Tulett v Yourtown Pty Ltd

Federal Court of Australia|2024-05-17|Before: O'Sullivan J

Background 15 The statement of claim filed on 1 October 2021 was 211 pages long and consisted of 389 paragraphs. It listed 19 discrete complaints in relation to alleged conduct of the first respondent and its employees and in turn raised 59 distinct claims arising under the FWA. 16 On 8 December 2021, the respondents filed an application seeking orders that the statement of claim filed in the proceedings be struck out (strike out application). The respondents' position was that the applicant's case was incomprehensible. 17 On 3 February 2022, the primary judge ordered the applicant to file and serve an affidavit setting out the salient facts supporting his assertion that he had been the subject of various incidents of adverse action in contravention of some form of workplace rights by the respondents. 18 The applicant filed an affidavit, as directed, comprising 114 pages containing 359 paragraphs and 54 annexures amounting to a further 164 pages. It reiterated the 19 complaints concerning the conduct of the first respondent and its various employees. 19 After a further hearing before the primary judge and having sought legal advice, the applicant filed a further affidavit on 8 July 2022 comprising 77 pages with 33 annexures amounting to a further 96 pages. The number of complaints had been reduced to seven. 20 On 1 August 2022, the respondents filed a further application (summary dismissal application) in which it sought the proceedings be dismissed summarily or in the alternative that the applicant be required to file a further statement of claim.

Legal principles - procedural fairness and self-represented litigants 47 A common theme running through the contentions in the draft notice of appeal is that he was denied procedural fairness because he was a litigant in person who was not given sufficient assistance by the primary judge. 48 In Lamont v Malishus Limited (No 2) [2022] FCA 237 at [78] and following, Burley J considered the same contention which had been advanced by the applicant in that matter following a trial in the then Federal Circuit Court of Australia. 49 His Honour identified the following principles: (a) A party does not have a right to representation in court, but where that party is not represented, courts have an overriding duty to ensure that the trial is fair: at [79]; Dietrich v The Queen [1992] HCA 57; 177 CLR 292; (b) A judge has a duty to ensure a fair trial by giving self-represented litigants assistance so as to help to ensure that the litigant is treated equally before the law and has equal access to justice: at [80]; Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [140]; Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]. This is to be balanced against the fact that the duty does not extend to advising an unrepresented litigant as to how his or her rights should be exercised: Hamod v New South Wales [2011] NSWCA 375 at [312]; a relevant contextual matter is the nature of the hearing such that the seriousness of the consequences to a person who is self-represented as a factor to be taken into account. The content of the duty will vary according to the circumstances: at [81]; Boensch v Somerville Legal [2021] FCAFC 79 at [88] (Katzmann, Markovic and Abraham JJ); Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] (McCallum JA, Basten and Leeming JJA agreeing). (c) A further contextual matter is the apparent capacity of the self-represented party concerned: at [82]; Abram v Bank of New Zealand [1996] FCA 635 (Hill, Tamberlin and Sundberg JJ). That includes an understanding of the circumstances and the characteristics of the litigant which includes his or her intelligence and literacy: at [85]; Flightdeck at [61]-[70]. 50 In circumstances where there is an assertion of a denial of procedural fairness, appellate intervention will depend on whether any procedural fairness is such as to amount to a practical injustice on the applicant such as to warrant the court exercising its discretion to grant relief: Lamont at [84] citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 [36]-[38] (Gleeson CJ) and Flightdeck at [58].

Grounds in support of the application for leave and the proposed grounds of appeal 51 The applicant's grounds in support of the application for leave are mirrored in the grounds set out in the draft notice of appeal. There are eight grounds. 52 The applicant's outline of submissions, filed on 21 June 2023, addresses six grounds, however in addressing ground one, the applicant also deals with grounds two and four.

Ground one, two and four - the primary judge failed in his duty to inform the applicant of relevant court processes and procedures 53 The applicant contends under this ground in his written submissions that: (a) The primary judge denied the self-represented applicant procedural fairness at the directions hearing held on 3 February 2022 when he failed to inform the applicant about the practice and procedure of the Court that enabled the applicant to seek the Court's permission, at that early stage of the proceeding, to agree to withdraw his statement of claim (and his request for pecuniary penalties) and proceed on the basis of affidavits that did not require the applicant to comply with the formal rules of pleading; (b) The primary judge denied the applicant procedural fairness by failing in his duty to inform the applicant that he could apply to the Court for permission to provide an oral submission to clarify any elements of his statement of claim and his 8 July 2022 affidavit and that his Honour misunderstood, had misinterpreted, or should have required further information to enable valid findings of fact to be made; and (c) The primary judge denied the applicant procedural fairness when he was not given an opportunity to submit an amended statement of claim to rectify or cure any defects in his pleading, or to amend his affidavit of 8 July 2022 when there is objective documentary evidence that the applicant had a reasonable cause of action and a reasonable prospect of success. 54 It is a relevant consideration when addressing the issue of the applicant being a self-represented litigant that the primary judge identified that the applicant holds a Masters Degree in Social Work, a Masters Degree in Political Science, and has other significant tertiary qualifications but was not legally qualified or trained: Lamont at [84]. 55 The primary judge described the applicant as an obviously intelligent and articulate person. 56 The applicant contends that the primary judge ought to have made him aware of three matters. 57 The first is that the applicant should have been made aware at a case management hearing on 3 February 2022 that he could develop his claim by way of affidavit. 58 The applicant contends that he was not informed that he could make a submission to proceed on the basis of affidavit evidence notwithstanding he had submitted a statement of claim. Somewhat confusingly, the applicant then submits that on that occasion he was denied procedural fairness by being ordered to file and serve an affidavit based on ambiguous and confusing directions which failed to clarify the purpose of the affidavit. 59 The applicant filed two affidavits in which he addressed the basis of his claims. The first in an affidavit sworn and filed 22 March 2022 and the second is the 8 July 2022 affidavit. 60 The primary judge noted that in the lead up to the hearing on 19 August 2022, the applicant filed a further affidavit and brief submissions in which it was stated: The Applicant has been made aware that his claim is more appropriately progressed without formal pleadings such as by submitting an Amended Statement of Claim, but by submitting an affidavit combining a full narrative of the facts and the documentary evidence. The Applicant asks the Court to accept his affidavit dated 8th July 2022 in which he has endeavoured to clarify the causes of action, and has consolidated the complaints into a shorter, more precise form that will enable the respondents to more clearly understand the case he is asking them to answer. (Citations omitted, emphasis added) 61 The respondents submit that that affidavit demonstrates that the applicant was clearly aware of the option of filing an affidavit by at the latest 8 July 2022 for the purposes of clarifying his causes of action and enabling the respondents to understand the applicant's case. 62 The respondents point to the fact that by the time of the hearing on 19 August 2022, the applicant had filed a 211 page statement of claim, as well as two affidavits of, respectively, 114 and 77 pages in length plus annexures. 63 The respondents submit that there was no error as contended for in ground one but in any event, if there was an error, it was not material to the decision such that leave to appeal, on this part of ground one, should be refused. 64 I accept the respondents' submissions that there was no error for which the applicant contends. 65 Further, I do not accept the applicant's contention that he misapprehended his opportunity. The primary judge had noted the applicant was aware of the need to identify a case in a "… more precise form that will enable the respondents to more clearly understand the case he is asking them to answer." 66 It is apparent from the Reasons that the primary judge considered the materials that had been filed by the applicant in great detail and concluded that the applicant had not, either in his statement of claim or the affidavit of 8 July 2022, identified any "adverse action" within the meaning of the FWA and that he had explained that to the applicant. 67 It is also apparent that the primary judge highlighted to the applicant the technicality of the type of claim he was pursuing and encouraged the applicant to obtain legal advice. Indeed, at one stage the applicant engaged solicitors before seemingly withdrawing his instructions. 68 Nonetheless, notwithstanding three attempts to set out his claims of adverse action under the FWA, the primary judge was quite unable to ascertain what the alleged adverse action comprised. 69 The respondents submit that the appropriate assistance for a Court to afford to a self-represented litigant does not extend to providing the litigant with judicial advice, counselling the litigant as to how to exercise their rights, or conducting the case on a self-represented litigant's behalf: Flightdeck at [56]. I accept that submission. 70 The second matter under ground one is, in fact, ground two in the draft notice of appeal. 71 The applicant contends that he was denied procedural fairness because he was not given an opportunity to make submissions as to the adequacy of the statement of claim. However, that opportunity was extended to the applicant by the orders of 7 July 2022 (which provided for the applicant to file any written submissions in response to the strike out application), and subsequently at the hearing of 19 August 2022. 72 The third matter under ground one is, in fact, ground four in the draft notice of appeal. 73 The applicant contends he was denied procedural fairness because he was not given the opportunity to amend his statement of claim. 74 That contention cannot be accepted. It is apparent that the primary judge went to great lengths to give every opportunity to the applicant to present his claim to the respondents in a way which would allow the respondents to understand the case being advanced against them. 75 Further, the respondents observed that they wrote to the applicant on numerous occasions asserting that his statement of claim was deficient and invited him to replead: Appeal Book - Part B, Tab 5. The applicant's response on each occasion was to deny that the document was deficient and to decline that invitation. 76 In all the circumstances, there is no merit to grounds one, two and four of the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on these grounds.

Ground two (ground three in the application for leave to appeal and the draft notice of appeal) - failure to give reasons for judgment based on findings of fact 77 The applicant contends (under the heading ground two in his written submissions) that the primary judge neglected to make findings on material questions of fact for any of the 19 complaints contained in the statement of claim or the seven complaints contained in the applicant's 8 July 2022 affidavit. The applicant contends further that the primary judge failed to explain his process of reasoning. 78 The respondents submit that the primary judge took the applicant's case at its highest and concluded that the applicant had not identified material facts sufficient to support an assertion that he had been subject to any form of adverse action within the meaning of the FWA. 79 The respondents point to the observations by the primary judge that the applicant's materials were "unintelligible" and "did not disclose a reasonable cause of action". 80 The respondents submit that in those circumstances, no particular findings of fact were necessary in order for the primary judge to properly exercise his discretion to dismiss the claim. 81 I accept the respondents' submissions. 82 It is readily apparent that the primary judge went to great trouble to try and identify the basis of the applicant's claim that he was subjected to adverse action under the FWA and gave the applicant multiple opportunities to present his claim in a way which was intelligible to not just the primary judge but equally importantly, to the respondents. 83 Having embarked upon this exercise, the primary judge described the applicant's claim as "inchoate", "generally incomprehensible" and "convoluted and legally unintelligible". 84 The primary judge concluded that the applicant had not identified material facts to support an assertion that he had been subject to any form of adverse action, as that term is used in the FWA. The primary judge's reasons in reaching that conclusion are set out in a considered, reasoned, and comprehensive manner. 85 There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Ground three (ground six in the application for leave to appeal and the draft notice of appeal) 86 The applicant contends (under the heading ground three in his written submissions) that the primary judge denied the applicant procedural fairness when he did not take into account relevant materials that had been submitted by the applicant. 87 In his written submissions, the applicant alleges that the primary judge denied the applicant procedural fairness because the judgment did not explicitly refer to certain aspects of the applicant's submissions. 88 The applicant submits that there was a prima facie case of breaches of specific sections and subsections of the FWA and other workplace legislation and then identifies a number of matters that the applicant contends were done unlawfully by the first and second respondents. 89 The respondents submit that the applicant should not be granted leave to appeal in reliance on these matters. 90 In substance, the applicant disagrees with the conclusions of the primary judge who had embarked upon a careful, considered and detailed examination of the numerous attempts by the applicant to present his case in an intelligible form. 91 There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave on this ground.

Ground four (ground five in the application for leave to appeal and the draft notice of appeal) 92 The applicant submits that the primary judge relied upon "irrelevant information" when he made reference to a psychiatric report of a Dr Asokan. The applicant submits that there was not sufficient material before the primary judge to enable him to make the finding that Dr Asokan's report "succinctly details [the applicant]'s complaints". 93 The primary judge referred to the report of Dr Asokan in a recitation of the factual background to the proceedings. 94 The respondents submit that to the extent the primary judge considered the report, it was in an attempt to distil and understand the applicant's complaints about how he had been treated. 95 The applicant further expands on this ground in his submissions by claiming that the primary judge denied the applicant procedural fairness by not requiring the respondents to provide particularised details of each alleged deficiency in the statement of claim. The respondents submit that this is not a ground of appeal that arises from the draft notice of appeal, and for that reason, is not a ground in respect of which leave to appeal should be entertained. 96 I accept the respondents' submissions. 97 As to the contention the primary judge relied upon "irrelevant information", there is no basis to support that contention, far less that the primary judge did so at the expense of what was otherwise advanced by the applicant in his materials as the instances of what the applicant contended were adverse action. 98 It is clear the primary judge went to great lengths to try and understand the case being advanced by the applicant. The primary judge's reference to the report of Dr Asokan was not such that his Honour relied on "irrelevant information". 99 There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Ground five (ground seven in the application for leave to appeal and the draft notice of appeal) 100 The applicant contends the primary judge made an error at law when he found that the applicant does not have a specific workplace right to not be subjected to workplace bullying. 101 The workplace right to not be subjected to bullying is exercised on the making of an application to the Fair Work Commission for an order to stop bullying. 102 The respondents submit that the primary judge's conclusion that the applicant did not have a workplace right to not be subjected to bullying was sound, for the reasons set out by the primary judge at [61]-[63] of his Reasons. 103 The respondents also submit that whether the applicant had or had not exercised a workplace right was of no moment, given the primary judge's findings that the applicant had not identified any tenable case of adverse action and, more problematically, that the statement of claim was unintelligible. 104 I accept the respondents' submissions. 105 There is no merit to this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Ground six (ground eight in the application for leave to appeal and the draft notice of appeal) 106 The applicant contends the primary judge denied him procedural fairness by misunderstanding and mischaracterising the applicant's complaints, and by making findings not supported by the evidence. 107 The applicant's submissions identify a long list of what he contends were errors of fact made by the primary judge. 108 The error alleged at [13] of the applicant's submissions (AS) is not an error of fact. Rather, AS [13] is an expression of the applicant's dissatisfaction with the primary judge's ultimate findings. 109 The conclusions of the primary judge impugned at AS [14] are conclusions that were sound and open to the primary judge on the basis of the materials before him. 110 The error alleged at AS [15] is not an appealable error, and is an error of no materiality. 111 The errors alleged at AS [16] and [17] are not errors of fact. 112 The error alleged at AS [18] proceeds on the basis of a selective reading of the Reasons. The respondents submit that the error alleged is of no materiality. 113 The respondents submit that the errors alleged at AS [19], [20], and [21] suffer from the same deficiency as at AS [18] - the errors for which the applicant contends are immaterial insofar as if the applicant did not rely on the relevant complaints as instances of adverse action and under those circumstances, the primary judge's conclusion that they did not constitute adverse action for the purposes of the FWA was of no consequence. 114 The errors alleged at AS [22] and [23] appear to entail a suggestion that the primary judge erred in failing to find that the applicant had been subjected to adverse action for the purposes of the FWA. This was not an error of fact, but a conclusion open to the primary judge on his consideration of the material before his Honour as to whether the applicant had identified a cause of action. 115 The respondents submit that the error alleged at AS [24] misapprehends paragraph [162 of the Reasons. There, the primary judge was not concerned with whether the applicant had made complaints in the sense of exercising a workplace right, but rather was observing, in assessing the veracity of the applicant's alleged injury, that the applicant had not previously raised concerns about the injury he now claimed to have been subjected to. 116 The respondents submit the error alleged at AS [25] is not an appealable error. Not only is the relevant observation of the primary judge not a finding of fact, but moreover it was an observation reasonably open to the primary judge in the circumstances, and indeed represented a reasonable critique of the applicant's materials. 117 The respondents submit the error alleged at AS [26] is misconceived. The applicant contends that the primary judge erred in "not finding that there was a prima facie case that his workplace right was contravened". The concept of a contravention of a workplace right is a confused amalgam - a contravention of the FWA arises when adverse action is taken because a workplace right has been exercised. 118 I accept the respondents' submissions. There is no merit in this ground in the application for leave to appeal as reflected in the draft notice of appeal and I would not grant leave to appeal on this ground.

Leave to appeal 119 As I have noted above, the issue on whether the Court should grant leave to appeal depends upon the applicant satisfying the Court that: (a) The decision at first instance is attended with sufficient doubt to warrant being reconsidered on appeal; and (b) The applicant would suffer substantial injustice if leave was refused. Decor at 399. 120 Self-evidently, there are two components to the test. 121 As to the first component, not only is there the question of whether the primary judge erred in his assessment of the applicant's attempts to plead his case but also the exercise of the discretion. I am satisfied that the primary judge took a great deal of care and attention in considering the applicant's attempts to plead his case and gave the applicant a number of opportunities to set out the basis upon which he brought his claim under the FWA. 122 As to the exercise of the discretion, an appellate court will not interfere with a decision involving the exercise of discretion unless an error of the kind described in the well-known passage in House at 504-505 is made out: It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 123 As I have noted, the primary judge took extraordinary care to try and discern the basis upon which the applicant brought his claim against the respondents. Despite being given numerous opportunities, and indeed different formats, the applicant was unable to do so. 124 Under those circumstances, the primary judge considered the respondents were prejudiced in the sense that the Court was not authorised by the FWA to conduct a general enquiry. Further, the primary judge was correct to conclude that it would not be fair to the respondents or in the interests of the administration of justice for the Court to entertain the application in the hope that a cause of action may coalesce out of the applicant's diffuse allegations that he has been badly treated. 125 In the exercise of his discretion the primary judge, for reasons he explained and none of which have been successfully impugned by the applicant, considered carefully whether he should strike out the current version of the statement of claim or dismiss the application summarily, ultimately dismissing the application. 126 I do not accept there is any merit in any of the grounds of appeal contained in the applicant's draft notice of appeal and the applicant has not been able to demonstrate that the decision is attended with sufficient doubt to warrant it being reconsidered on appeal. 127 As to the second criterion, I do not accept that the applicant would suffer substantial injustice if leave was refused on the basis that there is no claim able to be articulated by the applicant. There is no injustice in being denied the opportunity to bring a claim where none exists. Further, any substantial injustice needs to be balanced against the prejudice to the respondents, which the primary judge considered specifically and carefully in the event that the applicant was given leave to re-plead his case before ordering summary dismissal.

Conclusion 128 It is for these reasons that there will be orders granting the applicant an extension of time within which to bring an application for leave to appeal but refusing the application for leave to appeal. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

SCHEDULE OF PARTIES SAD 35 of 2023 Respondents Fourth Respondent: TRACEY JESSIE

Family Court of Australia Act 2021(Cth)

FCA 127 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 Welsh v Digilin Pty Ltd [2008] FCAFC 149, (2008) 250 ALR 13

Leave to appeal 12 The principles relating to an application for leave to appeal are well-settled. In Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, 399 the Full Court identified that for a grant of leave to appeal from an interlocutory decision, an applicant must demonstrate that: (a) The decision at first instance is attended with sufficient doubt to warrant being reconsidered on appeal; and (b) The applicant would suffer substantial injustice if leave was refused. 13 The two criteria are cumulative and both limbs need to be satisfied: Sekigawa v Minister for Immigration & Border Protection [2016] FCA 127, [12] (Flick J). 14 The primary judge's decision entailed an exercise of discretionary power to summarily dismiss a proceeding, such that the applicant must demonstrate for the purpose of criteria (a) above that the exercise of that discretion is attended with sufficient doubt to warrant being reconsidered on appeal when considered against the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 449.

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