following orders:
1. Proceedings dismissed.
2. The plaintiff is to pay the defendants' costs.