King v Patrick Projects Pty Ltd

GILMOUR J: 1 There are two interlocutory applications before the Court. The first, by the applicants in this proceeding (the applicants), seek interlocutory injunctive relief. The second, by the first respondent (Patrick Projects), is for orders to strike out the applicants' amended statement of claim (statement of claim) pursuant to Rule 16.21(e) and (f) of the Federal Court Rules 2011 (Cth) (Rules) on the grounds that the statement of claim does not disclose a reasonable cause of action and further, that it is an abuse of process. The first respondent also seeks an order that the proceeding be dismissed immediately. 2 The second respondent (Asciano) adopts and supports the submissions of Patrick Projects with respect to both of the interlocutory applications. 3 Patrick Projects is a wholly owned subsidiary of Patrick Stevedoring Pty Ltd, which is a wholly owned subsidiary of Patrick Auto, Bulk & General Ports Pty Ltd, which is a wholly owned subsidiary of Asciano Holdings (General & Bulk) Pty Ltd, which is a wholly owned subsidiary of Asciano.

Background 4 The proceedings were instituted in November 2015. Thereafter the applicants were given leave to amend their application and re-plead their statement of claim. 5 The applicants were allowed approximately five months to amend and replead, and on 15 April 2016 they filed an amended application and amended statement of claim. 6 The applicants by their amended statement of claim purport to sue under the AMC Cargo Handling Operations Memorandum of Understanding Deed (Deed) and the Patrick Projects AMC Cargo Handling Agreement 2012 - 2015 (Agreement). Both the Deed and the Agreement are dated 27 April 2012. The Agreement is an enterprise agreement and was approved by Fair Work Australia, in accordance with s 54 of the Fair Work Act 2009 (Cth) (FWA) on 27 April 2012 and the Agreement was ordered to operate from 7 days after the decision approving it. The Deed was not registered.

The applicants' application 7 The somewhat unusual injunctive relief sought in this application is for an order that the respondents be restrained from the following: (a) takeover by a large consortium of businesses; (b) breakup of Asciano into three businesses; and (c) ultimate disbanding of the group functions which is (d) currently scheduled to be complete at the end of June 2016. 8 The applicants asserted that they have been informed that the respondents are "intending to proceed with takeover, break up and disbanding of group functions, expected to be complete before 30 June 2016". They further asserted that Asciano, as the dominant holding company of Patrick Projects, has the ultimate authority for the implementation of the alleged corporate reorganisation. 9 It was unnecessary at the outset to resolve this application because Patrick Stevedoring Pty Ltd gave an undertaking to the Court, through counsel, in terms satisfactory to the applicants, that until the disposition of the applicants' substantive application, including any appeal, it, as the immediate parent of Patrick Projects, will not take any steps to either wind-up or to deregister Patrick Projects. Counsel for Patrick Projects, Ms Millar, was instructed also to act for Patrick Stevedoring for this limited purpose. 10 However, as the originating proceedings are to be dismissed, for the reasons set out below, the applicants' interlocutory application which sought relief until determination of the originating application should also be dismissed.

Patrick Projects' application 11 This interlocutory application sought relief in the nature of striking out the applicants' statement of claim and further by having the proceedings dismissed in their entirety. I will consider in turn the claims for relief under rule 16.21(e) and (f). Both require consideration of the statement of claim.

The statement of claim 12 The applicants allege that the respondents did not meet the employment conditions under clause 12.4 of the Deed, particularly the condition that the respondents would ensure that operational employees were to be trained by the Maritime Training Assessment Group, another registered training organisation or the like, in all applicable High Risk Licences and plant and machinery used on site, within 12 months of Patrick Projects' commencement at the AMC or the employee's commencement date, whichever is the latter. "AMC" refers to the cargo handling facility operated by Patrick Projects at the Australian Marine Complex, in Henderson, Western Australia. 13 The balance of the statement of claim refers, in a somewhat disconnected fashion, to other provisions in the Deed. It concludes with, in effect, a claim for relief that the respondents should be ordered to comply with the Deed and the Agreement, including but not limited to clause 12.4 of the Deed.

Rule 16.21(e): no reasonable cause of action 14 Rule 16.21(e) enables a party to apply for an order that all or part of a pleading be struck out on the grounds that, relevantly, the pleading "fails to disclose a reasonable cause of action". 15 Such relief is discretionary. The Court should employ it sparingly: Polar Aviation Pty Ltd v Civic Aviation Safety Authority [2012] FCAFC 97 at [43]. An application, to succeed on this ground, involves establishing that the applicants' case is so untenable that is cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways and Ors (NSW) (1964) 112 CLR 125 at 128-130. It is not enough to demonstrate merely that the claim is a weak one: Allstate Life Insurance v ANZ Banking Group Ltd [1994] FCA 636 at 24. It must be shown that the claim is hopeless and would have no chance of success if the action were to proceed to a hearing: Alcock v Commonwealth [2012] FCA 870. A matter will have no real prospect of success where there is a fanciful, rather than a realistic, prospect of success; Vranic v Secretary Dept. of Education, Employment and Workplace Relations [2009] FCA 672 at [24]. 16 The respondents submit and I accept that the applicants' pleading fails to disclose a reasonable cause of action for a number of reasons. 17 First, the applicants have no maintainable cause of action as against Asciano. 18 The applicants have joined Asciano on the basis of their assertion that they were employed by Asciano at the Australian Marine Complex. This is patently not so. Their employer was Patrick Projects. I have, in arriving at this conclusion, determined to admit all the documents going to this issue tendered by the applicants and which at the hearing I received provisionally. 19 The documents, for example, contained a signed offer of employment to Mr Christopher Strauss, one of the applicants, dated 19 July 2012 from Patrick Projects together with a signed acceptance by him dated 23 July 2012. His employment was terminated by written notice on 18 March 2014. 20 Documents relating to the other applicants were not produced but there is no reason to believe they would be any different. 21 Indeed, the applicants brought proceedings in the Fair Work Commission (Commission) in April 2014 against Patrick Projects, as their employer, and did so purportedly pursuant to dispute resolution provisions contained in the Agreement. Their applications were dismissed on 14 October 2014: Seiffert & Ors v Patrick Projects Pty Ltd [2014] FWC 7019. I will return to the matter of this decision in a different context later in these reasons. This decision was one of a number from which the present applicants sought permission to appeal to the Full Bench of the Commission. Permission was refused: King v Patrick Projects Pty Ltd [2015] FWCFB 6323. 22 Moreover, the Agreement and Deed sued on by the applicants in each case involve Patrick Projects as employer. Asciano is not a party to either. 23 Second, the applicants' claim is brought in the Fair Work Division of this Court in order to compel the respondents to comply with the Deed. Paragraph 3 of the statement of claim alleges that "the respondent[s] did not meet the employment conditions including but not limited to […] cl 12.4 of the Deed". 24 However the applicants have no standing as they are no longer employed by Patrick Projects, their employment having terminated in March 2014 and, in the case of King, on 30 April 2014. Accordingly Patrick Projects no longer has any ongoing obligations to the applicants in relation to training or any other employment related entitlement. The Commission so decided in October 2014 in relation to applications brought by the applicants (other than King who was still an employee of Patrick Projects when his application to the Commission was made) against Patrick Projects to which I will refer further below. 25 These several reasons, individually or in combination, are sufficient to support a conclusion that the applicants have no cause of action and that their application is bound to fail. The entire statement of claim, on this basis alone, should be struck out.

Rule 16.21(f): abuse of the process of the Court 26 The categories of matters which amount to abuse of the court process are not fixed. They include the bringing of multiple proceedings simultaneously in different courts relating to the same subject-matter: Yooralla Sponsors Club v JRBI Nominees Pty Ltd (1980) 49 FLR 86. See also Construction, Forestry, Mining and Energy Union v Commonwealth of Australia [1999] FCA 1571; as well as attempting to re-litigate issues which have already been determined in previous proceedings: Sims v Chong [2014] FCA 1069. 27 The applicants' pleading, as I have earlier explained, relates to training which the applicants contend the respondents ought to have provided their employees. This dispute in respect of training was, as I have mentioned, the subject of proceedings before the Commission and the Full Bench of the Commission. 28 The applicants' application that Patrick Projects be ordered to provide training or payment in lieu of training was dismissed by the Commission on the grounds that it had no jurisdiction as certain procedural steps had not been complied with, but also on the basis that none of the applicants except King were employees of Patrick Projects when they filed their application with the Commission. 29 Permission to appeal was refused by the Full Bench, which although it refused to extend time for the filing of the appeal application, went on to consider the merits of the proposed appeal. It concluded that the proposed appeal lacked merit as the Commission had been correct that it had no jurisdiction upon well-established authority in relation to claims made under s 739 of the FWA. 30 This proceeding is yet a further attempt to have those matters relitigated. Their claims under the Agreement failed before the Commission and the Full Bench refused permission to appeal. Accordingly, I find that these proceedings are an abuse of the processes of this Court. 31 The application and statement of claim should be struck out on this basis also.

Re-pleading and self-represented litigants 32 The respondents submit that leave ought not be granted to the applicants to further amend their statement of claim, because their application constitutes an abuse of process and in any event would be doomed to fail. I agree. 33 The applicants have had two opportunities to plead a viable claim and have been unable to do so. I cannot discern any viable claim open to them. However, even if it were otherwise the proceeding is for reasons I have explained an abuse of the process of this Court and should not be further entertained.

Orders 34 The statement of claim will be struck out. I would also in the circumstances dismiss the originating application. The applicants' interlocutory application will be dismissed. 35 I will grant the respondents liberty to apply within 14 days on the question of costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.