Botha v George Weston Foods Limited Trading as Tip Top Bakeries (Chullora) (No.2)
[2020] FCCA 476
•5 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOTHA v GEORGE WESTON FOODS LIMITED TRADING AS TIP TOP BAKERIES (CHULLORA) (No.2) | [2020] FCCA 476 |
| Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Whether amended statement of claim is deficient – whether particular paragraphs of amended statement of claim are sufficiently particularised – amended statement of claim not deficient or insufficiently particularised. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 351, 570(2) Federal Circuit Court of Australia Act 1999 (Cth), s.34 |
| Cases cited: Botha v George Weston Foods Limited Trading as Tip Top Bakeries (Chullora) [2019] FCCA 3700 |
| Applicant: | NATALIE SARAH BOTHA |
| Respondent: | GEORGE WESTON FOODS LIMITED TRADING AS TIP TOP BAKERIES (CHULLORA) (ABN 45 008 429 632) |
| File Number: | SYG 946 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 27 February 2020 |
| Date of Last Submission: | 27 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms K M Riedel |
| Solicitors for the Applicant: | WWC Lawyers |
| Solicitors for the Respondent: | Mr A Powter of Ai Group Workplace Lawyers |
ORDERS
The respondent file and serve its defence by 26 March 2020.
The matter be referred to a Registrar for mediation on a date to be fixed by the Registrar pursuant to s.34 of the Federal Circuit Court of Australia Act 1999 (Cth).
If mediation is unsuccessful the matter be relisted for a directions hearing at a time and date to be fixed.
By 19 March 2020 the respondent file and serve written submissions on the question why an order should not be made that it pay the applicant’s costs of and incidental to the hearing of the respondent’s claims about the amended statement of claim made in its lawyers’ letter dated 20 January 2020.
By 26 March 2020 the parties inform the associate to Judge Manousaridis whether they require a further hearing on the question of costs, or whether they consent to Judge Manousaridis determining the question of costs in chambers on the basis of the written submissions the parties have filed.
The parties otherwise have liberty to apply on such notice as the circumstances warrant.
| 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 45 008 429 632) |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent claims the amended statement of claim contains a number of deficiencies. The applicant denies that claim. The question I address in these reasons for judgment is whether the amended statement of claim bears the deficiencies the respondent claims it does.
Background
On 20 December 2019 I published reasons for judgment (earlier reasons) on the basis of which I struck out a number of paragraphs of the statement of claim as it was then filed, granted the applicant leave to file an amended statement of claim, and listed the matter for further directions on 6 February 2020.[1]
[1] Botha v George Weston Foods Limited Trading as Tip Top Bakeries (Chullora) [2019] FCCA 3700
The applicant filed and served an amended statement of claim on 23 December 2019 (ASC). By letter dated 20 January 2020 to the applicant’s lawyers, however, the lawyers for the respondent stated that “we again put your client on notice of the deficiencies in the” ASC, and confirmed “the need for the matters to be rectified before the Respondent would be in a position to file a defence without suffering prejudice and ‘embarrassment’”. The letter further claimed the ASC contains “a number of vague and generalised alleged facts which make the pleadings generalised and ambiguous and which would force the Respondent to effectively craft the Applicant’s case in its Defence”.
The letter purports to identify the following alleged deficiencies.
a)The first is sub-paragraph 62(b) of the ASC, the effect of which I reproduced in sub-paragraph 15(f) of my earlier reasons. The letter claims that sub-paragraph 62(b) of the ASC alleges the exercise of workplace rights but there “is no connection pleaded between each of those alleged rights and each of the alleged adverse actions or the facts presumably substantiating them”.
b)The second asserted deficiency is claimed in general terms. It is said that the ASC alleges the respondent has contravened the FW Act but “it still does not plead the combination between the particular workplace right and the particular adverse action as contemplated in ABCC v Hall [2018] FCAFC 83 and Tattsbet Limited v Morrow (2015) 233 FCR [sic]”.
c)The third asserted deficiency is also expressed in general terms. The letter asserts, in effect, that the ASC does not allege with particularity “the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action”, this being a quote from the judgment of Jessup J in Tattsbet Limited v Morrow.[2]
d)The fourth asserted deficiency, too, is expressed in general terms. The letter asserts the ASC does not “articulate with sufficient particularity (relevantly with dates and persons involved) the facts on which he [sic] relies as giving rise to alleged workplace rights”, and the ASC fails “to establish which workplace right alleged is said to be causally connected to which alleged adverse action”.
e)The fifth asserted deficiency relates to sub-paragraph 60(d) of the ASC, which alleges the respondent refused to permit the applicant to return to work “despite her obtaining medical clearance to do so”. The letter requests particulars of “the medical certificates relied upon” by the applicant.
f)The sixth asserted deficiency relates to sub-paragraph 60(b) of the ASC which alleges the respondent refused to pay the applicant a bonus “or any other benefit”. The letter asserts the paragraph does not elaborate on what “or any other benefit” means, and asks for “better particulars in this regard”.
g)The seventh asserted deficiency relates to sub-paragraph 60(c) of the ASC which alleges the respondent moved the applicant “from the HSE role in Queensland to the HSE Chullora role in New South Wales”. The letter refers to the respondent having paid the applicant $9,583.53 “in support of the move”, and that a “discretionary payment was made” to the applicant for a further $9,583.33. The complaint is that “[t]his remains unreferenced in the Statement of Claim”, and is “not referenced in the loss as pleaded”. The letter requests “further and better particulars of the loss said to arise from this alleged conduct given the payment”.
h)The eighth asserted complaint is the ASC does not refer to any workers compensation payments the applicant received. The letter requests “that you particularise the impact of these payments in your assessment of loss”.
[2] Tattsbet Limited v Morrow [2015] FCAFC 62, at [119]
The lawyers for the applicant responded to the respondent’s lawyers’ letter of 20 January 2020 by letter dated 4 February 2020 as follows.
a)In response to complaint made in relation to sub-paragraph 62(b) of the ASC, the letter stated:
Our client’s case against the respondent is that because of the matters pleaded in paragraph 62(b), either individually or in combination with one, all or any of the reasons pleaded in paragraph 62(b), the respondent refused to pay our client a bonus, moved our client from Queensland to New South Wales, refused to permit our client to return to work despite her obtaining medical clearance to do so and did not renew her employment. By reason of those matters, the respondent altered our client’s position, engaged in conduct that was prejudicial to her, injured her in her employment and consequently, engaged in conduct which constituted adverse action.
b)In response to the complaint made in relation to sub-paragraph 60(d) of the ASC the letter states that the certificates on which the applicant relies are those pleaded in paragraph 27 of the ASC.
c)In response to the complaint made in relation to sub-paragraph 60(b) of the ASC the letter states that the reference to “any other benefit” is a “reference to any other benefit linked to our client’s fulfilment of key performance indicators, including any salary increase”.
d)In response to the asserted failure to include particular amounts in the applicant’s particulars of loss, the letter states that the applicant’s claims losses are particularised in paragraphs 63-66 of the ASC, and repeats the effect of what is there alleged.
The matter came before me on 6 February 2020. Ms Pillay, who appeared for the respondent, informed me the respondent had requested further particulars of the ASC to which the applicant had responded, but the respondent’s position was that the response did not assist it. It then appeared to me that a dispute about particulars had crystallised, and I set down for hearing the dispute about particulars on 27 February 2020.
In the meantime, by letter dated 10 February 2020 the applicant’s lawyers requested the respondent’s lawyers to “clarify if your client objects to all our responses to the particulars requested, or if there are only certain responses your client remains concerned about”, and that the respondent clarify the basis of any objection. Having received no response by 19 February 2020, on that day the applicant’s lawyers sent another letter to the respondent’s lawyers repeating the request made in the letter dated 10 February 2020 that the respondent’s lawyers “clarify if your client objects to all our responses to the particulars requested, or if there are only certain responses your client remains concerned about”, and that the respondent clarify the basis of any objection. The respondent’s lawyers replied by letter dated 20 February 2020, as follows:
We received your letter the [sic] matter has been listed to determine whether our questions were responded to with enough clarity to allow a response to be filed (a particulars dispute).
That determination will be made on the letter we sent you and your response.
On 27 February 2020 the applicant appeared by counsel and the respondent appeared by its lawyer, Mr Powter. Counsel for the applicant read an affidavit made by Mr Wescott attaching the letters to which I have referred, and relied on her written submissions. Mr Powter said he relied on the matters stated in the respondent’s lawyers’ letter dated 20 January 2020.
Some observations
There are three matters to note about the current dispute.
a)First, the respondent did not advance, or at least appear to have advanced, the deficiencies with the ASC the respondent now asserts in general terms in its application in a case which was the subject of my earlier reasons. The application in a case was directed to particular paragraphs of the statement of claim.
b)Second, although in my earlier reasons I suggested that the respondent could seek further particulars of paragraph 61 of the statement of claim, the respondent has not requested particulars of paragraph 61 of the ASC.
c)Third, the applicant, through her lawyers, responded to the letter dated 20 January 2020, and, by later correspondence, requested that the respondent, through its lawyers, “clarify if your client objects to all our responses to the particulars requested, or if there are only certain responses your client remains concerned about”. The respondent’s lawyers simply responded that the respondent relied on the matters stated in their letter dated 20 January 2020 which, essentially, is the position Mr Powter maintained on behalf of the respondent at the hearing on 27 February 2020.
Is the ASC deficient as claimed?
I first turn to the asserted deficiencies claimed in general terms. These suffer from the vice from which they assert the ASC suffers, namely, lack of particularity. They assert in general terms, without reference to the matters pleaded in the ASC, a lack of connection between the facts the ASC alleges, the workplace rights the applicant claims she exercised on the basis of these alleged facts, the adverse action the respondent is alleged to have taken, and the reasons for which it is alleged the respondent took the alleged adverse action. That is not a fair characterisation of the ASC. The ASC pleads facts; and it pleads by reference to those facts the essential elements of the causes of action based on s.340 and s.351 of the Fair Work Act 2009 (Cth) (FW Act) on which the applicant relies. There is no substance to the respondent’s claim made in its lawyers’ letter dated 20 January 2020 that the ASC is of such generality that “the Respondent does not . . . know the case against it”.
Second, there is the asserted deficiency concerning sub-paragraph 62(b) of the ASC, namely, there “is no connection pleaded between each of those alleged rights and each of the alleged adverse actions or the facts presumably substantiating them”. This assertion is made without reference to the particular allegations made in the ASC. Sub-paragraph 62(b) of the ASC identifies what that paragraph alleges the applicant did; the description it gives to the things it alleges the applicant did are each recognisably the exercise of workplace rights the ASC previously identified as workplace rights; and it alleges the applicant’s doing those things constituted the reason for which the respondent did that which paragraphs 60 and 61 of the ASC allege the respondent did. Sub-paragraph 62(b) clearly pleads a connection “between each of those alleged rights and each of the alleged adverse actions or the facts presumably substantiating them”.
Third, there is the request for particulars in relation to sub-paragraph 60(d) of the ASC. The allegation made in that paragraph does not require further particularisation. As confirmed by the applicant’s lawyers’ letter of 4 February 2020, the “medical clearance” alleged in sub-paragraph 60(d) of the ASC is a reference to the matters pleaded in paragraph 27 of the ASC. It is perhaps of some significance that the applicant’s lawyers’ having clarified in their letter of 4 February 2202 what ought to have been obvious did not induce any acknowledgment from the respondent’s lawyers that at least this part of the ASC is sufficiently particularised and, therefore, is not a matter that ought to require a formal determination by the Court.
Fourth, there is the request for particulars in relation to sub-paragraph 60(b) of the ASC. That allegation, too, is not one that requires further particularisation. It alleges the respondent failed to pay the applicant a bonus or “any other benefit”, it being clear that “any other benefit” means exactly that, no “other benefit”. In any event, the applicant’s lawyer, in their letter dated 4 February 2020, explained that “any other benefit” is a “reference to any other benefit linked to our client’s fulfilment of key performance indicators, including any salary increase”.
Fifth, there are the asserted deficiencies in relation to the failure of the applicant to include in her particulars for loss an amount of $9,583.33 the respondent claims it paid to the applicant, and also to include workers’ compensation payments the respondent claims the applicant received. This does not constitute a proper request for particulars. It is an assertion by the respondent that these payments should be taken into account when assessing the applicant’s loss. If that is a matter on which the respondent intends to rely, the respondent, rather than the applicant, must raise it as an issue.
To the extent the respondent submits the ASC insufficiently particularises the loss the applicant claims she suffers as a consequence of the respondent’s alleged contravening conduct, I would not accept that submission. The statement of claim sufficiently particularises the loss for which the applicant claims damages.
For these reasons, the respondent’s claims that the ASC is deficient fails.
Disposition and costs
I heard the respondent’s claims in relation to the ASC without requiring it to file any application in a case. There is, therefore, no need for me to make any formal order to give effect to my conclusion that those claims fail. The applicant, however, seeks an order under s.570(2) of the FW Act that the respondent pay the costs arising out of the respondent’s claims that the ASC is deficient.
There is an arguable case that the respondent should be ordered to pay the applicant’s costs in relation to the claims made in the respondent’s lawyers’ letter dated 20 January 2020 given: (a) the respondent relied, or at least appeared to rely, in that letter on matters it did not rely in its application in a case which it filed on 7 June 2019; (b) the respondent did not address, or at least appear to address, the response to the respondent’s lawyers’ letter dated 20 January 2020 the applicant’s lawyers made in their letter dated 4 February 2020; (c) the respondent did not request particulars of paragraph 61 of the ASC; and (d) the grounds on which in these reasons for judgment I have rejected the respondent’s claims that the ASC is deficient.
I propose to allow the respondent fourteen days to file written submissions on why, given these matters, an order should not be made that it pay the applicant’s costs of and incidental to the hearing of the respondent’s claims about the ASC made in its lawyers’ letter dated 20 January 2020. I will also direct that the parties inform my associate within one week after the respondent files its submissions whether they require a further hearing on the question of costs, or whether they consent to my determining the question of costs in chambers on the basis of the written submissions the parties have filed.
At the conclusion of the hearing on 27 February 2020 I indicated, and the parties agreed, that whatever the outcome of my determination on the questions argued on that day, I would make directions for the filing of a defence and for the matter to be referred to mediation. I will order, therefore, that the respondent file and serve its defence within three weeks, and I will also make my usual orders referring the matter to mediation.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 5 March 2020
0
3
3