Chiu v Liebherr-Australia Pty Ltd
[2024] WADC 5
•1 FEBRUARY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: CHIU -v- LIEBHERR-AUSTRALIA PTY LTD [2024] WADC 5
CORAM: REGISTRAR JEYAMOHAN
HEARD: 16 OCTOBER 2023
DELIVERED : 1 FEBRUARY 2024
FILE NO/S: CIV 5211 of 2022
BETWEEN: MING-LAN CHIU
Plaintiff
AND
LIEBHERR-AUSTRALIA PTY LTD
Defendant
Catchwords:
Procedure - Pleadings - Summary judgment or strike out on application of defendant - Relevant principles - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Amended statement of claim struck out in its entirety
Summary judgment application dismissed
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Ai Group Workplace Lawyers |
Case(s) referred to in decision(s):
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brewer v AAL Aviation Ltd [2016] FCA 93
Bride v Peat Marwick Mitchell [1989] WAR 383
Chiu v Liebherr-Australia Pty Ltd [2022] FWC 1842
Dafallah v Fair Work Commission [2014] FCA 328
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
McJannett v Gibbs [2012] WASC 369
Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170
Pisano v South Metropolitan Health Service [2023] WASCA 80
R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601
State of New South Wales v Paige [2002] NSWCA 235
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
REGISTRAR JEYAMOHAN:
Introduction and summary
By chamber summons dated 8 May 2023, heard 16 October 2023, the defendant applies:
(a)for summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC); and
(b)in the alternative, that the plaintiff's amended statement of claim filed 13 September 2023 be struck out in its entirety, no further leave to replead be granted and the action be dismissed, pursuant to O 20 r 19(1)(a), 19(1)(b) and 19(1)(d) of the RSC.
(Application)
The plaintiff's statement of claim dated 29 November 2022 was previously struck out in its entirety following the initial hearing of the Application on 16 August 2023. At the conclusion of the hearing, orders were made granting the plaintiff leave to file a substituted statement of claim by 13 September 2023 with there being liberty to relist the Application.
The plaintiff filed an amended statement of claim on 13 September 2023 (ASOC) rather than a substituted statement of claim.
At a directions hearing on 27 September 2023, having reviewed the plaintiff's ASOC, the defendant sought the relisting of its Application for hearing at a special appointment. The Application is opposed by the plaintiff, Ming-Lan Chiu, who is a self-represented litigant.
The Application proceeded to hearing on 16 October 2023.
For the reasons that follow the ASOC is struck out in its entirety with leave to replead if sought. The application for summary judgment is dismissed.
Background
By writ of summons filed 29 November 2022 the plaintiff's claim, as set out in the indorsement of claim, is for:
Both an Apology from Liebherr-Australia Pty. Ltd. In the form of an Official Statement and Damages of $750,000 due to Breach of Contract, Gross Negligence, Discriminatory Behaviour, Bullying and Coercion, experienced as an employee of, and in relation to her employment with, Liebherr-Australia Pty. Ltd., and also due to the lived consequences of threats and targeted actions made toward her during the period October 2021 - 2022 (Present) by Liebherr-Australia Pty. Ltd. And those acting on its behalf, which constituted direct violation of the Liebherr-Australia Pty. Ltd.'s own Code of Conduct and demonstrated a departure from its stated Core Values.
(original emphasis)
The plaintiff filed a statement on claim on 29 November 2022 (SOC). The defendant entered an appearance by memorandum of appearance filed 7 December 2022.
The matter proceeded to a mediation conference on 1 May 2023. The Application was brought by the defendant shortly thereafter in compliance with the Order of the court made 20 January 2023. At the hearing of the Application on 16 August 2023, the SOC was struck out in its entirety with the following orders given:
1.Pursuant to O20 r 19(1)(a), (b) and (d) of the Rules of the Supreme Court (WA) the statement of claim filed by the plaintiff on 29 November 2022 be struck out in its entirety.
2.The plaintiff have leave to file a substituted statement of claim by 13 September 2023.
3.The matter be adjourned to a directions hearing on 27 September 2023 at 10am.
4.There be liberty to relist the defendant's application.
5.The costs of today's hearing be the defendant's in any event.
6.The costs of the Application be reserved.
In compliance with the Orders made 16 August 2023, the plaintiff filed the ASOC on 13 September 2023. The plaintiff's claim as set out in the ASOC filed 13 September 2023 is based on three causes of action: breach of contract, negligence and negligent misrepresentation pursuant to which the plaintiff seeks the following:
(a)plaintiff's total compensation sought: $750,000;
(b)breach of contract, negligence, and negligent misrepresentation: The plaintiff seeks compensation in the amount of $741,163.54 for damages arising from breach of contract, negligence and negligent misrepresentation;
(c)costs: the plaintiff seeks reimbursement for legal costs incurred;
(d)such other orders as this honourable court deems fit: The plaintiff requests any other remedies or orders that the court deems appropriate; and
(e)apology order: The plaintiff also requests an apology order as part of the relief sought.
The plaintiff's claim can be summarised as follows.
The plaintiff is a former employee of the defendant.[1] The plaintiff is also referred to as Kathy Chiu.[2] The defendant entered into an employment contract agreement entitled 'Australian Contract of Employment (Modern Award) between Liebherr-Australia PTY LTD and Ming-Lan Chiu Storeperson' agreed 16 November 2020 with the plaintiff for the role of 'storeperson' at its Perth branch on 16 November 2020.[3]
Breach of contract claim
[1] ASOC, par 1.
[2] ASOC, par 3.
[3] ASOC, par 7.
The plaintiff asserts that there was no term of the contract that provided for or stated that the plaintiff would have to agree to be vaccinated: (a) in order to commence employment; (b) in order to maintain employment with the defendant.[4] The plaintiff asserts that it is an implied term of the contract that the defendant will not make changes to the terms and conditions of the plaintiff's employment or give directions that are: (a) not supported by the contract; (b) unlawful.[5] The plaintiff pleads that in breach of the contract, on 12 November 2021, the defendant initiated a process to enforce a direction on the plaintiff that: (a) was not provided for in the employment contract; (b) had no lawful basis (proven in earlier legal proceedings between the parties); (c) demanded compliance under duress.[6]
[4] ASOC, par 8.
[5] ASOC, par 9.
[6] ASOC, par 10.
The plaintiff alleges that the defendant failed to address the breach, by ignoring requests from the plaintiff: (a) for material detail on which they based 'the direction'; (b) for materials required to allay personal safety concerns regarding 'the direction'.[7] The plaintiff pleads that it is an implied term of the contract that the defendant provide accurate and complete information to the plaintiff, concerning any changes to employment terms, or any direction given, so as to: (a) allow her to make informed decisions about the workplace change or any directions given; (b) allow any safety concerns held by the plaintiff to be addressed and allayed satisfactorily regarding workplace change or any directions given.[8] The plaintiff pleads that in breach of contract, the defendant failed to provide the Plaintiff accurate and complete information regarding 'the direction', following her written requests for such information.[9] The plaintiff pleads that in breach of contract, the defendant enacted a term of 'the direction' without lawful authority excluding the plaintiff from her workplace as at 1 January 2022.[10]
[7] ASOC, par 11.
[8] ASOC, par 12.
[9] ASOC, par 13.
[10] ASOC, par 14.
The plaintiff further alleges that in breach of contract, the defendant failed to uphold the fundamental duties of good faith, fairness and transparency, when in relation to 'the direction': (a) the defendant did not provide details of potential penalties for non‑attendance post‑exclusion (31 December 2021); (b) the defendant failed to communicate potential penalties for attending work on 4 January 2022 (her rostered day), as required by the plaintiff's existing contract; (c) the defendant compelled the plaintiff to use her annual leave to avoid potential penalties; (d) the defendant did not establish an appropriate communication channel for the plaintiff to address her concerns, despite Mr Paul Hyman, who issued the direction being absent on leave both before and after the exclusion date.[11]
[11] ASOC, par 15.
The plaintiff alleges that in final breach of the contract, the defendant broke the 'over-arching' common law agreement with the plaintiff by ending the employment contract: (a) without any prior disciplinary process applied or enacted; (b) without any lawful justification existing; (c) without any reliance on, or reference to, behaviours outlined in (clause) 15.3 of the employment contract; (d) without any regard for the binding principles of good faith, fairness and transparency implied in the contractual arrangement.[12]
[12] ASOC, par 16.
The plaintiff claims for the alleged multiple breaches of contract the following by way of 'financial compensatory damages':
(a)Future Wage Loss: The plaintiff asserts that she could have performed her role for at least five years at Liebherr-Australia Pty Ltd, with an annual income before tax of $69,271.33. The indexed wage amount is $378,804.02, but the non‑indexed figure for future loss is $346,356.65. The plaintiff seeks the lesser of the two figures but retains the right to accept a greater amount at the District Court's discretion;
(b)Lost benefits (Annual Leave): $4,806.89, incurred under the threat of immediate ending of contract;
(c)Financial dependency: $10,000; and
(d)Apology: An apology is required in the form of an official statement from the defendant. This is sought for the restoration of the plaintiff's future employment opportunities that have presently been placed in jeopardy and adversely affected by the defendant's behaviour.
Negligence claim
The plaintiff pleads that under 'Australian Common Law' the defendant had a duty of care towards the plaintiff to ensure a safe workplace. The plaintiff pleads that this duty encompassed maintaining a psychologically safe work environment for the plaintiff at all times.[13] The plaintiff alleges that the defendant breached this duty of care by subjecting the plaintiff to a psychologically unsafe workplace between 12 November 2021 and 31 January 2022 due to the defendant's enforcement process of a direction mandating COVID-19 vaccination (the Direction).[14]
[13] ASOC, par 17.
[14] ASOC, par 18.
The plaintiff alleges that the defendant's breaches are characterised by: (a) misuse of authority by citing unverified 'Professional Advice'; (b) repeated threats of workplace exclusion for non‑compliance to the Direction; (c) aggressive tactics creating an imbalanced power dynamic through threats, control and manipulation.[15] The plaintiff pleads that it was foreseeable that these repeated actions of the defendant would cause the plaintiff significant mental harm.[16] The plaintiff pleads that the defendant's alleged actions included: (a) failing to promote transparent communication; (b) neglecting the plaintiff's concerns about the Direction; (c) failing to perform or encourage any ongoing legal appraisal of the defendant's actions; (d) employing a hostile approach to perceived resistance; (e) neglecting to acknowledge the toxic environment created by the Direction; (f) referring the plaintiff to EAP (employee assistance program) with an implication of blame-shifting.[17] The plaintiff alleges that the defendant intentionally stifled challenges to its ongoing enforcement of the Direction by: (a) ignoring requests for material facts supporting the Direction; (b) disregarding requests for safety-related documentation; (c) failing to inform the plaintiff of her workplace status post 31 December 2021. The plaintiff alleges that this isolating behaviour compounded the plaintiff's distress.[18]
[15] ASOC, par 19.
[16] ASOC, par 20.
[17] ASOC, par 21.
[18] ASOC, par 22.
The plaintiff alleges that as a result of the defendant's failure to provide a psychologically safe workplace, the plaintiff suffered severe mental harm causing: (a) stress; (b) anxiety; (c) loss of trust in authority; (d) fear, anger and hopelessness; (e) emotional withdrawal; (f) low self‑esteem and self‑worth; (g) isolation and loneliness; (h) headaches; (i) sleep disturbances; (j) digestive problems.[19]
[19] ASOC, par 23.
The plaintiff claims for negligence as against the defendant for failure to provide a psychologically safe workplace the following:
(a)Aggravated damages: The plaintiff claims $120,000 in aggravated damages. This amount addresses the mental harm resulting from the defendant's alleged failure to provide a psychologically safe workplace, including stress, anxiety, and day-to-day apprehension caused by the defendant's behaviour;
(b)Special damages and general damages: The plaintiff seeks $50,000 in special damages and general damages. This compensation is intended to cover the plaintiff's alleged financial losses and emotional distress experienced due to the unsafe workplace, encompassing out-of-pocket expenses and the impact on the plaintiff's overall well-being; and
(c)Apology: The plaintiff asserts that an apology is required in the form of an official statement from the defendant. This request is made to restore the plaintiff's future employment opportunities, which the plaintiff alleges have presently been placed in jeopardy and adversely affected by the defendant's behaviour. The plaintiff asserts that the apology aims to address the mental harm caused by the defendant's actions.
Negligent misrepresentation
The plaintiff alleges that on 12 November 2021, the defendant made a false statement of fact by declaring that compliance with the COVID‑19 vaccination mandate provisions was mandatory for the plaintiff, based on 'professional advice'. The plaintiff 'unequivocally asserts' that the defendant's statement regarding the COVID‑19 vaccination mandate provisions was patently false, as established in previous legal proceedings.[20]
[20] ASOC, par 24.
The plaintiff asserts that in regard to the 'misrepresentation' the defendant's negligence is evidenced in the making of the alleged false statement as follows: (a) due diligence was not exercised to verify the accuracy of the professional advice; (b) due diligence was not exercised when all occupations within the defendant's operation were falsely considered 'Group 2'; (c) transparency was lacking in failing to provide the plaintiff with details of the 'professional advice'; (d) the defendant was uncompromisingly authoritative, despite the plaintiff relying on this statement for her employment future; (e) the defendant did not acknowledge the gravity of their existing duty of care responsibility which demanded complete accuracy of their statement; (f) the defendant breached their duty of care when making this false statement.[21] The plaintiff alleges that the defendant had a duty of care to provide lawful and accurate directions to the plaintiff in relation to any workplace change they demanded of her. The plaintiff alleges that the defendant showed a complete lack of willingness to do so and that this conduct constituted a breach of the defendant's duty of care responsibilities.[22]
[21] ASOC, par 25.
[22] ASOC, par 25.
The plaintiff pleads that the plaintiff relied on the accuracy of the defendant's statement in understanding that non-compliance would lead to workplace exclusion and suffered harm and damages as a result of this reliance including: (a) severe emotional and psychological distress; (b) job loss leading to significant financial harm.[23] The plaintiff alleges that these harms were foreseeable.[24]
[23] ASOC, pars 26 and 27.
[24] ASOC, par 28.
The plaintiff claims against the defendant for negligent misrepresentation:
(a)Aggravated damages: The plaintiff claims $120,000 in aggravated damages. This amount addresses the mental harm resulting from the defendant's alleged failure to provide a psychologically safe workplace, including stress, anxiety, and day-to-day apprehension caused by the defendant's behaviour;
(b)Special damages and general damages: The plaintiff seeks $50,000 in special damages and general damages. This compensation is intended to cover the plaintiff's alleged financial losses and emotional distress experienced due to the unsafe workplace, encompassing out-of-pocket expenses and the impact on the plaintiff's overall well-being; and
(c)Apology: The plaintiff asserts that an apology is required in the form of an official statement from the defendant. This request is made to restore the plaintiff's future employment opportunities, which the plaintiff alleges have presently been placed in jeopardy and adversely affected by the defendant's behaviour. The plaintiff asserts that the apology aims to address the mental harm caused by the defendant's actions.
At a directions hearing on 27 September 2023, having reviewed the plaintiff's ASOC, the defendant sought the relisting of its Application. The defendant's position is that the plaintiff's ASOC raises no serious question to be tried.
Legal principles
Summary judgment
A defendant may apply for summary judgment pursuant to O 16 of the RSC. The Court of Appeal summarised the legal principles applicable to a defendant's application for summary judgment in Pisano v South Metropolitan Health Service:[25]
[25] Pisano v South Metropolitan Health Service [2023] WASCA 80 [48] - [52].
48Summary judgment is a procedure designed to deal with cases that are not fit for trial.31
49Order 16 r 1(1) RSC allows a defendant to an action to apply to the court for summary judgment. The application may be made without leave at any time up to 21 days after the defendant enters an appearance. Subsequent to 21 days after appearance the application requires leave of the court. The court may order that judgment be entered for the defendant, with or without costs, if satisfied that: (1) the action is frivolous or vexatious; (2) the defendant has a good defence on the merits; or (3) the action should be disposed of summarily.
50In substance, each of those three matters amounts to the same thing - that the plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way.32
51The application is to be made by summons supported by an affidavit or affidavits verifying the facts on which the application is based (O 16 r 1(2) RSC). The plaintiff may show cause against the application by affidavit (O 16 r 2(1) RSC). Unless the court otherwise directs, the parties' affidavits may contain statements of information or belief provided that the sources and grounds for the information or belief are disclosed (O 16 r 1(3) & r 2(1a) RSC).
52The general principles that apply on a defendant's application for summary judgment under O 16 r 1(1) RSC are well-established:
1.The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried.33
2.Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.34
3.At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff.35
4.If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given.36 The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.37
5.Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues.38 Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial.39 But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.40
6.Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.41
7.It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.42
8.On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded.43
(FN31: Three Rivers District Council v Bank of England [No 3] [2001] UKHL 16; [2003] 2 AC 1 (Three Rivers (No 3)) [95])
(FN32: NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [52])
(FN33: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 90 - 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 - 130; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602 - 603, 611 - 612, 619; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55]; Sutton Investments Pty Ltd v Realistic Investment Pty Ltd [2017] WASCA 14 [24]; Zaghoul v Bayly [2021] WASCA 125 [116] - [117])
(FN34: Webster v Lampard (602))
(FN35: Anderson v Effexseven(1998) 10 ANZ Ins Cas 61-424, 74,757)
(FN36: Scaffidi Nominees Pty Ltd v Buswell (Unreported, FCSCWA, Library No 960588, 11 October 1996, 8 (Murray J); Cordinup Resorts v Terana Holdings Pty Ltd(1997) 143 FLR 18, 23 - 24; Anderson v Effexseven(74,757))
(FN37: Wallingford v Mutual Society (1880) 5 App Cas 685, 704)
(FN38: Spencer v The Commonwealth of Australia [25])
(FN39: Webster v Lampard (604), (608), (611), (614))
(FN40: Eng Mee Yong v Letchumanan [1980] AC 331, 341)
(FN41: Spencer v The Commonwealth of Australia [25])
(FN42: General Steel Industries Inc v Commissioner for Railways (NSW) (130))
(FN43: Forsayth NL v Northern Gold NL (Unreported, FCSCWA, Library No 940012, 20 January 1994, 7 (Franklyn J); Anderson v Effexseven(74,757); Roddan v Shore [2001] WASCA 373 [31] - [32]; Zaghoul v Bayly [80] - [82]).
Strike out application
The legal principles applicable to a strike out application are well established and known as set out in Vantage Holdings Group Pty Ltd v Donnelly[No 4],[26] and endorsed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd:[27]
[26] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60].
[27] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56].
The principles relevant to the strike out application are as follows:
(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
(b)a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;
(c)a statement of claim must state specifically the relief or remedy claimed;
(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
(g)in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;
(h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment;
(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and
(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
(citations omitted)
In circumstances, as here, in which an application for summary judgment is combined with an application under O 20 r 19(1) RSC:[28]
… the court is not confined by the manner in which the plaintiff has formulated his case on the pleadings and may consider the undisputed facts as well as the facts which are in dispute.
[28] McJannett v Gibbs [2012] WASC 369 [10]; Bride v Peat Marwick Mitchell [1989] WAR 383, 394.
The evidence relied upon
The defendant's Application is supported by its written submissions filed 16 June 2023 and 6 October 2023 and the affidavit of Andrew Schultz deposed 8 May 2023 (Schultz Affidavit).
The Application is opposed by the plaintiff, Ming-Lan Chiu, who is a self-represented litigant, who relies on her written submissions filed 13 October 2023 and affidavits deposed 22 May 2023 (First Chiu Affidavit), 19 June 2023 (Second Chiu Affidavit) and 13 October 2023 (Third Chiu Affidavit).
The defendant raises and takes issue with the admissibility of the plaintiff's affidavit evidence in the context of this Application. However, in circumstances where the plaintiff is self-represented, the defendant does not press the point but asks that the court treat the content of the affidavits as submissions where appropriate.
The plaintiff did not object to the admissibility of the contents of the defendant's affidavits.
The defendant's position
Andrew Schultz is a managing director of the defendant. Mr Schultz, in his affidavit in support of the Application deposes that in his role, he has access to the records kept by the defendant for use in its business.[29] Mr Schultz says that the plaintiff was previously an employee of the defendant and began working for the defendant on 23 November 2020 and that the plaintiff's employment was terminated on 31 January 2022.[30]
[29] Schultz Affidavit, par 3.
[30] Schultz Affidavit, par 4; Attachment 'AS1'.
The plaintiff lodged an unfair dismissal application with the Fair Work Commission (FWC) on 18 February 2022.[31] On 15 July 2022, Deputy President Beaumont of the FWC issued a decision and orders finding the dismissal of the plaintiff was unfair and awarded compensation of $33,297.47 to the plaintiff (to be taxed according to law) (FWC Decision).[32] Mr Schultz says that he has reviewed the defendant's records and they show that on 19 July 2022, the defendant paid $33,297.47 to the plaintiff (although PAYG tax was withheld in the usual way).[33]
[31] Schultz Affidavit, pars 6 and 7; Attachment 'AS2'.
[32] Schultz Affidavit, pars 8 and 9; Attachments 'AS3' and 'AS4'.
[33] Schultz Affidavit, par 10.
Mr Schultz says that he verily and truly believes that the claims made by the plaintiff in this proceeding relate to the same dismissal which was the subject of the application to the FWC, and ultimately the award of compensation made by Deputy President Beaumont on 15 July 2022.[34] Insofar as the plaintiff's claim relates to mental harm the plaintiff claims to have suffered in the course of her employment and its termination, Mr Schultz says that without admitting that the plaintiff has suffered such harm or is entitled to pursue a claim in respect of it, the defendant has no record of the plaintiff making an election under s 93K(4)(a) of the Workers' Compensation and Injury Management Act 1981 (WA).[35]
[34] Schultz Affidavit, par 11.
[35] Schultz Affidavit, par 12.
The defendant submits that by her ASOC, the plaintiff now makes her claim based on three causes of action: two of which are substantially the same as claims made in her original statement of claim, and one claim which is new, being a claim for 'negligent misrepresentation'. The defendant's position is that the plaintiff maintains claims for breach of contract and negligence. The defendant submits that in her ASOC the plaintiff has refined these claims and added further detail, but states that they suffer from similar deficiencies as the equivalent claims in the plaintiff's original statement of claim.
Breach of contract claim
The defendant submits that none of the categories of implied terms alleged by the plaintiff at ASOC pars 9, 10 and 12 have been previously recognised as terms implied in law in an employment context. The defendant's position is that the only implied term in law as to directions applies to an employee and requires an employee to comply with an employer's lawful and reasonable directions.[36] The defendant submits that in the plaintiff's contract, this was an express term in any event.[37] The defendant's position is that generally there is no obligation on an employer to advise an employee as to their legal rights[38] and that it was in effect, open to the plaintiff not to obey a direction that is unlawful and/or unreasonable.
[36] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 621.
[37] Clauses 2.1, 17.
[38] Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170, 210; Brewer v AAL Aviation Ltd [2016] FCA 93 [137] - [143].
Further, the defendant submits that to establish that the alleged terms were implied in fact, the plaintiff must prove that:[39]
(a)the term must be reasonable and equitable;
(b)the term must be necessary to give business efficacy to the contract;
(c)the term must be obvious;
(d)the term must be capable of clear expression; and
(e)the term must not contradict any express term of the contract.
[39] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 282 - 283.
The defendant submits that the implied terms alleged by the plaintiff do not satisfy those criteria. Further, the defendant submits that even if the plaintiff was able to establish those alleged terms, the plaintiff must then establish breach (which is doubtful) and recoverable loss and damage (which is bound to fail) in circumstances where the plaintiff seeks contractual damages including 'future wage loss' for 'at least 5 years'. In support of this view, the defendant relies on the finding by the FWC in Chiu v Liebherr-Australia Pty Ltd.[40]
[40] Chiu v Liebherr-Australia Pty Ltd [2022] FWC 1842 [61] - [65], [77], and summary table at [83].
It is the defendant's position that as the FWC found, on the evidence before it, that the plaintiff would have worked for 12 further months, and her compensation should be reduced by half due to a failure to mitigate her damages,[41] which resulted in her being awarded the equivalent of six months' pay in compensation, the plaintiff will have difficulty departing from those findings in these proceedings.
[41] Chiu v Liebherr-Australia Pty Ltd [61] - [65], [77], and summary table at [83].
The defendant submits that the plaintiff has already received the entirety of the compensation to which she was found to have been entitled. The plaintiff should not now be allowed to mount a collateral challenge to those findings by seeking lost income for a further period or in a further amount.
Claim in negligence
The defendant submits that the plaintiff's claim in negligence falls short given that the plaintiff claims for damages for psychological harm arising from the process or manner of her dismissal. On the defendant's submission, such a claim has no reasonable prospect of succeeding because it has been consistently held that there is no duty to take care to prevent mental harm in the course of a disciplinary or termination process.[42]
Claim in negligent misrepresentation
[42] See eg State of New South Wales v Paige [2002] NSWCA 235 [132] - [155], [182]; Dafallah v Fair Work Commission [2014] FCA 328 [134] - [136].
The defendant submits that the plaintiff's claim labelled 'negligent misrepresentation' relates to the provision of purportedly inaccurate/misleading information or advice is to be contrasted with a claim of a misrepresentation between contractual parties that induced the recipient of the misrepresentation to enter into the contract. On the defendant's submission, the claim is anchored in the former circumstance when one has regard to the timing of the plaintiff's alleged misrepresentation (ie after the formation of the contract of employment as between the plaintiff and the defendant).
The defendant submits that the plaintiff relevantly asserts that she sought 'material detail on which [the defendant] based "the direction"', which the defendant failed to provide (ASOC, par 11). Further, the plaintiff sought 'detail' of 'any material facts relied upon in deciding to enforce "the direction"', which the defendant failed to provide (ASOC, par 13).
The plaintiff's claim relating to the purported negligent misrepresentation is set out at pars 24 - 28 of the ASOC. The defendant submits that the claim advanced by the plaintiff may be construed as effectively asserting that the mere provision of incorrect information is enough to make out a claim of negligent misstatement. The defendant submits that it is not enough that an incorrect statement is made; the plaintiff must establish reliance on the statement and some causal link between the statement and their loss.
Further, the defendant submits that even if the defendant did have a duty to take due care when providing information to employees about vaccine requirements, it is apparent that the plaintiff did not accept the statements made and did not act in reliance on them.
The plaintiff's position
The plaintiff relies on her written submissions filed 13 October 2023 and the First Chiu Affidavit, Second Chiu Affidavit and Third Chiu Affidavit.
I propose to summarise the plaintiff's evidence only insofar as it differs from the matters pleaded in the ASOC.
Breach of contract claim
The plaintiff says that she was previously an employee of the defendant and was a store-person under the Storage Services and Wholesale Award 2020.[43] The plaintiff says that she was not required to comply with the State Government of Western Australia's mandatory COVID‑19 vaccination policy and asserts that she was wrongfully dismissed by the defendant.[44] The plaintiff was successful in an unfair dismissal claim against the defendant with orders made pursuant to s 394 of the Fair Work Act 2009 (Cth) (Order).[45] The plaintiff says that the Order was only in respect of the act of termination itself, judging it was 'unfair'.[46]
[43] First Chiu Affidavit, par 1; Attachment A.
[44] First Chiu Affidavit, pars 2 and 3; Attachments B and C.
[45] First Chiu Affidavit, par 4; Attachment D.
[46] First Chiu Affidavit, par 5; Second Chiu Affidavit, pars 11, 15, 17, 21 and 23.
The plaintiff says that a separate common law claim is justified to seek the compensation owing to her for the extensive harm suffered as a consequence of the defendant's behaviour. The plaintiff says that such harm has not been considered by the FWC where in the unfair dismissal claim decision, the focus was solely on the fairness of the termination itself as is clearly stated in s 392(4) of the Fair Work Act.[47]
[47] First Chiu Affidavit, par 10; Attachment F.
The plaintiff says that the defendant, as the plaintiff's (then) employer, owed the plaintiff a duty of care to ensure the plaintiff's safety and well-being in the workplace. The plaintiff says that the defendant's failures in this regard resulted in the plaintiff (allegedly) being subject to unnecessary and severe harm which included victimisation, bullying, repeated threats, isolation, obstruction and complete misrepresentation by management.[48] The plaintiff says that she claims for psychological harm arising between 12 November 2021 to 25 January 2022 prior to any disciplinary/dismissal period and that she does not in any way seek to claim for 'the process or manner of her dismissal' which the plaintiff says was a clearly defined period from 25 January 2022 to 31 January 2022 only.[49]
[48] First Chiu Affidavit, par 11.
[49] Third Chiu Affidavit, par 18.
The plaintiff says that (a claim in) workers' compensation is not an appropriate avenue for this claim, and the plaintiff reserves her right to seek damages under common law against the defendant.[50] In respect of the plaintiff's claim for negligent misstatement, the plaintiff says that she relied on the defendant's 'false information' or advice when considering the directive associated with the workplace change and used it to inform her decision on how to respond to the proposal of workplace change.[51] The plaintiff says that she did rely on the defendant's false information or advice when considering the directive associated with the workplace change as a consequence of which the plaintiff says she suffered mental harm and lost her job.[52] The plaintiff says that this establishes a direct causal link between provision of the false information or advice and the detrimental action taken by the plaintiff.[53]
[50] First Chiu Affidavit, par 13.
[51] Third Chiu Affidavit, pars 21 and 22.
[52] Third Chiu Affidavit, par 27.
[53] Third Chiu Affidavit, par 28.
The plaintiff says that the cause of action in the present matter remains unresolved and relates specifically to the defendant attempting to enforce a medical intervention unlawfully on the plaintiff.[54] The plaintiff does say that the defendant's conduct amounts to 'potential criminal behaviour'.[55]
[54] Second Chiu Affidavit, par 6.
[55] Second Chiu Affidavit, par 32, amongst others.
The plaintiff otherwise submits that the implied terms of contract referred to in the ASOC satisfy all criteria to have the court recognise them as such. In this regard, the plaintiff submits that it was a reasonable and equitable implied term that the defendant would not make changes to the terms and conditions of the plaintiff's employment. Further, that an implied term can be seen as necessary for the business efficacy of the contract. The plaintiff otherwise asserts that the implied term is obvious, capable of clear expression and non‑contradictory. The plaintiff adopts a similar approach in respect of the plaintiff's assertion that it was an implied term that the defendant would not give directions that are not supported by the contract and/or are unlawful.
The plaintiff submits that the findings of Deputy President Beaumont were not those of a judge and minimised by the 'extremely narrow terms of reference' of the FWC. The plaintiff does not engage on the defendant's submission that the present proceedings amount to an abuse of process in light of the findings of the Deputy President. The plaintiff's position remains that she has not recovered her full damages for the loss and harm caused by the defendant's alleged breach of contract and maintains her right to pursue common law proceedings against the defendant.
Claim in negligence
The plaintiff maintains that the defendant had a common law duty to ensure a safe workplace and asserts that the defendant failed in their duty to provide a psychologically safe workplace. The plaintiff relies on the matters pleaded in the ASOC and seeks to distinguish her present claim in negligence for damages asserting that the claim relates only to the enforcement process as opposed to a claim for damages 'arising from the process or manner of her dismissal'. The plaintiff's submission being that she was forced to endure an unsafe workplace environment created by the Enforcement Process for a period of 74 days, amounting to 17% of her full tenure period prior to the plaintiff being finally subject to 'semblance' of a disciplinary/dismissal process. The plaintiff submits that she understands 'fully well that damages cannot be sought for any psychological harm arising from the process of unfair dismissal'.
Claim in negligent misrepresentation
The plaintiff rejects the defendant's submissions that the claim for negligent misrepresentation is in fact a claim for negligent misstatement. The plaintiff asserts that the defendant's intent was to induce the plaintiff to accept a workplace change by providing false information or advice and that the resulting harm and job loss due to the plaintiff's reliance on the false information or advice are key factors in support of the plaintiff's claim of negligent misrepresentation. Further, the plaintiff rejects any argument made by the defendant that she did not 'rely on the advice' because 'she did not accept the statements'. The plaintiff's submission is that she relied on the purported 'authority of the false information or advice to make an informed decision regarding the workplace change'. In the context of her negligent misrepresentation claim, the plaintiff asserts that the purported false information or advice played a significant role in informing her actions and decisions concerning the workplace change and that this advice contributed to the plaintiff's decision-making process and influenced her actions.
The plaintiff's position is that she accepted the authority of the defendant's statement at the time.
Strike out application - disposition
By the ASOC the plaintiff seeks compensation, damages and an apology in respect of matters arising out of the defendant's actions in directing the plaintiff to comply with the Direction (being the Western Australian State Government's mandatory COVID‑19 vaccination requirements). As to whether the plaintiff seeks both compensation and damages in addition to the other claimed remedies is not immediately clear although a reading of the ASOC does suggest this. The plaintiff, in the ASOC relevantly claims as follows:
(a)plaintiff's total compensation sought: $750,000;
(b)breach of contract, negligence and negligent misrepresentation: The plaintiff seeks compensation in the amount of $741,163.54 for damages arising from breach of contract, negligence and negligent misrepresentation;
(c)costs: the plaintiff seeks reimbursement for legal costs incurred;
(d)such other orders as this honourable court deems fit: The plaintiff requests any other remedies or orders that the court deems appropriate; and
(e)apology order: the plaintiff also requests an apology order as part of the relief sought.
The plaintiff, who is self-represented, has already been afforded the opportunity to produce a statement of claim which meets the essential functions of a pleading and specifically state the relief or remedy claimed that sits within the jurisdiction of this court.
In the present matter, the ASOC continues to suffer from the same limitations of its predecessor as it pleads allegations at too high a level of generality and fails to sufficiently inform the defendant what it must meet with clarity. By way of example, no facts are pleaded which lead to the conclusion that the defendant acted in breach of contract in requiring the plaintiff to comply with the Direction and the plaintiff's argument in this regard was difficult to understand.
However, having had regard to the FWC Decision and the plaintiff's submission and evidence that the plaintiff's cause of action does not arise out of the unfair dismissal of the plaintiff but rather matters such as the defendant purportedly attempting to enforce a medical intervention unlawfully on the plaintiff in breach of the implied terms of the contract, I am mindful that the mere fact that a case appears weak is not of itself sufficient to strike out the action. Adopting that approach, a similar view can be taken in respect of the plaintiff's position that her claim in negligence against the defendant is on the basis of an alleged breach on the part of the defendant to ensure a safe workplace. The plaintiff's evidence is clear that in pursuing such a claim, the plaintiff does not seek damages for any psychological harm arising from the process of unfair dismissal. In so doing, the plaintiff distinguishes her claim in negligence from the unfair dismissal proceedings before the FWC. As to the plaintiff's claim for negligent misrepresentation, the plaintiff asserts that she relied on the purported false information or advice provided to her by the defendant in respect of the Direction and seeks damages arising out of this.
This does not cure the fact that the pleadings in their present form remain ambiguous or not reasonably intelligible and continue to raise immaterial or irrelevant issues. The matters pleaded in the ASOC have not been done with any degree of particularity and raise a case against the defendant in terms which are simply too general. Further, the ASOC contains irrelevant or unnecessary pleas by the plaintiff that appear by way of assertion and opinion which have no place in pleadings. The combined effect resulting in a pleading that is liable to be struck out on the basis that it will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
The ASOC the subject of the Application is some 13 pages long and much of the information set out in the ASOC has no proper place in a pleading as it is full of irrelevancies and it fails to focus on the real issues in this case. Simply put, the ASOC is of a quality that a defendant should not have to grapple with. This in itself warrants the ASOC being struck out when one has regard to the legal principles as set out in Vantage Holdings Group Pty Ltd v Donnelly [No 4].
For these reasons I consider that it is appropriate to strike out the whole of the ASOC. However, I propose to give the plaintiff leave to amend if sought.
Summary judgment - disposition
The relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. The onus is on the defendant to establish that there is no real question to be tried on any cause of action raised by the plaintiff.
The defendant has provided detailed submissions in respect of the difficulties with the plaintiff's ASOC and the relief claimed. In respect of the specific claims, the defendant submits that it is not clear from the pleading, what the contract is, what the contractual term is that has been said to be breached, how it has been breached and the loss that flows. There also seems to be reliance placed on policies of the defendant and the defendant submits that there is no pleading that pleads that the policies are to be incorporated into the contract and how.
The defendant further submits that insofar as the plaintiff is seeking damages for distress, injured feelings, or loss of reputation as a result of the dismissal, it is settled law that such damages are not available for a breach of contract claim of this nature. The defendant submits that to the extent such a claim is made, it should be struck out as failing to disclose a reasonable cause of action in light of those authorities or be summarily dismissed. The defendant further submits that the matters the subject of the plaintiff's claim before this court have already been the subject of a determination in the FWC in which the plaintiff was successful, and received compensation. The quantum of the compensation is the subject of the findings of Deputy President Beaumont. The defendant here points to and relies on the findings of Deputy President Beaumont attached to the Schultz Affidavit as 'AS3'.
In pressing for summary judgment therefore, the defendant submits that the plaintiff has already received the entirety of the compensation to which she was found to have been entitled. The plaintiff should not now be allowed to mount a collateral challenge to those findings by seeking lost income for a further period or in a further amount in respect of the breach of contract claim.
Whilst in my view, there are significant difficulties with understanding the basis of the plaintiff's claims as they presently stand, I am unable to find them inherently incredible on the basis of the available evidence. In so doing, I am not expressing any concluded view on the merits of the plaintiff's causes of action.
That is, there is a possibility that the plaintiff will be able to produce further evidence to support the claims made in the ASOC. There is also the possibility that the plaintiff will be able to adduce further evidence as to defendant's alleged failure on the part of the defendant to meet the duty of care owed to the plaintiff to ensure the plaintiff's safety and well‑being in the workplace.
In those circumstances, I do not consider it appropriate to grant summary judgment.
Conclusion
The whole point of a pleading is to allow a defendant to understand the case it has to meet. The plaintiff must plead material facts which, if established, would lead to the grant of certain relief.
In relation to an application to strike out a pleading, as a general rule a plaintiff is entitled, as of right, to have their case heard, and it is only in cases where, from the outset, however the facts are found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck.
For the above reasons, I consider that it is appropriate to strike out the whole of the ASOC and propose to give the plaintiff leave to further amend if sought. Costs should follow the event.
Orders
1.The Amended Statement of Claim filed by the plaintiff on 13 September 2023 be struck out in its entirety.
2.The application for summary judgment is dismissed.
3.The plaintiff pay the defendant's costs of the Application, such costs to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
1 FEBRUARY 2024
22
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