FEDERAL COURT OF AUSTRALIA Miller v CIMIC Group Limited (formerly 'Leighton Holdings Limited') [2015] FCA 587 Citation: Miller v CIMIC Group Limited (formerly 'Leighton Holdings Limited') [2015] FCA 587 Parties: ANDREW MILLER v CIMIC GROUP LIMITED (FORMERLY 'LEIGHTON HOLDINGS LIMITED') ACN 004 482 982 and THIESS PTY LTD ACN 010 221 486 File number: QUD 304 of 2015 Judge: REEVES J Date of judgment: 28 May 2015 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 – consideration of whether no reasonable prospects of success – consideration of whether an abuse of process – where proceedings already transferred to Federal Circuit Court – where similar complaint sought to be litigated in more than one court – where collateral attack on as yet unmade decision of court Legislation: Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth) Fair Work Act 2009 (Cth) Cases cited: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 Stergiou v McGrail (unreported, Federal Court of Australia, Burchett, Ryan and Gummow JJ, 22 April 1994) Walton v Gardiner (1993) 177 CLR 378 Williams v Hunt [1905] 1 KB 512 Date of hearing: 28 May 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Solicitor for the Applicant: Mr A Miller appeared in person Counsel for the Respondents: Mr J Murdoch QC Solicitor for the Respondents: Mr R Cullen of Franklin Athanasellis Cullen IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 304 of 2015 BETWEEN: ANDREW MILLER Applicant AND: CIMIC GROUP LIMITED (FORMERLY 'LEIGHTON HOLDINGS LIMITED') ACN 004 482 982 First Respondent THIESS PTY LTD ACN 010 221 486 Second Respondent JUDGE: REEVES J DATE OF ORDER: 28 MAY 2015 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Judgment be entered for the first respondent against the applicant under s 31A(2) of the Federal Court of Australia Act 1976 (Cth). 2. Judgment be entered for the second respondent against the applicant under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(d) of the Federal Court Rules 2011 (Cth). 3. The applicant pay the first and second respondents' costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 304 of 2015 BETWEEN: ANDREW MILLER Applicant AND: CIMIC GROUP LIMITED (FORMERLY 'LEIGHTON HOLDINGS LIMITED') ACN 004 482 982 First Respondent THIESS PTY LTD ACN 010 221 486 Second Respondent JUDGE: REEVES J DATE: 28 MAY 2015 PLACE: BRISBANE EX TEMPORE REASONS FOR JUDGMENT 1 At the first directions hearing of this proceeding, the respondents, CIMIC Group Limited (CIMIC Group) and Thiess Pty Ltd (Thiess), applied to have this proceeding determined summarily, relying on s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules). Mr Miller, the applicant, initially raised a concern that the respondents' application for summary judgment had not been served more than three days before this hearing, as required by r 17.01 of the Rules. However, after a short adjournment, Mr Miller stated that he was prepared to deal with the application. I therefore proceeded to hear it. 2 The respondents relied upon two broad grounds in their application for the summary determination of this proceeding. First, insofar as the proceeding seeks relief under s 1317E of the Corporations Act 2001 (Cth) (the Corporations Act), the respondents claim that Mr Miller had no standing to commence the proceeding. Secondly, insofar as the proceeding relates to Mr Miller's former employment with Thiess, the second respondent, they submitted that the proceeding is an abuse of process. In my view, both of these grounds have been made out and I propose to make orders accordingly. The background to this proceeding 3 To explain why I have come to that conclusion, it is necessary first to recount some of the background to this proceeding. Until September 2013, Mr Miller was employed by Thiess. During that month, Thiess terminated his employment on one month's notice. Mr Miller was dissatisfied with the manner in which that termination occurred. He therefore commenced proceedings in the Fair Work Commission and, when they were not resolved to his satisfaction, he commenced a proceeding in this Court. On 7 February 2014, Logan J made a number of orders in that proceeding. They included an order that a mediation be conducted and, should that not result in the resolution of the dispute, the proceeding was to be transferred to the Federal Circuit Court. 4 The mediation that Logan J ordered did not result in the resolution of the proceeding and it was duly transferred to the Federal Circuit Court. In that Court, the matter proceeded through the interlocutory stages and has now been set down for trial before Jarrett J during the second week of July 2015. 5 Until recently, Mr Miller was represented in that proceeding. Soon after his lawyers withdrew, he made an application to Jarrett J to, among other things, amend his statement of claim to add some additional claims. That application was heard on 20 April 2015. 6 Because he had not put the proposed amendments in writing, Jarrett J refused to allow Mr Miller to make them. However, he suggested a process which Mr Miller subsequently followed, at least in part. That was: to put the proposed amendments in writing; to submit them to the respondents; and, once their attitude had been determined, to return to his Honour and he would then decide whether to allow the amendments. Mr Miller followed this process to the second stage but, once the respondents indicated that they were opposed to the proposed amendments because they did not disclose a cause of action, he did not seek to return before Jarrett J. 7 About a week after the above amendment application, Mr Miller commenced this proceeding. In his statement of claim, he essentially made two broad areas of claims for relief. First, he claimed damages for breach of, what he referred to as, the "Leighton Holdings Code of Business Conduct". He claimed that Code was imported into the terms of his contract of employment with Thiess. Some brief explanation of this claim is required. Leighton Holdings Limited is the predecessor to CIMIC Group. CIMIC Group, and Leighton Holdings before it, are, or were, the parent company of Thiess. Nonetheless, neither of these entities has had any contractual relationship with Mr Miller and none is pleaded in his statement of claim in this proceeding. 8 Mr Miller's claim against CIMIC Group appears to be based upon the fact that it produced the Leighton Holdings Code of Business Conduct. The second area of relief set up in the statement of claim is an order under s 1317E of the Corporations Act declaring that Thiess has contravened s 181(1) of that Act and, as I understand it, for damages that Mr Miller suffered as a result of that contravention. Mr Miller has subsequently indicated in correspondence that he wishes to rely upon s 180(1) of the Corporations Act, and not s 181(1). Whichever section it is, the alleged contraventions relate to an alleged failure by Thiess to conduct Mr Miller's remuneration review properly in accordance with the terms of his contract of employment. That review took place in February 2013. 9 I have examined Mr Miller's statement of claim before the Federal Circuit Court and compared it with his statement of claim in this proceeding. It should be noted that the former statement of claim was prepared by Mr Miller's then-lawyers. The statement of claim filed in the Federal Circuit Court also claims two broad areas of relief. The first is for relief under various provisions of the Fair Work Act 2009 (Cth) related to Mr Miller's employment with Thiess. The second is for damages for breach of his employment contract with Thiess. It is obvious that both statements of claim are therefore founded on Mr Miller's former employment with Thiess and, specifically, his contract of employment with that company. The contentions 10 Insofar as this proceeding related to CIMIC Group, Mr Murdoch QC, counsel for the respondents, submitted that Mr Miller had no reasonable prospects of successfully prosecuting this proceeding. He submitted that was so for two reasons. First, there was no contract between Mr Miller and CIMIC Group. Certainly, as I have already noted above, no such contract is pleaded in Mr Miller's statement of claim. Secondly, insofar as Mr Miller seeks relief under s 1317E of the Corporations Act, Mr Murdoch submitted that, because a breach of both ss 180 and 181 of the Corporations Act are civil penalty provisions, s 1317J of that Act only permits the Australian Securities and Investments Commission (ASIC), the corporation concerned, or the responsible entity of a registered scheme, to apply for a declaration in respect of such a civil penalty provision. 11 Insofar as this proceeding related to Thiess, Mr Murdoch submitted that it had no reasonable prospects of success insofar as it involved a claim under s 1317E of the Corporations Act for essentially the same reasons outlined above. As to the remainder of the claims, Mr Murdoch submitted they were an abuse of process because they sought to attack, or circumvent, the proceeding Mr Miller is currently pursuing in the Federal Circuit Court relating to the same factual issues. Mr Murdoch also submitted that this proceeding was issued in breach of s 32AA of the Federal Court Act because it involved matters that were associated matters in the Federal Circuit Court proceeding. Finally, Mr Murdoch submitted that this Court had no jurisdiction to consider any of Mr Miller's common law proceedings related to his employment relationship with either of the respondents where there was no federal matter before this Court. 12 In his submissions, Mr Miller appeared to concede many of Mr Murdoch's submissions. While he is not a lawyer, nor legally trained, he told me that when he commenced this proceeding he was not aware of s 1317J of the Corporations Act, nor s 32AA of the Federal Court Act. Having now become aware of those provisions, he appeared to concede that they had dire consequences for his proceeding. Mr Miller also agreed that his proceeding before the Federal Circuit Court related to the same matters as he was seeking to pursue in this proceeding. 13 By way of explanation, he said he had some "significant concerns" with the way the Federal Circuit Court was dealing with his proceeding before it and he therefore wanted to have this Court take control of the proceeding. He added that, after the trial before the Federal Circuit Court, he would appeal the decision of Jarrett J so that, in any event, the matter would eventually end up in this Court. The relevant principles 14 The principles relating to an application for summary judgment under s 31A of the Federal Court Act have been examined many times since they came into effect about 10 years ago. It is convenient for me to refer to my consideration of those principles and the relevant authorities in my decision in Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at [15]–[45]. I have had regard to those principles and, in particular, to the need to proceed with caution when considering whether to grant an application for summary judgment such as this. 15 Staying or dismissing a proceeding for an abuse of process is also an exceptional power which ought to be used sparingly: see Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 275–279. Whether an abuse of process has arisen obviously depends on all the circumstances of the case at hand and depends on, among other things, the purpose of the particular applicant in commencing the proceeding. Pertinent to this proceeding, it has been held to be an abuse of process to commence proceedings that are "foredoomed to fail": see Walton v Gardiner (1993) 177 CLR 378 at 393. An abuse of process can also arise where the same, or a similar, complaint is sought to be litigated in more than one court: see Williams v Hunt [1905] 1 KB 512. And it has also been held to be an abuse of process to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: see Stergiou v McGrail (unreported, Federal Court of Australia, Burchett, Ryan and Gummow JJ, 22 April 1994). Consideration 16 With these principles in mind, I will deal with the claims Mr Miller has made against the two respondents separately. First, with respect to CIMIC Group, I consider Mr Miller's claims have no reasonable prospects of success and are an abuse of process because they are foredoomed to fail. That is so for the following reasons. First, Mr Miller has not identified any contractual, or other relevant, relationship between CIMIC Group and himself that could found the claims he has made relating to the Leighton Holdings Code of Business Conduct. If that Code was incorporated into any contract, based upon the facts alleged in Mr Miller's statement of claim in this proceeding, it could only be imported into his contract of employment with Thiess. 17 Secondly, while he does not appear to have specifically sought relief against CIMIC Group in relation to ss 180 or 181 of the Corporations Act, even if that was his intention, it is clear from the provisions of that Act, and particularly s 1317J, that he has no standing to make that claim. That arises from the fact, as outlined by Mr Murdoch, that a contravention of those sections is a civil penalty provision and s 1317J of that Act limits the applicants for relief for such penalty provisions to ASIC, the corporation, and a responsible entity of a registered scheme. 18 Turning to the claims against Thiess, for the same reasons as I have given above, I do not consider Mr Miller's claims based on the abovementioned provisions of the Corporations Act have any reasonable prospects of success and I consider they are foredoomed to fail. As to Mr Miller's other claims against Thiess, I consider they are an abuse of the processes of this Court. They plainly relate to the same factual dispute as is currently being litigated by him in the Federal Circuit Court. Indeed, Mr Miller conceded as much before me. Mr Miller's dissatisfaction with the way his claims are being dealt with in that Court do not provide any basis for commencing this proceeding in this Court. To the contrary, to use that as a reason for commencing this proceeding, particularly when the proceeding was originally remitted by this Court to the Federal Circuit Court, is, in my view, as clear an abuse of the process of this Court as one could encounter. 19 Furthermore, Mr Miller's declared desire to make a pre-emptive strike on the as-yet-unmade decision of the Federal Circuit Court by commencing this proceeding is plainly abusive of the processes of both Courts. Finally, I consider Mr Miller has coincidentally breached s 32AA of the Federal Court Act by commencing this proceeding in this Court when he was concurrently pursuing proceedings in the Federal Circuit Court in relation to associated matters. On my reading of Mr Miller's statement of claim on each of these sets of proceedings, they clearly relate to associated matters, namely the alleged breach of Mr Miller's employment contract with Thiess. Conclusion 20 For these reasons, I am satisfied that Mr Miller has no reasonable prospect of successfully prosecuting this proceeding against the first respondent and it is, therefore, entitled to summary judgment against Mr Miller under s 31A(2) of the Federal Court Act. 21 I am also satisfied that Mr Miller has no reasonable prospect of successfully prosecuting this proceeding against the second respondent, insofar as it relates to his claim under the Corporations Act. And I am separately satisfied this proceeding is an abuse of the process of the Court. On these bases, the second respondent is, therefore, entitled to summary judgment against Mr Miller under s 31A(2) of the Federal Court Act and r 26.01(1)(b) of the Rules. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 16 July 2015