Bhalla v Weldon - [2022] FedCFamC2G 86

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhalla v Weldon [2022] FedCFamC2G 86

File number(s): MLG 3982 of 2020

Judgment of: JUDGE BLAKE

Date of judgment: 17 February 2022

Catchwords: INDUSTRIAL LAW – Interlocutory Application – where the Applicant alleges the Respondents breached a Release Agreement – where the Applicant alleges the Respondents breached terms of the Big W stores Enterprise Agreement – where the Applicant alleges the Respondents are in contravention of section 340(1)(a)(ii), section 340(1)(b), section 351(1)(b) and section 344(b) of the Fair Work Act 2009 – where the Respondents filed an Application in a Proceeding to strike out parts of the Applicant’s Further Amended Statement of Claim – Strike Out Application granted – Parties to re-plead – Applicant to file a Further Further Amended Statement of Claim – Respondents to file a Further Defence.

Legislation: Fair Work Act 2009, ss.340(1)(a)(ii), 340(1)(b), 351(1)
Federal Circuit Court Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), rr.13.10, 1.05(3)(b)
Federal Court Rules 2011 (Cth), r.16.21
Federal Circuit and Family Court of Australia Act 2021, s.143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr.13.10, 1.06

Cases cited: Abela v Minister for Home Affairs [2021] FCA 96
Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Hu [2019] FCAFC 133
Fowler v Fowler (1859) 45 ER 97
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603
Harvey v Phillips (1956) 95 CLR 235
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
NSW Medical Defence Union v Transport Industries Insurance [1986] 6 NSWLR 740
Rodolico v Rodolico [2020] VSC 535
Sabapathy v Jetstar Airways [2021] FCAFC 25
Spencer v Commonwealth [2010] HCA 28
The Trust Company (PTAL) Ltd v Amos [2019] QSC 92
Vantage Systems v Priolo Corporation (2015) WASCA 21

Division: Division 2 General Federal Law

Number of paragraphs: 101

Date of hearing: 10 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Millar

Solicitor for the Applicant: Jewell Hancock Employment Lawyers Pty Ltd

Counsel for the Respondents: Mr Tracey

Solicitor for the Respondents: Minter Ellison
ORDERS

MLG 3982 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SURESH BHALLA

Applicant

AND:
LISA WELDON

First Respondent

NATALIE MOOY

Second Respondent

ANGELO MARCELLINO (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

17 FEBRUARY 2022

UPON NOTING THAT:
1.In respect of the 'Agreed Separate Questions for Determination', the Court has answered those questions in the following way:
(a)Question 1: No, the Release Agreement should not be set aside as alleged at paragraphs [87A] and [87B] of the Further Amended Statement of Claim filed 1 September 2021 ('FASOC');
(b)Question 2: No, there was not a Completeness Representation as alleged in paragraph [58C(c)] of the FASOC, the Applicant was not misled by it, there was not a common intention to include the Ongoing Availability Term and the case for rectification is not made out;
(c)Question 3: No, neither the Investigation Resumption as alleged in paragraph [85A] nor the Second Investigation Outcome as alleged in paragraph [85C] of the FASOC constituted a breach by the Fourth Respondent of the Release Agreement as alleged in paragraph [85E] or [86B] of the FASOC;
(d)Question 4: No, there was no breach of clause 1(a)(ii) of the Release Agreement by the Fourth Respondent as alleged in paragraph [86] of the FASOC;

THE COURT ORDERS THAT:
1.Part of the proceeding comprising paragraphs 32, 34, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57 and 58 of the FASOC be dismissed.
2.Paragraphs 72, 74, 106, 107, 108, 109, 110, 111, 112, 113, 113A and 113B of the FASOC be struck out.
3.The Applicant have leave to file a Further Further Amended Statement of Claim, such document to be filed and served by 17 March 2022.
4.The Respondents are to file and serve a Defence to the Further Further Amended Statement of Claim by 14 April 2022.
5.The matter be listed for further directions on 26 April 2022 at 10am in the Federal Circuit and Family Court of Australia at Melbourne.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:

This is an application by the Respondents for summary judgment or summary dismissal in respect of various claims set out in the Applicant's Further Amended Statement of Claim filed 1 September 2021 ('FASOC'). The Respondents also apply to strike out certain claims in the FASOC.
For the reasons given below, I have decided to grant the application by the Respondents.
THE APPLICATION
The Applicant is an employee of the Fourth Respondent ('Woolworths'). She is presently employed in the Big W store in Doncaster, Victoria. She has been employed by Woolworths since 1999, including at other Big W stores prior to working at the Doncaster store.
The Applicant commenced a number of proceedings in this Court including the present proceeding number MLG3982/2020. Those other proceedings commenced by the Applicant are numbered MLG4089/2020 and MLG990/2021. The Applicant was unrepresented at the time she commenced the various sets of proceedings. Ultimately, all of the proceedings commenced by the Applicant have been consolidated into this proceeding. On 1 September 2021, I granted leave to the Applicant to file and serve the FASOC which deals comprehensively with all of her claims.
In the FASOC, the Applicant makes a number of claims against the Respondents. She claims, among other things, that Woolworths and the other respondents:
(a)breached the terms of a Release Agreement between Woolworths and her dated 10 December 2019 ('Release Agreement');
(b)breached the terms of the Big W Stores Agreement 2019 ('2019 Enterprise Agreement');
(c)took adverse action against her in contravention of section 340(1)(a)(ii), 340(1)(b) and section 351(1) of the Fair Work Act 2009 ('Act') and exerted undue influence or pressure on her in contravention of section 344(b) of the Act. She also claims that the first to third respondents, and the fifth to eighth respondents are accessories to the contraventions by Woolworths as contemplated by section 550 of the Act.
Before me, the Respondents moved on their earlier Application in a Proceeding filed 25 May 2021 seeking summary judgment or summary dismissal in respect of various matters set out in the FASOC. The Respondents also seek to strike out some of the claims contained in the FASOC. The orders sought in the Application in a Proceeding are as follows:
(1)The part of the proceeding comprising paragraphs 32, 34, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 and 58 of the Amended Statement of Claim (and for associated relief) be dismissed pursuant to s 17A of the Federal Circuit Court Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules 2001 (Cth).
(2)In the alternative to order 1, paragraphs 32, 38, 41, 46, 52, 55 and 57 (or each of those paragraphs) be struck out pursuant to rule 1.05(3)(b) of the Federal Circuit Court Rules 2001 (Cth) and rule 16.21 of the Federal Court Rules 2011 (Cth), on the grounds pleaded in the corresponding paragraphs of the Defence.
(3)That the following paragraphs of the Applicant's Amended Statement of Claim (or each of them) be struck out pursuant to rule 1.05(3)(b) of the Federal Circuit Court Rules 2001 (Cth) and rule 16.21 of the Federal Court Rules 2011 (Cth): 72, 74, 106, 107, 108, 109, 110, 111, 112, and 113.
Putting to one side order 3 above of the proposed orders sought in the Application in a Case, the Respondent's contentions in respect of the Application in a Case rest mainly on the Release Agreement. The principal contention, in substance, is that the Applicant does not have any reasonable prospect of success in pursuing the claims identified in the Application in a Case ('identified claims') because she signed the Release Agreement in which she agreed to release the Respondents from the claims she now seeks to agitate in the Court.
The Applicant contends, inter alia, that the Release Agreement should be set aside. The position taken by the Applicant on this issue among others, led the parties to agree on a list of separate questions for determination by the Court. Those questions, which relate to the Release Agreement, are as follows:
(a)whether the Release Agreement should be set aside as alleged at paragraph 87A and 87B of the FASOC ('Question 1');
(b)whether there was a 'Completeness Representation' as alleged in paragraph 58C(c) of the FASOC and if so, the consequences of that representation (having regard to the matters alleged in paragraphs 58C(b) and (c) of the Defence to the FASOC, including whether the Applicant has been misled and whether the Release Agreement should be rectified so as to add the 'Ongoing Availability Term' ('OA Term') (see FASOC prayer for relief paragraph AB) ('Question 2');
(c)whether the 'Investigation Resumption' alleged in paragraph 85A of the FASOC and/or the 'Second Investigation Outcome' alleged in paragraph 85C of the FASOC, constitute a breach by the Fourth Respondent of the Release Agreement (as alleged in paragraph 85E and 86B of the FASOC, and the consequences of any breach ('Question 3');
(d)whether the Fourth Respondent breached the Release Agreement as alleged in paragraph 86 of the FASOC, or the OA Term, and the consequences of any breach ('Question 4').
It was agreed between the parties that the Court should answer the questions above at the same time the Court considered the Application in a Case filed by the Respondents.
The Court is of the view that it first needs to address the separate questions for determination and then consider the Respondent's Application in a Case.
Each party filed two outlines of submissions in the lead up to present hearing. Each party also relied on the various affidavits that have been filed with Court. I have had regard to all of that material.
AGREED SEPARATE QUESTIONS FOR DETERMINATION
Question 1
Paragraphs 87A and 87B of the FASOC provided as follows:
87AFurther and in the alternative, the Release Agreement was procured by misrepresentation by the Fourth Respondent, and is voidable and liable to be set aside by the Applicant.
Particulars
The Applicant refers to and repeats paragraphs 59A and 59B above.
87B Further and in the alternative, by reason of:
(a) the Applicant being under a special disadvantage, in being from a non-English speaking background, as referred to in paragraph 20(b) above;
(b)the Applicant being under a further special disadvantage, in not being legal represented or receiving legal advice at the time of entering the Release Agreement, as referred to in paragraph 59C above;
(c)the Fourth Respondent’s knowledge of the special disadvantages of the Applicant referred to in (a) and (b) above; and;
(d)the Fourth Respondent taking advantage of those special disadvantages referred to in (a) and (b) above, by entering into the Release Agreement which operates unfairly or oppressively as against the Applicant;
Particulars
The Release Agreement, if permitted to operate on the terms struck, would preclude the Applicant pursuing pre-existing claims for which no substantive recompense had been received and without mutuality of obligations on the releases provided.
it would be unconscionable for the Release Agreement to be enforceable as against the Applicant, and this Honourable Court ought set aside the Release Agreement accordingly.
The Applicant submits that the Release Agreement was effectively procured by Woolworths by misrepresentation. The Applicant also submits that she suffered from two distinct 'special disadvantages' of which Woolworths took unconscientious advantage. In order to consider these submissions, it is necessary to examine what occurred between the parties.
On 7 November 2019, the Applicant filed what is known as a general protections claim in the Fair Work Commission (Commissioning Proceeding C2019/6825). In that document, the Applicant (who was self-represented at all times) claimed she had been subjected to adverse action by Woolworths and that, inter-alia, Woolworths had breached the following provisions of the Act: ss 340, 343, 344, 345, 351, 355.
On 20 November 2019, the parties attended a conciliation conference before Commissioner Wilson. At that conference, the matter was settled in principle.
At approximately 2.10pm on 20 November 2019, Commissioner Wilson wrote to the parties 'to confirm the matters agreed in this morning's conciliation conference'. The email from the Commissioner was in the following terms:
I take the opportunity to confirm the matters agreed in this morning's conciliation conference. Subject to the drafting and execution of Terms of Settlement, this matter will be settled on the basis of the following matters. To be clear, the application is not viewed by the Fair Work Commission to be settled unless and until the drafting and execution of the Terms of Settlement.
1.Ms Bhalla's contract of employment will be amended so that in future she will work no less than 30 hours per week, to be arranged as 4 shifts per week of at least 7.5 hours paid time, with all of those hours continuing to be worked at the Big W Doncaster store;
2.Big W acknowledges that Ms Bhalla has expressed interest in working additional hours over the 2019/2020 Christmas/New Year period and will communicate that interest to the relevant staff members of the Big W Doncaster store;
3.Ms Bhalla expresses an interest to work additional hours at the Doncaster Big W store to those within her contract of employment, outside of the 2019/2020 Christmas/New Year period and Big W will communicate that interest to the relevant staff members of the Big W Doncaster store. Relevant to that expression of interest Ms Bhalla;
a.confirms that she is available to be rostered for additional hours on any day of the week or at any time of the day; and
b.accepts that such additional hours may be for relatively short periods since they will be in addition to the rostered 7.5 hours shifts comprising part of her contract of employment.
4.The Terms of Settlement will provide mutual releases in respect of the allegations made by Ms Bhalla within this application as well as providing commitments of mutual confidentiality and non-disparagement, but will not extinguish Ms Bhalla's capacity to exercise her rights in relation to conduct or behaviour which takes place after the execution of the Terms of Settlement.
5.A copy of the Terms of Settlement will be provided by Big W to my Chambers at the same time as it is provided to Ms Bhalla.
6.Ms Bhalla is advised that at the time she signs the Terms of Settlement, the Commission will regard her application as being at an end. Even so, she is requested to provide a signed Notice of Discontinuance (template attached) to the Commission at the earliest opportunity, and failing that, the Commission will dismiss her application for reason of it being settled.
On 28 November 2019, Ms Natalie Novak (‘Ms Novak’), ER Case Specialist for Woolworths, sent an email to the Applicant. In the email, Ms Novak stated, among other things, 'Please see attached release agreement as per the terms agreed to during our conciliation conference on 25 November before Commissioner Wilson'.
On 29 November 2019, the Applicant sent an email to Ms Novak. In that email, the Applicant stated that she would only be able to sign the Release Agreement '…after knowing which area and time schedule I will be doing, to be clear and transparent'.
On 3 December 2019, Ms Novak replied to the Applicant's email (copying in Commissioner Wilson) in which she informed the Applicant of her proposed new roster.
On 4 December 2019, the Applicant sent an email to Commissioner Wilson, copied to Ms Novak. In that email, the Applicant raised three issues concerning the Release Agreement. First, that the matters set out in item 4 of Commissioner Wilson's email to the parties on 20 November 2019 (matters relating to mutual releases, mutual confidentiality, and non-disparagement among others) had not been included in the Release Agreement. Second, that a particular clause in the Release Agreement was irrelevant and should be removed. Third, the Applicant questioned what processes were to be put in place at Big W Doncaster to make sure the issues she had raised would not happen again.
On 5 December 2019, Ms Novak responded to the Applicant's email and sought to address each of the points raised by the Applicant.
On 8 December 2019, the Applicant replied to Ms Novak's email. In that email, the Applicant expressed concerns, among other things, that clause 2(b) of the Release Agreement did not fully release her and, that another clause in the Release Agreement should be omitted. She also raised further concerns about the implementation of Big W policies and practices. She concluded her email by stating 'I hope we reach an agreement soon'.
On 9 December 2019, Ms Novak responded to the Applicant's email of 8 December 2019. In that email, Ms Novak, inter alia:
(a)stated that 'We are not in a position to make any further amendments to the release component of the agreement as we consider it reflects the agreement reached between the parties at conference and addresses the points summarised in Commissioner Wilson's email below'. I pause to observe that the Applicant refers to this statement in paragraph 58C(c) of the FASOC as the 'Completeness Representation' and it is this representation that is relied on by the Applicant to set aside the Release Agreement;
(a)indicated that Woolworths was prepared to amend clause 2(b) and sought to answer various questions raised by the Applicant;
(b)stated that 'We consider the terms of the agreement are fair and equitable and reflect the agreement reached at conference. As such (sic), will not be making any further changes';
(c)expressed that she looked 'forward to receiving an executed copy of the agreement'.
The Applicant subsequently signed the Release Agreement.
The Applicant contends that the problem that arises from all of the above is as follows. By the Completeness Representation and the ancillary matters to which I have referred, Woolworths represented to the Applicant that the content of the Release Agreement reflected the agreement reached between the parties at the conference before Commissioner Wilson. The Applicant contends that the Release Agreement however, does not reflect all of the terms set out in the email from Commissioner Wilson. In particular, it does not contain a term that reflects item 3 in the email from Commissioner Wilson to the parties (the substance of which is a commitment by Woolworths to communicate expressions of interest from the Applicant to work additional hours outside the 2019/2020 Christmas/New Year period). The Applicant submits that the Release Agreement was procured by a misrepresentation, and that misrepresentation is an established ground for the setting aside of the terms of settlement: Harvey v Phillips (1956) 95 CLR 235 at [9] ('Harvey'); The Trust Company (PTAL) Ltd v Amos [2019] QSC 92 at [54] and Rodolico v Rodolico [2020] VSC 535 at [31]. The Applicant further submits that the evidence suggests that the omission was intentional, and there was never any suggestion of any intention by the parties to depart from the earlier agreed settlement terms. In her affidavit, the Applicant says she would not have entered into the Release Agreement had she known that Woolworths was not intending to honour the commitment it gave to Commissioner Wilson on 20 November 2019.

The Applicant's contentions necessarily require the Court to consider closely the evidence before it. The first matter to note is Ms Novak's email of 9 December 2019 at 10:23am. That email does not, in terms, state that the Release Agreement reflects the agreement reached between the parties at the conciliation conference before Commissioner Wilson or that the Release Agreement addresses the points in the email from the Commission. It contains an important qualification. Ms Novak's email states 'we consider [the Release Agreement] reflects the agreement reached between the parties at conference...' [emphasis added]. Ms Novak's email is not a promise or a representation that what is contained in the Release Agreement is or is not reflective of the terms contained within Commissioner Wilson's email. Rather, the statement simply puts forward Woolworths' view of the Release Agreement.
In the context of the negotiations which had taken place up to that point, Ms Novak's email of 9 December 2019 is unsurprising. The Commissioner's email recording the matters agreed at the Conciliation Conference was clearly expressed to be conditional on and 'subject to the drafting and execution of Terms of Settlement'. The Commissioner noted that the application 'is not to be viewed… to be settled unless and until the drafting and execution of Terms of Settlement'. It was therefore contemplated that a bargain had not been concluded before the Commission. Rather, it was accepted that the parties would continue to negotiate and execute formal terms of settlement. Ultimately, that is what occurred. As the evidence summarised above makes clear, negotiations ensued between the parties on the terms to be contained in the Release Agreement. Those negotiations were not short, and involved a clear exchange of positions by both parties, as well as amendments to the written terms. It is clear from comparing the Release Agreement to the terms of the email from Commissioner Wilson that the terms of the Release Agreement ultimately went beyond the terms set out in the email from Commissioner Wilson. When all of these matters are considered, Ms Novak's statement is to be properly understood as reflecting Woolworths’ view of the Release Agreement, rather than it being a representation to the Applicant that the terms of the Release Agreement reflected the content of Commissioner Wilson's email.
There is then the conduct of the Applicant. This is not a case in which the Applicant was presented with terms and then pressured to sign those terms either on the spot, or within a short period of time. There was time for the Applicant to negotiate amendments to the Release Agreement and she did so. It is apparent from the negotiations which are summarised above that the Applicant reviewed the terms of the Release Agreement prior to suggesting amendments to it.
The Applicant also claims that she was under a special disadvantage in the negotiations, and that Woolworths acted unconscionably in taking advantage of her. The two special disadvantages claimed by the Applicant are that she was from a non-English speaking background, and that she was self-represented. She submits that those two matters, in the circumstances of this case, are such as to give rise to the situation contemplated and considered by the High Court of Australia in Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 ('Amadio').
In my view, the evidence does not support a finding that the Applicant suffered a special disadvantage because she was from a non-English speaking background. It is apparent that while the Applicant may be from a non-English-speaking background, she is more than capable of reading, writing and understanding English. She was unrepresented in the Commission proceedings. Her application form to the Commission, however, is comprehensive and outlines in English the factual circumstances giving rise to her claims, and the various sections of the Act that she contends have been contravened. She negotiated the terms of the Release Agreement in English, including taking issue with one of the release clauses. Other evidence before the Court indicates that she was tertiary educated, and previously held roles as a real estate agent in which she held the position of a Sales and Marketing Executive.
The submission that the Applicant was under a special disadvantage because she was self-represented also bears close scrutiny. The Applicant properly conceded that self-representation of itself is unlikely to constitute a special disadvantage, but may be one factor, along with others, which points toward a person being under a special disadvantage such as to give rise to the principles of unconscionability described in Amadio. The difficulty for the Applicant, however, is that the other circumstances pertaining to this case when considered alongside her being unrepresented, do not support a finding that the Applicant was under a special disadvantage, or that Woolworths took unconscientious advantage of her. This is not a case, like Harvey, where the Applicant was placed under pressure to execute the terms of settlement. The conciliation conference before Commissioner Wilson occurred some 20 days before the Release Agreement was signed. The Applicant had access to the Release Agreement for in excess of one week. Not only was she an active negotiator in respect of the detail of the Release Agreement, but she also had an opportunity to seek advice if necessary on the terms of the Release Agreement. These matters, in my view, take the circumstances of this matter well outside of those which the High Court considered in Amadio.
Finally, it is pertinent to have regard to clause 5(a) of the Release Agreement. That clause relevantly provides 'except as specifically provided in it, this agreement records the entire agreement between the parties, and supersedes all previous negotiations, understandings, representations and agreements in relation to the subject matter of this agreement'. Two things may be said about this clause. First, the Applicant did not take any issue with this clause in this proceeding. Second, she did not take any issue with it when negotiating the Release Agreement. In my view, even if the Respondents made a representation to the Applicant, the parties expressly agreed that the terms of the Release Agreement would supersede any prior representations or agreements. This was a matter I consider was well understood by the Applicant given the manner in which she negotiated the terms of the Release Agreement.
When all of these matters are considered, I find that the Respondents did not misrepresent the terms of the Release Agreement to the Applicant. I am satisfied that the Applicant's signature or consent to enter into the Release Agreement was not procured by misrepresentation. I am further satisfied that the Applicant was not under any special disadvantage. I am satisfied that Woolworths has not acted unconscionably toward the Applicant in the sense contemplated by the High Court in Amadio. For all of these reasons, the answer to Question 1 is 'no'.
Question 2
Given the findings and reasons set out above, there was not a 'Completeness Representation' made by the Respondents to the Applicant and the Applicant was not misled by it. That leaves the other matters raised by the question, namely whether the Court ought to rectify the Release Agreement by including the OA Term within it. It was submitted by the Applicant, among other things, that the mutual intention of the parties shown through the emails referred to earlier as well as the content of the affidavits of Mr Thomas Molan and Mr Matthew Jones filed on behalf of Woolworths, was that the OA Term should have been included in the Release Agreement and as it was not, the Release Agreement should be rectified to include the OA Term.
Rectification of a written contract such as the Release Agreement is available where the parties have used words which, when properly construed, do not express their intention: NSW Medical Defence Union v Transport Industries Insurance [1986] 6 NSWLR 740. Evidence must be shown of a common intention which was not expressed correctly in the document itself: Vantage Systems v Priolo Corporation (2015) WASCA 21. 'Clear and convincing proof' of an actual common intention that is capable of well-defined and clear expression that existed immediately prior to when the contract was signed is required: Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336. Courts are generally reluctant to alter written agreements that on their face look like complete and valid agreements: Fowler v Fowler (1859) 45 ER 97 at 103. The reasons for seeking clear and convincing proof of a common intention was explained in Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [459].
I am unable to accept that the evidence in this case rises to the level that demonstrates that the parties intended the OA Term to be included in the Release Agreement. I have set out earlier the communications between the parties that occurred after the conciliation conference in the Commission. The difficulty for the Applicant, notwithstanding the correspondence she points to, is that things changed following the conciliation conference. First, there was negotiation (in which the Applicant was an active participant) over the terms of the Release Agreement. Second, as I have noted earlier, the terms of the Release Agreement when compared with the email from Commissioner Wilson are not identical and clearly reflect a movement from what is recorded in the email from Commissioner Wilson. Third, the email from Commissioner Wilson made clear that there was no agreement to any matter until formal terms of settlement had been executed. Fourth, the Respondents did not misrepresent matters to the Applicant. Fifth, and perhaps most significantly, the express intention of the parties as recorded in clause 5(a) of the Release Agreement was that the written terms of the Release Agreement recorded the 'entire agreement' and that the terms were to supersede any previous negotiations, understandings, representations and agreements. Nothing in the affidavits of Mr Jones or Mr Molan detracts from these matters.
In light of the above, I find that there is not clear and convincing proof of a common intention by the parties to include the OA Term in the Release Agreement. I decline to rectify the Release Agreement in the manner contended for by the Applicant. The answers to Question 2 are:
(a)there was not a 'Completeness Representation' as alleged by the Applicant in paragraph 58C(c) of the FASOC and the Applicant was not misled by it;
(b)there is not 'clear and convincing proof' of a common mistake, or a common intention of the parties to include the OA Term in any final terms of settlement, including the Release Agreement;
(c)the case for rectification of the Release Agreement as contended for by the Applicant is not established.
Question 3
According to what is pleaded in the FASOC, the signing of the Release Agreement did not bring an end to issues that the Applicant claims to have faced in her employment. The Applicant advances various claims following the signing of the Release Agreement. Relevantly, for the purposes of Question 3, the Applicant pleads that following a meeting she attended on 12 November 2020, she received a letter setting out 13 allegations of alleged misconduct against her and informing her that an investigation into her conduct was to commence (paragraph [84] of the FASOC). It is then pleaded at paragraph [85] of the FASOC that the Applicant was informed on 2 December 2020 that the investigation into her conduct was to be put 'on hold'. The following is then pleaded by the Applicant at paragraphs 85A to 85E of the FASOC.
85ABy letter dated 14 April 2021 the Eighth Respondent, on behalf of the Fourth Respondent informed the Applicant that it intended to proceed with the investigation into the Allegations (the Investigation Resumption).
Particulars
A copy of the letter is in the possession of the Applicant’s solicitors and available for inspection by prior appointment.
85BThe Allegations included allegations of conduct which occurred prior to the execution of the Release Agreement on 10 December 2019.
Particulars
The Allegations included the following allegations concerning alleged conduct before 10 December 2019:
(a)Allegation 1: ‘It is alleged that on numerous occasions in October and November 2019 you have engaged in inappropriate conversations in the workplace about your peers’;
(b)Allegation 4: ‘It is alleged that in or around February 2019, you made an inappropriate statement in the workplace and undermined your manager’;
(c)Allegation 6: ‘It is alleged that you made a false statement in the workplace and stated words to the effect of “Sabrina is the new training manager and she gets the opportunities because it is a racist workplace”;
(d)Allegation 8: ‘It is alleged that you have displayed unacceptable behaviour by circling Sabrina’s name on the roster without permission or business reason to do so. It is alleged that you have done this on the following occasions:
a. October 2019;
b. Week Commencing 25 November 2019; and
c. 2019 boxing day roster’
(e)Allegation 9: ‘It is further alleged that the conduct in the allegation above was taken to harass and intimidate Sabrina and caused Sabrina to feel embarrassed, uncomfortable and intimidated’; and
(f)Allegation 10: ‘It is alleged that you displayed inappropriate conduct and did not treat another team member with dignity, courtesy and respect, Specifically, you have walked past Georgia Tarulli and Sabrina Balcombe, and said hello to Georgia but ignored Sabrina.
(collectively the pre 10 December 2019 Allegations)
85CBy letter dated 9 June 2021, the Fourth Respondent notified the Applicant of the outcome of its investigation into the Allegations, which included findings that some of those Allegations were wholly or partly substantiated, and that the Applicant would be issued with a formal written warning (the Second Investigation Outcome)
Particulars
A copy of the letter is in the possession of the Applicant’s solicitors and available for inspection by prior appointment. The allegations found to be substantiated in whole or in part included Allegations 1, 6, 8, 9 and 10.
85D By reason of the Release Agreement, Applicant had been released from the pre 10 December 2019 Allegations, alternatively the Fourth Respondent is barred from investigating, or making any finding against the Applicant concerning the pre 10 December 2019 Allegations.
Particulars
Each of the above Allegations concerned ‘present Claims’ within the meaning of the Release Agreement, from which the Applicant had been released by reason of the Release Term
85E By reason of the Fourth Respondent’s conduct referred to above, in pursuing Allegations against the Applicant, and further, in finding the allegations referred to in the particulars to paragraph 85C to be substantiated in whole or in part, the Fourth Respondent has breached the Release Agreement.
At paragraph 86B of the FASOC, the Applicant then pleads that by the conduct identified above, the Fourth Respondent breached the terms of the Release Agreement.
The question that arises from the sequence of events described above is whether by so acting, Woolworths breached the terms of the Release Agreement. In order to answer this question, it is necessary to have regard to the terms of the Release Agreement.
The Release Agreement commences with a recitation of various background facts. Item A to the Background describes the Applicant's 'Employment' and defines that term for the purposes of the Release Agreement. Item B of the Background then provides as follows:
You made a number of allegations in connection with the Employment (Allegations) in a General Protections Application filed in the Fair Work Commission (matter number C2019/6825) (Proceedings).
Items C and D are not of significance for present purposes. Item E of the Background then provides as follows:
The parties agree that all Claims in relation to the Allegations, and the Proceedings, are settled without admission of any liability or wrongdoing, on the terms set out in this agreement.
Clause 1 of the Release Agreement sets out the various benefits provided to the Applicant as part of the terms of settlement. Clause 2 sets out the releases given by the parties to each other as well as other matters. Clause 2(a) sets out the release given by the Applicant to Woolworths and 'Group Members' as defined. Clause 2(b), which is important to the present issue, sets out the release given by Woolworths to the Applicant. Clause 2(b) provides as follows:
(b) We release You from and against any present Claims except for any claims to enforce this agreement or any of its terms. Nothing in this agreement is intended to prevent Us from enforcing this agreement.
Clause 3 (warranties or promises you make to us), clause 4 (confidentiality) and clause 5 (information about this agreement) are not relevant to the issues raised by Question 3. Clause 6 is important for present purposes as it contains, among other things, a definition of the word 'Claims' for the purposes of the Release Agreement. The definition of 'Claims' is as follows:
(b) Claims:
(i)means: any claims relating to the matters referred to or contained in this agreement, including the Allegations and the Proceedings, and any matter arising out of or concerning the Allegations and the Proceedings;
(ii)includes: any action, appeal, application, arbitration, cause of action, claim, complaint, cost, debt due, demand, determination, inquiry, judgment, suit or verdict at law, in equity, in tort or arising as a result of a wrongful action or omission of any kind by you or any Group Member, under any statute, regulation or other legislative instrument (including the Fair Work Act 2009), or under any award, enterprise agreement or other instrument made or approved under any law; and
(iii)excludes: any claims under workers' compensation legislation and superannuation guarantee legislation from which You cannot give a release under this agreement and any claims to enforce this agreement or any of its terms.
A number of matters become apparent when the terms set out above are considered.
First, the releases given by the parties to each other are not drafted in identical terms. Among other things, the release given by the Applicant to Woolworths extends to cover 'Group Members' as defined.
Second, the release given by Woolworths to the Applicant is not a release from any and all claims. It is more limited than that. It is a release from any 'present' claims.
Third, the scope of the release the parties gave to each other is limited by the definition of the word 'Claims'. Clause 6(b)(i) is the clause which gives principal meaning to the definition of 'Claims'. Relevantly, a claim can mean one of three things. First, a claim relating to the matters referred to or contained in the Release Agreement. Second, a claim includes matters in the 'Allegations' and the 'Proceedings'. Third, a claim about 'any matter arising out of or concerning the Allegations and the Proceedings'.
The words 'Allegations' and 'Proceedings' are critical words when considering the Release Agreement and its scope. These terms limit the scope of the definition of 'Claims'. That is apparent not only from the definition of 'Claims', but from Item E to the Background where the parties clearly expressed an intention in finalising the Release Agreement to settle all claims in relation to the 'Allegations' and the 'Proceedings' (Item E to the Background).
The meaning of the terms 'Allegations' and 'Proceedings' is to be determined by reference to Item B to the Background and the allegations made by the Applicant in the Fair Work Commission proceedings (C2019/6825). Insofar as Item B is concerned, it is important to record at the outset that the 'Allegations' or 'Proceedings' are the allegations that 'You made' (the Applicant made). There is nothing within Item B or elsewhere in the Release Agreement that refers to any allegation that Woolworths 'made' against the Applicant.

The subject matter or content of the 'Allegations' or the 'Proceedings’ then falls to be determined by reference to the allegations made by the Applicant in the Commission Proceedings. Those allegations are set out in the Form 8C that she filed with the Commission dated 7 November 2019. A review of the Form 8C discloses that the Applicant made a number of claims and allegations against Woolworths. Those allegations included that she had not been allocated additional hours of work despite various requests made by her, that other employees had been allocated additional hours in preference to her, that she had been deceived as to which employees were receiving certain hours, that she was told she was not suitable for additional work because of her name or racial background, that Woolworths preferred to have young English girls working for them, that she was abused by other employees, that she was victimised for raising issues with the store manager and that her enquiries as to pay had gone unanswered. She also complained about being rostered for door shift, being treated differently to other employees, and being subject to direct intentional discrimination. She variously alleged that Woolworths conduct breached sections 340, 343, 344, 345, 351 and 355 of the Act.
For completeness, I observe that Woolworths filed a Form 8A Response with the Commission. In that response, Woolworths denied or disputed the various allegations made by the Applicant. Importantly, Woolworths did not make any claim against the Applicant, or raise any allegation against her.
Returning then to the definition of 'Claims' in clause 6 of the Release Agreement. The first matter to note is that what is meant by the term 'Claims' is expressly recorded in paragraphs 6(b)(i). Paragraphs (ii) and (iii) of clause 6(b) then seek to further refine what may or may not be a claim within the meaning of clause 6(b)(i).
Clause 6(b)(ii) expands the types of matters that may be considered to fall within the definition of claims contemplated in 6(b)(i). The following matters are of significance in respect of (ii). First, (ii) is to be read as a subset of what is in (i). It is paragraph (i) that sets out what a claim 'means'. Paragraph (ii) does not set out what a claim 'means' but refers to matters that are included in a 'claim'. Second, while paragraph (ii) lists a range of matters that might be included in the definition of 'claim', for example, any 'action', 'complaint', 'demand' or 'enquiry', those matters are themselves subject to a limitation contained within paragraph (ii). Those matters must arise 'at law, in equity, in tort or arising as a result of a wrongful action or omission… under any statute, regulation or other legislative instrument (including the Fair Work Act 2009), or under any award, enterprise agreement or other instrument made or approved under any law'. If the matters specified at (ii) do not arise in the circumstances set out above, they do not fall within the definition of claims as set out in paragraph (i) of clause 6(b).
In the FASOC, it is pleaded that the 'Investigation Resumption' and the 'Second Investigation Outcome' both arose from and are connected with (among other things) the various allegations particularised at paragraph 85B of the FASOC. There is not any dispute that the allegations that were put to the Applicant and that are particularised in paragraph 85B of the FASOC include allegations about the Applicant's conduct that occurred prior to signing the Release Agreement. It is principally for this reason that the Applicant contends that Woolworths has breached the Release Agreement. The Applicant says, somewhat understandably, that if the Release Agreement means she is not able to pursue Woolworths for conduct toward her that occurred before the signing of the Release Agreement, Woolworths is prevented from pursuing her for conduct that occurred prior to the signing of the Release Agreement.
While I have some empathy for the Applicant, the acceptance by the Court of her submission would be to disregard the express terms of the Release Agreement. Regrettably for the Applicant, the Release Agreement does not operate to provide her with a release for the matters specified in paragraph 85B of the FASOC. Woolworths has not breached the Release Agreement by actioning the 'Investigation Resumption' or by the 'Second Investigation Outcome'. The release given to the Applicant relates only to matters in the Allegations and the Proceedings. The matters in the Allegations and the Proceedings deal with the Applicant's claims against Woolworths, not issues or claims that Woolworths may have in respect of the Applicant. It is of no assistance to the Applicant to say that the matters particularised at paragraph 85B are akin to enquiries or complaints and therefore fall within the definition of the word 'Claims'. That is because, as I have noted above, paragraph (ii) of clause 6(b) is a subset of the matters set out in paragraph (i), and paragraph (i) is itself limited to the matters in the Allegations and Proceedings. Furthermore, the matters in paragraph (ii) are themselves subject to the limitation within paragraph (ii) that I described earlier.
I have considered whether the words 'arising out of or concerning' the Allegations and the Proceedings assists the Applicant's case. In my view, those words are of no assistance. They do not overcome the fact that 'Allegations' and 'Proceedings' are defined to mean the allegations made by the Applicant about the conduct or behaviour of others. There is nothing in the Form 8C which sets out or deals with any alleged conduct of the Applicant.
The Applicant also submitted that the matters set out in paragraph 85B of the FASOC overlap with the matters she raised in the Form 8C. She says the allegations against her effectively cover the same ground as the matters she raised with the Commission, and that she has therefore been released from those matters by operation of the Release Agreement. In advancing this submission, Applicant points to the fact that in the Form 8C, she identified that another employee, Ms Sabrina Balcombe (‘Ms Balcombe’) was being allocated hours in preference to her. She says this means among other things, that the disciplinary allegations against her (which include allegations about her conduct towards Ms Balcombe) are sufficient, or sufficiently relate to, the Allegations and the Proceedings. At the very least, the Applicant submits that the allegations against her set out at paragraph 85B of the FASOC ‘arise out of’ the same matters that were put before the Commission.
I am unable to accept the Applicant’s submission above. The Form 8C properly characterised is not a complaint by the Applicant about Ms Balcombe. It is a complaint about the conduct of Woolworths and some of its managers. Ms Balcombe is nothing more than a person who allegedly received the benefit of Woolworths’ alleged wrongful conduct. There is nothing in the Form 8C to suggest that Ms Balcombe was responsible for receiving additional hours in preference to the Applicant. There is nothing in the Form 8C to suggest that the Applicant and Ms Balcombe had a poor relationship, or a relationship characterised by poor conduct toward each other. The mere mention of Ms Balcombe in the Form 8C does not therefore mean that the alleged inappropriate behaviour of the Applicant toward Ms Balcombe relates to or arises from the matters in the 'Allegations' and the 'Proceedings'. It is therefore of no assistance to the Applicant to claim that there was an overlap between the 'Investigation Resumption' and the 'Second Investigation Outcome' on one hand, and the claims she made in the Form 8C. On a proper reading of what is in the Form 8C, there was no such overlap.
While it is not a matter I strictly need to take into account given the way in which the term 'Allegations' and the term 'Proceedings' is defined, I note that there is nothing in the Form 8A filed by Woolworths in the Commission which makes any complaint about the conduct of the Applicant such that it might be able to be argued that there were allegations in the Proceedings that have been settled and were covered by the terms of the release in her favour.
In submissions, the Applicant placed much emphasis on the fact that it had been agreed before the Commission, and noted in Commissioner Wilson's email, that the releases were to be 'mutual'. It is difficult to know with precision what is meant by the term 'mutual' given it was a term used by the Commissioner. Clearly, when looked at, the release given by the Applicant to Woolworths and its group members is not in identical terms to the release Woolworths gave to the Applicant. In that sense, it might be said that the releases are not 'mutual'. Equally, however, when both releases are considered, it is clear that they are releases that are limited to the matters in the Allegations and the Proceedings. In that sense, the releases might well be described as 'mutual'. Ultimately, however, nothing turns on this issue. As I have noted earlier, any settlement reached in the Commission was subject to formal terms of settlement being entered. Furthermore, the parties expressly agreed in clause 5(a) that what was set out in the Release Agreement was the entire agreement, and that the content of the Release Agreement superseded any prior negotiations, understandings, representations and agreements.
For all of the reasons set out above, the answer to Question 3 is ‘no’. There has not been a breach by Woolworths of the Terms of the Release Agreement as contemplated by Question 3.
Question 4
This question relates to paragraph [86] of the FASOC. That paragraph is in the following terms:
86.      By reason of the:
(a)       First Failure to Advise and Consult Regarding Additional Hours;
(b)       Second Failure to Advise and Consult Regarding Additional Hours;
(c)       Third Failure to Advise and Consult Regarding Additional Hours;
(d)Fourth Failure to Advise and Consult Regarding Additional Hours; and
(e)Fifth Failure to Advise and Consult Regarding Additional Hours, and
(f)Sixth Failure to Advise and Consult Regarding Additional Hours;
the Fourth Respondent breached subparagraph 1(a)(ii) of the Release Agreement insofar as it failed to acknowledge the expression of interest in the Applicant working additional hours and/or advise relevant staff members of the BigW Doncaster store of her availability to work those additional hours.
Paragraph [86] of the FASOC is concerned with alleged breaches of subparagraph 1(a)(ii) of the Release Agreement. That clause deals with expressions of interest by the Applicant for working additional hours over the 2019/2020 Christmas/New Year period. The clause is in the following terms:
1. Benefits to you
(a)Subject to You providing Us with a copy of this agreement signed by You, and provided You comply with your obligations under this agreement, We agree to:
…
(ii)acknowledge your expression of interest in working additional hours over the 2019/2020 Christmas/New Year period and advise the relevant staff members of the BIG W Doncaster store of your availability to work these additional hours.
Using the terms in the FASOC, the events the subject of the Third Failure to Advise and Consult Regarding Additional Hours, the Fourth Failure to Advise and Consult Regarding Additional Hours, the Fifth Failure to Advise and Consult Regarding Additional Hours and the Sixth Failure to Advise and Consult Regarding Additional Hours (in so far as they plead failure by Woolworths to consider the Applicant for additional hours in the 2019/2020 Christmas period), occurred well after the conclusion of the 2019/2020 Christmas/New Year period. The Third Failure to Advise and Consult Regarding Additional Hours allegedly occurred in February 2020 and the subsequent failures to advise and consult took place much later in time. Clause 1(a)(ii) of the Release Agreement however is concerned with the conduct of Woolworths during the 2019/2020 Christmas period only. Accordingly, each of the allegations the subject of the Third Failure to Advise and Consult Regarding Additional Hours, the Fourth Failure to Advise and Consult Regarding Additional Hours, the Fifth Failure to Advise and Consult Regarding Additional Hours and the Sixth Failure to Advise and Consult Regarding Additional Hours, cannot constitute a breach by Woolworths of clause 1(a)(ii) of the Release Agreement, because the conduct the subject of those allegations does not fall within clause 1(a)(ii).
I pause to observe that the matters referred to above (as well as the First Failure to Advise and Consult Regarding Additional Hours and the Second Failure to Advise and Consult Regarding Additional Hours) also cannot constitute a breach by Woolworths of the OA Term. The OA Term is not a term of the Release Agreement. I have declined to rectify the Release Agreement to include the OA Term in it.
Having regard to the above, the remaining issues arising in respect of Question 4 are whether the First Failure to Advise and Consult Regarding Additional Hours and the Second Failure to Advise and Consult Regarding Additional Hours constituted breaches by Woolworths of paragraph 1(a)(ii) of the Release Agreement.
The First Failure to Advise and Consult Regarding Additional Hours is pleaded in paragraph [64] of the FASOC as follows:
64. In or around mid-December 2019 the Third Respondent:
(a)provided Mary Vidajic (Ms Vidajic) – Team Member, Cosmetics (Soft Goods Department) with 35.5 hours in the cosmetics area; and
Particluars
Prior to December 2019 Ms Vidajic was employed in the Home & Entertainment area as permanent, part-time.
(b)failed refused or neglected to consult with the Applicant and/or consider the Applicant’s availability regarding additional hours in the cosmetics team (the First Failure to Advise and Consult Regarding Additional Hours).
The Second Failure to Advise and Consult Regarding Additional Hours is pleaded in paragraph [66] of the FASOC as follows:
66.Between mid-December 2019 and January 2020 Natalie Mooy (the Second Respondent) – Culture & People Partner:
(a)allocated Ms Balcombe 38 hours of work per week for four weeks in the Soft Goods Department;
Particulars
At the time of allocation Ms Balcombe was a casual employee.
(b)failed refused or neglected to consult with the Applicant and/or consider the Applicant’s availability regarding these additional hours in the Soft Goods Department (the Second Failure to Advise and Consult Regarding Additional Hours).
The evidence as to whether Woolworths has complied with clause 1(a)(ii) of the Release Agreement is set out in two affidavits of Mr Matthew Jones (‘Mr Jones’) dated 22 June 2021 and 26 October 2021. The Applicant criticises the evidence of Mr Jones. She submits that insofar as Mr Jones recounts discussions with Ms Lisa Weldon (‘Ms Weldon’) and Mr Emmanuel Alvarez (‘Mr Alvarez’) at paragraphs [20]-[22] of his first affidavit, those discussions occurred prior to the Release Agreement taking effect. Insofar as Mr Jones gives evidence of his discussions with Mr Angelo Marcellino (‘Mr Marcellino’) at paragraphs [19] and [23] of his first affidavit, and paragraph [5] of his second affidavit, the Applicant submits it is not clear on what date or dates those discussions took place in December 2019. The Applicant also submits that there is no evidence from any other person that corroborates the evidence of Mr Jones. For these reasons, the Applicant contends that the Court cannot be satisfied that Woolworths complied with clause 1(a)(ii) of the Release Agreement.
I have considered Mr Jones' evidence closely. It is relevant to note the following. Mr Jones deposes that he was present at the conciliation conference in the Commission. He also deposes that between the conciliation conference occurring and the signing of the Release Agreement, he was a party to email correspondence about the terms of settlement. Mr Jones says he was copied into that correspondence so that he could, with the assistance of other Woolworths employees, provide the benefits to the Applicant which formed the basis of the settlement between the parties. It is also relevant to note that Mr Jones’ evidence is that there were changes to store management at the Big W store in Doncaster at that time, with the Store Manager (Mr Hawkins) being replaced by Mr Marcellino. Mr Jones deposes that in light of that transition taking place, he chose to work with the '2IC Store Manager', Mr Alvarez.
At this juncture, it is relevant to consider that approximately 20 days elapsed between the conciliation conference on 20 November 2019, and the Release Agreement being signed on 10 December 2019. That is a not insignificant period of time to have passed, particularly where one of the obligations in the Release Agreement (indeed the obligation which is presently in issue and is the subject of clause 1(a)(ii)) was enlivened and was to operate in the '2019/2020 Christmas/New year' period. In that context, it is understandable that Mr Jones would have been copied into email correspondence as negotiation of the Release Agreement progressed. That would, presumably, have given him the opportunity to ensure the obligations to the Applicant eventually contained in the Release Agreement could be given immediate effect to.
It is in the context noted above that the criticisms of Mr Jones' evidence need to be assessed. I accept that Mr Jones spoke with Ms Weldon and Mr Alvarez on or around 5 December 2019, being a date before the Release Agreement was finally signed. That fact does not, however, detract from the significance of his evidence. Mr Jones had attended the conciliation conference. He was aware of the basis upon which matters between Woolworths and the Applicant might finally be resolved. He would have been aware that the obligation that ultimately crystallised in the form of clause 1(a)(ii) of the Release Agreement required action from Woolworths in circumstances where the 2019/2020 Christmas/New Year period was almost upon it. In the circumstances, it is not at all surprising that he spoke to Ms Weldon and Mr Alvarez and informed them that the Applicant was interested in working additional hours over the Christmas/New Year period. That fact does not lessen the significance of his evidence.
I accept that in his evidence, Mr Jones has not provided specific dates of the conversations that he had with Mr Marcellino. In my view, however, nothing turns on this for the following reasons. First, I accept that Mr Jones had discussions with others (including Mr Marcellino) before the Release Agreement was signed. Second, when Mr Jones says he had conversations with Mr Marcellino about considering the Applicant for additional hours over Christmas/New Year, it is implicit that those conversations could only have occurred in the lead up to that period, and not after it. Whether those conversations occurred before or after the Release Agreement is beside the point. The critical point is that the conversations occurred in a manner and at a time that enabled Woolworths to meet its obligations under the Release Agreement.
There are three other matters relevant to my consideration of this issue. The first is that Mr Jones also gives evidence of the steps Woolworths took to comply with its obligations in clause 1(a)(i) of the Release Agreement. It is significant that Mr Jones' evidence is that he took steps to comply with what was ultimately crystallised in clause 1(a)(i) of the Release Agreement on 4 December 2019, prior to the Release Agreement being formally signed. That evidence, which is not subject to any criticism or challenge, provides support for the view that Mr Jones and Woolworths were taking steps prior to the signing of the Release Agreement to give effect to the proposed settlement with the Applicant.

Second, as the Applicant acknowledged, evidence as to whether Woolworths complied with the obligation in clause 1(a)(ii) of the Release Agreement can only come from Woolworths. I have considered closely Mr Jones’ evidence and the criticisms the Applicant makes of that evidence. I do not accept the Applicant's submissions that the evidence led by Woolworths is insufficient to make a finding as to whether Woolworths complied with its obligations in clause 1(a)(ii) of the Release Agreement. In my view, the evidence demonstrates that Woolworths complied clause 1(a)(ii) of the Release Agreement by acknowledging the Applicant's expression of interest in working additional hours, and by advising relevant staff members at the Big W Store in Doncaster of the Applicant's availability to work additional hours over the 2019/2020 Christmas/New Year holiday period.
Third, Mr Jones has deposed to the hours the Applicant worked each week during the 2019/2020 Christmas/New Year period. That evidence shows that in each week of the four week period commencing 9 December 2019, the Applicant worked in excess of 30 hours a week. It must be remembered that a term of the Release Agreement was a commitment given by Woolworths that the Applicant would work no less than 30 hours per week with effect from 16 December 2019. The evidence shows that not only was that commitment met, but that the Applicant also worked hours over and above that minimum as contemplated by clause 1(a)(ii). These matters, in my view, support a finding that Woolworths complied with its obligations under clause 1(a) during the 2019/2020 Christmas New Year period.
For all of the above reasons, Woolworths did not breach the Release Agreement or contravene the OA Term. The answer to Question 4 is 'no'.
THE RESPONDENT’S APPLICATION FOR STRIKE OUT/SUMMARY JUDGMENT
I have set out earlier the relief sought by the Respondents in their Application in a Case dated 25 May 2021. I will deal firstly with the relief sought by proposed orders 1 and 2 in the Application in a Case, and then deal separately with proposed order 3 in the Application in a Case. Before doing so, I set out the relevant principles.
Relevant Principles
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 ('FCFCOA Act') invests the Court with the power to deliver summary judgement. It provides as follows:
143     Summary judgment
(1)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)       hopeless; or
(b)       bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
(5)This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.
Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975, see section 45A of that Act.
Rule 13.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 ('Rules') relevantly provides as follows:
13.10   Disposal by summary judgment
(1)       This rule applies if, in a proceeding:
(a)in relation to the whole or a part of a party’s claim there is evidence of the facts on which the claim or part is based; and
(b)       either:
(i)there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or the part of the claim; or
(ii)the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or the part of the claim.
(2)The Court may give judgment on that claim or part of the claim and make any orders or directions that the Court considers appropriate.
(3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim.
The Court's power to strike out pleadings is to be found in the Federal Court Rules 2011 ('FC Rules') (see rule 1.06 of the Rules and rule 16.21 of the FC Rules). Rule 16.21 of the FC Rules provides 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
(f)       is otherwise an abuse of the process of the Court.
(2)A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1) (a), (b) or (c) or is otherwise an abuse of the process of the Court.
The principles relating to the tests for summary dismissal and strike out of pleadings were recently canvassed in the decision of Abraham J in Abela v Minister for Home Affairs [2021] FCA 96 at paragraphs [8]-[19]. See also Spencer v Commonwealth [2010] HCA 28.
Relief sought by the Respondents under orders 1 and 2 of the Application in a Case
Paragraph [1] of the Application in a Case identifies various paragraphs of the FASOC. In those paragraphs of the FASOC, the Applicant makes a number of claims against the Respondents. In the Amended Defence, in response to those claims, the Respondents plead, inter alia, the terms of the Release Agreement as a bar to the Applicant pursuing those claims. It is the Release Agreement that the Respondents rely on in advancing the contention before me now that the paragraphs identified in paragraph [1] of the Application in a Case be summarily dismissed.
There are two observations to be made in relation to the application by the Respondents at the outset. First, the Applicant sought to set aside the Release Agreement. For the reasons I have given earlier, I decline to do so. No other ground or submission was advanced (other than what I have set out in these reasons) that the Release Agreement should be set aside. Second, the Release Agreement is a validly executed agreement between the Applicant and Woolworths.
It is then necessary to consider the subject matter of the paragraphs of the FASOC identified in paragraph [1] of the Application in a Case, and whether they are matters that fall within the scope of the Release Agreement. In respect of this issue, the following is relevant.
First, the terms of the release given by the Applicant to Woolworths and its 'Group Members' is set out in clause 2(a) of the Release Agreement. I have set out earlier in these reasons the definition of 'Claims', 'Allegations' and 'Proceedings' in the Release Agreement, each of which apply equally to the release given by the Applicant to Woolworths and its 'Group Members' as defined. Of significance in considering the issue is that part of the definition of the word 'Claims' which provides that a claim is covered by the Release Agreement extends to 'any matter arising out of or concerning the Allegations and the Proceedings'.
Second, the scope of the release given by the Applicant to Woolworths is affected by the definitions of 'Allegations' and 'Proceedings' contained within the Release Agreement. In order to give meaning to those terms, regard must be had to the Form 8C filed by the Applicant in the Commission proceedings. I have summarised the content or subject matter of the 'Allegations' as recited in the Form 8C filed by the Applicant in the Commission earlier in these reasons.
Third, it is necessary to consider each of the paragraphs of the FASOC identified in paragraph [1] of the Application in a Case. At the outset, it is appropriate to record that the subject matter or allegations contained in each of the paragraphs of the FASOC identified in paragraph [1] of the Application in a Case occurred prior to the Release Agreement being executed. While that is of some significance, ultimately, the question of whether the Release Agreement operates to bar these claims depends on whether the claims advanced are claims in the 'Allegations and the Proceedings, and any matter arising out of or concerning the Allegations and the Proceedings'.
In my view, all of the paragraphs identified in paragraph [1] of the Application in a Case, except for paragraph [50] of the FASOC, are claims that fall within the scope of the release given by the Applicant to Woolworths in the Release Agreement. Paragraphs 34, 38, 39, 40, 41, 42, 43, 45, 46, 51, 52, 53, 54, 55, 56, and 57 are all complaints by the Applicant concerning her hours of work in the period prior to the Release Agreement. These matters are all matters that relate to, or arise out of, the Form 8C, the ‘Allegations’ and the ‘Proceedings’. They fall within the scope of the Release Agreement. Paragraphs 32 and 48 are complaints by the Applicant about her failure to be promoted, or her failure to be considered for senior roles. These matters are all matters that relate to, or arise out of, the Form 8C, the ‘Allegations’ and the ‘Proceedings’, and therefore fall within the scope of the Release Agreement. Paragraphs 43, 47, 48 and 53 are all complaints about discrimination the Applicant says she was subjected to. These matters are matters that relate to, or arise out of, the Form 8C, the ‘Allegations’ and the ‘Proceedings’. They therefore fall within the scope the release given by the Applicant to Woolworths set out in the Release Agreement. Given the matters I have referred to above, each of the paragraphs of the FASOC referred to in this paragraph is summarily dismissed. The Applicant does not have any reasonable prospect of successfully prosecuting these parts of the proceeding.
Paragraph [50] of the FASOC was not the subject of specific argument before me. In paragraph [50] of the FASOC, the Applicant says she asked for her contracted days to be adjusted and in response to that she was told that she would 'lose her contract'. It is not apparent to me given the absence of submissions on the issue how the allegation contained within paragraph [50] of the FASOC can be said to fall within the scope of the Release Agreement. Accordingly, I decline to summarily dismiss paragraph [50] of the FASOC.
The relief sought in item 3 of the Application in a Case
The Respondents seek to strike out those paragraphs of the FASOC that plead that each of the individual respondents to the present proceedings is involved in the contraventions of the Act by Woolworths under section 550 of the Act. That course is resisted by the Applicant.
The relevant principles concerning section 550 of the Act were explained by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]-[178] as follows:
176Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court in Rafferty v Madgwicks [2012] FCAFC 37; (2012) 287 ALR 437 summarised the position in this respect at [254]:
[W]hile the identification of the elements of a contravention requires careful legal analysis, “[i]n order to know the essential facts, and thus satisfy s 75B(1) … and like provisions, it is not necessary to know those facts are capable of characterisation in the language of the statute” … This is another aspect of the longstanding principle that it is not necessary for a person to “recognise” the contravention as such, or explicitly to think about the relevant legislation that their actions may contravene …
177Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:
… [Offences of aiding and abetting and counselling and procuring] require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. …
178The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]-[325].
These principles were cited with approval by Flick and Reeves JJ in Fair Work Ombudsman v Hu [2019] FCAFC 133 at [15].
The pleading against the First to Third and Fifth to Eighth Respondents ('Individual Respondents') may expose them to a pecuniary penalty. It is well accepted and understood that where an applicant in a statement of claim seeks pecuniary penalties, there is a need for precision in the pleadings, and the statement of claim must allege a contravention known to law with a sufficient statement of material facts to alert a respondent to the case to be met: Sabapathy v Jetstar Airways [2021] FCAFC 25 at [39] - [40] (‘Sabapathy’), citing with approval the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63]-[65].
In this matter, I have come to the view that there are deficiencies in the manner in which the Applicant has pleaded her claim against the Individual Respondents. For one thing, the pleadings largely comprise legal conclusions and there is an absence of material facts. Given the other matters to which I have referred in these reasons, the fact I intend to permit the Applicant an opportunity to re-plead and given that the Respondents did not actively oppose the Applicant being given leave to re-plead her claims of accessorial liability, I do not intend to embark upon an exhaustive analysis or examination of the pleadings. The concerns in addition to what I have said above, however, may be briefly stated as follows.
The pleaded case against the First Respondent is deficient. The pleaded case relies, apparently substantially, on matters that I have found the Applicant is barred from agitating because of the operation of the Release Agreement. That aspect of it cannot survive. It is important that aspects of the claim that can no longer be relied on are removed, and that the First Respondent have an opportunity to clearly understand the case against her. There are also other issues. For example, the 'Removal from the Goods Department' (as defined in the FASOC) is relied on. That particular adverse action is said to be unlawful for reasons that include 'the First Employment Complaint, the Second Employment Complaint, the Third Employment Complaint, the Fourth Employment Complaint, the Fifth Employment Complaint and/or the Fair Work Application'. While the Applicant has pleaded that the First Respondent had knowledge of 'each of the prohibited reasons' in a general and unspecific sense, is not apparent how it is that the First Respondent has knowledge of the various employment complaints, other than the First Employment Complaint.
The pleaded case against the Second Respondent is general and lacks material facts. For example, it is pleaded generally that the Second Respondent had knowledge of each of the prohibited reasons said to have motivated the adverse actions. It is not apparent, however, how the Second Respondent had knowledge of any of the various employment complaints.
The pleaded case against the Third Respondent lacks material facts. Once again, it is pleaded that the Third Respondent had knowledge of each of the prohibited reasons said to have motivated the adverse actions. It is not apparent, however, how the Third Respondent had knowledge of any or all of the various employment complaints. It is not pleaded how for example, the Third Respondent had knowledge of the Applicant's family situation which is said to give rise to the contravention seemingly contemplated by paragraph [101] of the FASOC.
The claims as against the Fifth, Sixth and Seventh Respondents are plainly confusing. As per the reasoning of the Full Court in Sabapathy, the allegations against each individual respondent should have been pleaded separately. The paragraph also suffers from, among other things, defects similar to those I have identified in respect of the other individual respondents. The claim against the Eighth Respondent also suffers from difficulties similar to those I have described in earlier paragraphs.
It is essential that if the Applicant intends to proceed against the individual respondents, that she plead, among other things, the material facts i.e. the facts essential to the existence of the cause of action. She must plead the material facts in relation to each individual's intentional participation. She must do so in a specific, and not a general manner, so that each of the individuals is squarely on notice as to the case that they need to meet. Self-evidently, any pleading as against the individual respondents should not be dependent upon those claims which I have summarily dismissed.
DISPOSITION

I will make orders summarily dismissing those paragraphs of the FASOC identified in item 1 of the Application in a Case filed by the Respondents, other than paragraph [50] of the FASOC. I will make orders striking out each of the paragraphs identified in item 3 of the Respondent’s Application in a Case including paragraphs 113A and 113B of the FASOC. I will grant leave to the Applicant to re-plead those paragraphs, and I will make orders for the filing of a further statement of claim and defence.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.
Associate:
Dated: 17 February 2022
SCHEDULE OF PARTIES

MLG3982 of 2020

Respondents

Fourth Respondent:

BIG W

Fifth Respondent:

CARYN KATSIKOGIANIS

Sixth Respondent

MEHDI RIZVI

Seventh Respondent

MAIS CAMPBELL

Eighth Respondent

NELLA BENNET

File number(s):	MLG 3982 of 2020
Judgment of:	JUDGE BLAKE
Date of judgment:	17 February 2022
Catchwords:	INDUSTRIAL LAW – Interlocutory Application – where the Applicant alleges the Respondents breached a Release Agreement – where the Applicant alleges the Respondents breached terms of the Big W stores Enterprise Agreement – where the Applicant alleges the Respondents are in contravention of section 340(1)(a)(ii), section 340(1)(b), section 351(1)(b) and section 344(b) of the Fair Work Act 2009 – where the Respondents filed an Application in a Proceeding to strike out parts of the Applicant’s Further Amended Statement of Claim – Strike Out Application granted – Parties to re-plead – Applicant to file a Further Further Amended Statement of Claim – Respondents to file a Further Defence.
Legislation:	Fair Work Act 2009, ss.340(1)(a)(ii), 340(1)(b), 351(1) Federal Circuit Court Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), rr.13.10, 1.05(3)(b) Federal Court Rules 2011 (Cth), r.16.21 Federal Circuit and Family Court of Australia Act 2021, s.143 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr.13.10, 1.06
Cases cited:	Abela v Minister for Home Affairs [2021] FCA 96 Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Hu [2019] FCAFC 133 Fowler v Fowler (1859) 45 ER 97 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 Harvey v Phillips (1956) 95 CLR 235 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 NSW Medical Defence Union v Transport Industries Insurance [1986] 6 NSWLR 740 Rodolico v Rodolico [2020] VSC 535 Sabapathy v Jetstar Airways [2021] FCAFC 25 Spencer v Commonwealth [2010] HCA 28 The Trust Company (PTAL) Ltd v Amos [2019] QSC 92 Vantage Systems v Priolo Corporation (2015) WASCA 21
Division:	Division 2 General Federal Law
Number of paragraphs:	101
Date of hearing:	10 November 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Millar
Solicitor for the Applicant:	Jewell Hancock Employment Lawyers Pty Ltd
Counsel for the Respondents:	Mr Tracey
Solicitor for the Respondents:	Minter Ellison

MLG 3982 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SURESH BHALLA Applicant
AND:	LISA WELDON First Respondent NATALIE MOOY Second Respondent ANGELO MARCELLINO (and others named in the Schedule) Third Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	17 FEBRUARY 2022

MLG3982 of 2020
Respondents
Fourth Respondent:	BIG W
Fifth Respondent:	CARYN KATSIKOGIANIS
Sixth Respondent	MEHDI RIZVI
Seventh Respondent	MAIS CAMPBELL
Eighth Respondent	NELLA BENNET