Buckingham v KSN Engineering Pty Ltd
[2008] FMCA 546
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BUCKINGHAM v KSN ENGINEERING PTY LTD & ANOR | [2008] FMCA 546 |
| PRACTICE & PROCEDURE – Strike out application – approach to strike out application in this Court – changing role of the Court – Rules amended to provide for pleadings – concurrent jurisdiction with Federal Court in workplace relations matters – Federal Court Rules to apply to strike out applications. |
| INDUSTRIAL LAW – Allegations of acts for prohibited reason – proposed to make inquiries or complaints – liability for involvement in civil remedy contravention – threat to dismiss – prejudicial alteration to position. |
| EVIDENCE – Reverse onus of proof. |
| Crimes Act 1900 (NSW), s.351 Federal Magistrates Act 1999 (Cth), s.3 Federal Court Rules (Cth), O.1 r.4, O.11 r.16 Federal Magistrates Court Rules 2001, rr.1.03, 1.05(1) and (2), 4.05(2)(b) and (3) Workplace Relations Act 1996 (Cth), ss.178(1), 298K(1), 405(5), 728, 792(1), 793(1)(j), 798(1), 809(1) Trade Practices Act 1974 (Cth), s.75B |
| Armstrong v Bigeni Contracting Pty Ltd & Anor [2008] FMCA 485 Australian and International Pilots Association v Qantas Airways Limited (2006) 160 IR 1; [2006] FCA 1441 Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 Australian Competition and Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 Australian Workers Union & Ors v BHP Iron Ore Pty Ltd (2001) 106 FCR 482; [2001] FCA 3 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 BHP Iron Ore Pty Ltd v Australian Workers Union & Ors (2000) 102 FCR 97; [2000] FCA 430 Blair v Australian Motor Industries Ltd (1982) 3 IR 176 Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees Association of Western Australia & Ors (1987) 13 FCR 413 Childs v Metropolitan Transport Trust (1981) 29 AILR 24 Collex Waste Management Pty Ltd v Waste Recycling and Processing Service of New South Wales [1999] FCA 213 Commonwealth Bank of Australia & Anor v Finance Sector Union of Australia (2007) 157 FCR 329; [2007] FCAFC 18 Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93; 104 IR 195 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Construction, Forestry, Mining and Energy Union v Able Demolitions and Excavations Pty Ltd [2001] FCA 1748 CPSU,The Community and Public Sector Union v Telstra Corporation Limited (2000) 99 IR 238; [2000] FCA 844 Dowling v Kirk and 16 Ors [2007] FMCA 2106 Favell v Queensland Newspapers Pty Ltd [2005] 79 ALJR 1716; [2005] HCA 52 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158; 146 IR 37 Geraldton Port Authority v # (1999) FCA 899; 93 FCR 34 Giorgianni v The Queen (1985) 156 CLR 473 Heydon v NRMA Limited (2000) 51 NSWLR 1 Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49 Kimpton v Minister for Education (Vic) (1996) 65 IR 317 McKellar v Container Terminal Management Services (1999) 165 ALR 409; [1999] FCA 1101 MUA v Geraldton Port Authority (1999) 93 FCR 34; [1999] FCA 899 Multi Group Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) 18 ATPR 41 National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90; [2001] FCA 178 Patrick Stevedores Operations No. 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR; [1998] HCA 30 Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 Rural Press Limited v Australian Competition and Consumer Commission (2002) 118 FCR 236 The Employment Advocate v National Union Workers & Anor (2000) 100 FCR 454; [2000] FCA 710 Trade Practices Commission v George Weston Foods Pty Ltd (1979) 39 FLR 182 Warramunda Village Inc v Pryde (2001) 105 FCR 437; [2001] FCA 61 Yorke v Lucas (1985) 158 CLR 661 |
| J D Heydon, Trade Practices Law (Vol 2) (Sydney: Law Book Company) para. 18.280. B C Cairns, Australian Civil Procedure (7th Ed) (Sydney: Law Book Company, 2007) |
| Applicant: | TERRY ALBERT BUCKINGHAM |
| First Respondent: | KSN ENGINEERING PTY LTD (ACN 086 313 019) |
| Second Respondent: | KYUNG SAM NA |
| File number: | PEG 141 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 October 2007 |
| Date of last submission: | 8 October 2007 |
| Delivered at: | Perth |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R L Hooker |
| Solicitors for the Applicant: | Blake Dawson |
| Counsel for the First and Second Respondents: | Mr S J Wood |
| Solicitors for the First and Second Respondents: | DLA Phillips Fox |
ORDERS
That the Applicant have leave to file and serve a Further Amended Statement of Claim by 4.00pm on 19 September 2008.
The matter be adjourned to 9.30am on 6 October 2008 for further directions.
The parties to confer about appropriate further directions before the further directions hearing at 9.30am on 6 October 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 141 of 2007
| TERRY ALBERT BUCKINGHAM |
Applicant
And
| KSN ENGINEERING PTY LTD |
First Respondent
| KYUNG SAM NA |
Second Respondent
REASONS FOR JUDGMENT
Application
The substantive application in this matter alleges various breaches of s.792(1) of the Workplace Relations Act 1996 (Cth).[1]
[1] “WR Act”.
The matter presently before the Court is a strike out application by the First and Second Respondents in relation to the Amended Statement of Claim filed in support of the application.
Basis for strike out application
There are two grounds upon which the strike out is based:
a)that the Amended Statement of Claim contains pleading deficiencies; and
b)that claims made in the Amended Statement of Claim do not accord with the relief sought in the application.
The alleged pleading deficiencies are:
a)failure to plead on an individual basis, and reliance upon global pleas;
b)failure to plead material facts, including failing to plead (including on an individual basis):
i)relevant facts giving rise to a threat or threats to dismiss;
ii)relevant facts giving rise to a threat or threats to prejudicially alter positions;
iii)the relevant position or positions;
iv)the relevant proposal or proposals to make a complaint;
v)the relevant proposal or proposals to make a complaint or complaints;
vi)the relevant proposal or proposals to make inquiries; and
vii)the relevant knowledge of the Second Respondent, necessary to make him an ancillary;
c)pleading proposals to make complaint or complaints and inquiries, yet not claiming penalties in relation to such proposals;
d)pleading threat to prejudicially alter positions, in the alternative to a plea of a threat to dismiss in the pleading, yet claiming penalties in relation to these pleas on a cumulative basis in the application;
e)requiring pleading to particulars;
f)failing to differentiate between a contravention constituted by one prohibited reason, from that constituted by an another prohibited reason.
The alleged deficiencies in the application include:
a)claiming penalties on an “and/or” (that is, a cumulative or alternative) basis;
b)failing to claim penalties in relation to paragraph 2 of the application, in accordance with paragraphs 29A to 53 of the pleadings;
c)failing to claim penalties in relation to paragraph 3 of the application in accordance with paragraphs 62 to 65 of the pleadings;
d)failing to claim penalties in relation to paragraph 4 of the application in accordance with paragraphs 58 to 61 of the pleadings.
History of pleadings and application
In order to understand the argument put by the First and Second Respondents it is necessary to set out the history of the pleadings and the application.
The proceedings were commenced on 16 July 2007 by application together with a supporting affidavit.[2]
[2] Affidavit of Terry Albert Buckingham, sworn 16 July 2007 (“Buckingham’s Affidavit”).
On 6 August 2007 the Court ordered that the Applicant file and serve a Statement of Claim by 4.00pm on 20 August 2007.
On 21 August 2007 the Applicant filed a Statement of Claim.
On 7 September 2007 the Court ordered that the Applicant have leave to file and serve an Amended Application and Amended Statement of Claim, in terms of an Amended Application and Amended Statement of Claim the Applicant had sought to file with the Court’s registry on 31 August 2007.
On 21 September 2007 the First and Second Respondents’ Application in a Case to strike out various parts of the Amended Statement of Claim was filed.
The strike out application is supported by four affidavits, namely:
a)the affidavit of Phillip Bruce Dobson of 30 July 2007;
b)the affidavit of Simon Michael Billing of 6 September 2007;
c)the affidavit of Phillip Bruce Dobson of 6 September 2007; and
d)the affidavit of Phillip Bruce Dobson of 21 September 2007.
The affidavits consist primarily of attachments being letters from the First and Second Respondents’ solicitors to the Applicant’s solicitors containing lengthy comment and criticism upon the formulation of the Application and Amended Application and the Statement of Claim and the Amended Statement of Claim, and the conduct of the Applicant in instituting and conducting the proceedings, together with replies from the Applicant’s solicitors.
Orders sought in the Application in a Case
The orders sought in the Application in a Case are as follows:
“1That, together with the affidavit filed and served with this application, the respondent have leave to rely upon the affidavits of Phillip Bruce Dobson sworn 30 July 2007, Simon Michael Billing sworn 6 September 2007 and Phillip Bruce Dobson sworn 6 September 2007.
2 That paragraphs 22, 24, 28, 29, 29A, 29B, 29C, 29D, 30, 31, 32, 33, 33A, 33B, 33C, 33D, 34, 35, 36, 37 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 59, 60, 61, 63, 64, 65, 66, 67 and 68 of the Amended Statement of Claim, be struck out.
3The applicant file and serve a Further Amended Application which identifies precisely the number of penalties sought and the basis upon which each penalty is sought including whether the penalties are sought on a cumulative or alternative basis.
4The applicant have leave to file and serve a Further Amended Statement of Claim on the following conditions:
(a)that it files and serves a Further Amended Application in accordance with Order 3;
(b)that any such Further Amended Statement of Claim comply with the rules governing pleadings in the Federal Court Rules;
(c)that any certificate in accordance with Form 15B, be signed by the person who prepares the Further Amended Statement of Claim in accordance with O11 Rule 1B; and
(d)the applicant pay the respondents’ costs thrown away by reason of these amendments and the costs of and occasioned by this application.”
Approach to strike out application
In considering the approach to be adopted to the strike out application it is necessary to deal with the relevant procedural rules.
In considering the relevant procedural rules it is appropriate to note that this Court was not originally a court of pleadings. In Rana v University of South Australia[3] the Federal Court observed that:
a)the Federal Magistrates Court Rules 2001 (Cth)[4] do not require pleadings;
b)parties are not obliged to tender all their evidence when the Application and Response is filed; and
c)the Court should be cautious about summarily dismissing a proceeding.[5]
[3] (2004) 136 FCR 344; [2004] FCA 559 (“Rana”).
[4] “FMC Rules”.
[5] Rana FCR at 355 per Lander J; FCA at para. 75 per Lander J.
In some respects, the role of this Court has changed since the judgment in Rana. The FMC Rules were amended in 2007 to provide that applications might be commenced by the filing of a Statement of Claim or Points of Claim to which a Defence or Points of Defence might be filed in response, and in neither case was there a requirement for the filing of an affidavit.[6] Further, in 2006 this Court obtained significant jurisdiction under the WR Act, concurrent with that of the Federal Court in those matters in relation to which this Court was given jurisdiction. It is fair to observe that, where, as here, claims under the WR Act involve corporate entities or statutory bodies then the matter usually proceeds on pleadings, unless it is of such simplicity that pleadings are simply not necessary.
[6] FMC Rules, r.4.05(2)(b) and (3).
Because the FMC Rules are silent in respect of striking out pleadings the Federal Court Rules (Cth)[7] can apply so far as is necessary, because of the insufficiency of the FMC Rules.[8]
[7] “FC Rules”.
[8] FMC Rules, r.1.05(1) and (2)
Because the parties to this matter have agreed that the matter ought to proceed on the pleadings, it is unnecessary to consider the First and Second Respondent’s objections to the application, because an application is not a pleading and an application cannot be struck out, under the FC Rules.[9] However, a pleading which discloses no reasonable cause of action or which has a tendency to cause prejudice, embarrassment or delay, may be struck out at any stage of the proceedings, either in whole or in part.[10]
[9] FC Rules, O.1 r.4 and O.11 r.16.
[10] FC Rules, O.11 r.16.
The Court recognises that in determining to strike out all or part of a pleading it must exercise a discretion, and that that discretion is one to be exercised with caution having regard to the objects of the Federal Magistrates Act 1999 (Cth) and FMC Rules, and modern case management techniques.[11]
[11] Federal Magistrates Act 1999 (Cth), s.3; FMC Rules, r.1.03; Favell v Queensland Newspapers Pty Ltd [2005] 79 ALJR 1716 at 1719 per Gleeson CJ, McHugh, Gummow and Haydon JJ; [2005] HCA 52 at para. 6 per Gleeson CJ, McHugh, Gummow and Haydon JJ; Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 at paras. 6-9 per Martin CJ (“Barclay Mowlem”).
In this case, the Court has approached the application to strike out parts of the Amended Statement of Claim with the above considerations in mind. It will be evident from what follows that the Court has taken the view that, in large part, the Amended Statement of Claim does not fulfil the basic function of properly identifying the issues and apprising the parties of the case that has to be met having regard to the remedies sought.[12] Further, whilst this Court can and will closely case manage a matter, the pleading in this case is so deficient, and the problems identified below with Buckingham’s Affidavit are such, that there is a fundamental problem in identifying the true issues which the First and Second Respondents are required to meet in this case.[13]
Specific paragraphs sought to be struck out
[12] Barclay Mowlen at para. 7 per Martin CJ.
[13] Barclay Mowlen at paras. 8-9 per Martin CJ; and see the comments on Buckingham’s Affidavit at paras. 58-59 below.
Paragraph 22
The Respondents complain about paragraph 22 of the Amended Statement of Claim. Paragraph 22 provides as follows:
“22.On or around 31 July 2006, the Employees and the Ex-Employee
s(and others) authorised Workplace Inspectors (as that term is defined in the Workplace Relations Act 1996) (Workplace Inspectors) of the Office of Workplace Services to investigate the terms and conditions of their employment (the Complaints).Particulars
On 31 July 2006 at the Presbytery of St Mary’s Cathedral, each of the Employees and the Ex-employee
s(among others):(a)authorised Workplace Inspectors of the Office of Workplace Services to investigate their employment conditions; and
(b)signed a document indicating their authorisation.”
It is also convenient at this point to set out paragraphs 28 and 29 of the Amended Statement of Claim:
“28.The threat to dismiss each Employee
and Ex-employeeas pleaded in paragraph 26 was made because the Employeeor Ex-employeehad made a complaint as pleaded in paragraph 22 above or proposed to make,inquiries or complaints to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights under an industrial instrument.29.The threat to alter the position of each Employee
and Ex-employeeto theeEmployee’s prejudice as pleaded in paragraph 27 was made because the Employeeor Ex-employeehad made a complaint as pleaded in paragraph 22 above or proposed to make inquiries or complaints to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights under an industrial instrument.”In relation to paragraph 22 the Respondents make two principal points:
a)that the plea should be made on an individual and not on a global basis because s.792(1) of the WR Act is directed to an examination of the circumstances of individual employees; and
b)that there should be a factual plea as to the doing of an act, followed by a plea, being a legal conclusion, that the act constitutes a “complaint” for the purposes of s.793(1)(j) of the WR Act.[14]
[14] Respondents’ Outline of Argument, para. 3.2 (“Respondents’ Argument”).
In BHP Iron Ore Pty Ltd v Australian Workers Union & Ors[15] the Full Court was dealing with an appeal against an interlocutory injunction in relation to allegations that employees had been injured, or that there had been an alteration of their positions to their prejudice, in relation to the offering of workplace agreements by the employer, contrary to s.298K(1) of the WR Act. Section 298K(1) is the immediate statutory precursor to s.798(1) of the WR Act and was in identical terms. The Full Court said of s.298K that:
“It has to be borne in mind, in construing s.298K, that it proscribes conduct by ‘an employer’ directed to ‘an employee’ or ‘other person’….That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee….It is also significant that the conduct struck out by each paragraph of s.298K is expressed by an active verb: ‘dismiss’, ‘injure’, ‘alter the position’, ‘refuse to employ’, and ‘discriminate’. That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.”[16]
What is required is a discriminatory singling out of an employee (who might still be part of a group of employees) by the employer so that there is “active, intentional, conduct of the employer…struck out by s.298K”[17] (now s.792 of the WR Act).
[15] (2000) 102 FCR 97; [2000] FCA 430 (“BHPIO – Full Court”).
[16] BHPIO – Full Court, FCR at 108 per Black CJ, Beaumont and Ryan JJ; FCA at para. 35 per Black CJ, Beaumont and Ryan JJ.
[17] BHPIO – Full Court, FCR at 112 per Black CJ, Beaumont and Ryan JJ; FCA at para. 48 per Black CJ, Beaumont and Ryan JJ.
In CPSU,The Community and Public Sector Union v Telstra Corporation Limited[18] the Court was dealing with an allegation that the employer had discriminated against Award based employees and injured them in their employment for a prohibited reason as part of a corporate downsizing, contrary to the then s.298K of the WR Act. In CPSU the Federal Court having referred to the passage cited above from BHPIO – Full Court said:
“This passage indicates that it is necessary to assess the position of each individual employee in order to decide whether that employee has been injured or has had his position prejudicially altered.”[19]
[18] (2000) 99 IR 238; [2000] FCA 844 (“CPSU”).
[19] CPSU IR at 245 per Finkelstein J; FCA at para. 24 per Finkelstein J.
In Australian Workers Union & Ors v BHP Iron Ore Pty Ltd[20] the Federal Court was dealing with the hearing of the application for final injunctive relief in relation to the subject matter of the appeal in BHPIO – Full Court. Having cited the passage referred to above from BHPIO – Full Court the Federal Court in BHPIO said:
“[53]Section 298K(1) is, upon this view, concerned with the conduct of an employer that is directed to an individual employee. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees. The relevant inquiry is whether an employer has, by the employer's conduct, injured the position of an employee individually: cf Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238 at 245-246 [24] per Finkelstein J. The Full Court must have intended to exclude conduct that injured individuals only when directed to a class of employees.
[54] Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.”[21]
[20] (2001) 106 FCR 482; [2001] FCA 3 (“BHPIO”).
[21] BHPIO FCR at 499 per Kenny J; FCA at paras. 53-54 per Kenny J.
In BHPIO the Federal Court drew attention to the manner in which s.298K(1) (now s.798) of the WR Act operated by contrasting the circumstances of the case before it with those which were before the High Court in Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia,[22] in the following passage:
“There is not, I think, any contrariety between the interlocutory judgment of the Full Court and the judgment of the High Court in Patrick. The points considered by the Full Court were not at issue in the High Court. In Patrick, the case proceeded on the facts as pleaded, it being assumed for the purposes of the appeal that Patrick's employees were necessarily affected as individuals by the company's conduct. The case made against Patrick was that it participated in a scheme leading to the appointment of administrators, thereby creating a situation which immediately threatened the employment of each and every one of its employees, considered as individuals. The critical distinction between Patrick and this case is that the position of each of Patrick's employees was necessarily directly affected by what Patrick did. Contrast this case. The allegation here is not that BHPIO injured its employees as a direct result of what it did but, rather, indirectly. That is, injury occurred because a sufficiently large proportion of the workforce accepted the WPA offers and resigned from the unions, thereby weakening the unions' bargaining position, especially with respect to EBA 4.”[23]
[22] (1998) 195 CLR 1; [1998] HCA 30 (“Patrick Stevedores”).
[23] BHPIO FCR at 500-501 per Kenny J; FCA at para.59 per Kenny J.
In National Union of Workers v Qenos Pty Ltd [24] the Federal Court was dealing with a decision by an employer to conduct a “spill and fill” selection and retrenchment process, and whether the decision to do so had been made for a prohibited reason constituting a threat of dismissal or injury to employees in the course of employment contrary to s.298K of the WR Act (now s.792). The Federal Court, when it referred to BHPIO – Full Court said that the Full Court:
“…determined that the reach of s.298K is limited in that it proscribed conduct which is directed to an individual employee or prospective employee, and not conduct directed to a broad class of employees.”[25]
The Federal Court held that the decision to conduct a “spill and fill” was not conduct directed to an individual employee and the fact that a selection process would be followed to fill positions was not a threat directed to an individual employee.[26] The Federal Court went on to say that:
“It is one thing for an employer to decide to dismiss all its employees forthwith because of their membership of a particular union. That conduct falls squarely within s.298K. It is conduct which is directed to individual employees in the sense spoken of by the Full Court in [BHPIO – Full Court]…albeit all individual employees. It is another thing altogether for an employer to decide that an as yet uncertain number of employees who rank lowest after being tested for certain skills will be made involuntarily redundant. A decision of that character seems to me not to be sufficiently proximate to any of the forms of contravening conduct contained within s.298K….It is not relevantly directed at individual employees.”[27]
[24] (2001) 108 FCR 90; [2001] FCA 178 (“Qenos”).
[25] Qenos FCR at 117 per Weinberg J; FCA at para. 118.
[26] Qenos FCR at 117-118 per Weinberg J; FCA at paras. 118-119 per Weinberg J.
[27] Qenos FCR at 118 per Weinberg J; FCA at para. 122 per Weinberg J.
The need to specifically identify in a statement of claim the actual breach or contravention relied upon has been referred to in cases concerning breaches of Awards under s.178(1) of the WR Act.[28]
[28] Warramunda Village Inc v Pryde (2001) 105 FCR 437 at 441 per Gray, Branson and North JJ; [2001] FCA 61 at para. 11 per Gray, Branson and North JJ; Construction, Forestry, Mining and Energy Union v Able Demolitions and Excavations Pty Ltd [2001] FCA 1748 at paras. 13 and 26 per Marshall J (“Able Demolitions”).
In essence, the Respondents’ submission is correct – pleas must be made on an individualised and not global basis.
It is necessary to examine whether the Amended Statement of Claim does plead on a global rather than an individual basis, which involves the second point raised by the Respondents, which is expanded upon in the Respondents’ Argument as follows:
“3.4Thus the material facts (albeit on a global basis) are pleaded in para [22], and the legal conclusion is found in paras [28-9] (that these facts constitute the making of a complaint – again on a global basis).
3.5The legal conclusion should be separated, and pleaded on an individualised, non-global basis. The Respondents might agree that a particular employee did what is pleaded in para [22], but might plead that it did not constitute the making of a complaint. For example, the Respondent might be instructed that a particular employee did not intend to complain (or whatever).”[29]
[29] Respondent’s Argument, paras. 3.4-3.5.
Whilst technically the Respondents are correct in this submission it is plain enough that they essentially understand what is pleaded against them. Indeed, the Particulars to paragraph 22 of the Amended Statement of Claim make it plain that “each of” the “the Employees”:
a)authorised; and
b)signed a document authorising,
Workplace Inspectors of the Office of Workplace Services[30] to investigate their employment conditions. So much might also be deduced from a generous reading of the Amended Statement of Claim as a whole. Paragraphs 8 to 16 of the Amended Statement of Claim set out the names and dates of employment by the First Respondent of various persons, and paragraph 17 pleads that “[e]ach of the employees referred to” in paragraphs 8 to 16, which are defined as “the employees” were still employed by the First Respondent as at 2 August 2006. It is these employees, and each of them, who are “the Employees” referred to in paragraph 22 as having authorised investigation of the terms and conditions of employment.
Having defined who “the Employees” are by reference to the individually named employees in paragraphs 8 to 16 of the Amended Statement of Claim it is unnecessary, in a case such as this, to individually name them in the plea in paragraph 22 as each having made a complaint to the Workplace Inspector. The technical complaint of material facts pleaded on a global basis can be remedied by the insertion of the words “each of” before “the Employees” in paragraph 22. An amendment in that form would make it apparent, if it is not already so, that what is alleged is that each of the named employees allegedly made a complaint, the alleged complaint said to be “to investigate the terms and conditions of their [“Employees”] employment”. There is nothing in that formulation (and probably nothing in the present formulation) of paragraph 22 which would prevent the Respondents from pleading that what is then pleaded:
a)did not constitute the making of a complaint; or
b)that a particular employee did not complain.[31]
[30] “OWS”.
[31] See Respondents’ Argument, para. 3.5.
The Respondents also had a minor contention in relation to paragraph 22, and that was that there was no need to refer to “Ex-Employee” in that paragraph. The Court notes that it might equally be said that there was no necessity to refer to “(and others)” in that same paragraph.
The “Ex-Employee” is defined as a Mr Soo Chul Shin, a Korean national, employed by the First Respondent as a Welder on or about 13 May 2005.[32] It is alleged that on or about 1 August 2006 the First Respondent terminated the Ex-Employees employment.[33]
[32] Amended Statement of Claim, para. 18.
[33] Amended Statement of Claim, para. 19.
The fact that nothing turns on or is made of the alleged complaint by the Ex-Employee can be seen from paragraphs 28 and 29 of the Amended Statement of Claim which have deleted the words “Ex-Employee”. It follows that the reference to “Ex-Employee” in paragraph 22 of the Amended Statement of Claim serves no purpose, and therefore ought to be struck out.
It also follows that the reference to “(and others)” in paragraph 22 of the Amended Statement of Claim also serves no purpose, and ought to be struck out. The Court notes that this was not a matter advanced or put to the Applicant in the course of the hearing, but given the orders to be made providing for the Applicant to have leave to file and serve a Further Amended Statement of Claim no particular prejudice can be said to arise from that fact.
Paragraph 24
Paragraph 24 of the Amended Statement of Claim provides as follows:
“24.From on or around 29 July 2006 the Respondents knew that a number of employees of the First Respondent had made or proposed to make inquiries or complaints to Workplace Inspectors of the Office of Workplace Services.
Particulars
(a)At all material times, San Hung Lee, known as Father Joseph Lee, was a Catholic priest who was the Assistant Priest at St Mary’s Cathedral in Perth and subsequently the Chaplain at Royal Perth Hospital.
(b)At times during the relevant period, Father Joseph Lee was in communication with some of the Employees and the Ex-employee
sin relation to their employment with the First Respondent.(c)On or around 29 July 2006, Father Joseph Lee spoke by telephone with the Second Respondent and told him that a number of the First Respondent’s Korean welders planned to meet inspectors of the “Office of Workplace Relation” (meaning the Office of Workplace Services as it then was) on 31 July 2006.”.
(d)At all material times, Mr Dai Yoon Le was a migrant agent and is now the General Manager of the First Respondent.
(e)At times during the relevant period, Mr Dai Yoon Lee was in communication with Father Joseph Lee and the Second Respondent in relation to the First Respondent’s employment of some of the Employees and the Ex-employee
s.(f)On or around 30 July 2006, Father Joseph Lee spoke by telephone with Mr Dai Yoon Lee and told him of interviews which had occurred and planned interviews on 31 July 2006 between Workplace Inspectors of the “Office of Workplace Relations” (meaning the Office of Workplace Services as it then was) and some of the First Respondent’s Korean welders.
(g)On or around 1 August 2006, Mr Dai Yoon Lee told Father Joseph Lee by telephone that Mr Dai Yoon Lee and the Second Respondent would meet with the welders of the First Respondent.”
It is clear from subsequent paragraphs of the Amended Statement of Claim[34] that the principal purpose of paragraph 24 is to fix the Second Respondent with relevant knowledge to attract liability under s.728 of the WR Act. Section 728 of the WR Act provides as follows:
“(1)A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.
(2)For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.”
[34] See paras. 29C, 29D, 33C, 33D, 36, 37, 40, 41, 44, 45, 48, 49, 52 and 53.
The nature of s.728 of the WR Act, and its similarity to s.75B of the Trade Practices Act 1974 (Cth)[35] was discussed in Dowling v Kirk and 16 Ors[36] where the requirements for liability were summarised as follows:
“What these authorities show is that in order for a person to have accessorial liability under s.728(2) of the Act he or she
·must have knowledge of the essential facts constituting the contravention;
·must be knowingly concerned in the contravention;
·must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient under paragraph (c) in cases of wilful blindness; and
·need not know that the matters in question constituted a contravention.”[37]
[35] “TP Act”.
[36] [2007] FMCA 2106 (“Dowling”).
[37] Dowling at para. 33 per Cameron FM. The authorities referred to in paragraph 33 are Yorke v Lucas (1985) 158 CLR 661; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; Rural Press Limited v Australian Competition and Consumer Commission (2002) 118 FCR 236; Heydon v NRMA Limited (2000) 51 NSWLR 1; Australian Competition and Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17. See also Armstrong v Bigeni Contracting Pty Ltd & Anor [2008] FMCA 485 at para. 23 per Cameron FM
In Giorgianni v The Queen [38] the High Court was dealing with an appeal involving s.351 of the Crimes Act 1900 (NSW) which provided that:
“Any person who aids, abets, counsels, or procures, the commission of any misdemeanour…may be indicted, convicted and punished as a principal offender.”
[38] (1985) 156 CLR 473 (“Giorgianni”).
In relation to the question of the knowledge required to be convicted of aiding, abetting, counselling or procuring the commission of an offence the High Court said that “actual knowledge…must be proved and not knowledge which is imputed or presumed.”[39] The High Court also said that:
“Those offences 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…he need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constituted 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 realises it or not, as to constitute the factual ingredients of a crime…intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.”[40]
[39] Giorgianni at 505 per Wilson, Deane and Dawson JJ.
[40] Giorgianni at 506-507 per Wilson, Deane and Dawson JJ.
The majority in Giorgianni went on to point out that:
“The shutting of one’s eyes to the obvious is not, however, an alternative to the actual knowledge which is required as the basis of an attempt to aid, abet, counsel or procure.”[41]
[41] Giorgianni at 508 per Wilson, Deane and Dawson JJ.
In the context of ancillary liability under s.75B of the TP Act the principle has been crystallised as follows:
“In particular, there will be no liability unless it is established that the alleged wrongdoer had actual knowledge of the essential elements of the primary contravention. Wilful blindness may be equivalent to actual knowledge.”[42]
[42] J D Heydon, Trade Practices Law (Vol 2) (Sydney: Law Book Company) para. 18.280. See also M Pearce, “Accessorial Liability for Misleading or Deceptive Conduct” (2006) 80 ALJ 104.
Paragraph 24 refers to “a number of employees” of the First Respondent whom it is said “had made or prepared to make inquiries or complaints” to the OWS. The “employees” are not identified in any way. It is not possible to tell which employees it is that the Second Respondent is alleged to have had knowledge that they had made or proposed to make inquiries or complaints. It is not possible to tell if the “employees” referred to in paragraph 24 are some or all of “the Employees” referred to in paragraph 22 as having made “the Complaints”. Assuming for the present purposes that the phrase “had made or proposed to make inquiries or complaints” is not itself objectionable, it is necessary for the Applicant, by some means, to identify that the knowledge of the Respondents, and particularly the Second Respondent was about some, or each of “the Employees” referred to in paragraph 22. Other “employees” are irrelevant because, relevantly, s.792(1) “proscribes conduct by ‘an employer’ directed to ‘an employee’”, that is “essentially against an intentional act of the employer directed to an individual employee.”[43]
[43] BHPIO-Full Court FCR at 108 per Black CJ, Beaumont and Ryan JJ; FCA at para. 35 per Black CJ, Beaumont and Ryan JJ.
The nature of that proscription together with:
a)the nature of the liability set out above, and particularly:
i)the requirement that there be knowledge of the essential facts constituting the contravention; and
ii)that the person be an intentional participant based on actual knowledge of the essential facts; and
b)the necessity in a statement of claim to inform the opposing parties of the claim to be met, and not just the bare claim, but the material facts on which it is based,[44]
mean that in this case it is necessary for the Applicant to identify in paragraph 24 which, whether some (and, if some, then which) or all, of “the Employees” referred to in paragraph 22, it says the Second Respondent had the requisite knowledge that they had made or proposed to make inquiries or complaints. The fact that the Applicant has not made any such identification means that paragraph 24 is bad, and should be struck out.
[44] Able Demolitions at para. 9-11 per Marshall J, and in particular the passages cited from Multi Group Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) 18 ATPR 41-522 at 42, 679 per Burchett J and McKellar v Container Terminal Management Services (1999) 165 ALR 409 at 418 per Weinberg J; [1999] FCA 1101 at para. 23 per Weinberg J.
The phrase “had made or proposed to make inquiries or complaints” mirrors the terms of s.793(1)(j) of the WR Act.
Using “or” twice in the phrase “had made or proposed to make inquiries or complaints to” means that at the most basic level it is not possible to ascertain if the knowledge is of:
a)inquiries made; or
b)inquiries proposed;
or
c)complaints made; or
d)complaints proposed.
Other complexities are possible: for example, did an enquiry proposed become a complaint made, or an inquiry made become a complaint proposed, and so on. In this respect, paragraph 24 is vague and lacking in specificity.
When compounded with the failure to specify which, if any, of “the Employees” who had made “Complaints” (as pleaded in paragraph 22) and not inquiries, are within the “number of employees” referred to earlier in paragraph 24 it becomes nigh on impossible for the Second Respondent to determine with any certainty what knowledge in relation to what employees is it alleged that he had for the purposes of imposing liability.
It is argued by the Applicant that these matters are sufficiently particularised as to be comprehensible when the particulars are read with the plea in paragraph 24, and Buckingham’s Affidavit.
In particular (b) it is said that Father Joseph Lee, a Catholic priest “was in communication with some of the Employees and the Ex-Employee in relation to their employment with the First Respondent”, but which of “the Employees” are not particularised.
In particular (c) it is said that on 29 July 2006 Father Lee spoke, by telephone, to the Second Respondent “and told him that a number of the First Respondent’s Korean welders planned to meet” the OWS on 31 July 2006. Immediately, questions arise:
a)how many “welders”;
b)what is meant by the “First Respondent’s Korean welders”, and are they all, or some of, the “employees” referred to in particular (b).
Further, there is no particularisation of any knowledge of the “Complaints”, or even of the making, or proposed making, of complaints or inquiries by whichever of the employees, “Employees”, “welders” or “First Respondent’s Korean welders” are being referred to.
In particular (e) it is said that Dai Yoon Lee, a migration agent, was in communication with the Second Respondent “in relation to the First Respondent’s employment of some of the Employees and the Ex-Employee.” Again, which of “the Employees” is not particularised? Nor is there any particularisation of any knowledge of “the Complaints”, or the complaints or inquiries allegedly made or allegedly proposed to be made.
Particular (g) is even more generalised. After particular (f) asserts that “some of the First Respondent’s Korean welders” (again which ones?) had been interviewed or planned to be interviewed by the OWS on 31 July 2006, paragraph (g) says that on or around 1 August 2006 Dai Yoon Lee told Father Lee that the Second Respondent “would meet with the welders of the First Respondent.” Precisely which of “the Employees” or “the number of employees” are being referred to by the phrase “the welders” is not apparent, particularly in the context of the various preceding references to:
a)“a number of employees”;[45]
b)“Employees and the Ex-Employee”;[46]
c)“the First Respondent’s Korean welders”;[47]
d)“some of the Employees and the Ex-Employee”;[48]
e)“some of the First Respondent’s Korean welders”.[49]
[45] Amended Statement of Claim, para. 24.
[46] Amended Statement of Claim, para. 24, particular (b).
[47] Amended Statement of Claim, para. 24, particular (c).
[48] Amended Statement of Claim, para. 24, particular (e).
[49] Amended Statement of Claim, para. 24, particular (f).
The particulars to paragraph 24 aggravate the uncertainty inherent in what is pleaded in paragraph 24 itself.
That uncertainty is not clarified by Buckingham’s Affidavit. That affidavit refers to ten “Employees”; including the eight “Employees” referred to in the Amended Statement of Claim, including as an “Employee” the person identified in the Amended Statement of Claim as the “Ex-Employee”, but including a tenth person who is not referred to at all in the Amended Statement of Claim, and who is not the person referred to in a paragraph which has been deleted from the Amended Statement of Claim by the Applicant.
Buckingham’s Affidavit refers to interviews conducted with the Employees and concerns raised with the OWS during the course of interviews up to and including interviews on 31 July 2006.[50] Reference is also made to “welders” having planned or actual contact with the OWS and being interviewed by the OWS.[51] Nowhere is there an assertion that any individual employee, or that a group of employees collectively, actually complained or proposed to make a complaint to the OWS.
[50] Buckingham Affidavit, paras. 34 and 38.
[51] Buckingham Affidavit, para. 55.
It follows from the reasons set out above that paragraph 24 must be struck out.
Paragraph 28
Paragraph 28 of the Amended Statement of Claim provides as follows:
“The threat to dismiss each Employee
and Ex-employeeas pleaded in paragraph 26 was made because the Employeeor Ex-employeehad made a complaint as pleaded in paragraph 22 above or proposed to make,inquiries or complaints to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights under an industrial instrument.”As presently pleaded paragraph 28 of the Amended Statement of Claim combines at least two possible contraventions: namely the making of “a complaint” and proposing “to make inquiries or complaints”.
For the reasons set out above in relation to paragraph 24 of the Amended Statement of Claim the allegation that “the Employees” “proposed to make inquiries or complaints” cannot stand. These words, at least, must be struck out of paragraph 28.
If the above words are struck out then there is a single episode of conduct pleaded in relation to “the Employees”. Reading paragraphs 25, 26 and 28 together, it is then apparent that paragraph 28 is intended to plead that in respect of each Employee, each Employee was threatened with dismissal because each of them had made a complaint, as alleged in paragraph 22. Understood in that way paragraph 28 can stand with the words “or proposed to make inquiries or complaints” struck out.
Paragraph 29
Paragraph 29 provides as follows:
“The threat to alter the position of each Employee
and Ex-employeeto theeEmployee’s prejudice as pleaded in paragraph 27 was made because the Employeeor Ex-employeehad made a complaint as pleaded in paragraph 22 above or proposed to make inquiries or complaints to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights under an industrial instrument.”For the reasons set out above in relation to paragraph 28 the words “or proposed to make inquiries or complaints” must also be struck out of paragraph 29.
Even with the above words struck out the Respondents complain that paragraph 29 is deficient. The Respondents allege that the pleading of prejudicial alteration to position is sufficient because:
a)there is no plea that any of the Employees held a position the advantages or attributes of which were prejudicially altered; and
b)there, in any event, is no plea of a threat of alteration.
To understand the argument it is necessary to set out paragraphs 25 and 27.
Paragraph 25 (including particulars) is as follows:
“On 2 August 2006 the First Respondent threatened each of the Employees
and Ex-employees (and others)present.Particulars
(a)A meeting occurred at the office of Structural Marine in Henderson Western Australia (the 2 August 2006 Meeting), attended by the Second Respondent, Mr Dai Yoon Lee and the Employees and the Ex-employee
s(among others).(b)On behalf of the First Respondent, the Second Respondent gave a document (the Agreement Letter) to each of the Employees and the Ex-Employee
s.(c)In the alternative to that particularized at 25(b) above, Mr Dai Yoon Lee on behalf of the Respondents, gave a copy of the Agreement Letter to each of the Employees and the Ex-employee
s.(d)The Agreement Letter was written in Korean.
(e)The Agreement Letter was read aloud at the 2 August 2006 Meeting.
(f)The Agreement Letter, when translated into English, said to the effect that:
“On 1 August 2006 Father Joseph LEE proposed arbitration to Dae Yun LEE, a migration agent, in order to resolve issues through a dialogue between KSN employees and the company. KSN accepted this proposal for arbitration.
This agreement shall confirm the following agreement between KSN Engineering Pty Ltd (‘the company’ thereafter) and (an employee):
1. As of today, employees shall not smear the company nor commit any actions which might damage the company’s profit.
2. (An employees) shall be cooperative and in harmony with other employees.
3. (An employee) shall do (his/her) own very best to work hard no matter where (his/her) job shall be given.
4. If an employee agrees to all the three conditions mentioned above, the company shall provide a standard employment contract, the same one applicable to all other employees, for the period of his/her employment.
5. If an employee does not agree to the above mentioned conditions, the company shall consider the employee quitting the job with the company.
The company and an employee confirm this agreement of the 5 conditions by signing below.
(g)At the 2 August 2006 Meeting, the Second Respondent said words to the effect that:
“…If people do not speak ill of the company in the future, and have good relationship with company colleagues, and do their best where they are, I would take care of them and help them to find a sponsor and stay with them together. That’s our points. Our point is whether we continue to have sponsors or discontinue. That part…I made something for that. I prepared a consent form. Try to read it please. Please read it. Just let one person read out….”
(h)At the 2 August 2006 Meeting, one of the persons present said words to the effect that:
“…I would like to tell all about this honestly. So the places we have been to are Workplace Relations, Tax Office, and Immigration Department…”
(i)At the 2 August 2006 Meeting, the Second Respondent also said words to the effect that:
“Just take this. If you take this and send it back to me, I will make some cooperative arrangement, accordingly.”
(j)At the 2 August 2006 Meeting, the Second Respondent made the remarks particularised at 25(g) and (i) in relation to the Agreement Letter.
(k)At the 2 August 2006 Meeting, one of the persons present said words to the effect that:
“…In fact, we all know clearly that we couldn’t find our own sponsorship. So, we asked delay. Even now, we cannot find sponsorship, so we are nervous, to speak frankly. Please make it clear whether you (the president of the company) will sack them if people attend agencies such as Work Relations and make ill of the company, or whether you want people to tell other people about the company.”
(l)The Second Respondent replied with words to the effect that:
“I mean the two things all.”
(m)One of the persons present then said words to the effect that:
“We have met people in Work Relations and Tax Office. Do you mean that we should not meet those people? Or is it okay for us to meet them? Or are you intending to sack us if we meet them? You need to say clearly. I think we can speak ill of the company between friends. But do you want us not to do even that? We want to know clearly to what extent you want us not to do.”
(n)The Second Respondent replied with words to the effect that:
“What I am talking about is the core matter. I am asking you not to speak ill of the company in any side, in any side.”
(o)One of the persons present then said words to the effect that:
“Sorry about interruptions, but it should be possible to point out something wrong if there is something wrong with the company. We can even speak ill of the President of the country, if he has done something wrong. I think we can point out something wrong in order to correct it, and I think it’s right to do that.
(p)The Second Respondent replied, including with words to the effect that:
“…What I mean is that such a thing should not happen 7 months after…If you continue to do it, I do not stop you to keep doing it. It depends on your own will. If you wish to keep doing it, you can do it. If you decide to agree until you find a sponsor, then you agree. That’s what I mean. As mentioned before, the three things are what I meant. I don’t mean anything else. Of course, you can speak ill of the company president between friends, as you can speak ill of the President of the country. I don’t mean stop such a thing. I mean that part mentioned before. I mean that part.”
(q)One of the persons present then said words to the effect that:
“Are you (the company president) really intending to sack us, if we speak ill of the company?”
(r)The Second Respondent replied with words to the effect that:
“If you speak ill of the company skilfully, as it has been 7 months for me, then there should be yes or no in that part between us.”
(s)One of persons present then said words to the effect that:
“If I do not agree with this, you might assume that I am going to keep speaking ill of the company. So are you going to sack me?”
(t)The Second Respondent replied with words to the effect that:
“For that aspect, I need to consider it later, after I get all that. I have been as a representative of the company so far. I am not trying to answer right now. Let’s think about this deeply and talk.””
Paragraph 27 provides as follows:
“In the alternative to paragraph 26, the threat made to each Employee
and Ex-employeepleaded in paragraph 25 was a threat to alter the position of theeEmployee to theeEmployee’s prejudice.”In Patrick Stevedores the High Court observed in relation to the predecessor to s.792(1)(c) of the WR Act that it “is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee for the conduct in question.”[52]
[52] Patrick Stevedores CLR at 18 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; HCA at para. 4 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ.
The words “or alter the position of an employee to the employee’s prejudice” relate to an employer doing “something short of dismissing an employee but which was something which could be said to be harmful to…[the employee] in … [the employee’s employment].”[53]
[53] Blair v Australian Motor Industries Ltd (1982) 3 IR 176 at 180 per Evatt J; subsequently noted without disapproval in MUA v Geraldton Port Authority (1999) 93 FCR 34 at 70 per R D Nicholson J; [1999] FCA 899 at para. 230 per R D Nicholson J (“Geraldton Port Authority”); The Employment Advocate v National Union Workers & Anor (2000) 100 FCR 454 at 469 per Einfeld J; [2000] FCA 710 at para. 48 per Einfeld J and Commonwealth Bank of Australia & Anor v Finance Sector Union of Australia (2007) 157 FCR 329 at 341 per Spender J; [2007] FCAFC 18 at para. 73 per Spender J.
In Australian and International Pilots Association v Qantas Airways Limited[54] the Federal Court noted several examples of what constituted prejudicial alteration to an employee’s position, including:
a)an employer reneging on an assurance;[55]
b)corporate restructuring reducing employer solvency;[56]
c)discriminatory allocation of less congenial shifts or rosters;[57]
d)the withdrawal of a promise of promotion to an employee;[58]
e)the issuance of warnings to employees under a disciplinary code rendering continuing employment less secure;[59]
f)business restructuring under which an employer ceased to provide stevedoring labour to port users with employees offered voluntary redundancies and some employees losing irregular shift work and the opportunity to earn overtime;[60]
g)the sending of an email by a human resources manager instructing managers that in choosing employees to be made involuntarily redundant preference was to be given to employees covered by Awards or Certified Agreements rather than those who had signed AWAs;[61]
h)a determination that all employees working in a business unit were to henceforth be employees of a subsidiary company, and that the subsidiary company would only engage employees on an individual contract providing for a reduction in financial and legal benefits, where the prejudicial alteration came about because it was integral to the making and implementation of the decision.[62]
[54] (2006) 160 IR 1; [2006] FCA 1441 (“Australian and International Pilots”).
[55] Australian and International Pilots IR at 8 per Tracey J; FCA at para. 15 per Tracey J; citing Childs v Metropolitan Transport Trust (1981) 29 AILR 24 and Kimpton v Minister for Education (Vic) (1996) 65 IR 317.
[56] Australian and International Pilots IR at 8 per Tracey J; FCA at para. 15 per Tracey J; citing Patrick Stevedores.
[57] Australian and International Pilots IR at 8 per Tracey J; FCA at para. 15 per Tracey J; citing Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49 at 68; 84 IR 123 at 141.
[58] Australian and International Pilots IR at 9 per Tracey J; FCA at para. 16 per Tracey J.
[59] Australian and International Pilots IR at 15 per Tracey J; FCA at para. 27 per Tracey J; citing Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131.
[60] Australian and International Pilots IR at 15 per Tracey J; FCA at para. 26 per Tracey J; citing Geraldton Port Authority.
[61] Australian and International Pilots IR at 15 per Tracey J; FCA at para. 26 per Tracey J; citing Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93; 104 IR 195.
[62] Australian and International Pilots IR at 15 per Tracey J; FCA at para. 26 per Tracey J; citing Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158; 146 IR 37.
In this matter there is no plea as to how the alleged threat has prejudicially altered the position of the employees concerned. There are no material facts pleaded as to the relevant position prior to the alleged conduct, nor as to the advantages or attributes of that position said to be prejudicially affected. There is a bare plea of a threat to alter position because of the making of a complaint.[63] Moreover, it is very difficult to find a plea of a threat to alter the advantages or attributes of the position. There appear to be no material facts pleaded which constitute a threat of that kind.[64]
[63] Paragraphs 27 and 29 of the Amended Statement of Claim.
[64] Australian and International Pilots IR at 11 per Tracey J; FCA at 20 per Tracey J.
No assistance is afforded by resort to the particulars to paragraph 25. Particulars:
a)inform the other party of the case to be met at hearing; and
b)limit the generality of pleadings, and thus more sharply define the issues.[65]
[65] Trade Practices Commission v George Weston Foods Pty Ltd (1979) 39 FLR 182 at 186 per Davies J; B C Cairns, Australian Civil Procedure (7th Ed) (Sydney: Law Book Company, 2007) at page 178.
The relevant particulars (those to paragraph 25 of the Amended Statement of Claim) do not sharply define the issues. Rather, they set out by way of alleged direct quotation large slabs of a written agreement and oral testimony translated from Korean to English. Those “particulars” do not define the issues, but rather leave the Respondents to trawl through the particulars to see if an issue or issues emerge.
Whilst particulars cannot cure a defective pleading (and paragraph 29 is for the reasons set out above defective) the particulars here compound the problem by an excess of generality and a failure to define issues.
It follows from the above reasons that paragraph 29 of the Amended Statement of Claim should be struck out.
Paragraphs 29A, 30, 33A, 34, 38, 42, 46 and 50
Because:
a)there is no challenge to paragraphs 25 and 26 of the Amended Statement of Claim; and
b)paragraph 28 of the Amended Statement of Claim has not been struck out in its entirety,
there is no basis on which to strike out paragraphs 29A, 30, 33A, 34, 38, 42, 46 and 50, save for the words “and particulars”. Particulars are not pleaded, and do not plug gaps in pleadings.[66]
[66] Collex Waste Management Pty Ltd v Waste Recycling and Processing Service of New South Wales [1999] FCA 213 at para. 43 per Lindgren J; Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees Association of Western Australia & Ors (1987) 13 FCR 413 at 419 per French J.
The words “and particulars” should be struck out of each of paragraphs 29A, 30, 33A, 34, 38, 42, 46 and 50.
Paragraphs 29B, 31, 33B, 35, 39, 43, 47 and 51
The pleas of threat to alter the position of the various employees to their prejudice for a prohibited reason in contravention of s.792(1) of the WR Act as set out in paragraphs 29B, 31, 33B, 35, 39, 43, 47 and 51 of the Amended Statement of Claim depends upon paragraphs 25, 27 and 29 of that Amended Statement of Claim. As the Court has expressed the view that paragraph 29 of the Amended Statement of Claim ought to be struck out, it follows that paragraphs 29B, 31, 33B, 35, 39, 43, 47 and 51 cannot stand, and that they also should be struck out.
Paragraphs 29C, 32, 33C, 36, 40, 44, 48 and 52
The pleas that the Second Respondent was knowingly concerned in or a party to the contravention of the First Respondent pleaded in paragraphs 29A, 30, 33A, 34, 38, 42, 46 and 50 of the Amended Statement of Claim refer to paragraph 24 of the Amended Statement of Claim in each instance. As the Court has expressed the view that paragraph 24 ought to be struck out, it follows that paragraphs 29C, 32, 33C, 36, 40, 44, 48 and 52 cannot stand, and that they also should be struck out.
Paragraphs 29D, 33, 33D, 37, 41, 45, 49 and 53
Paragraphs 29D, 33, 33D, 37, 41, 45, 49 and 53 plead in the alternative to paragraphs 29C, 32, 33C, 36, 40, 44, 48 and 52 that the Second Respondent was knowingly concerned in or party to the contravention of the First Respondent by reason of paragraphs 24, and 29B, 31, 33B, 35, 39, 43, 47 and 51 respectively. As paragraph 24, and 29B, 31, 33B, 35, 39, 43, 47 and 51 of the Amended Statement of Claim should in the Court’s view be struck out, it follows that paragraphs 29D, 33, 33D,37, 41, 45, 49 and 53 should also be struck out.
Paragraphs 59, 60 and 61
The Respondents’ objections to paragraphs 59, 60 and 61 can be taken together. In order to understand the objections to paragraphs 59, 60 and 61 of the Amended Statement of Claim it is necessary to set out paragraphs 58 through to 61 of the Amended Statement of Claim, which are as follows:
“58.By letter dated 1 August 2006, the First Respondent terminated the employment of Mr Soo Chul Shin (the Shin termination letter).
Particulars”
(a)The Shin termination letter was signed by the Second Respondent on behalf of the First Respondent.
(b)The Shin termination letter stated, among other things, “you have also made various negative statements to others about KSN’s business operation.”
(c)The Shin termination letter was received by Mr Soo Chul Shin after the 2 August 2006 Meeting.
59.The First Respondent terminated the employment of Mr Soo Chul Shin because he had made or proposed to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s right under an industrial instrument.
60.By reason of the matters and particulars pleaded in paragraphs 24, 58 and 59, the First Respondent terminated the employment of Mr Soo Chul Shin for a prohibited reason, in contravention of s792(1) of the Workplace Relations Act 1996.
61.By reason of the matters and particulars pleaded in paragraphs 6, 7 and 60, the Second Respondent was knowingly concerned in or a party to the contravention of the First Respondent pleaded in paragraph 60, in contravention of s792(1) of the Workplace Relations Act 1996.”
Paragraph 59 of the Amended Statement of Claim is bad for essentially the same reasons as paragraph 24 of the Amended Statement of Claim, particularly in regard to what is said above concerning the phrase “had made or proposed to make an inquiry or complaint”.[67] Paragraph 59 of the Amended Statement of Claim is not made sound by particular (b) of paragraph 58 which refers to “negative statements”, not complaints or inquiries, to unspecified “others” about the First Respondent’s “business operation”. There is nothing in that particular which can sustain an allegation (even in rolled up form) that a complaint or inquiry was made or proposed to be made to the OWS to seek compliance with an industrial law or observance of a person’s right under an industrial instrument.
[67] See para. X above.
It follows that paragraph 59 should be struck out. Because the Court considers that paragraphs 24 and 59 should be struck out, it follows that paragraphs 60, which relies on both of them, should also be struck out. Likewise paragraph 61, which relies on paragraph 60, should also be struck out.
Paragraphs 63, 64 and 65
The form of paragraphs 63, 64 and 65 of the Amended Statement of Claim essentially mirrors that of paragraphs 59, 60 and 61 of the Amended Statement of Claim, and relies upon a preceding paragraph (paragraph 62 of the Amended Statement of Claim) which is in similar form to paragraph 58, which precedes paragraphs 59, 60 and 61, and which is in similar form to paragraph 58, except for the addition of a further particular relating to the fact that the employee had made it clear, so it is alleged, that he no longer wished to be employed by the First Respondent over the preceding few months. That particular is irrelevant, and even if it were relevant, would not be sufficient to save paragraphs 63 to 65 which must be struck out for the same reasons as paragraphs 59 to 61.
Paragraphs 66, 67 and 68, and the Amended Application and Penalties
The Respondents object to paragraphs 66, 67 and 68 of the Amended Statement of Claim together with paragraphs 2 to 5 of the Amended Application, and generally in relation to the question of penalties. It does so because it is said that the form of the pleading, and the use of “and/or” in the Application in relation to the alleged contraventions of s.792 of the WR Act gives rise to confusion and an inability on the part of the Respondents to determine what is alleged against them, particularly with respect to the number of contraventions alleged against them.
The form of paragraphs 66, 67 and 68 is in the Court’s view unexceptional. As the matter is to proceed on the pleadings, the difficulty with respect to confusion arising from the form of the Amended Application disappears. If the matter is re-pleaded in a proper form, then it ought to become apparent how many contraventions are alleged, or, at the very least, what is the precise range of possible contraventions.
In the circumstances the Court is of the view that paragraphs 66, 67 and 68 can stand as presently pleaded, and in view of the fact that the matter is to proceed on the pleadings it is unnecessary to make any rulings with respect to the Amended Application.
Section 809(1) – onus of proof
The Applicant says that it is required to do no more than it has done in the Amended Statement of Claim and Buckingham’s Affidavit by reason of s.809(1) of the WR Act.
Section 809 (1) of the WR Act provides:
“If:
(a) in an application under section 807 relating to a person's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.”
A consideration of s.809(1) makes it immediately apparent that any application (here the Amended Statement of Claim) must allege conduct (and more than merely a breach reciting the relevant provisions of the WR Act). The onus of proof in relation to the conduct alleged is what is reversed, as was explained in Geraldton Port Authority as follows:
“If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 298V; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267.”[68]
[68] Geraldton Port Authority FCR at 68 per RD Nicholson J; FCA at para. 221 per RD Nicholson J. See also Construction, Forestry, Mining and Energy Union v CE Marshall & Sons Pty Ltd (2007) 160 IR 223 at 229 per Collier J; [2007] FCA 169 at paras. 31-33 per Collier J.
Thus, the reversal of the onus of proof does not alleviate the necessity for the Applicant to plead its case in proper form in the Amended Statement of Claim. It will only be then that the First and Second Respondents know what it is that they have to negative.
Conclusion
This is the first occasion on which these pleadings have been subject to scrutiny by the Court. The findings made by the Court require that much of the Amended Statement of Claim be struck out. However, rather than make orders to that effect at this stage, it is appropriate in the Court’s view (and the Respondents do not demur from this) that the Applicants be granted leave to further amend the Amended Statement of Claim by filing a Further Amended Statement of Claim. The Court will require that that be done by 4.00pm on 19 September 2008, and otherwise adjourn the proceedings to a further directions hearing at 9.30am on 6 October 2008.
The Court will hear the parties as to costs, if any.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Sandra Gough
Date: 29 August 2008
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