Federal Court of Australia Cavar v MSS Security Pty Ltd [2024] FCA 1460 File number(s): NSD 1299 of 2023 Judgment of: GOODMAN J Date of judgment: 18 December 2024 Catchwords: PRACTICE AND PROCEDURE – strike out and summary judgment application – litigant in person – need to strike a balance between the challenges faced by a litigant in person and a respondent faced with a statement of claim that does not disclose in a comprehensible way the case (or cases) to be met – save for one cause of action, the statement of claim be struck out, with leave to file a further statement of claim if certified by a lawyer Legislation: Competition and Consumer Act 2010 (Cth), sch 2, ss 27, 236 Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth), s 37M Federal Court Rules 2011 (Cth), rr 16.01, 16.21 Cases cited: Reurich v Shoalhaven Heads Bowling and Recreational Club Ltd [2020] FCA 427 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 22 Date of last submission/s: 9 July 2024 Date of hearing: 20 June 2024 Solicitor for the Applicant: The applicant did not appear at the hearing, but made subsequent written submissions by leave Counsel for the Respondent: Ms N Campbell Solicitor for the Applicant: Ms P Sena, in-house counsel for the respondent ORDERS NSD 1299 of 2023 BETWEEN: CELIJA (CELIA) CAVAR Applicant AND: MSS SECURITY PTY LTD (ABN 29 100 573 966) Respondent order made by: GOODMAN J DATE OF ORDER: 18 december 2024 THE COURT ORDERS THAT: 1. The following paragraphs of the statement of claim filed on 7 November 2023 be struck out: (a) paragraph 6; (b) paragraph 7; (c) paragraph 8, with the exception of: (i) subparagraph (c); (ii) the following words in subparagraph (n): "The applicant claiming damages" and "for breach of the applicant's contract in terms of his 38 hours per week with 12 hours shift reducing his weekly hours for 24 hours per week only since 14 August 2023"; (d) paragraph 9; and (e) paragraph 10. 2. The applicant have leave to file and serve a further statement of claim certified by a lawyer in accordance with r 16.01(c) of the Federal Court Rules 2011 (Cth) by 7 February 2025. 3. The respondent's interlocutory application filed on 5 February 2024 otherwise be dismissed. 4. Costs of the respondent's interlocutory application be reserved. 5. The proceeding be listed for a further case management hearing at 9.30am on 21 February 2025. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GOODMAN J 1 The respondent is a company which provides security services. It appears to be common ground that the respondent employed the applicant on a full time basis during the period from 6 or 8 June 2023 to 5 September 2023. 2 Following the cessation of that employment, the applicant commenced this proceeding by originating application, supported by a statement of claim. 3 The respondent brings an interlocutory application pursuant to which it seeks orders striking out the applicant's statement of claim and for the summary dismissal of the proceeding. The respondent's application is supported by an affidavit made by Mr Glenn Robertson, the respondent's State Operations Manager (NSW) and by written and oral submissions. The applicant did not appear at the hearing of the application, but counsel for the respondent was content for the applicant's affidavits to be read on that hearing. The applicant was provided with a copy of the transcript of the hearing and given an opportunity to file written submissions in response. The applicant took that opportunity. 4 The applicant is a litigant in person, albeit a frequent litigant who is described in the statement of claim as, inter alia, a "Foreign Lawyer". I have taken this into account, together with the impression I have formed that English is not the applicant's first language, in recognising that the applicant may be at a disadvantage in presenting the applicant's case in a manner which is compliant with the rules of the Court. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Kirby P (as his Honour then was) said at 536 to 537 in a passage that has been quoted with approval many times: ... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out ... 5 I have also taken into account the position of the respondent which is faced with a statement of claim which, as will be explained below and subject to one exception, does not allow the respondent properly to understand the case it has to meet. 6 The balance to be struck by the Court in dealing with applications to strike out pleadings drafted by, or the dismissal of proceedings commenced by, litigants in person was conveniently described by Flick J in Reurich v Shoalhaven Heads Bowling and Recreational Club Ltd [2020] FCA 427 at [30] to [33]: 30. The plight of unrepresented litigants, especially those who suffer some form of mental disability, cannot be underestimated. 31. Frequently in the balance is the need to ensure the proper administration of justice in a manner which is procedurally fair to both the unrepresented party and those who oppose the relief sought. 32. The manner in which that balance is to be struck has long vexed the Courts. 33. And different considerations apply when a party seeks an order that judgment be entered summarily in its favour, as opposed to an order that the pleadings are such that they should be struck out with liberty to re-plead. Common to both exercises of discretion, however, is the need to ensure that any order does justice to both an applicant and a respondent. An unrepresented applicant may not be competent to properly articulate a claim for relief and a respondent should not be put in the position of seeking to resist a claim for relief that cannot properly be understood. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 ("Wentworth v Rogers") at 536-537, Kirby P (when sitting as the President of the Court of Appeal) thus observed as to the duty of the Court to an unrepresented litigant upon a strike out application ...: (emphasis added) 7 I have also taken into account the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth). 8 The statement of claim commences as follows (as written): 1. At all the time respondent was registered under Corporation Act 2001, and such is lialable to sue or be sued in it's corporation style. 2. On 06 June 2023 Applicant accepted offer and signed the contract with respondent for position Relief Security Officer, accepted and signed by respondent on 06 June 2023. 3. Terms of the agreement were: (a) Full Time Relief Security Officer with grade 3, 76 hours per forthnight and shifts of 12 hours; (b) Employment commenced on 08 June 2023, (c) Probation period of three months, (d) Training program as condition on any respondent site with period of 12 months-end on 06 June 2024 (e) accepted and signed Full Time contract and its conditions by applicant and by respondent on 06 June 2023. 4. In breach of contract the repsondent has failure to comply with applicant's contract and has breached entire contract which ended with termination of applicant's employment on 05 Sep 2023. 5. As a result of the breach of applicant's contract by respondent the applicant has suffered loss/damages as follows: (a) Loss of job for two years until his retirement, (b) loss of income for two years in amount of $140.000 (c) loss of amount of 10,5% employer/respondent's compulsory superanuation payment into applicant's super fund, and anuual leave payment for two years. (d) Total loss the applicant seeking is amount of about $155.000.00 with interest from 05 Sep 2023 when breach of contract took effect. 6. In the alternative the applicant claims that he was in terms of sections 18 and 31 of Competition and Consumer Act 2010 (Australian Consumer Law) mislead and deception by the respondent by its conduct and pursuant to section 27 of the act, breach in terms of standard conditions of of the contract/employment dated 06 June 2023. 7. In alternative the applicant claims that in terms of established instrument of FWA 2009, National Employment Standards, Work Place Regulation Act 1996 and Security Service Industry Award 2020, its jurisdiction can be exercised. 9 These paragraphs are followed by paragraph 8 which appears under the heading "Particulars", has 17 subparagraphs over several pages, and involves a miscellany of assertions; and by paragraph 9 which appears to be a continuation of the "Particulars". Paragraph 8 is the crux of the statement of claim. 10 Paragraphs 10 and 11 are then in the following form (as written): 10. The applicant claiming damages suffered on ground that he has complied with his contract, has performed job and training under instructions on high professional level, and pursuant to job description did all duties and acted apropriately on duty. 11. The applicant claim the relief specified in the accompanying application. 11 The substantive paragraphs of the originating application are as follows (as written): 1. Damages under section 82 and 236 of Australian Consumer Law­Competition and Consumer Law in relation to alleged misleading with deceptive conduct in contravention of sections 18 and 29 of Australian Consumer Law and for damages at common law for alleged breach of contract signed and accepted by both parties on 06 June 2023. 2. Breach of contract under Standards Terms of contract and offer of Full Time employment as Relief Security Officer in relation to probation period, 76 hours contract hours with 12 hours shift occurred on 14 Aug 2023 with caused damages to the applicant by reducing his hours-just 24 hours per week, extension of probation period and Re-training, all unreasonable, pursuant to Consumer and Competition Act 2010 the breach of section 27 of Standard Form of contract, breach of section 382 of FWA 2009 has occurred by respondent deberately with mislead and deception and by abuse of manager's power with all false allegations. 3. The court jurisdiction to hear the application and to grant the relief sought is to be found in sections 82, 236 of Competition and Consumer Act 2010, section 27-relevant to Standards form of Contract and Employment Contract, breach of section 382 of Fair Work Act 2009, National Employment Standards, Security Service Industry Award 2020, Work Place Regulations Act 1996. Claim for breach of contract 12 It is tolerably clear that the applicant contends that: (1) the applicant and the respondent entered into a written contract on 6 June 2023; (2) the contract contained various terms; (3) certain terms of the contract were breached; and (4) such breaches caused loss to the applicant. But for one matter, this is a sufficiently orthodox pleading of a breach of contract. The matter of concern is that for the most part the statement of claim does not set out, in any comprehensible way, which terms of the contract set out at paragraph 3 of the statement of claim are contended to have been breached; or the material facts which are alleged to constitute such breaches. 13 Subject to the matter mentioned in the following paragraph, the morass of allegations in paragraph 8 of the statement of claim has no immediately obvious connection to the terms of the contract pleaded at paragraph 3 of the statement of claim. For example, there are allegations that the applicant's identity has been stolen and that her privacy has been breached. There are also allegations concerning computer hacking, drug dealing and other criminal activities. Much of what is expressed in paragraph 8 of the statement of claim is not readily understandable. 14 However, within the morass of information in paragraph 8 of the statement of claim is a suggestion that the term of the agreement pleaded at paragraph 3(a) of the statement of claim – that the applicant was employed on a full-time basis for 76 hours per fortnight – was breached when, from 14 August 2023, the applicant was rostered on for fewer than 76 hours per fortnight (statement of claim 8(c) and (n)). See also paragraph 2 of the originating application. I will refer to this suggestion as the reduced hours case. 15 With the possible exception of the reduced hours case, the statement of claim does not allow the respondent fairly to understand the manner in which it is alleged that the terms of the contract have been breached. Misleading or deceptive conduct case 16 The statement of claim also purports – at paragraph 6 of the statement of claim – to set out a claim based upon misleading and deceptive conduct in contravention of ss 18 and 31 of the Australian Consumer Law (ACL), being schedule 2 to the Competition and Consumer Act 2010 (Cth). However, there is no comprehensible identification of the material facts relied upon to establish that the respondent engaged in conduct in contravention of either ss 18 and 31 (including, in the case of s 18, how it is alleged that such conduct occurred in trade or commerce). Further, although the originating application includes a claim for damages under s 236 of the ACL, the statement of claim does not include a contention that the applicant suffered loss by reason of any conduct in contravention of ss 18 or 31. The statement of claim does not allow the respondent fairly to understand the basis of the contention that the respondent engaged in misleading or deceptive conduct; and is deficient in (at least) not pleading any connection between such conduct and any loss alleged to have been suffered by the applicant. 17 The statement of claim also refers to s 27 of the ACL, but contains no comprehensible case based upon that provision. 18 For completeness I note that the statement of claim contains traces of what might be a claim under the Fair Work Act 2009 (Cth) or other standards (see paragraph 7 of the statement of claim). However, the statement of claim does not plead such a claim in any readily comprehensible manner. 19 In summary, save to the extent that it pleads the reduced hours case, the statement of claim contains scandalous, frivolous and vexatious material, is ambiguous, is likely to cause prejudice, embarrassment and delay in the proceeding and fails to disclose a reasonable cause of action within the meaning of those expressions in r 16.21 of the Federal Court Rules 2011 (Cth); and should be struck out. 20 The next question is whether the applicant ought be given an opportunity to replead the parts of the statement of claim that should be struck out. The usual position is that parties are afforded an opportunity to seek leave to file a further statement of claim after a statement of claim has been struck out (in whole or in part) unless it would be futile to do so. In considering this question I have taken into account the matters described at [4] to [7] above, together with the apparent low likelihood that the applicant will be able to prepare a statement of claim in a form which provides the respondent with a fair opportunity to understand the case that the applicant brings against it. On balance, I have come to the view that the proper exercise of the discretion is to allow the applicant an opportunity to file a further statement of claim, but on the condition that such a statement of claim has been certified by a lawyer in accordance with r 16.01(c) of the Rules. I note that a similar approach was taken by Flick J in Reurich. 21 I turn now to the respondent's application for summary dismissal. The submissions in support of that application are pitched at a high level and do not address the reduced hours case. It is not apparent that the reduced hours case does not present a real question to be tried. It follows that summary judgment is inappropriate. 22 For the reasons set out above, the statement of claim should be struck out, save to the extent that it pleads the reduced hours case. There should be a grant of leave to replead in the manner described above. The remainder of the respondent's interlocutory application should be dismissed. I will make orders accordingly. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate: Dated: 18 December 2024