CROWDEN v Commissioner for Public Employment (No.2)

[2019] FCCA 2172

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROWDEN v COMMISSIONER FOR PUBLIC EMPLOYMENT (No.2) [2019] FCCA 2172

Catchwords:
PRACTICE AND PROCEDURE – Leave to amend form 2.

Legislation:

Fair Work Act 2009 (Cth), s.342(1)

Applicant: DAVID CROWDEN

Respondent: COMMISSIONER OF PUBLIC EMPLOYMENT

File Number: BRG 1089 of 2018

Judgment of: Judge Jarrett

Hearing date: 1 July 2019

Date of Last Submission: 1 July 2019

Delivered at: Brisbane

Delivered on: 5 July 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ward Keller

ORDERS

1. The applicant have leave to file and serve an amended statement of claim by 4:00pm on 26 July, 2019 in the form attached to his affidavit filed 1 July, 2019 save for paragraphs 7, 10, 14, 15, 18, 32, 35, 46, 48 to 50, 56 to 58, 64, 69, 70, 73 and 74, which shall be deleted.

2. The respondent file and serve a defence and any other documents required by the Federal Circuit Court Rules 2001 (Cth) by 4:00pm on 30 August, 2019.

3. Otherwise, the balance of the application in a case filed 1 July, 2019 be dismissed.

4. The application is adjourned to 9 September, 2019 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1089 of 2018

DAVID CROWDEN

Applicant

And

COMMISSIONER OF PUBLIC EMPLOYMENT

Respondent

REASONS FOR JUDGMENT

1. These are my reasons in respect of an application in a case filed by the applicant on 1 July, 2019 in which he seeks leave to file an amended part G (which in these reasons I will refer to as an amended statement of claim) to his form 2 and some other orders.  In relation to the amended statement of claim, it appears as an annexure to his affidavit filed in support of the application on 1 July, 2019.  The respondent objects to leave to deliver the amended statement of claim.

2. The most convenient way to deal with the matter is to go through the amended statement of claim seriatim and determine the fate of the relevant paragraphs.  The objections to leave being given to deliver the statement of claim cover two general areas.  Some were of substance, others were of form.  I will deal with them as I go through the amended statement of claim.

3. There were some complaints made about paragraph 1, and in particular paragraphs 1(a) and (b).  They are minor matters that go to some background.  Arguably they are not relevant, but they may be relevant to questions of the assessment of compensation if the case comes to that.  But there is nothing of substance in those complaints and paragraphs 1 and paragraph 2 in their proposed form can remain.

4. Paragraphs 3 and paragraph 4 can remain. 

5. There was a complaint about paragraph 5 in a number of respects and the complaints are well-made.  Paragraph 5 is a central allegation to the applicant’s case.  The allegation is that he made complaints about being bullied in the course of his employment with the respondent.  Paragraph 5 is, as far as I can tell, the only allegation in the statement of claim that deals with the particulars of the bullying complaints and the allegations are not themselves well-particularised.

6. The material fact alleged in paragraph 5 is one which is material to this cause of action, that is to say it is not irrelevant, but its lack of particularity means that it is liable to suffer being struck out if it is not better particularised.  I intend to grant leave to deliver an amended statement of claim that includes paragraph 5, but it will need to be more properly and fully particularised.

7. Paragraph 6 can remain. 

8. Paragraph 7 is irrelevant and it ought to be deleted from any amended statement of claim.  It adds nothing. 

9. Paragraphs 8 and 9 can remain.  I will deal with paragraph 10 later in these reasons. 

10. Paragraph 10(f) ought to be renumbered as its own paragraph.  It seems to me that there was a formatting error there.  When one reads paragraph 10 in its entirety, it is clear that the allegations in (f) and (g) stand alone and are not, in truth, particulars of paragraph 10.  So they both need to be renumbered.

11. Paragraph 11 can remain. 

12. Paragraph 12 suffers from the particulars problem that paragraph 5 suffers from.  It will need to be further particularised if it is to withstand an application for particulars when the amended statement of claim is delivered. 

13. Paragraph 13 can remain. 

14. Paragraphs 14 and 15 are irrelevant and they ought be deleted from any amended statement of claim.

15. Paragraphs 16 through to paragraph 32, save for paragraph 18, can all remain.  There are some paragraphs there that could stand further particularity, but the approach I have taken is to permit the delivery of an amended statement of claim, remind the applicant that the allegations ought to be properly particularised, which would include the provision of dates upon which emails were sent or conversations were had, and the words or the effect of the words that were used in any communications.  But whether the amended statement of claim is fully particularised in the form in which it is delivered will be a matter for argument some other time.

16. Paragraph 31 can remain.  

17. Paragraph 32, however, is irrelevant and ought not form any part of an amended statement of claim, as is paragraph 35. 

18. Paragraphs 33 and 34 can remain. 

19. Paragraphs 36 and 37 suffer from the particulars problem again and that will need to be addressed in the amended statement of claim.

20. Paragraphs 38 through to paragraph 45 can all remain.  They are unremarkable. 

21. Paragraph 46, though, should not be included in any amended statement of claim.  That is for reasons that I will discuss shortly when I get to some subsequent paragraphs in the statement of claim.  The conduct alleged in that paragraph came after the employer/employee relationship between the parties ended.

22. Paragraph 47 can remain, but it suffers from the particulars problem.  The particulars will define the legitimacy of the plea in paragraph 47.  As it is presently intended to be framed, it covers a period of April and May, 2018.  It alleges that certain information or directions were given to the principals of Shepherdson College.  Just when those directions were, in fact, given to the principals of Shepherdson College will be important for reasons that I will discuss shortly.  If they were given after the employer/employee relationship between the applicant and the respondent ceased, the plea in paragraph 47 will be irrelevant.

23. The allegations in paragraphs 48, 49 and 50 are all irrelevant and ought to be struck out.  They too are not appropriate for reasons to which I will come shortly.

24. Paragraphs 51, 52, 53, 54 and 55 can all remain. 

25. Paragraphs 56, 57 and 58 should all be struck out and not be permitted to be included in any amended statement of claim for the following reasons.  Paragraph 56 refers to the “20 October terms”, and paragraphs 57 and 58 refer to the “24 October terms”.  Both of those phrases are defined in earlier paragraphs in the pleading, or the proposed pleading.  The phrase “the 20 October terms” is defined in paragraph 10(e) and the phrase “the 24 October terms” is defined in paragraph 18(e).  Both definitions suffer from the same difficulty.  In paragraph 10, it is said that on 20 October in a conversation with a person called English, certain things were said.  There were suggestions made to the applicant, he says, and the suggestions if taken up and acted upon by him would have brought about the end of his employment.  The same characterisation can be applied to the pleas in paragraph 18 and its subparagraphs which culminate in paragraph 18(e).

26. The difficulty with those two paragraphs is that to demonstrate a case of adverse action, the applicant needs to show that the employer took action for the purposes of s.342(1) of the Fair Work Act 2009 (Cth) and that requires either a dismissal of the employee, an injury of the employee in his or her employment, an alteration of the position of the employee to the employee’s prejudice, or discrimination between the employee and the other employees of the employer. What is proposed by paragraphs 10 and 18 is that there was some offer – I will call it an offer – made to the applicant that would bring his employment to an end by agreement between the applicant and the respondent. But there is no suggestion that he accepted the offers or that any other action was taken apart from the making of those offers. The making of the offers with nothing more is not, and cannot be adverse action of the purposes of s.342(1) of the Act as pleaded in paragraphs 56, 57 and 58 of the amended statement of claim.

27. There are some other allegations about the actions taken by the respondent against the applicant which he characterises as adverse action. But according to the pleading, they were taken for reasons other than the making of these particular offers to bring his employment to an end and the applicant’s refusal to accept them. The point is that whilst Ms English on both occasions said some things to the applicant, none of those things in terms of bringing the applicant’s employment to an end were acted upon. That is to say, at the very best, they might be seen as some sort of promise or inducement for the applicant to act in a certain way. In my view, that is inapt to come within s.342(1) of the Fair Work Act, and so paragraphs 56, 57 and 58 ought not be included in the amended statement of claim in their current form.

28. That then, of course, calls into question the value of paragraphs 10 and paragraph 18 of the pleading.  And it seems to me that as a result of my ruling in respect of the matters in paragraphs 56, 57 and 58, paragraph 10 and paragraph 18 no longer add anything to the pleading, and so they ought, too, be removed from any amended statement of claim that is delivered.

29. Paragraphs 59, 60, 61, 62 and 63 can remain. 

30. Paragraph 64 should be removed because, at least as far as I can tell, it seems to be nothing more than a duplicate of paragraph 63. It adds nothing.

31. Paragraphs 65, 66, 67 and 68 can remain. 

32. Paragraphs 69 and 70 should be deleted. There is no leave to deliver a statement of claim with those paragraphs in it. They relate to the third TRB notification as defined in the pleading. That is a notification which took place on 21 May. Assuming for the purposes of this argument that the notification injured the applicant in his employment with whomever it was that he was employed at that time, it is nonetheless not actionable under the Fair Work Act because it was not adverse action taken by an employer against an employee. The relationship of employer and employee between the applicant and the respondent ceased to exist on 15 May and the offending conduct took place after that date. So paragraphs 69 and 70 can be taken out.

33. Paragraphs 71 and 72 can remain, but their fate hinges on the particulars that might be provided in respect of what is defined to be “the referee directions”. 

34. Paragraphs 73 and 74 should be removed.  They relate to “the Moama Grammar comments”.  For the same reasons that paragraphs 69 and 70 do not survive, neither do those allegations.  They relate to matters that occurred after the relationship between the applicant and respondent as employee and employer ceased to exist. 

35. Paragraphs 75, 76, 77 can all remain.

36. So there will be leave to deliver a statement of claim in the form attached to the applicant’s affidavit filed on 1 July, 2019 without those paragraphs to which I have referred in it, and in a form which properly particularises the balance of the allegations that require particularisation.

37. If there are to be any arguments about particulars, those arguments will be, in my view, insufficient to delay the delivery of a defence to the amended statement of claim because pleadings deal with material facts, not particulars, and there is ample authority for the proposition that a pleading can be responded to notwithstanding a lack of particularity.  Particulars can be requested and supplied in due course.  And if the material facts cannot be supported by appropriate particulars and the Court comes to that conclusion, then there is, of course, relief available under the Rules.

    RECORDED   :   NOT TRANSCRIBED

38. The balance of the application in a case will be dismissed.  The orders sought are not orders that I can make, even if I thought it appropriate to make them.  The question of disclosure, which I think is what order 2 is directed towards, can await the close of pleadings.  And the request for costs is misplaced and is also something that will be dealt with at the conclusion of the application as a whole.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  7 August 2019