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Tutos v Catholic Education Services Cairns (No. 2) QDC 261
DISTRICT COURT OF QUEENSLAND
Tutos v Catholic Education Services Cairns (No. 2)  QDC 261
MARIUS LUCIAN TUTOS
THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF CAIRNS trading as CATHOLIC EDUCATION SERVICES CAIRNS ABN 42 498 340 094
District Court at Cairns
18 December 2019
31 July 2019
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – where the plaintiff is self-represented and filed a claim and statement of claim – where the plaintiff was granted leave to file and serve an amended statement of claim – where the defendant applies to strike out the amended claim and amended statement of claim – whether the amended statement of claim fails to disclose a reasonable cause of action such as to entitle the defendant to have it struck out – whether the amended statement of claim tends to cause delay in the proceeding – whether the amended statement of claim is unnecessary or scandalous – whether the amended statement of claim is an abuse of process – whether the amended statement of claim does not comply with the rules – whether the documents should be struck out or set aside and summary judgment should be granted for the defendant against the plaintiff
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF – where the plaintiff applies for summary judgment against the defendant – whether the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim – whether there is no need for a trial of the claim.
Uniform Civil Procedure Rules 1999 (Qld) r 150, r 155, r 171, r 293
Butler v Simmonds Crowley & Galvin (2000) 2 Qd R 252
Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62
Knight v State of Queensland & Ors  QSC 86
Robertson v Hollings & Ors  QCA 303
Tutos v Catholic Education Services Cairns  QDC 57
No appearance by the plaintiff
- In 2017 the defendant employed the plaintiff as a secondary school teacher at one of the schools it operated. In 2018 the plaintiff resigned his position and brought proceedings against his former employer. In summary, he alleges that he was forced to resign by the actions of his employer, and that its responses to him raising concerns about his employer’s examination practices, including by suspending him from his duties pending an investigation, give rise to certain causes of action.
- The plaintiff has been self represented throughout the proceeding.
- In an earlier decision, I struck out his amended statement of claim and granted him leave to replead.
- This decision should be read together with that earlier decision, which sets out the plaintiff’s allegations (the substance of which have not changed), an overview of defendant’s position and a procedural chronology.
- On 18 June 2019 the plaintiff filed a further amended statement of claim. The defendant applies to strike out the amended claim and amended statement of claim and for summary judgment. The plaintiff cross applies for summary judgment.
- The plaintiff, who now lives overseas, did not appear on the hearing of the application but filed written submissions and sent several emails to the court. Despite being invited to seek leave to appear by telephone or videolink, he declined to do so. He advised that he could not appear and asked that certain documents be considered.
- I have taken into account, and considered, all of the material relied upon by the plaintiff, even if I do not expressly refer to it.
- The defendant applies to strike out the amended claim and the amended statement of claim on the grounds that they disclose no reasonable cause of action (r 171(1)(a) Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’)), have a tendency to prejudice or delay the fair trial of the proceeding (r 171(1)(b)), are unnecessary or scandalous (r 171(1)(c)), or are otherwise an abuse of the process of the court (r 171(1)(e)). It submits that this is the third time the plaintiff has filed a fundamentally deficient statement of claim and that the defendant is entitled to have the proceeding finally determined by dismissal of the claim with costs.
- The relevant principles to be applied in such applications, including when dealing with self-represented litigants, are not in dispute and were summarised in my earlier decision.
- The plaintiff’s current amended statement of claim is dogged by the same problems as previous versions. Nothing in the amended statement of claim discloses a reasonable cause of action over which the court has jurisdiction.
- For the reasons set out below, I have reached the view that the amended claim and statement of claim should be struck out in their entirety and judgment entered for the defendant, with costs.
- The amended claim filed 4 October 2018 sought damages (or compensation) of $350,000. I set out the claim for relief sought in full:
An order for damages, specifying monetary compensation of $350,000, in the light of the following causes of action that concluded with an irreparable damage of my career, cessation of my employment, the impossibility to be offered another teaching job (permanent) for at least 3-4 years, the suppression of my dignity, humiliation, deterioration of my public image and forced physical isolation for an unlimited period of time, isolation that could lead to depression:
- (a)breach of clauses stipulated in my employment contract
- (d)malice and ill will
- (f)undue influence
Amended Statement of Claim
- The heading of the amended statement of claim filed 18 June 2019 states that it is to be read in conjunction with a document entitled “ARGUMENT SCHEME FOR LEGAL CASE-BASED REASONING”. That document is an annexure to the pleading. It is a flow chart containing a series of text boxes, arrows, and headings “BREACH OF CONTRACT” and “BREACH OF DUTY OF CARE”.
- As best I can discern from that document, the plaintiff seeks to allege breach of his employment contract on the basis that:
- the principal did not apply the “Probationary planning and review process’”;
- the plaintiff’s teaching load was changed without his consultation or consent;
- the plaintiff was initially suspended on full pay but in the middle of the ‘investigation’, payment stopped; and
- without a source of income and concerned for his health, at the advice of the doctors, the plaintiff resigned.
- The plaintiff also seeks to raise a claim in negligence, alleging a breach of a duty of care on the basis that he provided letters from doctors predicting a serious deterioration of his medical condition if suspension continued, but the defendant ignored them.
- The flowchart document does not identify the terms of the contract, nor how the alleged breaches are said to have caused loss or damage, nor does it identify what duty of care is said to have been owed, or by whom, and how any breach of it caused loss or damage. It does not comply in the most basic way with the rules of pleading in the UCPR.
- I turn now to the amended statement of claim.
- Paragraphs 1 to 8 inclusive are discursive and contain a number of irrelevant matters that do not constitute material facts establishing any cause of action against the defendant. They state that the plaintiff claims $350,000 in damages “suffered as a consequence of illegal practices at the college, claiming compensation for loss of income and loss of future income” and that “Both physical and psychological harm to the person can constitute personal injury”.
- Paragraph 6 states that “The relief sought in this document follows a case in Federal Court of Australia”: Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62. In his claim for relief, the plaintiff also expressly relies upon the decision of the Full Federal Court in Goldman Sachs. Reliance on this decision underpins much of the pleading.
- Goldman Sachs was an appeal against a judgment for damages for breach of a contract of employment. The trial judge found that the plaintiff suffered a serious psychological injury resulting in loss of income, including loss of future income, as well as general damages for pain and suffering, and awarded damages of over $500,000. He found that the employer breached the employment contract by failing to comply with a term in its health and safety policy provided to the plaintiff with his letter of offer, and that the breach caused the plaintiff’s psychiatric injury. The express term in the policy was that the employer “will take every practicable step to provide and maintain a safe and healthy work environment for all people”. On appeal, the court upheld the award, finding that the language used, in the context as a whole, pointed to the statement embodying a contractual obligation, and that the trial judge was correct in holding that it was a term of the contract. That policy was held to give rise to contractual obligations, but other policies of the employer were not held on appeal to be contractually binding.
- The plaintiff has framed his contractual cause of action on that decision. However his reliance upon it is misconceived. The policy relied upon by the plaintiff in this case did not (on the evidence filed) form part of his contract of employment. The terms of his employment contract did not include any corollary of the term in Goldman Sachs. There is no causal link pleaded between breach of the “policy” and any loss or damage allegedly suffered by the plaintiff. Any claim for personal injury (psychiatric or psychological) is subject to the relevant workers’ compensation legislation, which has not been complied with here. And finally, the plaintiff denies that his claim is for personal injury at all.
- Paragraph 8 lists the causes of action relied upon by the plaintiff as “coercion”, “undue influence”, “adverse action”, “misrepresentation”, “estoppel”, “ill-will”, “illegality” and “negligence”, each followed by a definition. The rest of the pleading is framed in such a way that it makes a series of allegations. At the end of the allegation, the plaintiff sometimes (but not always) identifies the cause of action which the allegation is said to relate to by inserting the word (eg. “coercion”, “illegality”, “misrepresentation” at the end of the paragraph). In this way, it seeks to link some discursive narration of facts or expression of the plaintiff’s opinion, to a cause of action. If this were the only difficulty with the pleading, it may not have been fatal. However, it was not the only difficulty.
- Paragraphs 9 to 11 allege that the plaintiff worked as a mathematics teacher at the school and was offered a permanent teaching position with a probation period of six months. It does not plead the material facts establishing formation of the employment contract. Nonetheless, the defendant concedes that the existence of an employment contract is not in issue. It is the terms that are.
- Paragraph 12 refers to a “policy” (described as the “Probationary Period Planning And Review Process”), a copy of which is attached to the pleading. The plaintiff does not allege here that the policy is a term of the employment contract, nor does he identify whether it is said to be an express or implied term. On the evidence filed by the defendant the “policy” is not a document approved by the defendant, it had no legal or binding status with respect to the plaintiff’s employment contract, there was in fact no policy with respect to probation, and the school principal was under no obligation to comply with the document referred to as a “policy”. Thus this paragraph (and related paragraphs 13 and 14) disclose no reasonable cause of action in contract.
- Paragraph 13 alleges that the principal was “obligated to apply the policy implementing the Process”, that he did not do so and thereby breached the contract, “paving the way to my unfair dismissal”.
- Paragraph 14 alleges breach of contract by the principal by “not implementing the Process” (presumably a reference to that process described in the “policy”).
- In paragraph 14(1) the plaintiff likens probation to the “minimum employment period” in the Fair Work Act 2009 (Cth) (‘FWA’) and alleges that probation entitles an employer to dismiss an employee without the risk of an unfair dismissal. He alleges that “the Principal should have implemented the Process to avoid the risk [of unfair dismissal], as stipulated in the Act”. The defendant submits that paragraph 14(1) is bad at law because the FWA does not contain any reference to probation and section 383 of that Act is not synonymous with nor a substitution for probation, but rather sets minimum employment periods as a condition precedent to an employee making an application for unfair dismissal under the statute. I agree with that submission.
- In paragraph 14(2) the plaintiff alleges that the “Agreement [Cairns Catholic Education Services – Principals [sic] Agreement 2016-2020] underlines the responsibility of the principals employed by the Diocese, to implement the policies and regulations to all staff in Catholic schools, including the College. The policy regulating the Process is one of them. The Principal did not implement it.”
- Paragraphs 14(3) and (4) rely upon sections 52(1)(a) and (b) of the FWA which refer to an enterprise agreement in operation.
- The defendant submits that there is no policy governing probation and that the plaintiff’s reliance on the “policy” to found an action for breach of contract is misconceived. The defendant relies upon clause 6.5.4(b) of the Principals’ Agreement, which states:
“Each school/college Principal as a partner in the leadership of Catholic education (sic) in the Diocese of Cairns, accepts the expectations placed upon them which include appropriate responsibility for: … implementing all policies and regulations relating to Catholic schools as developed by the Diocesan Boards and approved by the Bishop of the Diocese.”
- There was sworn evidence that the documents referred to as the “policy” or the “Process” were not developed by any Diocesan board nor were they approved by the Bishop of the Diocese. The defendant submits that therefore the principal was not obliged to implement the “policy” or the “Process” referred to by the plaintiff. Further, any alleged failure to do so was not a breach of the Principals’ Agreement or section 52 of the FWA. Even if it were, that would not give rise to any right by the plaintiff in respect of that breach, because the plaintiff does not plead any causal link between continuing in employment beyond the stipulated probationary term, and any loss or damage allegedly suffered by him. I accept the defendant’s submissions.
- Paragraphs 14(6) and 14(7) repeat the allegation that the “policy implementing the Process” was a term of the plaintiff’s employment contract. On the basis of the evidence filed, there is no factual basis for the assertion that there was in existence a policy with respect to probation that formed part of the plaintiff’s employment contract or which the principal was obliged to implement. The “policy” was not referred to in the documents comprising the plaintiff’s contract of employment, and the evidence is that it had no legal status. Thus the parts of the pleading based on the alleged failure by the principal to comply with the “policy” or the “Process” by confirming or annulling the plaintiff’s employment are doomed to fail.
- On the plaintiff’s own case, he completed his six month probationary period without his employment being formally confirmed or annulled. He continued working through the balance of that year and was allocated a teaching load for the next year. Thus, even if the “policy” comprised a term of the contract (which on the evidence, it did not), no loss or damage is alleged to flow from a breach of it.
- Paragraphs 15 to 21 relate to the alleged repetition of maths exams. Paragraph 16 alleges that the college engaged in a practice of setting the same exams from year to year. It is said that that permitted the students to cheat in exams, and that their results did not reflect their actual knowledge. The plaintiff alleges that the repetition of the exams breached a range of statutory requirements, including: the Education (Accreditation of Non-State Schools) Act 2001 in that it failed to maintain public confidence in the operation of non-State schools; the Education (Queensland Curriculum and assessment Authority) Act 2014 in that it failed to deliver quality learning outcomes and failed to maintain public confidence in certificates of achievement and statements of results; the Education (Accreditation of Non-State Schools) Regulation 2017 in that it failed to respect its school educational program and organisational practices; and the A-Z of Senior Moderation published by the Queensland Curriculum Assessment Authority in that it failed to comply with that document.
- The plaintiff relies upon these matters to plead “illegality”. But there is no allegation that the plaintiff’s employment contract was illegal as formed, or performed owing to an unlawful purpose, statutory prohibition or was inimical to public policy. Although the plaintiff pleads that he raised these issues with the “executive”, again he makes no causal link between the alleged breaches and any loss or damage said to have been suffered by him. In addition, no remedy is claimed on the basis of “illegality”.
- The documents identified do not impose on the defendant a mandatory statutory or other obligation in respect of exam questions or their repetition. Some of the sections referred to do not exist. Some of the references are to repealed legislation. The reference to the Moderation appears to be to an advisory guideline published by the Queensland Curriculum & Assessment Authority that does not carry the force of law. These paragraphs disclose no reasonable cause of action.
- Paragraphs 17 to 21 plead evidence, not facts, rhetorical questions and statements of opinion. These paragraphs disclose no reasonable cause of action.
- The next series of paragraphs at 22 to 26 allege that the plaintiff’s teaching load was changed, without his consent, and that this was the first step in a campaign that led eventually to him being forced to resign. In summary, it is an argument of constructive dismissal.
- Paragraph 26 alleges that the acting principal breached the plaintiff’s employment contract by changing his teaching load. He does not identify the term of the contract alleged to have been breached, nor does he allege any loss suffered by him said to arise from the change to teaching load. In the particulars to paragraph 26, the plaintiff pleads a series of facts which he says amount to “misrepresentation”, “estoppel”, “ill-will”, “coercion” and “illegality”. The facts pleaded do not establish any of the causes of action nominated nor any other cognate cause.
- Paragraphs 26(2) and 27 suggest a tort of defamation, but the plaintiff has not pleaded the material facts relied upon to establish that cause of action.
- Paragraph 27 alleges that “in order to force me making the decision to leave the school, the Diocese initiated a denigration campaign. The person responsible for orchestrating this campaign in detail, was the Executive Director of the Diocese (Director)”.
- The particulars to paragraph 27 comprise 34 further subparagraphs of detailed allegations over four pages. They repeat the alleged causes of action referred to above. The particulars include allegations that the plaintiff was required to teach subjects other than mathematics, that his position was advertised, that the Executive Director initiated an unjustified investigation into the plaintiff’s qualifications, that the plaintiff was suspended from duty until further notice on full pay, that he was directed to provide information about his qualifications, that that was not a reasonable direction, that there were no facts justifying his suspension, that the suspension caused him significant stress, that he provided letters from his medical practitioners which were ignored, that the suspension was retribution for the plaintiff raising the exam repetition issue, that the executive director’s actions caused his health to deteriorate, that the executive director stopped his payments, and that he was forced to resign.
- The particulars also refer to cases concerning the right to suspend an employee without pay. The plaintiff concludes at paragraph 27(34) “Left without source of income and concerned for my health, at the advice of doctors, I resigned on the same day, 31 May 2018”.
- In paragraph 28 he alleges breach of contract, negligence and breach of duty of care.
- Despite references in the pleading to the alleged deterioration in his health, the plaintiff steadfastly denied that his claim was for personal injury. He stated “my case is not related to any form of medical injury”. There is no properly pleaded case in negligence. In addition, the amended statement of claim offers no facts establishing loss and damage, which must be specifically pleaded under rule 150(1)(l) UCPR.
- Paragraphs 27(27) and 27(28) seek to impose on the defendant a statutory duty under the Work Health and Safety Act 2011 (Qld) actionable at the suit of the plaintiff. But that proposition is misconceived because nothing in that Act is to be construed as conferring a right of action in civil proceedings in relation to a contravention of that Act.
- In addition, the plaintiff fails to plead material facts establishing a causal link between the wrongs alleged and any loss or damage suffered.
- In paragraph 32, the plaintiff claims the following relief:
“I claim the following: the sum of $100,000, after tax, for loss of income and the sum of $250,000, after tax, for the loss of future income. In the spirit of paragraph  of the decision made by FCA, at the discretion of Your Honour, I claim an additional $50,000 to the loss of future income, which is on top of the total sum expressed in the Claim. That will conclude with a total of $350,000 claimed in this statement (+ $50,000 at the discretion of the Honourable Judge).”
- Paragraphs 29 to 33 (relief sought) again rely on the decision in Goldman Sachs as grounding the plaintiff’s claim for damages in the claimed amounts. As earlier explained, that case was a claim for psychiatric injury caused by breach of contract under a different regime. In Queensland, such a claim is caught by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (section 32(1)(b)) and the mandatory pre‑court process in section 275 of that Act. There is evidence that the requirements of that Act have not been complied with here.
- However, the plaintiff at all times has expressly disavowed any allegation that this is a claim for personal injuries (psychiatric or psychological injury). He maintains that he does not seek to claim damages, under that legislation or at common law, for psychiatric or psychological injury.
- Paragraphs 29 to 33 (relief sought) also offend against rule 155(1) UCPR because the quantum of compensation sought comprises three indivisible lump sums and fails to plead material facts about the nature, exact circumstances and the basis on which the loss and damage has been worked out or estimated.
- Finally, to the extent that the pleading seeks to establish a case for forced resignation, then that claim is a creature of statute taken up in the unfair dismissal provisions of the FWA (specifically section 386(1)) over which the Fair Work Commission has exclusive jurisdiction. The District Court has no jurisdiction to hear such a claim under that Act. In Knight v State of Queensland & Ors  QSC 86 Henry J struck out part of a statement of claim by a school principal against his former employer. The principal alleged an action in negligence based on breach of duty of care by his employer during an investigation process which resulted in his employment being terminated. The court observed that the pleading appeared to rely upon the law extending a cause of action in negligence in a way for which no authority presently existed. It found that the plaintiff could have commenced a proceeding under the relevant industrial relations legislation seeking relief for unfair or unlawful dismissal, but had not done so. He concluded that the pleaded foundation of the statement of claim was a non-existent cause of action.
- In my view, a similar analysis may be applied here. The plaintiff could have brought an action for unfair dismissal (based on a constructive dismissal) under the FWA, but has not done so. There was also a mechanism in the binding Enterprise Agreement to refer a workplace dispute to the Fair Work Commission but the plaintiff did not avail himself of that.
Conclusion on defendant’s application to strike out and for summary judgment
- The amended pleading offends many of the fundamental rules of pleading including the necessity to confine the pleading to material facts. I am satisfied that the pleading discloses no reasonable cause of action, has a tendency to prejudice or delay the fair trial of the proceeding, and is otherwise an abuse of process such as to enliven the court’s discretion under rule 171 to strike it out.
- The objectionable matters are so closely intertwined with other matters that the pleading as a whole tends to embarrass the fair trial of the action.
- I take into account the difficulties arising from the plaintiff being self-represented. Nonetheless, the courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It may be unfortunate that a party does not have the benefit of competent legal advice and representation. But that does not license a party to proceed unconstrained by the rules according to which adversarial litigation is conducted.
- The plaintiff has had at least three opportunities to articulate a proper cause of action and has been unable to do so.
- Having regard to the history of the action and the unlikelihood of him engaging a legally qualified person to act for him, there is no realistic basis for thinking that any further addition to or amendment of the statement of claim might overcome the present difficulties.
- I am satisfied that the plaintiff has no real, as opposed to fanciful, prospect of succeeding on all or a part of his claim and there is no need for a trial of the claim or the part of the claim.
- In the circumstances, it is appropriate to strike out both the amended claim and amended statement of claim and to give judgment for the defendant.
- The plaintiff’s application for summary judgment against the defendant is completely misconceived. It was filed in response to the defendant’s application and before the defendant had filed any defence to the amended statement of claim. The plaintiff’s application is dismissed.
- The defendant sought costs of the application and the proceeding on an indemnity basis. Whilst the claim does not disclose reasonable causes of action, in my view it is not appropriate to order costs on an indemnity basis. The defendant’s application has brought to an end proceedings by an unrepresented litigant whose claim was completely misconceived. The plaintiff should pay the defendant’s costs of and incidental to the proceeding to be assessed.
 Tutos v Catholic Education Services Cairns  QDC 57.
 Tutos v Catholic Education Services Cairns  QDC 57 -.
 The plaintiff purported to file two later versions but this is the relevant pleading for the purposes of the application.
 Tutos v Catholic Education Services Cairns  QDC 57 -.
 Work Health and Safety Act 2011 (Qld), s 267.
 Robertson v Hollings & Ors  QCA 303  per Keane JA.
 Butler v Simmonds Crowley & Galvin (2000) 2 Qd R 252, 256 .
- Published Case Name:
Tutos v Catholic Education Services Cairns (No. 2)
- Shortened Case Name:
Tutos v Catholic Education Services Cairns (No. 2)
 QDC 261
18 Dec 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 57||18 Apr 2019||Defendant's application to strike out the amended claim adjourned; defendant's application to strike out the amended statement of claim granted (with leave to replied): Fantin DCJ.|
|Primary Judgment|| QDC 261||18 Dec 2019||Defendants' application to strike out the amended claim and amended statement of claim granted; defendants' application for summary judgment pursuant to r.293 of the Uniform Civil Procedure Rules 1999 granted; judgment for the defendant: Fantin DCJ.|
|Appeal Determined (QCA)|| QCA 171||18 Aug 2020||Application for an extension of time in which to appeal granted: Sofronoff P and Fraser and Morrison JJA.|
|Special Leave Refused (HCA)|| HCASL 237||12 Nov 2020||Special leave refused: Keane and Edelman JJ.|