Findley v MSS Security Pty Ltd

ANASTASSIOU J: 1 The applicant seeks an extension of time in which to seek leave to appeal from orders of the Federal Circuit Court of Australia: Findley v MSS Security Pty Ltd [2019] FCCA 2291 (Reasons). The primary judge stayed the applicant's application to that Court as an abuse of process. The application before the Circuit Court was heard on 27 March and 30 April 2019. Judgment was reserved and delivered on 2 September 2019. 2 The applicant has requested that the present application for an extension of time in which to seek leave be determined on the papers. The respondents requested an opportunity to make oral submissions. However, as I have decided that the application should be refused for the reasons below, I have concluded that it is appropriate to determine the application on the basis of the parties' written submissions.

Background 3 The applicant was employed by the first respondent, MSS Security Pty Ltd, between February and November 2016 (Reasons at [8]). Since that time the applicant has brought several proceedings against MSS. On 30 December 2016 the applicant commenced a general protections claim in the Circuit Court against MSS, alleging, among other complaints, adverse action, undue influence and discrimination. In the course of the general protections claim the applicant sought, but was denied, reinstatement. The primary judge dismissed the general protections claim on 24 November 2017. 4 In addition to the general protections claim, the applicant has instigated eight other proceedings or complaints against MSS in either the Circuit Court or the Fair Work Commission (the previous actions). The context of the previous actions are far ranging, including, for example, the applicant opposing the approval of the MSS Enterprise Agreement for Victorian employees though not himself a relevant employee at the time (see Reasons at [11]).

Circuit Court's Reasons 5 In the proceeding before the Circuit Court from which leave to appeal is sought, the applicant alleged MSS engaged in 15 contraventions of the MSS Security Victorian Enterprise Agreement 2011 and the Fair Work Act 2009 (Cth) (Reasons at [14]-[16]). The applicant alleged he was underpaid $3,099.43 as a result of the alleged breaches (Reasons at [17]). He sought to recover that sum. The applicant also sought certain declarations. The second and third respondents were, and appear to remain, employees of MSS. They are alleged by the applicant to have been 'involved in' the conduct about which the applicant complains (Reasons at [16]). 6 The primary judge upheld the respondent's application that the proceeding be stayed under rule 13.10(c) of the Federal Circuit Court Rules 2011 (Cth) as an abuse of process. The primary judge referred to the dictum of McHugh J at 286-287 in Rogers v The Queen (1994) 181 CLR 251 that abuses of process typically fall into three categories: invocation of the process for an illegitimate purpose, or in a way oppressive to the respondent, or in a way that would bring the administration of justice into disrepute. The respondents submitted that the applicant's claim was an abuse of process in the first two categories in Rogers and also sought that the applicant be declared a vexatious litigant with respect to them. The primary judge did not need to decide whether to declare the applicant vexatious, as the applicant entered an undertaking not to issue further proceedings in the Circuit Court against the respondents (Reasons at [60]). 7 The respondents claimed that the application was brought for two illegitimate purposes. First, that the applicant was advertising his personal expertise as an industrial advocate on his website, and using the application as evidence of his experience. The primary judge accepted this was occurring, though did not consider it decisive ([50]). Second, that the applicant was seeking to pressure MSS regarding its industrial practices while no longer an employee and therefore without standing. This was conduct connected to his previous application to the Fair Work Commission. This was also accepted by the primary judge ([49]). 8 The respondents also claimed that many of the 15 claims made in the Circuit Court overlapped with claims previously agitated and were therefore oppressive. These overlapping claims either had been litigated in the previous action, or could have been. The primary judge accepted this contention, though, did not cross-reference individually each claim agitated in the present proceeding against those raised in the previous proceedings. In this respect the findings of the primary judge concerning underpayment claims were "by way of example" (Reasons at [53]). His Honour found that the applicant made a forensic decision not to raise the remaining claims in the general protections claim (Reasons at [55]). He considered it not to be in the interests of justice to now allow the fresh claims to be run, for example, claim three, being a claim that a $4.40 night loading was not paid for one shift, when the sum has in any event since been paid.

The present application 9 On 20 September 2019 the applicant filed his application for leave to appeal, being four days after the 14 day period set by Federal Court Rules 2011 (Cth) r 35.13. The application was accompanied by a draft notice of appeal containing 27 grounds, and an affidavit explaining the reasons for the delay. 10 The applicant's evidence is that he filed his application late for two reasons. First, that he misunderstood the rules and thought he was entitled to 28 days to file his appeal. He said he called the Melbourne Registry of the Federal Court and was told he had 28 days. Second, that he was awaiting a copy of the transcript of the Circuit Court proceedings from Auscript. The applicant also claims his application has a strong chance of success, raises points of legal principle and general public importance, and that he would suffer injustice if it were refused. 11 I directed the parties to file written submissions in relation to the present application. The applicant and respondents filed submissions on 17 July 2020. 12 The applicant's submissions largely reiterated his application and affidavit material. The submissions relied on Miller v University of NSW [2003] FCAFC 180; 132 FCR 147. The applicant submits that the dictum of Ryan and Gyles JJ at [81] in Miller was 'binding authority' for the proposition that there cannot be a finding of abuse of process without a finding of estoppel. As correctly identified in the respondents' submissions, Miller did not go so far. Rather, their Honours held there that "near enough to an estoppel is not good enough to establish abuse of process between the same parties without some other element being present" (emphasis added). It is through this 'other element' that the Rogers categories of abuse are operative. Miller should not be read as limiting the categories of abuse of process in Rogers (see further Mortimer J at [59]-[61] in Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559, and the recent application of Rogers in this Court in AVN20 v Federal Circuit Court of Australia [2020] FCA 584 at [74] per Kenny J). 13 The respondents' notice of objection and affidavit set out several grounds of opposition to the application. They do not include any claim for prejudice arising by the delay. 14 On the substantive merits of the application, the respondents' submissions identify the relationship between the grounds of appeal and claims previously made by the applicant. The respondents also provided evidence by affidavit that it had paid to the applicant the claimed underpayment. The applicant did not challenge this evidence.

Consideration 15 The delay is not significant and the applicant's explanation for it demonstrates he was actively seeking to appeal within the prescribed time period. Further, the respondents have not sought to oppose leave on the basis of any prejudice suffered to them generally or occasioned by the delay. Accordingly, I would not refuse leave on this ground. 16 However, in my view the applicant's appeal has very little chance of success. Many of the grounds in the draft notice of appeal are unparticularised to the point of being meaningless. For example, ground 13 is a bare allegation that the primary judge erred in finding the application was an abuse of process. Other grounds concern challenges to findings of fact without stating in what respect the finding was incorrect, or what other evidence should be preferred. For example, ground 25, which alleges the primary judge erred in "[f]inding that [the applicant] "needlessly" analogised the conduct of the second and third respondents with guards serving in Nazi Germany in correspondence …". Others are untenable as a matter of law. For example, ground 16 alleges the primary judge erred in considering the applicant's complaint to the Fair Work Ombudsman as relevant. The applicant's complaint to the Fair Work Ombudsman was plainly relevant in the context of the respondents' contention concerning abuse of process. 17 In my opinion the application for leave to extend time in which to seek leave to appeal should be refused because the proposed grounds of appeal have insufficient prospects of success. Further, I note that as the underpayment claim has been paid as I have referred to above, there is no material prejudice to the applicant and the proposed appeal would be practically inutile.

Disposition 18 For the reasons above, the application for an extension of time in which to seek leave to appeal is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou.