Botha v George Weston Foods Limited Trading as Tip Top Bakeries (Chullora)

[2019] FCCA 3700

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOTHA v GEORGE WESTON FOODS LIMITED TRADING AS TIP TOP BAKERIES (CHULLORA) [2019] FCCA 3700

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application by respondent to strike out paragraphs of the statement of claim alleging respondent employer contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) – whether reasonably arguable that failure to renew employment of employee on fixed term contract constituted “adverse action” against the employee by the employer within the meaning of s.342(1) of the FW Act – whether reasonably arguable that the refusal by the employer to provide to the applicant employee documents relating to investigations by the employer of complaints made by the applicant employee constituted the employer taking “adverse action” against the applicant employee – whether statement of claim pleaded with sufficient particularity – some paragraphs of the statement of claim ordered to be struck out – whether leave should be granted to file an amended statement of claim – leave granted subject to the removal of those paragraphs of the statement of claim ordered to be struck out.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342(1), 370

Cases cited:

Crawford v Steadmark Pty Ltd (No 2) [2015] FCCA 2697

Fenton-Jones v Haidar [2019] FCCA 3251

Applicant: NATALIE SARAH BOTHA

Respondent: GEORGE WESTON FOODS LIMITED TRADING AS TIP TOP BAKERIES (CHULLORA) ABN 45 008 632

File Number: SYG 946 of 2019

Judgment of: Judge Manousaridis

Hearing date: 26 June 2019

Date of Last Submission: 11 July 2019

Delivered at: Sydney

Delivered on: 20 December 2019

REPRESENTATION

Counsel for the Applicant: Ms K Riedel

Solicitors for the Applicant: WWC Lawyers

Solicitors for the Respondent: Ms M Pillay of Ai Group Legal Pty Ltd

ORDERS

1. Paragraphs 36, 37, 60(a), and 61(d) of the statement of claim be struck out.

2. The applicant have leave to file an amended statement of claim in the form of the draft annexed to the applicant’s affidavit of 26 June 2019, but omitting paragraphs 36, 37, 60(a), and 61(d) of that draft.

3. The applicant file an amended statement of claim by 6 January 2020.

4. The matter be listed for directions before Judge Manousaridis at 9:30 am on 6 February 2020.

5. The costs of the application in a case filed by the respondent on 7 June 2019, and the costs that will be thrown away by reason of order 2, are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 946 of 2019

NATALIE SARAH BOTHA

Applicant

And

GEORGE WESTON FOODS LIMITED TRADING AS TIP TOP BAKERIES (CHULLORA) ABN 45 008 632

Respondent

REASONS FOR JUDGMENT

Introduction

1. The respondent (GWF) applies for an order that a number of paragraphs of the statement of claim be struck out on the ground they have no reasonable prospects of success; or because they otherwise lack sufficient precision. There is also before the Court an application for leave to amend the statement of claim by removing a number of paragraphs, most of which GWF has applied to strike out.

2. Before I identify the paragraphs GWF applies to strike out, and the grounds on which GWF relies, it will be necessary to describe the claims the applicant, Ms Botha, makes in the statement of claim.

Ms Botha’s claims

1. Ms Botha commenced her employment with GWF on about 30 January 2017 as an “on-hire employee” at GWF’s offices in Chullora and North Ryde.[1] On 6 July 2017 Ms Botha accepted GWF’s offer that she be employed as “Health, Safety and Environment Business Partner – Springwood and Carrara” on the terms set out in a letter of offer dated 30 June 2017.[2] Ms Botha commenced her employment on 18 September 2017.

   [1] Statement of claim, [3]

   [2] Statement of claim, [6], [7], and [8]

2. In accepting GWF’s offer of employment, Ms Botha relied on a number of representations employees of GFW made to her during a telephone interview and a face-to-face interview.[3] Those representations were to the effect that the employment contract was a fixed term contract for “administrative convenience” only; all new permanent employees were offered fixed term contracts due to the restructuring of GFW’s business; Ms Botha would be offered a permanent role with GWF at the end of the employment contract term; a representative of GWF would work with Ms Botha to develop a series of key performance indicators (KPIs); Ms Botha would receive a bonus payment equal to at least one month’s salary if she met her KPIs; Ms Botha would receive a bonus payment subject to GWF’s business performance; Ms Botha’s salary would be reviewed six months after she commences her employment; and her salary would be reviewed twelve months after she commences her employment.

   [3] Statement of claim, [9], [10]

3. Between September 2017 and July 2018 Mr Anderson, who was employed by GWF as the Health, Safety and Environment Manager – Northern and Eastern Region, made derogatory and sexist comments to Ms Botha directly and to her colleagues; made inappropriate comments about Ms Botha’s appearance; frequently and continuously used profane language when speaking to Ms Botha and in her vicinity; unfairly criticised and found fault with Ms Botha’s work; unreasonably denied Ms Botha any form of salary review and refused to discuss the establishment of KPIs; refused to approve Mr Botha participating in multiple development programs; undermined Ms Botha by several means, including belittling her during team meetings and unreasonably excluding her from meetings; and Mr Anderson micromanaged Ms Botha.[4]

   [4] Statement of claim, [12]

4. In around March 2018 Ms Botha complained to GWF about Mr Anderson’s conduct (First Complaint),[5] but Mr Heckenberg, GWF’s HR Business Partner,[6] told Ms Botha that that was the way Mr Anderson is, and Ms Botha did not need to worry because that is Mr Anderson’s personality.[7] As a consequence of the First Complaint, however, Ms Botha’s role was changed to Health, Safety and Environment Business Partner, Chullora (HSE Chullora role), and was relocated to Chullora.[8]

   [5] Statement of claim, [13]

   [6] Statement of claim, [5.b.]

   [7] Statement of claim, [14]

   [8] Statement of claim, [15[

5. On 18 June 2018 Ms Botha experienced an anxiety attack at work and, on 19 June 2018, she was diagnosed with adjustment disorder and anxiety “as a result of Mr Anderson’s conduct”. Ms Botha commenced personal leave because of her psychological condition.[9]

   [9] Statement of claim, [16], [17]

6. On about 20 June 2018 Ms Botha informed Mr Lorenzi, GWF’s People and Performance Business Partner, that Mr Anderson continued to cause her to experience workplace stress and anxiety (Second Complaint).[10] On a date between 20 June 2018 and 9 July 2018 Ms Botha advised Ms Watson, GWF’s People and Performance Regional Manager – Cake, Chilled, and Frozen, about Mr Anderson’s conduct (Third Complaint).[11] On 25 July 2018 Ms Botha lodged a workers compensation claim, but in early August 2018 she was notified her claim had been rejected.[12] Also on 25 July 2018 Ms Botha complained to Mr Grainger, GWF’s Chief Executive Officer, about Mr Anderson’s conduct.[13] On about 31 July 2018 Ms Botha requested GWF take action in response to the complaints she had made, including that she not be managed by Mr Anderson.[14]

   [10] Statement of claims, [18]

   [11] Statement of claim, [19]

   [12] Statement of claim, [20], [23]

   [13] Statement of claim, [21]

   [14] Statement of claim, [22]

7. On about 3 August 2018 Ms Pombart, GWF’s Director, People and Performance, informed Ms Botha that Ms Botha’s allegations against Mr Anderson were unsubstantiated, noting that Mr Anderson had provided her with evidence that he had met and discussed with Ms Botha her KPIs, development, and performance, although, when Ms Botha requested copies of that evidence, Ms Pombart said the evidence could not be provided because it was a “confidential internal investigation”.[15] On 8 August 2018 Ms Botha informed Ms Pombart she would approach the Fair Work Ombudsman in response to Ms Pombart’s informing Ms Botha that her allegations against Ms Anderson were unsubstantiated (FWO Complaint).

   [15] Statement of claim, [24]

8. On about 13 August 2018 Ms Botha returned from personal leave and worked in her HSE Chullora Role.[16] Ms Botha did so after being advised by Ms Pombart on 10 August 2018 that she was to work with Ms de Kort, and after Ms de Kort informed Ms Botha that she was required to obtain a certificate of capacity which cleared her to perform her pre-injury duties, and after Ms Botha obtained such certificate from WorkCover NSW certifying Ms Botha was capable of working eight hours a day, five days a week between 12 and 26 August 2018.[17] When she returned to work, however, Ms de Kort denied receiving the certificate, and she instructed Ms Botha to leave the Chullora office because she did not accept Ms Botha had suddenly recovered. Ms Botha was then stood down from work for two weeks on full pay.[18]

   [16] Statement of claim, [28]

   [17] Statement of claim, [26], [27], [28]

   [18] Statement of claim, [28]

9. On about 14 August 2018 GWF informed Ms Botha that she had been overpaid $6,634.61, and that it was necessary for her to repay that amount.

10. On a date or dates between 13 August 2018 and 4 September 2018:

    a)Ms Botha lodged a complaint with SafeWork NSW;

    b)Ms Botha was notified that her workers compensation claim had been reviewed and accepted;

    c)Ms de Kort notified Ms Botha that her absence from the Chullora office since 19 June 2018 would be treated as personal leave;

    d)Ms Botha requested Ms de Kort facilitate the engagement of a rehabilitation service provider to enable her to return to work; and

    e)Ms Botha had been notified that another individual had been hired by GWF to perform the HSE Chullora role.[19]

    [19] Statement of claim, [30], [31]

11. On about 5 September 2018 Ms de Kort requested Ms Botha attend a meeting on 6 September 2018 to discuss Ms Botha’s employment contract.[20] On 6 September 2018 Ms Botha met with GWF’s representatives who advised her that her employment contract would not be renewed, and that it would not be renewed because of her performance. Ms Botha was also informed she was not required to return to work, and she was not entitled to a notice period of one month.[21] Ms Botha requested that she be provided with her performance data and reviews of her work, but none was provided.[22]

    [20] Statement of claim, [34]

    [21] Statement of claim, [35]

    [22] Statement of claim, [36], [37]

12. On the basis of these allegations, the statement of claim advances two sets of causes of action. The first relies on the representations Ms Botha alleges GWF made to her before, and in reliance on which, she entered into her employment contract. Ms Botha alleges the representations were false and, for that reason, by making them, GWF contravened s.18 and s.31 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth). GWF does not apply to strike out this part of the statement of claim.

13. The second set of causes of action relies on alleged contraventions of s.340 of the Fair Work Act 2009 (Cth) (FW Act). The statement of claim alleges as follows:

    a)the First, Second, Third, and Fourth Complaints, the FWO Complaint, Ms Botha’s lodgement of the worker’s compensation claim, and the SafeWork NSW complaint:[23]

    [23] Statement of claim, [57]

    i)were “complaints or inquiries” in relation to Ms Botha’s employment with GWF;

    ii)were made to GWF’s employees and representatives; and

    iii)involved Ms Botha initiating or participating in a process under a workplace law;[24]

    [24] Statement of claim, [57]

    b)Ms Botha’s commencing personal leave on 19 June 2018 because she was suffering a psychological condition was a benefit to which Ms Botha was entitled under a workplace law;[25]

    [25] Statement of claim, [58]

    c)because of the matters referred to in (a) and (b), Ms Botha exercised a workplace right within the meaning of s.341 of the FW Act;[26]

    [26] Statement of claim, [59]

    d)further, GWF:[27]

    [27] Statement of claim, [60]

    i)refused to provide Ms Botha with any documents relating to the investigation of the First, Second, Third, or Fourth Complaints;

    ii)refused to pay Ms Botha a bonus or any other benefit;

    iii)moved Ms Botha from the HSE role in Queensland to the HSE Chullora role in New South Wales;

    iv)refused to permit Ms Botha to return to work, despite her obtaining medical clearance  to do so; and

    v)did not renew Ms Botha’s employment;

    e)Because of the matters alleged in (d), GWF:[28]

    [28] Statement of claim, [61]

    i)altered Ms Botha’s position;

    ii)engaged in conduct that was prejudicial to Ms Botha;

    iii)injured Ms Botha in her employment;

    iv)discriminated between Ms Botha and other employees of GWF; and

    v)because of (i)-(iv) engaged in “adverse action” within the meaning of s.342(1) of the FW Act;

    f)GWF engaged in the conduct referred to in (d) and (e) because:[29]

    i)Ms Botha made the First, Second, Third, and Fourth Complaints;

    ii)Ms Botha made the FWO Complaint;

    iii)Ms Botha lodged the workers compensation claim;

    iv)Ms Botha made the SafeWork NSW complaint;

    v)Ms Botha commenced personal leave because she was suffering from a psychological condition;

    vi)Ms Botha had a workplace right; or

    vii)Ms Botha exercised a workplace right.

    [29] Statement of claim, [62]

14. The statement of claim then alleges that, had GWF not taken adverse action against her, Ms Botha’s employment with GWF would have continued for at least a further twelve months because the roles for which Ms Botha was employed were required to be filled under the Work Health and Safety Act 2011 (NSW), those roles continue to exist, and other employees who had been appointed to similar roles remain employed with GWF.[30] Ms Botha claims as damages the loss of one year’s wages, and also damages for the exacerbation of the anxiety and adjustment disorder Ms Botha suffered because of Mr Anderson’s conduct.[31]

    [30] Statement of claim, [63]

    [31] Statement of claim, [65]

Paragraphs sought to be struck out

1. GWF applies to strike out three parts of the statement of claim. The first is paragraphs 36-44. Ms Botha no longer relies on paragraphs 38-44 of the statement of claim. These paragraphs purport to plead a cause of action for damages for breach of contract. That leaves paragraphs 36 and 37, the effect of which I have already summarised, namely, that on 6 September 2018 Ms Botha requested GWF provide her with her performance data and reviews, and that GWF had not provided Ms Botha the information she requested.

2. Counsel for Ms Botha submits that these two paragraphs are relevant to the FW Act claims. I agree. Whether or not they should be struck out, then, will depend on whether they are relevant to that part of the statement of claim that relies on GWF’s asserted contraventions of s.340 of the FW Act that is not liable to be struck out.

3. The second part of the statement of claim GWF applies to strike out is paragraphs 60(e), 60(f), 60(g). Ms Botha no longer relies on paragraphs 60(f) and (g) of the statement of claim, but she continues to rely on paragraph 60(e). That paragraph alleges GWF did not renew Ms Botha’s employment. GWF submits the paragraph should be struck out on jurisdictional grounds because it in effect alleges GWF dismissed Ms Botha from her employment; but it is not permissible for Ms Botha to make such a claim because she has not complied with the preconditions for bringing such a claim before this Court provided for in s.370 of the FW Act.[32] Additionally, GWF submits that Ms Botha’s relying on the allegation of a failure to renew her employment as adverse action is an abuse of process because it constitutes an impermissible attempt by her to bring a general protections claims based on her dismissal from employment without complying with the preconditions for doing so.

   [32] I identify those preconditions in Fenton-Jones v Haidar [2019] FCCA 3251, at [6]-[11]

4. Paragraph 60(a) is the third part of the statement of claim GWF, in its application in a case, applies to strike out. That paragraph alleges GWF refused to provide to Ms Botha any documentation relating to the investigation of the First, Second, Third, or Fourth Complaints. In its written submissions, however, GWF advances a broader attack. It submits the statement of claim does not identify, or does not identify with sufficient precision, which of the acts it alleges GWF engaged or failed to engage in constitute the adverse action alleged in paragraph 61 of the statement of claim.

Does Ms Botha rely on an allegation of dismissal?

1. I accept the submissions made by counsel for Ms Botha that Ms Botha does not allege that GWF took adverse action against her by dismissing her from her employment. Ms Botha alleges that GWF failed to renew Ms Botha’s employment; and that is neither in form nor in substance an allegation that GWF dismissed Ms Botha from her employment. The question, however, is whether Ms Botha has no reasonable prospects of succeeding on a contention that the failure to renew her fixed term contract could constitute adverse action.

Can a failure to renew employment constitute “adverse action”?

1. Ms Botha submits that a failure to renew a fixed term contract of employment constitutes “adverse action”. She relies on the following passage from the judgment of Judge Kelly in Crawford v Steadmark Pty Ltd (No 2):[33]

   I find that the applicant was not (re)employed for the substantial or operative reasons that she had made a complaint. Section 342 of the FW Act provides that refusal to renew a contract is adverse action.

   [33] [2015] FCCA 2697, at [106]

2. In submissions filed after the hearing,[34] GWF submitted that Crawford is distinguishable because, unlike the employment contract Ms Botha entered into with GWF, the employment contract in Crawford contained a clause granting the employer the option to extend or renew it.

   [34] Further Submissions for the Respondent, [12]-[21]

3. It is true that the contract of employment in Crawford contained a clause giving the employer the option to extend the contract of employment. I do not, however, consider this distinction to be material, or sufficiently material, to deny Ms Botha reasonable prospects of succeeding in her claim that GWF’s decision not to renew her contract constituted “adverse action”. An employer always has the option to offer employment to any person, including an employee on a fixed term contract, whether or not the contract of employment contains a term to the effect that the employer could, at its option, offer an employee employment after the employee’s term of employment ends.

4. In any event, GWF’s reliance on the absence from Ms Botha’s contract of employment of a term giving GWF the option of renewing that contract ignores what Judge Kelly said in the passage on which Ms Botha relies: “Section 342 of the FW Act provides that refusal to renew a contract is adverse action”. That directs attention to the text of s.342(1) of the FW Act. That subsection sets out in a table the conduct that constitutes “adverse action”, and the person by whom, and the person against whom, such action must be taken before it can constitute “adverse action”. Item 2 of the table provides that adverse action is taken by “a prospective employer against a prospective employee” if, among other things, “the prospective employer . . . refuses to employ the prospective employee”. It is reasonably arguable that an employee on a fixed term employment contract may properly be characterised as a “prospective employee” in relation to any time after the day on which the employee’s fix term contract ends.

5. It is therefore reasonably arguable that GWF’s decision not to renew Ms Botha’s contract, as alleged in paragraph 60(e) of the statement of claim, constituted “adverse action” within the meaning of item 2 of the table set out in s.342(1) of the FW Act; and I am not satisfied Ms Botha does not have reasonable prospects of succeeding in her claim that GWF’s decision not to renew her employment constituted “adverse conduct” within the meaning of s.342(1) of the FW Act. The application in a case, therefore, fails to the extent it seeks to strike out paragraph 60(e) of the statement of claim.

Paragraph 60(a) incapable of constituting adverse action?

1. GWF submits that the allegation that GWF failed to provide Ms Botha with any documents relating to its investigation of the First, Second, Third, or Fourth Complaints is incapable of constituting “adverse action”. There is merit in this submission. It is difficult to see how GWF’s refusal to provide the documents in relation to the investigation of her complaints by itself could have injured Ms Botha in her position of employment, or altered her position to her prejudice.

2. It is true that paragraph 61(d) of the statement of claim alleges that GWF discriminated against Ms Botha and other employees of GWF; but the statement of claim does not allege facts that is alleged to constitute the discrimination. Ms Botha appears to intend to rely on her affidavit of 26 June 2019. She there deposes to a conversation with Ms Pombart on 3 August 2018 in which Ms Pombart refused to provide Ms Botha with documentation relating to the investigation of Ms Botha’s complaints. Ms Botha also deposed as follows:

   The refusal to provide me with the documentation relating to the respondent’s investigation is at odds with my observations of the respondent’s approach to disclosing information in the context of other internal investigations.

3. Two things may be said about the assertion made in this part of Ms Botha’s affidavit. First, the assertion is not alleged in the statement of claim and, for that reason, it is not a matter on which Ms Both can rely in responding to GWF’s attack on paragraph 60(a) of the statement of claim. Second, the assertion is not supported by any allegations of fact. The assertion does not identify the “other investigations” to which it refers, or the information GWF is alleged to have disclosed in such other investigations, or the context in which such information was disclosed.

4. For these reasons, I am satisfied Ms Botha has no reasonable prospects of succeeding on a claim that GWF’s refusal to provide Ms Botha with any document relating to the investigation of the First, Second, Third, or Fourth Complaints constituted “adverse action” against Ms Botha. I propose, therefore, to order that paragraphs 60(a) and 61(d) of the statement of claim be struck out. I also propose to strike out paragraphs 36 and 37 of the statement of claim because they relate, and only relate, to the allegations made in paragraphs 60(a) and 61(d).

Claims framed with insufficient precision?

1. GWF submits that it is not possible to tell which of the facts alleged in the statement of claim are said to constitute the adverse action alleged in paragraph 61. I accept that it is unclear on which of the facts alleged earlier in the statement of claim Ms Botha relies as constituting each of the species of adverse action alleged in paragraph 61. This, however, does not mean paragraph 61 of the statement of claim is liable to be stuck out. It would be open to GWF to request Ms Botha that Ms Botha identify the facts alleged in the statement of claim on which she relies as constituting each of the species of adverse conduct alleged in paragraphs 61(a), (b), (c), and (e) of the statement of claim.

Leave to amend the statement of claim

1. GWF objects to leave being granted to Ms Botha to amend her statement of claim on a number of grounds. First, GWF objects to the manner in which Ms Botha notified GWF and the Court that she intends to apply for leave to file an amended statement of claim. The notice was given during the hearing of GWF’s application in a case by counsel for Ms Botha handing up in Court an affidavit made by Ms Botha on 26 June 2019 which annexes a draft of the proposed amended statement of claim.

2. It may be accepted that GFW may have been taken by surprise by the manner in which Ms Botha notified GWF she intended to apply for leave to file an amended statement of claim; but I am unable to find this caused GWF any prejudice. First, I permitted the parties to file written submissions in relation to Ms Botha’s intention to file an amended statement of claim with the option of hearing further oral argument, if the parties so desired it. The parties filed written submissions, but none of them requested a further hearing. Second, most of the amendments contained in the proposed amended statement of claim consist of the removal of paragraphs, including most of those GWF has applied to strike out. The proposed amendments, therefore, if allowed, will reduce the scope of Ms Botha’s claims.

3. Second, GWF submits that leave should not be granted without Ms Botha or her legal representative providing an explanation why Ms Botha seeks the amendment. It is true that in some cases an application to amend a statement of claim should be accompanied by an explanation why the amendment was not sought earlier. Whether or not an explanation is required, however, depends on the circumstances of the case. These include the stage of the proceeding at which the amendment is sought, and the nature and scope of the proposed amendments. An explanation may not be necessary where it is apparent why an amendment is sought. In the case before me, Ms Botha has applied for the amendment early in the proceeding, and, in particular, before GWF has filed a defence; and the effect of the amendment, if allowed, will be to reduce the scope of Ms Botha’s claims. Further, it is open to me to infer, and I do infer, that Ms Botha applied to file an amended statement of claim because her counsel has given the matter additional thought, particularly in light of the application in a case. Giving further thought to the adequacy of a current pleading, and, as a consequence of that additional thinking, deciding it would be prudent to amend the pleading, is consistent with the proper conduct of litigation.

4. Third, GWF submits that the amended statement of claim is a “substantially different claim” from that which is pleaded in the existing statement of claim.[35] The basis of this submission appears to be the contention that paragraphs 60(f) and 60(g) of the statement of claim (being paragraphs that have been removed from the proposed amended statement of claim) constitute a claim that Ms Botha was dismissed from her employment on 6 September 2018. GWF submits that, based on the matters pleaded in the statement of claim, there was “a blatant and obvious termination of employment on 6 September 2018, for which there could be no reasonable confusion or reasonable suggestion otherwise”.[36]

   [35] Further Submissions for the Respondent, [5]

   [36] Further Submissions for the Respondent, [7]

5. It is true that paragraphs 41 and 42 of the statement of claim (being paragraphs that form part of the breach of contract claim Ms Botha has removed from the proposed amended statement of claim) allege that “Termination of the Employment Contract on 6 September 2018 occurred prior to the expiration of the fixed term”. That allegation, however, must be read with the allegation made in paragraph 35 about what occurred at the meeting of 6 September 2018. It is there alleged that GWF informed Ms Botha that her contract would not be renewed. There is nothing in that paragraph that could reasonably be taken to allege that GWF dismissed Ms Botha from her employment, or that GWF otherwise terminated her employment contract. Thus, I do not accept that the proposed amended statement of claim constitutes a substantially different claim.

6. Even if allowing the amendment would give rise to a substantially different claim, that by itself would not induce me to exercise my discretion against granting leave. Ms Botha has applied for leave to amend early in the life of the proceeding; and, in particular, before GWF has filed a defence. Further, as I have already noted, the proposed amendment, if allowed, would limit the scope of Ms Botha’s claims.

7. Fourth, GWF submits the statement of claim does not particularise the allegations of the complaints it is alleged Ms Botha made. This is a complaint about a lack of particularisation. The usual way of dealing with such complaints is for the party complaining of the lack of particularity to request further particulars. With the exception of paragraphs 60(a) and 61(d) of the statement of claim, I am not satisfied that the lack of particularisation GWF has identified is a ground for concluding that Ms Botha does not have reasonable prospects of successfully prosecuting the claims made in the proposed amended statement of claim.

8. Fifth, GWF submits that paragraphs 61(a) and (b) of the statement of claim do not accurately describe any species of “adverse conduct” identified in the table to s.342(1) of the FW Act. The complaint is correct, but captious. It is obvious the pleader intended to allege that the conduct pleaded in paragraph 60 of the statement of claim constituted, among other things, the alteration of Ms Botha’s position to her prejudice. I do not, therefore, propose to make any order in relation to these paragraphs of the statement of claim.

Conclusion and disposition

1. I propose to order that:

   a)paragraphs 36, 37, 60(a), and 61(d) of the statement of claim be struck out.

   b)Ms Botha have leave to file an amended statement of claim in the form of the draft annexed to Ms Botha’s affidavit of 26 June 2019, but omitting paragraphs 36, 37, 60(a), and 61(d) from that draft;

   c)Ms Botha file an amended statement of claim by 6 January 2020; and

   d)the matter be listed for directions before me at 9:30 am on 6 February 2020.

2. If GWF wishes to request particulars of the amended statement of claim, it should make such request by 20 January 2020, and Ms Botha should respond to such request by 4 February 2020.

3. I will reserve the question of the costs of the application in a case, and of the costs that will be thrown away by my granting Ms Botha leave to file an amended statement of claim.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 20 December 2019