Hebashy v SGS Australia Pty Ltd

Federal Court of Australia|2024-01-30|Before: Derrington J

Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth), judgment be entered for the Respondent.
Proceeding QUD 482 of 2022 commenced by the Applicant be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 For over 7 years, Mr Ahmed Hebashy was employed by the Respondent, SGS Australia Pty Ltd (ABN 44 000 964 278) in various positions as a Marine Surveyor/Inspector by a series of written contracts of employment, the first dated 17 July 2015. Prior to this, Mr Hebashy was employed by SGS Egypt Limited LLC from about July 2008 to 2 November 2015. On 15 November 2022, Mr Hebashy's employment with SGS was terminated. He was told that his then position as Supervisor - Operations QLD & LNG was made redundant. 2 After such a long period of employment with SGS, Mr Hebashy is, quite understandably, confused and aggrieved by the termination of his employment. He feels he has been treated unfairly by his employer and has suffered a great injustice. The relief he seeks against his former employer is serious. He claims, inter alia, that SGS has acted unlawfully. It is therefore incumbent upon him to identify at least some basis for the relief he seeks. Mr Hebashy has been self-represented throughout the proceeding, despite being strongly advised at a case management hearing on 30 November 2023 to seek legal advice prior to the hearing listed for 21 December 2023. 3 On 15 November 2022, he filed a Form F8C with the Fair Work Commission (FWC). This was followed by the commencement of an Unfair Dismissal Application pursuant to Form F2, filed on 23 November 2022. The status of the matter before the FWC has not been explained. 4 On 20 December 2022, Mr Hebashy commenced this proceeding by originating application under the Fair Work Act 2009 (Cth) (FWA) (Originating Application). He alleged dismissal in contravention of a statutory general protection. 5 On 13 February 2023, Mr Hebashy filed and served a Statement of Claim. That Statement of Claim was struck out in its entirety by a Registrar of this Court on 10 May 2023 (Registrar Orders). Mr Hebashy was given leave to replead, and the Registrar provided him with some direction as to the form and contents of any revised pleading. Mr Hebashy filed and served an Amended Statement of Claim (ASoC) on 6 June 2023, in accordance with the Registrar Orders. On 7 June 2023, Mr Hebashy emailed SGS's solicitors attaching a document entitled "Submission" (June Submission). That document did no more than correct two pagination errors in the annexures to his affidavit, affirmed on 5 June 2023. 6 Although it is apparent that Mr Hebashy has attempted to produce a pleading that at least refers to the relevant sections of the legislation on which he relies, and describe what he says are the material facts which give rise to the claim that supports the relief sought, SGS maintains that the ASoC is vague, ambiguous and does not disclose a cause of action. 7 SGS consequently filed an application on 4 July 2023 for summary judgment, supported by an affidavit of Mr James Elias Allen. 8 Mr Hebashy relied on his June Submission, having additionally filed an Outline of Submissions pursuant to Orders dated 30 November 2023. The latter submissions stated that "[t]he applicant declared his point view in the submissions served unsealed on December 7, 2023". Mr Hebashy filed two substantive affidavits on 2 May 2023 and 19 June 2023, to which he exhibited documents said to be relevant to his claim. In oral submissions, the gravamen of Mr Hebashy's complaint seems to be that he was made redundant because of the poor management skills of several managers within SGS. It is not possible to discern this complaint from the ASoC, nor is it one that could ground a cause of action under Pt 3-1of the FWA. 9 For the reasons explained below, SGS's application for summary judgment will be granted. It is not Mr Hebashy's unfamiliarity with the rules of pleading that leads to this result. Rather, when all of Mr Hebashy's complaints about SGS's conduct in the lead up to his redundancy are assessed, even in a manner most favourable to Mr Hebashy, I am satisfied that none discloses any contravention of the FWA as described in the Originating Application and that the proceeding therefore has no reasonable prospect of success. A further attempt at pleading cannot overcome that obstacle.

Legal principles regarding summary judgment 10 This Court may grant summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA), which provides relevantly as follows: 31A Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. … (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. ... 11 That section is supplemented by r 26.01 of the Federal Court Rules 2011 (Cth), by which a party may apply for summary judgment. That rule provides relevantly as follows: 26.01 Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: … (e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. … (4) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order. 12 It is important to distinguish the principles relating to the grant of summary judgment from the application of rules concerning deficient pleadings. Rule 16.02(1) of the Federal Court Rules provides that a pleading must: (a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and (b) be as brief as the nature of the case permits; and (c) identify the issues that the party wants the Court to resolve; and (d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and (e) state the provisions of any statute relied upon; and (f) state the specific relief sought or claimed. 13 As Wigney J explained in Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [96]: Where the evidence shows that a person may have a reasonable cause of action or reasonable prospects of success, but the person's pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Australia Ltd v FCT (2007) 160 FCR 298 at [47] , referred to in Spencer at [23]. That said, a "failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success": White Industries at [47]. (Emphasis omitted.) 14 The High Court has emphasised that s 31A of the FCA should be applied in accordance with the statutory language; that is, summary judgment should be granted if, and only if, the Court is satisfied that the party against whom the claim is brought has "no reasonable prospect" of success: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [56]-[60] per Hayne, Crennan, Kiefel and Bell JJ. 15 A convenient summary of the relevant principles was set out by Halley J in Leach v Burston [2022] FCA 87 at [36], which I gratefully adopt: (a) the discretion to summarily dismiss proceedings should be exercised if, and only if, the Court is satisfied that there is no reasonable prospect of success: Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer) at [60] (Hayne, Crennan, Kiefel and Bell JJ); (b) the enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail: Spencer at [52]; (c) the use of the word "may" in s 31A of the FCA Act is to be read as an empowering word, not for the purpose of conferring a discretion on the Court. If the Court is satisfied that a cause of action has no reasonable prospect of success, it "must" be exercised. The exercise of the power turns not on the discretion of the Court, but rather upon proof that the cause of action has no reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128] -[129] (Gordon J); (d) full weight must be given to the expression "no reasonable prospect" as a whole, and it might readily be accepted that the power to dismiss a proceeding summarily is not to be exercised lightly: Spencer at [60][;] (e) particular caution to exercise the discretion is required if there are factual disputes and evidence is not in a final form: Houston v State of New South Wales (No 2) [2021] FCA 637 (Houston) at [5(d)] (Griffiths J); Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352 at [43] -[45] (Rares J); (f) appropriate account needs to be taken of the possibility that existing authority may be overruled, qualified or further explained; summary dismissal must not be used to stultify the development of the law: Houston at [5(e)] (Griffiths J); Spencer at [25]; Western Australia v Fazeldean and Others (No 2) (2013) 211 FCR 150; [2013] FCAFC 58 at [35] (Allsop CJ, Marshall and Mansfield JJ); and (g) the party seeking summary dismissal bears the onus of establishing the proceeding or defence has no reasonable prospects of success: Kitiko v University of Technology Sydney [2021] FCA 360 at [55] (Griffiths J). 16 Turning then to Mr Hebashy's claims against SGS.

Mr Hebashy's claims 17 In his Originating Application, Mr Hebashy claimed that: In many occasions the management panel held discussions and meetings based on unclear facts and issue documents accordingly. The dismissal has done without a decent notice and it happened after certain events in the workplace. The Applicant relies on sections 1. Workplace rights S.340 Protection. 2. Workplace right S.344Undue influence or pressure. 3. Workplace right S.345 Misrepresentations. 4. Other protections S.355 Coercion - allocation of duties etc to a particular person. 5. Any other devision or section or word in the fair work act 2009 related to the unfair actions has been taken from the management panel in SGS Australia pty Ltd and SGS entities against me. (Errors in original.) 18 In his ASoC, Mr Hebashy detailed ten of what he describes as "Events". In respect of each "Event", he purported to state "Material of Facts", "Particular", and "Cause of Actions". Some of them contain multiple allegations giving rise, it was pleaded, to multiple causes of actions. It is necessary to analyse each "Event" to understand their relationship to the claims articulated in the Originating Application and the provisions of the FWA they are said to engage.

The relevant legislative provisions 19 The legislative provisions of Pt 3-1 of the FWA revolve around certain core protective concepts. In particular, those on which Mr Hebashy relied proscribe his employer (SGS) from taking adverse action (s 340(1)), in this case as best his pleading can be understood, either by dismissing him or altering his position to his prejudice (s 342(1)), because Mr Hebashy has a workplace right, or to prevent the exercise of a workplace right (s 340(1)(a) or (b)). Mr Hebashy will have a workplace right if he is either entitled to the benefit of, or has a role or responsibility under, a workplace law or instrument made by an industrial body; he is able to initiate a process or proceedings under a workplace law or instrument; or, he is able to make a complaint or inquiry in relation to his employment (s 341(1)). 20 Further, the provisions operate to proscribe the coercion of a person, inter alia, to allocate (or not) certain duties to a particular employee (s 355) and to knowingly or recklessly make a false or misleading representation about the workplace rights of another person (s 345). It is well-established that the expression "intent to coerce" in s 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so: Esso Australia Pty Ltd v Australian Workers' Union [2016] FCAFC 72; 245 FCR 39 at [174]-[175]. 21 The relevant parts of those provisions are reproduced below. 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or Note: This subsection is a civil remedy provision (see Part 4-1). (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1). 341 Meaning of workplace right … (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. … 342 Meaning of adverse action (1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Column 2 Adverse action is taken by ... if ... 1 an employer against an employee the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. …

… 345 Misrepresentations (1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. … 355 Coercion - allocation of duties etc. to particular person A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) employ, or not employ, a particular person; or (b) engage, or not engage, a particular independent contractor; or (c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or (d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities. Note: This section is a civil remedy provision (see Part 4-1). (Emphasis in original.) 22 As I have already observed, the claim brought by Mr Hebashy against SGS is serious. It is based on allegations that SGS engaged in proscribed conduct with a particular proscribed intent. Consequently, allegations of this kind need to be properly understood by a respondent, in this case SGS, so that it can rebut the statutory presumption that it has taken the specified action for that reason: s 361 of the FWA. 23 So much was emphasised by the Full Court in Monash Health v Singh [2023] FCAFC 166 at [57], relevantly: … (2) But allegations of contravention of the general protections provisions are inherently serious. As a matter of fairness, such a claim should be pleaded with sufficient precision for a respondent to know the case against it: [Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; 256 FCR 306] per Bromberg at [102], citing [Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298] at [63]-[65]. Some precision is required so that they do not involve a "broad enquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome" (Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48]; Celand at [100]) and where the "crucial issue" is the causal relationship between the adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. … (4) The level of precision required in relation to pleadings in General Protections claims is informed by the reasoning of the Full Court of [Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347] at [15]-[19]: Two pre-conditions must be met before the presumption under s 361 arises: first, the particular reason or the particular intent for the contravening action must be alleged in the application (s 361(1)(a)); and secondly that "taking that action for that reason or with that intent would constitute a contravention of this Part" (emphasis added) (s 361(1)(b)). As a consequence, in a proceeding of this kind conducted on pleadings an applicant is required to "plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent": Hall at [19]. A pleading will be deficient where an applicant has failed to precisely and distinctly allege the particular reason or any particular intent: Hall at [40]. (Emphasis added.) 24 Mr Hebashy's pleading is obviously defective. He has been granted one indulgence to replead. SGS submits that even if Mr Hebashy were to be given a further opportunity to replead, it would be futile because even on the most beneficial reading of the ASoC, and accepting his pleaded case at its highest, Mr Hebashy cannot articulate any action taken against him with a particular intent, or a particular reason, that would result in a contravention of Pt 3-1 of the FWA. A close examination of each "Event" as pleaded by Mr Hebashy reveals that SGS's submission must be accepted.

Event 1 25 Two causes of action are described in the ASoC in respect of Event 1. The first is a breach of the employment contract "with ignoring the escalated issues which considered adverse actions while the applicant was exercise his workplace rights and implement the employment contractual obligations and the agreed job descriptions" (errors in original). The particular of that allegation is said to be the "1st section of the Employment Contract", which mentioned: The duties that you perform will be in line with your position description and may vary from time to time in accordance with the terms of this Agreement and business requirements. If your duties do vary, the terms and conditions set out in this Agreement will continue to apply unless otherwise agreed in writing. The provisions of the National Employment Standards apply to your employment and to this employment agreement. 26 The second cause of action is that "[t]he respondent has guarantee in their website at code of integrity booklet 'compliance with laws section' that, the respondent emphasize on SGS complies with applicable laws in the countries where it does business and Ignorance of the law is no excuse" (errors in original). The particular of the allegation is a link to the SGS Code of Integrity electronic website and an annexed copy of the Code of Integrity. 27 In neither of the allegations is there any identification of any adverse action taken against Mr Hebashy, nor a relevant workplace right, let alone that adverse action was taken because of that workplace right. To the best I can understand, the allegation seems to be that SGS breached Mr Hebashy's contract of employment by making Mr Hebashy redundant while he was doing his job in accordance with his contract, which he has construed as "exercising a workplace right". The second allegation appears to suggest that SGS acted unlawfully, but there is no indication of how that was so. 28 No cause of action under the general protections provisions emerges from Event 1.

Event 2 29 There was no cause of action pleaded in relation to Event 2. The material fact pleaded is simply the latest version of an employment contract dated 8 March 2018 and a list of responsibilities prescribed to Mr Hebashy as a result of his promotion on 24 June 2022.

Event 3 30 The cause of action pleaded in relation to Event 3 purports to be the taking of adverse action against Mr Hebashy and coercion. The adverse action, as particularised, is said to arise from the National Inspection Manager responding to clients of SGS whilst ostensibly "out of the office", thereby preventing Mr Hebashy, in contravention of s 340, from responding to those clients himself and so preventing him from doing his job in accordance with his primary responsibilities as set out in the contract of employment, which is his "workplace right", within the meaning of s 341. That prevention, it seems from the pleadings, is said to amount to taking action not to "employ" him, thereby giving rise to coercion within the meaning of s 355. 31 The right (or duty) to do one's job in accordance with a contract of employment is not a "workplace right" under s 341(1). Even if it were, no reason, or intention, for taking the alleged adverse action is identified. Similarly, no person has been identified as one who has organised, taken, or threatened to organise or take any action against another person with intent to coerce that person not to employ Mr Hebashy, or to not allocate him particular duties. Neither allegation can succeed. 32 A further cause of action in coercion is said to arise from an apparent refusal by SGS to allocate Mr Hebashy a "fixed place at Gladstone, Queensland Office, not only that but also to keep the workplace equipment in his home". It is alleged that this refusal prevented him from working in "ready equipment conditions", which, in turn, led to a "key performance meeting and issued a written warning". There is no allegation that SGS has organised, or threatened to organise, or take any action against Mr Hebashy with intent to coerce him, or anybody else, to do any of the matters specified in s 355. 33 The allegation of coercion has no prospect of success.

Event 4 34 The cause of action pleaded in relation to Event 4 is adverse action, which is said to arise from altering Mr Hebashy's position to his prejudice, within the meaning of s 341(1)(c), by another employee responding to a client directly without notifying Mr Hebashy, contrary to the "chain of command". It was pleaded that such action denied him the benefit of his role or responsibility within the meaning of s 341(1)(a). 35 It is further alleged that SGS engaged in adverse action through "misrepresenting the facts while perform the meetings and exert a pressure on the applicant by not giving him the support to implement the agreed employment contract via enforcing the company elements which include the availability of workers through allocate a budget" (errors in original). Mr Hebashy alleged misrepresentations on the part of SGS stemming from "poor management skills". He identified those to include, extending the time period that had been allocated to the formal meeting, factual misrepresentations in the content of the meeting agenda, the publication of team scheduling, and previously discussed supervision concerns. None of these complaints gives rise to the misrepresentation of a "workplace right" within the meaning of s 345. 36 The next cause of action pleaded in relation to this event is the exertion of undue influence or undue pressure within the meaning of s 344, by reason of asking Mr Hebashy about his reason for taking annual leave, and the reason for the delay in completing a certain task. There is no allegation that any such influence or pressure related to any of the circumstances stipulated in s 344 in respect of which undue influence or undue pressure is proscribed. 37 Mr Hebashy seemed to allege further that SGS breached s 344 by disclosing to a client that it had discussed with Mr Hebashy his failure to make a surveyor available, being an incident raised by the client. This allegation is unintelligible and does not disclose a cause of action.

Event 5 38 The allegation in respect of Event 5 is concerned with the apparent failure by SGS to allocate Mr Hebashy a "fixed spot" in the Gladstone office within a period of two weeks after a performance meeting. He alleged it caused undue pressure on him to accept certain, albeit unspecified, conditions, that SGS wilfully misrepresented facts and the workplace environment "was full of a frequent coercion for the applicant" (errors in original). Mr Hebashy particularises this allegation by reference to a "moral honour incident" with respect to another employee, which is not elaborated upon; the rejection of an application for annual leave, received by email during the memorial service for Queen Elizabeth II; and the rejection of an application for personal/carer's leave, contrary to s 97 of the FWA. The application was apparently for parental leave in circumstances where there was no evidence that Mr Hebashy had recently become a parent, nor had primary caring responsibilities. 39 No cause of action emerges from the allegations raised under Event 5.

Event 6 40 The gravamen of the cause of action said to arise in relation to Event 6 is said to amount to the taking of adverse action against Mr Hebashy and making a false or misleading misrepresentation about his workplace rights by "not clarifying the importance of the attendance of the support person with the applicant" through the key performance meetings. The particulars of the cause of action are said to be, in summary, ignoring Mr Hebashy's request to cancel his written warning; failing to include all the facts associated with relevant events in the warning; including unclear facts; and failing to apologise to him. 41 Nothing said to give rise to the relevant cause of action in respect of Event 6 can be said to amount to a workplace right. No cause of action is disclosed.

Event 7 42 Mr Hebashy alleged that in respect of Event 7, SGS "refused to include the applicant to the enterprise claiming that, the applicant is not in the same division for the enterprise agreement". This is said to amount to adverse action, undue pressure to make an agreement, misrepresentation, and coercion so as to employ him under truncated rights. There is no allegation that Mr Hebashy was in fact covered by the relevant enterprise agreement, nor of any correspondence or conversation to support the allegation. 43 No cause of action is disclosed.

Event 8 44 Mr Hebashy alleged that in respect of Event 8, SGS ignored the escalation of issues, thereby engaging in adverse action. He said he escalated the issues to the integrity helpline but does not particularise that SGS was aware that he had done so. In any event, the allegation really amounts to no more than SGS's refusal to accept Mr Hebashy's demands for the withdrawal of the written warning, the granting of his leave, and the allocation of a spot in the Gladstone office. This allegation does not disclose any reasonably arguable cause of action.

Event 9 45 In relation to Event 9, the refusal of four employees of SGS to apologise to Mr Hebashy for certain statements and behaviours is said to amount to adverse action by discriminating between him and those employees, violating the mutual respect between Mr Hebashy and the employees. The matters for which an apology was sought are particularised as follows: [Employee 1] "that's not funny at all" and doesn't accept the advice. [Employee 2] "Giving instructions in an unnecessary loud voice during official meeting". [Employee 3] "OI is not a tool for personal issue resolution". [Employee 4] "You are creating quite some unrest amongst all of us". 46 No cause of action is disclosed by the pleading relating to Event 9.

Event 10 47 Event 10 involves SGS filing its Defence one day later than had been ordered by the Registrar orders dated 9 February 2023. Mr Hebashy seeks "the maximum penalty on the respondent and their representative" because "[t]his kind of action does not show respect to the court and the formal procedure". No cause of action under the FWA arises from this plea.

Disposition 48 For the reasons given, Mr Hebashy has no reasonable prospects of successfully prosecuting the proceeding on any of the bases he has outlined in Events 1-10. As a result, it is appropriate that summary judgment be entered for SGS.

Costs 49 Contrary to the usual orders in relation to costs in the Fair Work jurisdiction, SGS submitted that it should have its costs pursuant to the provisions of s 570 of the FWA: 570 Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. (Emphasis added.) 50 The bar to engage s 570 of the FWA is set relatively high. That is no doubt because the effect of the section is to curtail, in proceedings relating to matters arising under the FWA, the discretion which the Court would otherwise have with respect to costs: Altintas v O'Dea Lawyers (No 2) [2018] FCAFC 187 at [6], per White, Perry and Charlesworth JJ. Thus, the discretion to award costs under s 570 of the FWA must be exercised cautiously. As Mortimer J (as Her Honour then was) explained in Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64]: … The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties' pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision… 51 SGS submitted that in circumstances such as these, "where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause": Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 265; applied in Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; 156 FCR 275 at [60]. SGS contended also that, in addition to commencing the proceeding without reasonable cause, Mr Hebashy's actions in refusing to re-plead his claim prior to the original statement of claim being struck out, and then filing a deficient ASoC, has caused SGS to incur costs such that the Court should be satisfied that the preconditions in either or both of ss 570(2)(a) or (b) have been met. 52 I am not satisfied that this is an appropriate case in which to exercise the discretion to award costs against the unsuccessful applicant in proceedings under the FWA. Mr Hebashy represented himself in the proceedings. That was not necessarily a wise choice, but it was nevertheless one he was entitled to make. It was apparent from the material filed, and from his oral submissions, that he simply did not understand the provisions of the FWA which he sought to invoke. Further, it is apparent that he did attempt to file an ASoC which took account of the directions he had been given by the Registrar. He identified the sections of the FWA on which he relied; he attempted to state the material facts as best he understood the nature of material facts; he attempted to state the relevant causes of action; and he attempted to particularise the causes of action he had described. In short, although the ASoC remains seriously deficient and fails to disclose any cause of action, his conduct was not such as to be described as unreasonable in all the circumstances. 53 SGS has not satisfied the onus of establishing a clear and compelling case for the exercise of the discretion under s 570 of the FWA. Accordingly, there will be no order as to costs in respect of the proceeding. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.

Fair Work Act 2009(Cth)ss 97, 340, 341, 342, 344, 345, 355, 361, 570

Federal Court Rules 2011(Cth)rr 16.02, 26.01

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