Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors
[2015] FCCA 2632
•20 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLAN v CONDAMINE CATCHMENT NATURAL RESOURCE MANAGEMENT CORPORATION LTD & ORS | [2015] FCCA 2632 |
| Catchwords: PRACTICE AND PROCEDURE – Application to remove respondents from proceedings – whether court has jurisdiction – whether cause of action pleaded against respondents. |
| Legislation: Fair Work Act2009, ss.365, 369, 371, 550(1) |
| Lotus Development Corporation v Mayne Nickless Limited [1991] 100 ALR 167 |
| Applicant: | LOIS EVELYN ALLAN |
| First Respondent: | CONDAMINE CATCHMENT NATURAL RESOURCE MANAGEMENT CORPORATION LIMITED T/AS CONDAMINE ALLIANCE |
| Second Respondent: | PHILIP JAMES McCULLOUGH |
| Third Respondent: | KENNETH JOHN MURPHY |
| Fourth Respondent: | JOHN GORDON HERBERT |
| Fifth Respondent: | REBECCA JOY POPE |
| File Number: | BRG 491 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 20 August 2015 |
| Date of Last Submission: | 20 August 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 20 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr G.R. Allan Mr M. Healy |
| Solicitors for the Applicant: | Directly instructed |
| Counsel for the Respondent: | Mr K. Watson |
| Solicitors for the Respondent: | Clifford Gouldson Lawyers |
ORDERS
I order that paragraphs 55(b) of the particulars, (d) of the particulars, and (e) of the particulars be struck out.
I order that the applicant have liberty to file and serve an amended statement of claim no later than 4 pm on 3 September.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 491 of 2015
| LOIS EVELYN ALLAN |
Applicant
And
| CONDAMINE CATCHMENT NATURAL RESOURCE MANAGEMENT CORPORATION LIMITED T/AS CONDAMINE ALLIANCE |
First Respondent
| PHILIP JAMES McCULLOUGH |
Second Respondent
| KENNETH JOHN MURPHY |
Third Respondent
| JOHN GORDON HERBERT |
Fourth Respondent
| REBECCA JOY POPE |
Fifth Respondent
REASONS FOR JUDGMENT
ex tempore
By her application filed on 4 June, 2015 the applicant seeks to pursue a claim under the Fair Work Act against the respondents. The claim is one which is generally referred to as a claim for dismissal in contravention of a general protection. She filed a form 2 when she commenced her application which has a heading in those terms. In the proceeding, she alleges that her employer, the first respondent, took adverse action against her in contravention of the Fair Work Act in two respects.
First, she says her employment was suspended. Second, a short time thereafter it was terminated. Both of those events or actions are apt to be adverse action for the purposes of the Fair Work Act.
Pursuant to s.371 of the Fair Work Act, proceedings of the nature of those now before me cannot be commenced in this court unless the Fair Work Commission has issued a certificate under s.369 of the Fair Work Act in relation to “the dispute” or there is an application for an interim injunction – a matter not relevant to the present application.
Here, the applicant had proceeded in the Fair Work Commission pursuant to s.365 of the Fair Work Act and had received the relevant certificate in respect of a dispute which existed between she and the first respondent.
Sections 371, 365 and 369 of the Fair Work Act all appear in Part 3-1 of Chapter 3 of the Fair Work Act. It is that part of the Act headed “General Protections”. The claim that is now at issue in this interlocutory application is a claim by the applicant against the second, third, fourth and fifth respondents that arises out of s.550(1) of the Fair Work Act. In respect of those respondents, she alleges that they are liable for the first respondent’s contraventions of the Fair Work Act because they were involved in those contraventions for the purposes of s.550(1).
By this interlocutory application, the second, third, fourth and fifth respondents ask for orders that they be removed from the proceedings pursuant to rule 11.04 of the Federal Circuit Court Rules2001. They argue that the court is bereft of jurisdiction because there is no certificate in respect of any dispute between them and the applicant for the purposes of s.371 of the Fair Work Act. Further, they argue that the case that is sought to be made against them is so lacking in foundation that they ought not be vexed by the proceedings.
As to the first matter, I am satisfied the court has jurisdiction for these reasons. First, the action against the second, third, fourth and fifth respondents arises from s.550(1) of the Fair Work Act, a section which is not found in Part 3-1 of Chapter 3 of the Fair Work Act or in Chapter 3 at all but which is found in Chapter 5 of the Act. The dispute that is referred to in ss.371, 365 and 369 of the Fair Work Act is a dispute which arises under Chapter 3 of the Fair Work Act. It is not a reference to a dispute which might arise under any other provision of the Act.
There are many other provisions of the Act that have the potential to give rise to disputes between parties to litigation in this court, in the Federal Court and other places that are not found in Chapter 3. Section 550(1), to the extent that it creates a cause of action, creates a cause of action which is not captured by s.371 of the Act although, as a necessary condition of success on a claim based under s.550(1) of the Act, it is necessary to demonstrate a contravention of the Act. But as I have indicated, there are many provisions of the Act which might be contravened, not just those in Chapter 3.
It would be anomalous if an applicant relying upon the rights set out in s.550(1) could, without a certificate under s.371, proceed against persons said to have been involved in a contravention of some part of the Act not found in Chapter 3 but yet a person who seeks to proceed against another who was involved in a contravention of a provision within Chapter 3 must receive and provide with their application such a certificate.
The cause of action against the second, third, fourth and fifth respondents is not one that arises under Chapter 3 but is one that arises under s.550(1) of the Act. No certificate is necessary. The court has jurisdiction.
The alternative application by the second to fifth respondents is a little confusing in the sense that, in truth, it appears to be an application to summarily dismiss the proceedings against those respondents although it is not prosecuted as a summary dismissal application pursuant to s.17A of the Federal Circuit Court Act 1999.
It is said that the allegations in the statement of claim are insufficient to give rise to a cause of action against those respondents and therefore they ought to be removed from the proceedings. The confusion about the application is demonstrated, in my view, by the decision of Foster J in Lotus Development Corporation v Mayne Nickless Limited [1991] 100 ALR 167. That was an application to remove respondents from a proceeding under the Trade Practices Act1974. The respondents seeking to be removed in those proceedings were said to be liable to the applicants for various breaches of the Trade Practices Act arising out of some alleged copyright infringements.
There was no question, it seems, that the claims pleaded in the statement of claim raised an arguable cause of action against the respondents. There were sufficient facts pleaded to give rise to a cause of action. However, the respondents sought removal from the proceedings on the basis that the affidavit evidence that had been delivered in support of the claim was insufficient to support the plea in the statement of claim. Foster J refused to remove the parties from the proceeding on the basis that the evidence needed to be tested and some other matters might fall out of the proceedings which would assist the applicant to prove its claims against the respondents.
However, that is not the position asserted by the respondents here. The position asserted by the respondents here is more akin to the approach that would be adopted on an application to strike out a statement of claim on the basis that it does not disclose a cause of action. I summarised the respondents’ position and counsel for them agreed with my summary. It was suggested that, taking the matters pleaded against the respondents in the statement of claim at face value and assuming them to be true, nonetheless the claim was doomed to fail because those facts, of themselves, were insufficient to give rise to the relevant cause of action. The applicant’s counsel suggested that no determination about those matters could be made until such time as there had been discovery, evidence had been delivered and the applicant had the opportunity – these are my words, not his – to flesh out the claim through the provision of more evidence. But I think the applicant’s submissions misapprehend the nature of the application that has been made and I immediately say that the misapprehension is understandable, given what I consider to be the confused way in which the application has been prosecuted.
Be all that as it may, paragraph 55 of the statement of claim sets out the applicant’s claim against the second, third, fourth and fifth respondents pursuant to s.550(1) of the Act.
Before proceeding further, it is necessary to record that there was an order made on 13 July this year that pleadings be delivered - the applicant was ordered to file and serve a statement of claim, the respondents to file and serve a defence and the applicant a reply, if necessary. This is a case which is proceeding on its pleadings. It is not a case which is proceeding, as some of these cases do, on the basis of the delivery of an application and a Form 2 and thereafter the evidence.
As against the second respondent, it is pleaded in paragraph 55B of the statement of claim that:
a)the second respondent was, at the relevant time, the CEO of the first respondent or an amalgamation called the Condamine Alliance;
b)he was the immediate supervisor and manager of the applicant;
c)following the lodgement of a document described as “the memorandum on 27 February 2015”, he ceased all communications with the applicant and apart from two other meetings had no other meetings with her.
It is pleaded that on 27 February he:
…disavowed any obligation to discharge his responsibilities as CEO to the six remaining employees who signed the memorandum, including the applicant.
and it is alleged that he was the signatory on all letters making allegations of unsatisfactory conduct, sent to each of the remaining employees other than the applicant.
Bearing in mind that the contravention alleged against the first respondent is taking adverse action against the applicant for a proscribed reason and that the adverse action asserted by the applicant against the first respondent is first, her suspension from employment and thereafter the termination of her employment, it is apparent from paragraph 55B of the statement of claim that there is nothing alleged against the second respondent which would lead to the conclusion, even tentatively, that he was involved in the contravention. There is nothing pleaded against the second respondent which, in my view, amounts to a cause of action sufficient to give rise to liability on his part pursuant to s.550(1) of the Fair Work Act.
RECORDED : NOT TRANSCRIBED
Insofar as the fourth respondent is concerned, the allegations are these:
a)that until his resignation on 16 March he was the immediate supervisor and manager of the second respondent and between a date in February and a date in March he managed:
…all communications regarding the memorandum with the employees, including the applicant who signed the memorandum.
b)and he was, after his resignation:
…in communication with and continued to provide advice to the second respondent and the third respondent in respect of actions to be taken by the organisation described as Condamine Alliance against the six remaining employees, including the applicant who signed the memorandum.
Again, there is nothing pleaded that would lead one to the conclusion that there is even a prima facie case under s.550(1) of the Fair Work Act.
I will not repeat all of the allegations against the fifth respondent. There are more of them in quantity than the others but they are no better in quality. In my view, nothing alleged against the fifth respondent raises even a prima facie liability under s.550(1) of the Fair Work Act.
In those circumstances, given that the view I have come to is that nothing is pleaded against the relevant respondents that approximates a cause of action, there are two courses open to me. The first is to accede to the respondent’s request and remove them from the proceedings. The second is the course urged on me by counsel for the applicant and it is the course that is often taken in an application to strike out a pleading – that is, to strike out the offending parts and to give liberty to re-plead.
As to whether I should order one or the other, counsel for the respondents suggests that it is more appropriate to put the respondents in a position where they are free of these proceedings and should only be brought back into them if the applicant can demonstrate a claim against them. I do not propose to adopt that course.
When these proceedings were commenced, the applicant was, quite properly, able to join to the proceedings the respondents that she did. She needed no permission of the Court to do so. She simply commenced the proceedings against the respondents that she thinks she has a cause of action against. That her statement of claim at the moment is defective does not mean that she does not have a claim against them. All it means is that it has not been pleaded.
I am not satisfied that she is unable to plead a claim against them at this point and it is appropriate, in my view, more appropriate, to permit her to re-plead against those respondents than it is to remove them altogether.
Accordingly, I intend to make an order that strikes out certain parts of the statement of claim and gives liberty to re-plead. But before I do, it is necessary to make an observation about the pleading.
Paragraph 55 of the statement of claim is in these terms:
For the purposes of s.550(1) and s.550(2)(c) of the Fair Work Act, each of the named respondents were, by their acts or omissions, directly or indirectly, knowingly concerned in or a party to the contravention of s.340(1)(a)(ii) of the Fair Work Act by Condamine Alliance.
Particulars thereafter are given. It is an inappropriate form of pleading. It pleads the conclusion, both of law and fact, to which the applicant invites the Court to come. The provision of the material facts as particulars is a practice to be avoided. The purpose of a pleading – and for the purposes of this discussion, the pleading rules that apply in the Federal Court apply in this case – is for the pleading to set out the material facts upon which the applicant brings the cause of action.
There are innumerable cases that suggest that particulars are not material facts. It might be that attention to those principles – when the pleading is re-drawn and if it is redrawn – will assist with its clarity.
ORDERS DELIVERED
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 August, 2015.
Associate:
Date: 1 October 2015
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