Beasley v The Australian National University
[2011] FMCA 792
•14 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEASLEY v THE AUSTRALIAN NATIONAL UNIVERSITY | [2011] FMCA 792 |
| PRACTICE AND PROCEDURE – Pleadings and particulars – matters to be included in and excluded from pleadings – facts necessary to be particularised. PRACTICE AND PROCEDURE – Adoption of Federal Court Rules into practice of Federal Magistrates Court – repeal of relevant Federal Court Rules and replacement with new rules – which version of Federal Court Rules to apply in Federal Magistrates Court. |
| Fair Work Act 2009, s.342, 351, 361, 546 Safety, Rehabilitation and Compensation Act 1988 Workplace Relations Act 1996, ss.717, 719 |
| Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 R v Associated Northern Collieries (1910) 11 CLR 738 Banque Commerciale SA (en liq) v Akhil Holdings Limited (1990) 169 CLR 279 |
| Applicant: | BRADLEY JOHN BEASLEY |
| Respondent: | THE AUSTRALIAN NATIONAL UNIVERSITY (ABN 52 234 063 906) |
| File Number: | SYG 339 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 September 2011 |
| Date of Last Submission: | 30 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Latham |
| Solicitors for the Applicant: | Barwick Legal |
| Counsel for the Respondent: | Ms J. Oakley |
| Solicitors for the Respondent: | HWL Ebsworth |
ORDERS
The applicant’s application in a case filed on 22 August 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 339 of 2011
| BRADLEY JOHN BEASLEY |
Applicant
And
| THE AUSTRALIAN NATIONAL UNIVERSITY (ABN 52 234 063 906) |
Respondent
REASONS FOR JUDGMENT
These proceedings under the Fair Work Act 2009 (“FWA”) were brought by an application filed on 28 February 2011 which was accompanied by a “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” in the form of the Court’s Fair Work Division Form 2. The contraventions alleged against the respondent by the applicant were set out in para.24 of the Form 2 claim. Subsequently it was ordered that the applicant file an amended application but latterly the applicant has sought to file a statement of claim in order to better articulate the claims he wishes to make.
On 22 August 2011 the applicant filed an application in a case seeking leave to file a statement of claim. When the application in a case came on for hearing on 12 September 2011 the applicant handed up a further version of the proposed statement of claim which incorporated some minor amendments to the document which had been annexed to the application in a case. Following oral argument the parties were given leave to file written submissions. I have considered those submissions as well as the parties’ oral arguments and have concluded, for the following reasons, that the applicant should be refused leave to file a statement of claim in the form handed up on 12 September 2011.
On 11 July 2011 the Court’s rules were amended to apply in this Court what were then Orders 11 and 12 of the “Federal Court Rules”, which dealt with pleadings and particulars: pt.2 of sch.3 and r.1.05(3) Federal Magistrates Court Rules 2001. The Federal Court Rules in question were the rules originally made in 1979 and subsequently amended. Order 1 r.1 of those rules provided that their title was simply “the Federal Court Rules”, without any reference to the year of their gazettal. On 1 August 2011 those rules were replaced by the Federal Court Rules 2011. Pleadings and particulars in the Federal Court are now dealt with in pt.16 of the new Federal Court Rules.
The repeal of the original Federal Court Rules does not affect their application in this Court. Although the rules of this Court and of the Federal Court of Australia are to be interpreted in accordance with the Acts Interpretation Act 1901 as if each of their provisions were a section of an Act: s.81(3) Federal Magistrates Act 1999, s.59(4) Federal Court of Australia Act 1976, s.13(1) Legislative Instruments Act 2003, and that, as a result of s.10 of the Acts Interpretation Act an ambulatory approach should ostensibly be taken to the interpretation of a provision of the Federal Court Rules which is adopted by this Court’s Rules, the Legislative Instruments Act also applies to this Court’s Rules: s.81(3) Federal Magistrates Act, and affects that situation. Relevantly for present purposes, s.14 of the Legislative Instruments Act provides:
14 Prescribing matters by reference to other instruments
(1) If enabling legislation authorises or requires provision to be made in relation to any matter in a legislative instrument, the legislative instrument may, unless the contrary intention appears, make provision in relation to that matter:
(a) by applying, adopting or incorporating, with or without modification, the provisions of any Act, or of any disallowable legislative instrument, as in force at a particular time or as in force from time to time; or
(b) subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the first‑mentioned legislative instrument takes effect.
(2) Unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
The Court’s rule-making power is found in s.81 of its Act. That section makes no provision of the sort contemplated by s.14(2) of the Legislative Instruments Act and no regulations have been made under s.81(3)(c) to make such provision by that method. Consequently, the reference in this Court’s Rules to the Federal Court Rules is a reference to those rules as they stood at the time when they were adopted for application in this Court: see Delegated Legislation in Australia (3rd ed), Pearce and Argument, Australia, 2005 at [24.8]. That is to say, the applicant’s application to file his proposed statement of claim is governed by Orders 11 and 12 of the Federal Court Rules in the form they took on 11 July 2011.
The first part of the proposed statement of claim is headed “The Parties” and para.1 identifies the respondent as a university capable of being sued.
The second part of the proposed statement of claim is headed “The Contract of Employment” and pleads the position which the applicant held with the respondent and the enterprise agreements which are said to have governed the employment relationship. It also contains a para.1 as well as paras.2 and 3.
The third part of the proposed statement of claim is headed “Factual Background” and contains paras.4 to 30 which appear to be intended to set the scene. Apparently because of that aim, this part of the intended pleading contains material which is not necessary to make out a cause of action. For instance, this part of the proposed statement of claim impermissibly pleads matters of evidence in paras.6, 8, 9, 10, 14 and 15 and thus offends O.11 r.2. Mixed in with those paragraphs are others which contain substantive allegations, whose significance is not made clear until para.39, as well as factual matters which are relied on later in the proposed pleading as particulars of various other allegations. Other paragraphs are a mixture of evidence and allegation.
The fourth part of the proposed statement of claim is headed “Adverse Action” and contains paras.31 to 34. Paragraph 31 “alleges that the termination of the Applicant’s employment constituted adverse action within the meaning of section 342(1)” of the FWA, but does not allege a breach of the FWA. It does not, either alone or in combination with another paragraph, plead a cause of action. One of the particulars to the allegation of adverse action does appear to contain an allegation that the adverse action contravened the FWA but that is a matter which should be alleged and particularised, not included as a particular; as a respondent need not plead to particulars, all material facts necessary to make out a cause of action must be pleaded, not included in particulars: Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 112ff. As the paragraph fails to disclose a cause of action, pursuant to O.11 r.16(a) it ought not be allowed.
Paragraph 32 “alleges that the Respondent took adverse action against the Applicant for reasons that included the Applicant’s mental disability, in breach of section 351(1)” of the FWA. The paragraph refers to paras.20 and 21 of the proposed statement of claim which appear under the heading “Factual Background”. Those paragraphs refer to the applicant having had a stress-related illness in August 2009 and to having lodged a related workers’ compensation claim. However, the reference to those paragraphs cannot be said to be a proper particularisation of the allegation that the adverse action alleged was taken for a prohibited reason, namely, mental disability. A link between the stress-related illness and the alleged mental disability is conceivable but not articulated. Section 361 of the FWA provides that once an applicant alleges that a respondent took adverse action for a prohibited reason it is presumed, unless the respondent proves otherwise, that the alleged adverse action was taken for that prohibited reason. In such circumstances, it is imperative that an applicant clearly particularises the prohibited motivation for the adverse action in question, in this case the relevant mental disability: cf. Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 559-561, 556, 574-575 [31]-[37], [54], [74]-[75]. The failure of this paragraph to do that leads me to the conclusion that it should not be allowed as it is currently pleaded.
Paragraph 33 makes a further allegation of adverse action but, as with para.31, fails to identify any contravention of the FWA manifested by such conduct. In particular, it fails to allege that the adverse action was taken for a prohibited reason.
Paragraph 34, which alleges adverse action by alteration of the applicant’s position to his prejudice, also fails to identify any contravention of the FWA. Further, the particulars of this allegation identify the alleged alteration of the applicant’s position to his prejudice to include him suffering “a recognised psychiatric injury” without identifying what the injury was. The generality of this particular does not fulfil the function of particulars which, amongst other things, is to place the opposing party in possession of the case’s broad outlines, and of the facts said to raise a legal liability, and to guard against surprise: R v Associated Northern Collieries (1910) 11 CLR 738 at 740.
The final section of the proposed pleading is headed “Loss and Damage” and contains paras.35 to 41. Paragraph 35 alleges that the applicant suffered loss and damage by reason of “the adverse action” but does not identify which form of adverse action alleged in the preceding four paragraphs of the proposed statement of claim (dismissal, injury to the applicant in his employment and alteration of the applicant’s position to his detriment) is the adverse action said to have caused the loss and damage in question. The allegation appears to be restricted to the applicant’s alleged dismissal but, if this is so, it should be clearly stated. Moreover, in a statutory environment such as the one in which these proceedings are brought, the applicant should identify which statutory provision entitles him to make the claim for damages which appears in that paragraph: Banque Commerciale SA (en liq) v Akhil Holdings Limited (1990) 169 CLR 279.
Similarly, para.36 does not identify the basis on which the applicant claims “general damages” in respect of the adverse action alleged in paras.31-34 and “with respect to the fact that the Applicant is suffering from depression and anxiety”. In particular, that aspect of the claim concerning the applicant’s alleged depression and anxiety appears to be a claim in tort although no cause of action in tort has been alleged. The basis upon which the applicant claims damages of this sort should be clearly articulated but it is not. The parties raised, in this connection, the operation of the Safety, Rehabilitation and Compensation Act 1988 but until the applicant identifies the nature of his claim, it would be premature to express a view on that Act’s relevance to these proceedings.
Paragraph 37 seeks the imposition of civil penalties under the FWA but fails to identify the civil remedy provision which may or may not have been breached and which might thereby enliven the Court’s powers under s.546 of that Act. Paragraph 38 suffers from the same failing to the extent that it relies on the causes of action purported to arise out of paras.31, 33 and 34 of the proposed statement of claim.
Paragraph 39 alleges a breach of s.719 of the Workplace Relations Act 1996 (“WRA”) and, as referred to above at [8], depends on the matters set out in paras.5, 7, 11 and 12 under the heading “Factual Background”. However, the particulars to this paragraph include an allegation that the “First Varied 2005 Agreement”, being one of the enterprise agreements pleaded in para.2, was an applicable provision within the meaning of s.719 without particularising by reference to s.717 of the WRA the basis upon which this is said to have been so. This is a matter which should have been included in the proposed statement of claim in order that the respondent could know the case being brought against it.
The proposed statement of claim has not been drawn in accordance with the ordinary rules of pleading or the original Federal Court Rules, is structured in a manner which renders aspects of it opaque and generally fails adequately to identify the claims which are sought to be made. Consequently, leave to file the pleading in the form handed up on 12 September 2011 will be refused.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 14 October 2011
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