Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd
[2016] FCCA 238
•16 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDRADE v GOODYEAR & DUNLOP TYRES (AUST) PTY LTD | [2016] FCCA 238 |
| Catchwords: PRACTICE AND PROCEDURE – Application to strike out paragraphs of statement of claim or for further and better particulars. |
| Legislation: Fair Work Act 2009 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 43 |
| Bruce v Odhams Press, Limited [1936] 1 KB 697 Buckingham v KSN Engineering Pty Ltd (2008) 177 IR 427; [2008] FMCA 546 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132 Construction, Forestry, Mining and Energy Union v Able Demolitions & Excavations Pty Ltd [2001] FCA 1748 Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors (2010) 245 FLR 242; [2010] FMCA 863 Mulhern’s Properties Inc v Bank of Queensland [2013] FCA 401 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 |
| Applicant: | RUI ANDRADE |
| Respondent: | GOODYEAR & DUNLOP TYRES (AUST) PTY LIMITED ABN 86 004 098 346 |
| File Number: | SYG 1749 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Eurell |
| Solicitors for the Applicant: | Carroll & O'Dea Lawyers |
| Counsel for the Respondent: | Mr T Donaghey |
| Solicitors for the Respondent: | Hentys Lawyers |
ORDERS
The Applicant have leave to amend paragraph 9 of the Statement of Claim and to file and serve an Amended Statement of Claim within 14 days of today’s date.
Otherwise the Respondent’s Application in a Case is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1749 of 2015
| RUI ANDRADE |
Applicant
And
| GOODYEAR & DUNLOP TYRES (AUST) PTY LIMITED ABN 86 004 098 346 |
Respondent
REASONS FOR JUDGMENT
Background
On 26 June 2015 the Applicant, Mr Andrade, commenced proceedings under the Fair Work Act 2009 (Cth) (the “FW Act”) against the Respondent, Goodyear & Dunlop Tyres (Aust) Pty Ltd (“Goodyear”). In accordance with r.4.05(2)(b) of the Federal Circuit Court Rules 2001 (Cth) the Applicant filed a Statement of Claim in lieu of an affidavit in support of his application.
In the Statement of Claim it was pleaded that the Applicant was an employee of the Respondent; that the Respondent had breached specified clauses of either the General Retail Industry Award 2010 (the “Retail Award”) or the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the “Vehicle Award”) in relation to rates of payment in various respects and that such breaches constituted contraventions of applicable civil remedy provisions of the FW Act. In particular, it was pleaded that Goodyear had failed to renumerate Mr Andrade at the level equivalent to or higher than the minimum rates of pay prescribed for the applicable classification of employees under the Retail Award or (if the Applicant’s employment was governed by the Vehicle Award) that he was underpaid having regard to his classification under that Award.
The Applicant seeks declarations that the Respondent contravened the applicable Award in several respects in relation to the asserted underpayments, compensation and penalties under the FW Act.
When the matter came before me for directions, I made orders in relation to a foreshadowed request for the provision of further and better particulars. The Applicant’s solicitors provided the Respondent’s solicitors with further and better particulars on 4 August 2015 under cover of a letter that also addressed issues raised by the Respondent’s solicitors in their letter of 22 July 2015.
However on 11 August 2015 the Respondent filed an Application in a Case seeking either that two paragraphs of the Applicant’s Statement of Claim be struck out or that the Applicant provide further further and better particulars of those paragraphs. An alternative claim that the Statement of Claim be struck out was not pressed. Goodyear has not yet filed a Defence.
The paragraphs of the Statement of Claim with which the Respondent takes issue are paragraphs 14 and 27. Paragraph 14 forms part of the pleading on the basis that Mr Andrade’s employment by Goodyear was governed by the Retail Award. It is as follows:
14. The Applicant’s position was equivalent to a Retail Employee Level 8 classification as defined by the Retail Award
PARTICULARS
Duties pleaded in paragraph 6(c), clause B8 of the Retail Award.
Paragraph 27 of the Award is part of the pleading on the alternative basis that Mr Andrade’s employment by Goodyear was governed by the Vehicle Award and is as follows:
27. In the alternative to paragraph 14 above, the Applicant’s position was equivalent to a Vehicle Industry RS&R Level 5 R5 classification as defined by the Vehicle Award.
PARTICULARS
Duties pleased in paragraph 6(c), clause 33 of the Vehicle Award.
In support of the Application in a Case, Goodyear relied on an affidavit sworn by its solicitor, George John Szlawski on 10 August 2015. Mr Andrade relied on an affidavit sworn by his solicitor, Peter Edwin Doughman, on 24 August 2015 and a document described as a “Position Description” for an “Assistant Manager – Commercial & Composite” dated 22 September 2010.
Legal Principles
One of the objects of the Federal Circuit Court of Australia Act 1999 (Cth) (the “FCCA Act”) is to enable the Court to operate as informally as possible in the exercise of judicial power (see s.3(2) of the FCCA Act).
Under s.43(1) of the FCCA Act, the practice and procedure of the Court is to be in accordance with the Federal Circuit Court Rules 2001 (Cth) (the Rules). The object of the Rules is to assist the just, efficient and economical resolution of proceedings (see r.1.03(1)). The Rules are intended to help the Court to operate as informally as possible, to use streamlined processes and to encourage the use of appropriate dispute resolution procedures (see r.1.03(2)). The Court is to apply the Rules in accordance with their objects. To assist the Court, the parties must “avoid undue delay, expense and technicality” and consider options for primary dispute resolution as early as possible (r.1.03(4)).
This Court is not a court of strict pleadings. However, under r.4.05 the requirement that an affidavit accompany an application (which must be in accordance with the approved form) is dispensed with if the Applicant files a statement of claim or points of claim. That is what occurred in this case. The Rules are otherwise silent in respect of pleadings.
Under s.43(2) of the FCCA Act, to the extent that the Rules are insufficient, the Federal Court of Australia Rules 2011 (Cth) (made under the Federal Court of Australia Act 1976 (Cth)) apply, with necessary modifications and subject to directions of this Court. This is reflected in r.1.05(2) which provides that if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules in whole or in part and modified or dispensed with as necessary. Without limiting that rule, certain provisions of the Federal Court Rules (set out in Part 2 of Schedule 3 to the Rules) are said to “apply, with necessary changes, to general federal law proceedings” (see r.1.05(3) of the Rules). Relevantly, Part 2 of Schedule 3 of the Rules expressly refers to some of the provisions in Part 16 of the Federal Court Rules which deal with the content and striking out of pleadings. In particular it incorporates (in full) r.16.21 in relation to applications to strike out pleadings and r.16.45 in relation to an application for an order for particulars, including the restrictions in r.16.45(2) and r.16.45(3) of the Federal Court Rules. It is appropriate to apply these provisions in the present case.
The relevant Federal Court Rules are as follows:
16.21 Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
16.45 Application for order for particulars
(1) If a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case, the party may apply to the Court for an order that the party who filed the pleading serve on the party:
(a) particulars of the claim, defence or other matter stated in the pleading; or
(b) a statement of the nature of the case relied on; or
(c) if there is a claim for damages — particulars of the damages claimed.
(2) An application under subrule (1) may be made only if:
(a) the particulars in the pleading are inadequate; and
(b) the party seeking the order could not conduct the party’s case without further particulars.
(3) A respondent who applies to the Court for an order under subrule (1) before filing the respondent’s defence must satisfy the Court that an order is necessary or desirable to enable the respondent to plead.
Note The intent of the pleading rules is that a party should include all material facts in its pleadings as initially filed so that there is no unfairness to another party by any lack of particularity. If the party has not done so, the Court may at trial refuse to allow the party to present a case that is outside the terms of their pleading.
It is uncontroversial that pleadings serve to define the issues between the parties and should state the party’s case with sufficient clarity to give the opposing party fair notice of the case to be met.
Thus, r.16.02(1)(d) of the Federal Court Rules provides that a pleading must “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against a party at trial, but not the evidence by which the material facts are proved” and r.16.03(1)(b) requires the party to plead a fact if failure to do so may take another party by surprise (also see r.16.08). It is not sufficient to state conclusions drawn from unstated facts.
The Applicant seeks pecuniary penalties under the FW Act. While the principle considered in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 at [24] (cited by the Respondent in relation to the privilege against exposure to penalties), has no application to a corporate respondent to proceedings for a penalty in relation to a contravention of a civil remedy provision of the FW Act, as Cameron FM pointed out in Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors (2010) 245 FLR 242; [2010] FMCA 863 at [93] penalty proceedings have a “quasi–criminal” quality because they potentially involve the imposition of civil penalties (and see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [19]-[29] and s.551 of the FW Act).
There are various bases under r.16.21 on which a pleading may be struck out. Relevantly, this includes a pleading that is “likely to cause prejudice, embarrassment or delay in the proceeding” (r.16.21(1)(d)).
However, the power to strike out a pleading is discretionary and is to be employed sparingly and only in a clear case. Consistent with the objects of the FCCA Act, there will be cases in which the power to strike out pleadings will not be exercised, despite a failure to plead all material facts (see the summary of principles in Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [5] per Tracey J in relation to former O 11, r.16 of the Federal Court Rules). For example, such restraint may be appropriate where, as Tracey J stated at [5]: “the deficiency causes no confusion and does not raise issues of substantive principle … and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits”.
Similarly, as the Respondent acknowledged, not all conclusionary pleading will be struck out as deficient. Regard should be had to whether the facts are pleaded at too great a level of generality (ibid and see Mulhern’s Properties Inc v Bank of Queensland [2013] FCA 401 applying such principles in relation to the present r.16.21 of the Federal Court Rules).
In the alternative the Respondent seeks further particulars in relation to paragraphs 14 and 27 of the Statement of Claim. As Note 1 to r.16.41 of the Federal Court Rules indicates, “The object of particulars is to limit the generality of the pleadings by: (a) informing an opposing party of the nature of the case the party has to meet; and (b) preventing an opposing party being taken by surprise at the trial; and (c) enabling the opposing party to collect whatever evidence is necessary and available” although (as Scott LJ indicated in Bruce v Odhams Press, Limited (1936) 1 KB 697 at p.712) the function of particulars is not to fill a gap in a pleading by providing the material facts that the pleading ought to contain. Notwithstanding this, there is some overlap and, indeed, blurring of the distinction between pleadings and particulars.
Under r.16.45(1) of the Federal Court Rules, an application for further particulars may be made if the pleading does not give the Respondent fair notice of the case to be made against it at trial and as a result it may be prejudiced in the conduct of its case. Goodyear must establish that the particulars provided are inadequate and that it “could not conduct” its case without further particulars (r.16.45(2)). Given that the Application in a Case preceded the filing of a Defence, Goodyear must also satisfy the Court that an order for further particulars is necessary or desirable to enable it to plead (r.16.45(3)). As the Applicant has already provided further and better particulars, consideration of these requirements must take into account the content of such particulars, as well as the Statement of Claim.
This Application
As indicated, the Respondent seeks that two paragraphs of the Statement of Claim be struck out (with leave to replead) or that the Applicant provide further and better particulars of those paragraphs. The Respondent contended that by choosing to proceed by filing a Statement of Claim, the Applicant had adopted a “rigorous procedural benchmark”. It was also submitted that, while tempered by the content of r.1.03 of the Rules, the strict delineation of “material” facts and particulars considered by the English Court of Appeal in Bruce v Odhams Press, Limited (in particular at p.713 per Scott LJ) had a role to play in this court today.
However, as pointed out in Buckingham v KSN Engineering Pty Ltd (2008) 177 IR 427; [2008] FMCA 546 at [17] in relation to the Workplace Relations Act 1996 (Cth), where claims under legislation such as the FW Act involve corporate entities (such as the Respondent) then the matter usually proceeds on pleadings, unless it is of such simplicity that pleadings are not necessary.
Relevantly, in the Statement of Claim Mr Andrade pleaded that from October 2013 he was employed with Goodyear in the full-time position of “Assistant Manager” of its store in Rutherford, New South Wales and that his employment was subject to a written contract of employment, certain terms of which were pleaded in paragraph 6 of the Statement of Claim. For present purposes, it is relevant that in paragraph 6(c) it was pleaded that the terms of the contract included a term that the Applicant would perform the duties of Assistant Manager for the Respondent, including eleven specified duties listed in sub-paragraphs [i]-[xi].
It was further pleaded (in paragraph 9 of the Statement of Claim) that in the period from October 2013 to the present (saving specified periods) the Applicant “performed the duties pleaded in paragraph 6(e)” (sic). There is no paragraph 6(e) in the Statement of Claim. At the hearing counsel for the Applicant explained that this was a typographical error and was intended to be a reference to paragraph 6(c) of the Statement of Claim.
In its request for further and better particulars the Respondent requested “the usual particulars” and “usual details” and “each of the duties relied upon by the Applicant” going to the alternative conclusions as to his employment in a position equivalent to particular pleaded classifications under the Retail Award or the Vehicle Award.
In the accompanying letter of 22 July 2015 to the Applicant’s solicitors, the Respondent’s solicitors outlined their concerns about the pleadings, including taking issue, relevantly, with what was said to be conclusionary pleading of “duties” as a whole in the particulars to paragraphs 14 and 27 of the Statement of Claim which, it was said, did not explain Mr Andrade’s case in a way which allowed Goodyear to consider it “at all”. There was said to be no pleaded or particularised examination of any particular duty in either Award. It was suggested that while classification was the critical issue, it was not clear how the asserted classification (rather than some other classification in either Award) was said to apply to the Applicant. That letter referred to the claimed classification under the Retail Award (which was not before the Court in these proceedings). However counsel for the Respondent suggested that the classification required identification of duties actually performed by Mr Andrade.
In response to the request for further and better particulars in relation to paragraph 14 of the Statement of Claim the Applicant provided the following particulars:
The Applicant relies upon the list of duties and responsibilities set out at paragraph 6(c)(i)-(xi) of the Statement of Claim, together with the duties and responsibilities contained within the Position Description for the position title of Assistant Manager – Commercial & Composite dated 22 September 2010. The Applicant asserts that these duties and responsibilities most closely align with the classification of a Retail Employee Level 8 contained within the Retail Award. The reference to a ‘Shop Manager’ within the description of a Retail Employee Level 8 applies to the Applicant’s position of Assistant Manager, particularly given that the Applicant was usually in charge of the Rutherford store when the Store Manager was absent, had substantial responsibility for the retail and administrative operation of the Rutherford Store, and was required to supervise and co-ordinate subordinate staff within the Rutherford Store.
Further, the Applicant says that specific details of the work duties he performed (reflective of his coverage by the Vehicle Award) will be provided when filing and serving his affidavit evidence in this proceeding.
The response to the request for further and better particulars in relation to paragraph 27 was as follows:
The Applicant relies upon the list of duties and responsibilities set out at paragraph 6(c)(i)-(xi) of the Statement of Claim, together with the duties and responsibilities contained within the Position Description for the position title of Assistant Manager – Commercial & Composite dated 22 September 2010. The Applicant asserts that these duties and responsibilities most closely align with the classification of a Vehicle Industry RS&R Level 5 R5 Employee within the Vehicle Award. The reference to an ‘experienced automotive spare part salesperson’ within the description of a Vehicle Industry RS&R Level 5 R5 Employee applies to the Applicant, particularly given that the Applicant was required to attend to sales and service inquiries from customers, prepare quotations for vehicle repairs and services, and assist service staff with repair and service work.
Further, the Applicant says that specific details of the work duties he performed (reflective of his coverage by the Vehicle Award) will be provided when filing and serving his affidavit evidence in this proceeding.
In submissions in support of the Application in a Case, the Respondent referred, by way of example, to the provisions of the Vehicle Award, in particular cl.33 (pleaded in the particulars to paragraph 27 of the Statement of Claim). That clause requires all adult employees covered by the Vehicle Award to be classified according to the skill levels and duties required to be exercised by the employee in order to carry out the principal function of the employment as determined by the employer. Skill level definitions for each classification are set out in Schedule B to the Award. Employers are required to advise each employee in writing of his or her classification and of any subsequent changes in classification.
The Respondent submitted that the Statement of Claim was deficient in that it failed to put it on notice of Mr Andrade’s case and occasioned prejudice. In particular, Goodyear contended that Mr Andrade had failed to plead or provide particulars of the duties said to have been performed by him which provided the basis for the assertions that either the Vehicle or the Retail Award and particular pleaded classifications thereunder were applicable to his employment by Goodyear. In essence, Goodyear submitted that in order to determine which (if any) of the classifications under either Award Mr Andrade fell into, or might fall into, it had to know “what the Applicant says he did” in his employment. It was pointed out that each Award contained elements or descriptors identifying relevant classifications. It was reiterated that in order to determine which, if any, classification the Applicant fell into under a particular award, the Respondent must know what the Applicant said he did in the employment of the Respondent and that he had failed to state the material facts on which he relied such as to give it fair notice of the case to be made against it at trial. Goodyear also submitted that it had not been given the information necessary to make a judgement as to whether to agree with or to dispute the Applicant’s assessment, that this was a substantial prejudice and that not knowing how to value the case meant that the Respondent lost a significant procedural opportunity to consider whether to make an offer or use a dispute resolution process.
The Respondent also submitted that the impugned paragraphs in the Statement of Claim involved mere global pleading consisting of assertions about the application of each Award and a particular classification contained in each Award, but that all the material facts on which those assertions were based were not pleaded (see Construction, Forestry, Mining and Energy Union v Able Demolitions & Excavations Pty Ltd [2001] FCA 1748 at [10]-[13] per Marshall J). It was submitted that such conclusionary pleading heightened the prejudice to the Respondent occasioned by the absence of pleading of specified duties in circumstances where the allegation of alternative award coverage required the Respondent to assess the proper award applicable to the Applicant during his employment.There was said to be nothing in the Applicant’s material which gave a coherent account of what the Applicant said gave him an entitlement to plead conclusions in the Statement of Claim. The Respondent submitted that this case demonstrated that it was inappropriate to plead an alleged underpayment in a global sense.
Goodyear acknowledged that insofar as the request for further and better particulars had sought material facts, this went beyond the ordinary scope of what would be expected in a request for particulars, but suggested that it was appropriate for the Applicant to provide details of such material facts.
The Respondent also submitted that insofar as the Applicant’s case amounted to a claim that the duties listed in paragraph 6(c) of the Statement of Claim were performed and that the Position Description referred to in the further and better particulars had some unclarified role to play, this did not put it on notice of the Applicant’s case.
The Respondent submitted that if paragraphs 14 and 27 were not struck out, then the Applicant should be required to provide further particulars in a manner that engaged with the terms of the Awards in question. Mr Donaghey, for the Respondent, submitted that in order to locate Mr Andrade within the classification structure within an Award one would ordinarily expect to see allegations of fact setting out what he did, not simply what he was engaged to do. It was submitted that the references in the particulars that had been provided to the duties referred to in paragraph 6(c) of the Statement of Claim and to the Position Description were insufficient, as this did not identify any such duties as having been performed or said to be performed by Mr Andrade. There was said to be a disconnect between the contractual duties and what the Awards required for classification (which, it was suggested, involved a consideration of the duties performed by an employee).
It was submitted that, consistent with r.16.02 of the Federal Court Rules, it was appropriate that the Applicant’s case be made clear from the beginning. The Respondent contended that the prejudice that would accrue to it if details of the duties performed by the Applicant were not provided until affidavit evidence was filed and served, was that it may deal differently with the proceeding if it knew how it was put at an early stage, rather than having to wait for affidavits to be filed.
The Applicant relied on the list of duties and responsibilities set out at paragraph 6(c) of the Statement of Claim (intended to be referred to as duties performed by the Applicant in paragraph 9) together with the duties and responsibilities contained within the Position Description for the position title of Assistant Manager – Commercial and Composite dated 22 September 2010 and the assertion in the further and better particulars to paragraph 14 that these duties and responsibilities most closely aligned with the classification of a Retail Employee Level 8 within the Retail Award and that the reference to “Shop Manager” within the description in the Award classification of a Retail Employee Level 8 applied to the Applicant’s position of Assistant Manager “particularly given that the Applicant was usually in charge of the Rutherford store when the Store Manager was absent, had substantial responsibility for the retail and administrative operation of the Rutherford Store, and was required to supervise and co-ordinate subordinate staff within the Rutherford Store.” Similarly, the further and better particulars in relation to paragraph 27 were said to rely on the same duties and responsibilities pleaded in paragraph 6(c) and contained the Position Description, which, it was asserted, most closely aligned with the specified classification in the Vehicle Award. It was submitted that the reference to an experienced automotive spare part salesperson in the classification part of the Vehicle Award applied to Mr Andrade, particularly given that he was required to attend to sales and service inquiries, prepare quotations for vehicle repairs and services and assist service staff with repair and service work.
It was submitted that in these circumstances the Applicant had in fact pleaded the matters necessary to be pleaded in support of a cause of action in Award breach proceedings, consistent with the approach taken by Marshall J in CFMEU v Able. It was pointed out that the pleading of the duties performed by the Applicant in paragraphs 6(c) and 9 of the Statement of Claim had been further particularised by reference to the Position Description which was said to be a Goodyear document identifying Mr Andrade’s responsibilities as Assistant Manager and the duties that he performed.
The Applicant submitted that insofar as the gravamen of the Respondent’s concern was that it must know exactly what Mr Andrade said he actually did in his employment, this was addressed in paragraph 9 of the Statement of Claim which was clearly intended to plead that the Applicant performed the duties pleaded in paragraph 6(c). It was acknowledged that the reference in paragraph 9 to paragraph 6(e) was a typographical error which required correction, but submitted that otherwise this met the Respondent’s concern and that it could not be said that the Statement of Claim involved global or conclusionary pleading in the sense considered in CFMEU v Able.
It was pointed out that on 19 August 2015 the Applicant’s solicitors had asked the Respondent’s solicitors to identify the specific particulars of paragraphs 14 and 27 of the Statement of Claim necessary to enable it to prepare its Defence, but had received no response.
The Applicant submitted that in the circumstances of this case material factual matters in terms of the categories of work answering the Award classifications had been pleaded and what could be expected in affidavit evidence in this respect would simply be a reflection of the material facts pleaded in paragraphs 6(c) and the responsibilities recorded in the Position Description. It was submitted that there was no obstacle to the Respondent’s ability to plead (by way of a Defence) as it was in a position to determine in its own judgement whether the duties the Applicant had agreed to perform and pleaded that he did perform answered the pleaded Award classifications.
The Applicant also submitted that in this case there was no real bar to the Respondent employer’s ability to consider making any offer to compromise or resolve the matter without final adjudication.
Consideration
In considering the Respondent’s application it is relevant to bear in mind that the objects of the FCCA Act include to enable the Court to operate as informally as possible in the exercise of judicial power (see s.3(2) of the FCCA Act).
Moreover while in a case in which civil penalties are sought it is incumbent on an applicant to plead the case the respondent is required to meet clearly, it is also well-established that the power to strike out a pleading is discretionary and is to be employed sparingly and only in a clear case.
The Statement of Claim should contain material facts necessary for the purpose of formulating a complete cause of action. There is no suggestion that the Applicant’s Statement of Claim fails to disclose a reasonable cause of action. The Respondent’s contention is that the pleading asserts conclusions unsupported by material facts and is likely to cause it prejudice. It is asserted that the Applicant’s pleading as to duties fails to identify with sufficient clarity the duties he claimed he performed and thus the basis on which he asserts that the relevant classifications under the alternative Awards pleaded are applicable to his employment.
The Respondent contended that it must know exactly what the Applicant said he did in his employment. In the impugned paragraphs in the Statement of Claim the Applicant relied on the contractual duties pleaded in paragraphs 6(c) of the Statement of Claim. However this must be read in context. Paragraphs 4 and 5 of the Statement of Claim pleaded the Employment Agreement and, relevantly, paragraph 9 of the Statement of Claim pleaded explicitly that the Applicant performed the duties pleaded in paragraph 6(e) (sic). The reference to a non-existence paragraph 6(e) is clearly a typographical error. There is no paragraph 6(e) in the Statement of Claim, but paragraph 6(c) pleads duties. Counsel for the Applicant has confirmed that it was intended that the reference in paragraph 9 to duties pleaded in paragraph 6(e) should be a reference to the duties pleaded in paragraph 6(c) of the Statement of Claim.
Subject to amendment of paragraph 9 of the Statement of Claim to correct the typographical error, it is apparent that Mr Andrade has pleaded the duties he claims he actually performed for Goodyear, insofar as this is said by Goodyear to be the basis for classification under each Award. Moreover, the pleading of the duties performed by the Applicant in paragraphs 6(c) and 9 of the Statement of Claim has been further particularised by reference to the Position Description identifying the duties and responsibilities of Mr Andrade as Assistant Manager and the basis on which this is said to align with the particular pleaded Award classifications. There has not been a demonstrated failure to plead material facts giving rise to confusion or to any issue of substantive principle.
Insofar as the Respondent asserted that the pleading was conclusionary, not all conclusionary pleading will be struck out. Whether a pleading should be struck out will depend upon whether the facts have been pleaded at too great a generality or too high a level of abstraction. This is not such a case. CFMEU v Able does not assist the Respondent. It involved global pleading in relation to non-compliance with an Award in general. In contrast, in this case the requisite material facts in the sense considered in CFMEU v Able at [13] have been pleaded or made known to the Respondent, albeit through “particulars”. What could be expected in affidavit evidence from the Applicant in these circumstances should not be a surprise to the Respondent, but rather should reflect the material facts pleaded in paragraph 6(c) of the Statement of Claim and the responsibilities articulated or recorded within the Position Description.
I am not satisfied that the impugned pleading is likely to cause prejudice or that it is otherwise such that it is appropriate to strike out paragraph 14 or paragraph 27 of the Statement of Claim. Indeed in this case, even if all material facts in relation to the duties relied on or the classifications asserted have not been pleaded, I am not satisfied that any such deficiency causes confusion or is likely to cause prejudice to the Respondent. Any such deficiencies (in particular, the Respondent’s apparent concern about facts relevant to distinctions between particular classifications under each Award) can be addressed by ordering the furnishing of affidavits consistent with the objects of the FCCA Act and Rules and the views expressed in Wright v Bayer [2008] FCA 1510. If Goodyear remains concerned about participating in dispute resolution processes, notwithstanding the clarification of the Applicant’s claim about duties he performed in his employment, it could seek that evidence be filed before mediation. I am not persuaded that the Respondent is likely to be prejudiced in considering the prospect of pre-trial settlement, given this and the further and better particulars and clarification provided by the Applicant.
In the alternative the Respondent took issue with the adequacy of the particulars provided. Particulars are intended to fill in the picture of the Applicant’s cause of action with sufficiently detailed information to inform the Respondent as to the case to be met to enable it to prepare for trial.
This case in essence involves a claim by an employee against his employer in relation to his classification under the applicable Award. A copy of the Vehicle Award (but not the Retail Award) was provided to the Court by the Respondent. Clause 33 in Section 1 of the Vehicle Award requires classification of employees covered by the Award (see cl 4.2) “according to the skill levels and duties required to be exercised by the employee in order to carry out the principal function of the employment as determined by the employer”. Employers are obliged to advise employees in writing of their classification and any subsequent changes in classification.
The Respondent expressed the view that the central deficiency of the pleading was an absence of explanation of the duties the Applicant claimed he performed. However, as indicated, subject to amendment of paragraph 9 of the Statement of Claim, this has been addressed in the Applicant’s pleading. Given the basis of the Respondent’s concern and the particulars provided by the Applicant, I am not satisfied that the pleading by reference to particularised claims of performance of specified contractual duties (rather than, for example, by reference to the qualifications and/or skill levels referred to in the Skill Level Definitions part of Schedule B of the Vehicle Award) is such that the Respondent is not in a position to know the case it has to meet such as to occasion it prejudice in the conduct of its case.
Having regard to the matters discussed above and the fact that (subject to correction of the typographical error) the duties said to have been performed have been pleaded and particularised, I am not satisfied that the Respondent could not conduct its case without further particulars (see r.16.45(2)). Nor has the Respondent satisfied me that an order for further particulars is necessary or desirable to enable it to plead as required under r.16.45(3) of the Federal Court Rules in relation to the Award and classification said to be applicable to Mr Andrade.
However, the Applicant should have leave to amend the Statement of Claim to correct the reference in paragraph 9 to what is intended to be paragraph 6(c) (and to include a foreshadowed additional claim). Otherwise the Application in a Case should be dismissed.
I will hear the parties in relation to an appropriate timetable.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 16 February 2016
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