FEDERAL COURT OF AUSTRALIA Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 File number(s): WAD 158 of 2016 Judge(s): MCKERRACHER J Date of judgment: 16 September 2016 Catchwords: INDUSTRIAL LAW – practice and procedure – application for summary dismissal – where self-represented litigant – where significant procedural difficulties – whether no reasonable cause of action – whether no reasonable prospects of success – whether abuse of process COSTS – whether respondent entitled to costs – whether application governed by s 570 of the Fair Work Act 2009 (Cth) Legislation: Fair Work Act 2009 (Cth) ss 394, 563, 570 Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 (Cth) rr 8.05(1)(a), 16.02, 26.01, 40.01 Judiciary Act 1903 (Cth) s 39B Cases cited: Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113 Sullivan v North West Crewing Pty Ltd [2015] FWC 8559 Sullivan v North West Crewing Pty Ltd [2016] FWCFB 1068 Date of hearing: 8 September 2016 Registry: Western Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 43 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms H Millar Solicitor for the First Respondent: Herbert Smith Freehills Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make in the proceeding, save as to costs ORDERS WAD 158 of 2016 BETWEEN: MICHAEL SULLIVAN Applicant AND: NORTH WEST CREWING PTY LTD First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 16 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. Unless within one month the applicant files a minute of proposed further amended originating application addressing the difficulties discussed in these reasons, the applicant's originating application filed on 28 July 2016 be dismissed with costs, to be assessed if not agreed. 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: A LITIGANT IN PERSON 1 Mr Michael Sullivan essentially wishes to challenge decisions of the Fair Work Commission either at first instance or on appeal or both in relation to his dismissal from employment. There have been significant procedural difficulties encountered in the case being advanced. It has been unclear whether Mr Sullivan was challenging the decision of the Commission at first instance or only the decision of the Full Bench. In part, he relied upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) until it was pointed out to him that decisions of the Commission are not subject to that Act. He also sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and an extension of time to pursue that relief. He was informed that an extension of time was unnecessary. 2 The first respondent applies for summary judgment on the three bases that, first, there is no cause of action revealed in the very extensive materials filed by Mr Sullivan, secondly, he has no reasonable prospects of success and, thirdly, that the proceeding is an abuse of process. The second respondent has filed a submitting appearance. 3 In the case of a self-represented litigant, the Court must take care not to expect the standards that would be required of an experienced practitioner. Care should be taken to endeavour to identify a cause of action provided that, importantly, other parties are not prejudiced by rendering such assistance. Despite assistance having been afforded to Mr Sullivan on a number of occasions by both the Court and the first respondent in respect of the difficulties in his claim, for the reasons that follow there are strong grounds for the first respondent's application for summary dismissal. Notwithstanding this, Mr Sullivan will be afforded one further opportunity to amend his originating application to address the difficulties in these reasons. HISTORY IN THE COMMISSION 4 The history of Mr Sullivan's claim in the Commission reveals detailed care and attention to Mr Sullivan's complaints. That is not to say that, even with that care and attention, that errors cannot arise, but this is certainly not an instance where his complaints have been dealt with on a cursory basis. 5 It is appropriate to make this point because it is clear that the first respondent has participated in requirements dictated by that process, including the fact that it is generally a costs free jurisdiction. While the form of review is appropriate, the first respondent should not be required to continue to defend claims which are incomprehensible. 6 As the original decision in Sullivan v North West Crewing Pty Ltd [2015] FWC 8559 reveals, Mr Sullivan was employed as a deckhand for Westug Pty Ltd from 12 July 2011 until his dismissal effective on 3 August 2015 on grounds of serious misconduct. (His employer has always been treated in the Commission as being Westug. The only evidence is that the first respondent is contracted by Westug, which in turn is contracted by Pilbara Iron Pty Ltd to provide marine towage services. Pilbara is part of the Rio Tinto Group. The parties have treated Mr Sullivan's employer in the Commission as being Westug.) 7 The serious misconduct was that on 23 July 2015, he tested positive to methylamphetamine in a random drug and alcohol test. (Mr Sullivan challenged the validity of the test.) He was paid six weeks salary in lieu of notice. 8 The decision records that it was not in dispute that Mr Sullivan's employment was covered by the North West Crewing Australia Pty Ltd Enterprise Agreement 2013. The termination was at the initiative of the employer and related to conduct, not performance. The issues related to the positive drug test were the sole reason for termination. It was not for reasons of redundancy. 9 The decision also notes that it was accepted that allegations were put to Mr Sullivan and that he had the opportunity to respond to those allegations at meetings on 30 July and 3 August 2015. There was no challenge to the fact that his responses had been considered prior to making a decision to terminate his employment. Mr Sullivan was represented by the Maritime Union of Australia (MUA) at both meetings. 10 Numerous complaints against various people have since been raised by Mr Sullivan in many different documents. Some of those complaints appear to challenge the concessions and findings recorded above. But particularly at first instance, Mr Sullivan suggested there was unfairness because limitations were placed on the extent to which his representative could intervene at the meetings. That was a matter that was considered and rejected by the Commission. The main issues in contention were whether or not the positive drug test was a harsh or disproportionate reason for dismissal without warning. 11 The Commission took into account that the work of a deckhand is hazardous and requires employees to be fit and alert. One of Mr Sullivan's jobs was to keep watch in a dangerous environment involving very large vessels and other tugs. Mr Sullivan, however, contended that he had never conceded that he had knowingly taken methylamphetamine whilst in Bali shortly before resuming active employment. He denies that he admitted taking illicit substances in the past and denied that he said that he abused his prescription medicine by taking extra tablets when going out. He said that the samples were not taken in a secure and appropriate manner and the outcome of the test should not be accepted as proof that he had taken methylamphetamine. He contended that based on Westug's own policies, a first positive drug test did not constitute a valid reason for dismissal, but rather a warning was the appropriate outcome. That sensible argument was closely addressed by the Commission. 12 The Commission also considered Westug's submissions, which were to the effect that the drug test was adequate evidence that Mr Sullivan knowingly attended work whilst affected by drugs. Westug said Mr Sullivan conceded that he may have taken methylamphetamine whilst in Bali and that he may have abused prescription medicines and taken illicit substances in the past. Westug argued that its policies with respect to drug and alcohol use and fitness for duty were well advertised, understood and implemented. It said breach of reasonable drug and alcohol policies was a valid reason for dismissal, particularly having regard to the hazardous environment in which Mr Sullivan and Westug operated and its obligations to regulators and clients. 13 The Commission agreed that serious legal and business obligations applied to Westug in respect to Occupational Health and Safety (OHS) and that there were serious consequences for breaches. 14 Numerous other matters were raised in the first hearing and considered carefully by the Commission. Although Mr Sullivan has complained about lack of procedural fairness, it is clear that the Commission took very considerable care, as the passages at [22] and [23] below reveal: [22] As Mr Sullivan was not represented in this complex case I prepared a draft summary of issues for the parties to consider in advance of the hearing. After hearing from the parties I amended the draft and I adopt [sic] the section "Agreed Summary of Issues" above and I note that it was agreed to by the parties. Mr Sullivan was represented by the MUA at the meetings leading to the dismissal but he was not represented in his unfair dismissal application. [23] After hearing the evidence I decided to assist Mr Sullivan in making his final submissions by putting to Mr Sullivan my preliminary views concerning each of the matters in factual dispute in paragraphs 19 and 20 above (except for 19(f) in respect to which I sought further submissions from Westug). I provided Mr Sullivan with the opportunity to respond to my preliminary views in respect to each of those matters and I have considered his responses in reaching my final conclusions on the disputed facts as set out below. I then provided the parties with the opportunity to make further submissions. 15 The Commission found (at [24]) that Mr Sullivan accepted that he received an email in December 2013 that advised him of 'your New Terms and Conditions effective 18 December 2013', which included the Enterprise Agreement approved by the Commission on 11 December 2013. (This is relevant to an oral argument raised for the first time in this Court in the summary judgment application that the employment issues were not dealt with under the correct enterprise agreement.) 16 The Commission found (at [37]) that Mr Sullivan conceded that he may have been exposed to drugs in Bali prior to his return to duty on 23 July 2015, but he denied that he had knowingly taken methylamphetamine. The Commission was satisfied (at [53]-[63]) that there were no issues affecting the integrity of the collection and control of the samples, the testing process or reporting. There were lower levels of methylamphetamine in a later test, but, according to the Commission (at [72]), that was caused by the time lag and the dilution by water consumption. The Commission was satisfied on expert evidence that there was no inconsistency between the results. 17 The Commission closely considered the question of whether summary dismissal for a 'first strike' was consistent with Westug policies, concluding (at [84]) as follows: The Fitness for Work Procedure is in my view unambiguous about the disciplinary consequences for a first positive drug test above the cut off limits in AS/NZS 4308. The Procedure uses the terms "will" and "shall" to describe the disciplinary outcome of a first and final written warning. This is then reinforced in the "Disciplinary Action Table". 18 The Commission also found (at [112]): • Mr Sullivan worked in a safety critical environment. • Serious legal and business obligations apply to Westug in respect to OHS and there are serious consequences for breaches. • Mr Sullivan was aware that he was subject to random drug tests and that a positive drug test would result in a disciplinary outcome. • Mr Sullivan had been provided with the relevant policies. • Westug took reasonable steps to ensure that Mr Sullivan was aware through both publicity and training that he should not work when under the influence of drugs and that it was his responsibility not to work when he was unfit to do so. 19 The Commission specifically examined the question of whether the decision to terminate was harsh or disproportionate given the Westug policy that employees should be given a warning for a first positive drug test. In relation to this assessment, the Commission said (at [130]-[134]): [130] I would have [concluded that the decision to terminate was harsh or unfair] if it were not for: • The risks to the health and safety of others associated with Mr Sullivan's admission that he misused his prescription medication when not at work. • My finding that Mr Sullivan was knowingly unfit whilst at work on 23 July 2015 and this was contrary to clear and well publicised policy that employees are not to attend work when unfit and are required to advise their supervisor if unfit. [131] I also consider that Mr Sullivan has unreasonably sought to avoid taking responsibility for the positive methylamphetamine test. I consider it inherently unlikely that a single instance of accidental exposure four days earlier would result in a positive test almost ten times the cut off limit in AS/ANZ 4308 and that Mr Sullivan would remain unaware that he had been exposed. I have found that Mr Sullivan did not disclose all relevant information when asked whether or not he had taken methylamphetamine in the period prior to working on 23 July 2015. Mr Sullivan has maintained this approach as illustrated by the extraordinary lengths he has gone to in seeking to discredit the test outcome. [132] Mr Sullivan submitted that he was treated inconsistently to other employees. Mr Sullivan did not provide any evidence to support the claim of inconsistency. Westug did provide evidence that in respect to the three employees who had tested positive to methylamphetamine, two had resigned their employment and Mr Sullivan was the third employee. Westug gave evidence that the only other positive test related to cannabis. Having considered the evidence of the differing circumstances I am not satisfied that there is any basis to conclude that there has been inconsistent treatment. [133] I am satisfied that there was a valid reason for the termination and that the termination was not harsh or a disproportionate response and that the procedure followed was fair. The restrictions placed on the MUA representatives did not result in significant unfairness. I am satisfied that there are no other relevant factors. I found earlier and it is not disputed that Sections 387(b), (c), (d), (f) and (g) of the Act are neutral factors in this case and that Section 387(e) is not relevant because the dismissal related to conduct not performance. [134] Having considered all the matters in specified in Section 387 of the Act I am not satisfied that the dismissal was harsh, unjust or unfair. (emphasis added) 20 On an application to appeal in Sullivan v North West Crewing Pty Ltd [2016] FWCFB 1068, the Full Bench also examined the reasons given following the first hearing closely and examined the principles applicable to an appeal from a decision arising from an application pursuant to s 394 of the Fair Work Act 2009 (Cth) recording the following (at [10]) (footnotes omitted): [10] The principles applicable to an appeal from a decision arising from an application pursuant to s.394 the Act have been stated on many occasions. A Full Bench of this Commission has succinctly summarised the principles as follows: "[6] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may only be made with the permission of the Commission. [7] This appeal is one to which s.400 of the FW Act applies. Section 400 provides: (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. [8] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest: "... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters." [9] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal." (references omitted) 21 The Full Bench concluded that the Commissioner provided a comprehensive and balanced consideration of the evidence and made findings of fact. The Full Bench concluded (at [12]): Having reviewed the material that was before the Commissioner and his Decision (in which he provided a comprehensive and balanced consideration of the evidence and made findings of fact) we are not satisfied that there is an arguable case of appealable error. 22 Importantly also, the Full Bench recorded the following (at [14]) (footnotes omitted): It is likely that Mr Sullivan believes that the Decision at first instance manifests an injustice, or the result is counter intuitive. However, it seems to us that the appeal was simply being used as a vehicle to rerun the case that had been conducted before the Commissioner in circumstances where Mr Sullivan is dissatisfied with the decision at first instance. That is not the purpose of an appeal. The public interest test is not satisfied by a preference for a different result. THE APPLICATION FOR REVIEW 23 It is not easy to encapsulate succinctly or even identify complaints by Mr Sullivan that would support any relief under s 39B of the Judiciary Act, which relevantly provides: 39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. 24 In a nutshell, the amended originating application includes a plea for relief in which he seeks reinstatement as well as damages. He appears to contend that compensation and damages ought to be paid by the first respondent for pain and suffering, costs associated with medical expenses and his relocation from Karratha to Perth following dismissal. Additionally, he seeks compensation for defamation by 'multiple publications' and compensation for the misrepresentation by the MUA and the Fair Work Ombudsman, neither of which is a party to the application. He also seeks $40 million from the respondents at large. Mr Sullivan also seeks interlocutory relief from the first respondent by way of the amended originating application in the form of: reinstatement, back pay of wages to August 2015 and/or a 'master 4 certificate' being fully paid for, an adjournment until Mr Sullivan obtains legal advice and, in effect, leave to defer making a final claim for relief until legal advice is obtained. THE FIRST RESPONDENT'S SUBMISSIONS 25 The first respondent contends that the originating application should be dismissed summarily pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01 of the Federal Court Rules 2011 (Cth) (FCR). It is sufficient to refer to s 31A FCA, which provides: 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. (2) 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 defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting 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. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 26 It is necessary to say a little bit more about the relevant sequence of events since the proceeding was commenced. On 21 April 2016, Mr Sullivan submitted an application for an extension of time and a draft originating application for judicial review pursuant to the ADJR Act as well as an application for relief under s 39B of the Judiciary Act. On 28 June 2016, after inter partes correspondence in which the first respondent indicated that it believed there were procedural and substantive flaws in the application, the Court suggested to Mr Sullivan that his application was not amenable to the ADJR Act, dismissed the application for an extension of time and granted leave to amend the application for relief under s 39B of the Judiciary Act. Orders were made directing Mr Sullivan to file and serve an amended application within 28 days. A little after the deadline had expired, Mr Sullivan filed the amended application in the form of a document entitled 'Amended Originating Application for Relief under s 39B Judiciary Act 1903'. It was unaccompanied by a statement of claim or an affidavit. On 5 August 2016, through correspondence with my chambers, Mr Sullivan indicated an intention to file further documentation in relation to the application. On 31 August 2016, he emailed to my chambers an ex parte interlocutory injunction application along with additional material which purported to relate to that application. That application has not been filed. 27 The week before this summary judgment application was heard, Mr Sullivan asked for it to be listed urgently as he needed money. That request was accommodated. On the day before the application he filed a document entitled 'Originating application/interlocutory injunction/ex parte' claiming a most extensive list of entitlements, none of which could properly be addressed before this application was determined. He claimed, in summary, breach of the enterprise agreement, breach of a substantial number of the Fair Work Act provisions, together with a number of other statutes, negligence, professional negligence, misleading conduct, serious misconduct, and discriminatory conduct. 28 In summary, Mr Sullivan seeks the following by way of the document filed 7 September 2016: discovery of the 'correct' enterprise agreement; reinstatement; an interim injunction under the Fair Work Act to restrain the first respondent from breaching the proper enterprise agreement; recovery of unpaid wages, annual leave and various job-related allowances and entitlements; damages, compensation and pecuniary penalty orders '[a]gainst a long list of individuals, [b]usinesses, companies, corporations, State and Commonwealth Departments'; resolution of the dispute in accordance with clause 14 of the enterprise agreement; and an adjournment until criminal proceedings are heard. 29 My view was that unless an arguable case was identified by Mr Sullivan in the dismissal application, having regard to the history of the matter, the dismissal application should be heard first. I did not preclude argument on the interlocutory application at the hearing, but none was advanced by Mr Sullivan. 30 The further purported interlocutory application filed by Mr Sullivan does not appear at all to stem from the Judiciary Act application and there has been no indication from Mr Sullivan that the documentation relates to anything other than an intended application. Mr Sullivan has had now over four months to develop his application under the Judiciary Act even in succinct form. The documents filed from time to time vary not insignificantly in their purported legal content, but do not cure the fundamental difficulties with the claims advanced. MR SULLIVAN'S SUBMISSIONS 31 Mr Sullivan did not squarely address any of the inadequacies raised by the first respondent in his reply. He did raise the suggestion that the wrong enterprise agreement had been relied upon, the correct enterprise agreement had not been produced by the first respondent and that he was not required to be tested in the manner he was tested under the enterprise agreement by which he was bound. None of these matters appeared to have been raised in the Commission on the face of the reasons. He said he had not received procedural fairness. It was difficult to see how these matters (raised only from the bar table and as far as I could discern, for the first time in open court), were responsive to the fundamental deficiencies identified by the first respondent. CONSIDERATION 32 The foundation for Mr Sullivan's Judiciary Act application is extremely difficult to discern. As noted above, he was, according to the Commission's records, at one time an employee of Westug and was dismissed in 2015. This dismissal was the subject of challenges in the Commission. Mr Sullivan seeks the relief set out above (at [24]) without a statement of claim or other form of pleading and against an entity that neither he nor anyone else has identified as being his employer. Even assuming in his favour there is some link to the first respondent as an employer and/or even assuming some other enterprise bargaining agreement has application to him, there is not presently the slightest glimmer of enlightenment as to what cause of action for the purposes of s 39B of the Judiciary Act may be pursued by Mr Sullivan. The claims are not currently clearly referable to any element at all of s 39B of the Judiciary Act. 33 The deficiency is uncured by pleadings, affidavits or submissions. This despite the substantial volume of written material pressed on the Court and the first respondent. Pursuant to the FCR, there is a requirement under r 8.05(1)(a) FCR that a statement of claim accompany any originating application in which the applicant seeks relief that includes damages. When a statement of claim is filed, it is required to comply with r 16.02 FCR which stipulates the permissible content of pleadings. Rule 16.02 FCR requires that parties set out in their pleadings the material facts on which they intend to rely and the provisions of any relevant statute. Pleadings must identify the issues that the party wishes the Court to resolve and give the opposing party or the affected party an opportunity to understand with clarity the case put against that party. In a matter of this nature pleadings should accompany an originating application as they define the issues and clarify the claim. Without pleadings or any relevant supporting documentation, the application simply makes bare demands. The legal bases for the claims have not been articulated, despite ample opportunity to do so, in particular, through correspondence from the first respondent. It is impossible for the first respondent in these circumstances to properly prepare for or defend itself at a hearing. The grievances appear to be at large. 34 Pursuant to r 26.01(1)(c) FCR, parties may apply for summary dismissal where an application discloses no reasonable cause of action. For reasons set out in the previous paragraph, there is no cause of action demonstrated in the material presently before the Court. 35 Further, on the material presently before the Court, Mr Sullivan has no reasonable prospects of success within the meaning of that expression in s 31A(2) FCA and r 26.01(1)(a) FCR. Summary dismissal is provided for in such circumstances, should any further material filed by Mr Sullivan not address the above concerns. 36 Despite various hearings, some of which Mr Sullivan has not attended, there has been ample opportunity, both in Court and through inter partes correspondence for him to articulate a clear claim if he is able to do so. To the contrary, there have simply been assertions of a vague, provocative and unproven nature. This is not assisted by the fact that application contains paragraphs which are fragments of sentences, lists of phrases, or at one point an unexplained numerical figure. 37 The application does not include a plea for prerogative relief pursuant to s 39B of the Judiciary Act, which is the central purpose of the statutory provision. The application also refers to numerous potential causes of action, quite unrelated to these respondents and seeks interlocutory relief which in some instances would result in final determination of claims. Some such matters are also outside this Court's jurisdiction. 38 The application is at present manifestly defective and cannot form the basis of a successful claim and judgment. 39 I also note that, once again, as before the Full Bench of the Commission, Mr Sullivan is not seeking review of a legal nature, but is simply attempting to re-litigate issues which have already been determined adversely to him in previous proceedings in another forum. To do so is an abuse of process and proceedings in such circumstances may be struck out on that ground. It is important to the administration of justice and public confidence in the justice system that there be finality in litigation. The respondents should not be repeatedly exposed to further unwarranted and unjustified attempts to re-litigate the fair work dispute. Neither should the public by its constitutional obligation to support the court system. 40 In my view, the first respondent is entitled to an award of costs if Mr Sullivan does not rectify the deficiencies with the final chance he is to be afforded. As indicated, the first respondent incurred costs in defending Mr Sullivan's unfair dismissal claim in the Commission at first instance and on appeal and has had no recourse to recover the costs incurred in that exercise. While it is clear that the application purports to relate to Mr Sullivan's dismissal from Westug's employ, it is not apparent that this application is necessarily governed by the Fair Work Act, being an application under s 39B of the Judiciary Act. The first respondent submits that there is nothing to indicate that the application was made pursuant to the Fair Work Act and none of the remedies referred to in s 563 of that Act are sought. It submits that costs in this matter are not constrained by s 570 of the Fair Work Act and ought be awarded on a party and party basis to the successful party pursuant to r 40.01 FCR. In the alternative, it argues that, if this matter is governed by the Fair Work Act, the claim was instituted without reasonable cause and would entitle an award of costs in favour of the first respondent pursuant to s 570(2)(a) of the Fair Work Act for costs incurred in defending the claim. 41 I accept that (at least on the material it discloses) the amended originating application filed on 28 July 2016 has been instituted without reasonable cause, but in any event, as it is quite unclear that there is any cause of action referable to the Fair Work Act, the protection to which Mr Sullivan has previously been afforded by s 570 of that Act and contrary to his submission will no longer apply. This approach is consistent with that in other cases, such as the decision of the Full Court in Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113 (at [24]). CONCLUSION 42 Having regard to the above reasons, it is apparent that there is much merit in the first respondent's application for summary dismissal on the material filed by Mr Sullivan to date. However, the point in relation to the proper enterprise agreement has not been developed and the matter is confused by the relationship between Mr Sullivan and the first respondent. Counsel for the first respondent did not respond to or address these points, perhaps as they had not been raised in the amended originating application. Further, Mr Sullivan has thus far proceeded as a self-represented litigant. Accordingly, I will give Mr Sullivan one month within which to file a minute of proposed further amended originating application addressing the concerns outlined in these reasons. 43 Mr Sullivan should understand that in all the circumstances described this is a particularly rare indulgence. It will almost certainly be essential for Mr Sullivan to obtain legal advice in this matter to address these concerns. In view of the force of the first respondent's application for summary dismissal, if Mr Sullivan does not file a minute of proposed further amended originating application and, if necessary, a statement of claim that cures the fundamental difficulties identified in these reasons, or any minute at all, within the stipulated time frame, it follows that the first respondent's application will succeed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 16 September 2016