Demarest v Bupa Hi Holdings Pty Ltd
[2025] FedCFamC2G 338
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Demarest v Bupa Hi Holdings Pty Ltd [2025] FedCFamC2G 338
File number: MLG 2560 of 2024 Judgment of: JUDGE BLAKE Date of judgment: 14 March 2025 Catchwords: INDUSTRIAL LAW – Adverse action – application to strike out statement of claim – where statement of claim clearly deficient – orders made to strike out statement of claim and permit the Applicant to replead, or set out her claims in an alternative form. Legislation: Fair Work Act 2009 (Cth) ss 340(1), 340(2), 342, 345, 351
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) r 1.06(2)
Federal Court Rules 2011 (Cth) rr 16.02, 16.02(1)(a), 16.02(1)(d), 16.21
Cases cited: Alam v National Australia Bank (2021) 310 IR 71
Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Dare v Pulham (1982) 148 CLR 658 at 664
Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206
Hamod v New South Wales [2011] NSWCA 375
Sabapathy v Jetstar Airways (2021) 283 FCR 348
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 27 February 2025 Place: Melbourne Advocate for the Applicant: In Person Counsel for the Respondent: Ms Preston Solicitor for the Respondent: Gadens ORDERS
MLG 2560 of 2024 BETWEEN: HALANA DEMAREST
Applicant
AND: BUPA HI HOLDINGS PTY LTD
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The Statement of Claim filed 7 October 2024 and the Particulars filed 12 November 2024 be struck out.
2.Within 30 days of the date of these Orders, the Applicant file and serve either:
(a)an Amended Statement of Claim; or
(b)a document setting out her claims in the form of a table, with the table to have the following column headings: Column 1: Description of the conduct complained of i.e. the “adverse action” (who, what, when, where)-address each adverse action separately. Column 2: How the conduct is said to amount to “adverse action” under s 342. Column 3: What do you say was/were the “prohibited reasons” for the alleged adverse action.
3.Within 60 days of the date of these Orders, the Respondent file either:
(a)a Defence; or
(b)a document in response to the document filed by the Applicant in accordance with
Order 1Order 2 above.
4.The matter be listed to 27 May 2025 at 10:00 am for Directions Hearing before Judge Riley at the Federal Circuit and Family Court of Australia in Melbourne.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2) of the Federal Circuit and Family Court Rules (Division 2) (General Federal Law) Rules 2021 on 14 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
The Respondent seeks orders that the Applicant’s Statement of Claim dated 4 October 2024 and particulars to the Statement of Claim filed 12 November 2024 (collectively, the ‘SOC’) be struck out, with a right given to the Applicant to replead. The Applicant is unrepresented.
For the reasons that follow, I have decided that the SOC should be struck out in its entirety and that the Applicant be given permission to file, inter alia, an Amended Statement of Claim.
BACKGROUND
The Applicant is currently employed by the Respondent in the position of Head of Security Attack Surface Management. The position attracts an annual remuneration of $238,702 plus superannuation and the potential to earn bonuses. The Applicant is not presently working on the grounds of incapacity. She is in receipt of WorkCover payments of approximately $2,800 per week.
The Applicant commenced these proceedings by filing an Application in the Fair Work Division of this Court. The Applicant completed the ‘Form 4 Claim under the Fair Work Act 2009 alleging contravention of a general protection’ (‘Form 4’). The Form 4 was accompanied by an affidavit of the Applicant. The Applicant was entitled to commence the proceedings in this way: see rules 4.01 and 4.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘Rules’).
Within the Form 4, the Applicant contended that the Respondent had taken adverse action against her in contravention of the Fair Work Act 2009 (Cth) (‘Act’).
On 28 August 2024, the Respondent’s lawyers wrote to the Applicant. In that correspondence, the Respondent identified what it said were various deficiencies in the Applicant’s attempts to articulate her claims. The Respondent invited the Applicant to help it understand the claims made by completing a table that was attached to the correspondence. That table had three columns as follows. Column 1 was entitled ‘Description of the conduct complained of i.e. the “adverse action” (who, what, when, where)-address each adverse action separately’. Column 2 was entitled ‘How the conduct is said to amount to “adverse action” under s 342’. Column 3 was entitled ‘What do you say was/were the “prohibited reasons” for the alleged adverse action’ (‘Table’).
The Applicant responded to the correspondence above on 29 August 2024. In that email, she indicated that she fully understood what was being asked, and that ‘It makes logical sense to request what you have requested and to propose what you have proposed’. The Applicant stated, however, that ‘due to the extent of my injuries, I am unable to trust your guidance. I must put faith into the legal system, even if it instructs the same as yourself’.
Following the events above, on 10 September 2024, a Registrar of this Court made orders, inter alia, that the Applicant file and serve a Statement of Claim by 8 October 2024. The Applicant subsequently filed a Statement of Claim on 7 October 2024.
On 24 October 2024, the lawyers for the Respondent wrote again to the Applicant. In that correspondence, the Respondent set out the rules of pleadings and identified issues with the Statement of Claim. The Respondent invited the Applicant to once again complete the Table. No response was received from the Applicant.
On 29 October 2024, a Registrar of this Court made further orders. Those orders included that the Applicant file and serve particulars of loss and damage by 12 November 2024, and that the Respondent file and serve a Defence by 3 December 2024. The Applicant filed particulars on 12 November 2024. The Respondent never filed a Defence. Instead, the Respondent brought the application that is presently before the Court.
PRINCIPLES
An overarching purpose of this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’).
The Rules do not contain rules relating to pleadings. Rule 1.06(2) of the Rules, however, provides that if the rules are insufficient, the Court may apply the rules from the Federal Court of Australia. Part 16 of the Federal Court Rules 2011 (Cth) (‘FCA Rules’) deals with pleadings. Given the Rules do not contain pleading rules, it is appropriate to apply the FCA Rules relating to pleadings. Relevantly for the purposes of the present matter, rule 16.02 of the FCA Rules deals with the content of the pleadings. It provides, among other things, that a pleading must be divided into consecutively numbered paragraphs, each as far as practicable dealing with a separate matter (subrule 16.02(1)(a)). Further, rule 16.02 (1)(d) of the FCA Rules provides that a pleading must state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved. Rule 16.21 of the FCA Rules relevantly provides that a pleading may be struck out on the basis that it is evasive or ambiguous, or is likely to cause prejudice, embarrassment or delay in the proceeding, or if a pleading fails to disclose a reasonable cause of action or defence.
In Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206 (‘Gunawardena’), Wheelahan J at [8] and [9] stated:
The rules of pleading are calculated to avoid trial by ambush, and to promote the precise identification of the issues that are before the court: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). Therefore, in any proceeding the purposes of pleadings include enabling the opposing party to have fair notice of the case that must be met at trial, and enabling the Court to know what issues are to be determined.
The identification of issues is necessary not only for a fair trial and ultimate determination of the claims, but also for the purposes of ruling on any applications for discovery, and the admissibility of evidence: see Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 (Banque Commerciale) at 286 (Mason CJ and Gaudron J).
The importance of compliance with the rules of pleadings has force in a proceeding for the recovery of a pecuniary penalty: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63].
In applying these principles, it is important to bear in mind that the Applicant is unrepresented. An applicant needs to be afforded a reasonable opportunity to put their case and should not be placed at a disadvantage in terms of the Court’s practice and procedure because they are self-represented: Gunawardena at [5]. The Applicant in the present matter is highly educated, has put a lot of work into the document she has filed in the Court, and the case is evidently important to her. The Court must, however, ensure a fair trial for all parties involved: Hamod v New South Wales [2011] NSWCA 375 at [309]-[310]. Moreover, while provision might be made for some level of informality in every case, in cases where civil penalties are sought and an order has been made for the case to proceed by pleadings, the rules of pleadings should be applied: Sabapathy v Jetstar Airways (2021) 283 FCR 348.
THE STATEMENT OF CLAIM AND THE PARTICULARS OF LOSS
A cursory review of the Statement of Claim reveals the following.
The Statement of Claim is six pages in length. It is not divided into paragraphs that are consecutively numbered, though on one view, that is the least of the issues that confront the Applicant.
The Statement of Claim does not set out all of the allegations or claims. In paragraph A1, the Applicant leaves open the possibility of pursuing other claims when she states that what is contained within the Statement of Claim does not preclude the claims she could pursue. She also appears to reference or rely on (within the Statement of Claim) aspects of her affidavit (see paragraph A2 and also the second unnumbered paragraph in part D of the Statement of Claim). The Statement of Claim is therefore not self-contained. Nor does it appear that the Statement of Claim deals with all of the issues that may arise or be pressed in the proceeding by the Applicant. Plainly, on this issue alone, the Statement of Claim does not afford the Respondent procedural fairness, because the Respondent does not know all of the claims it needs to meet at trial.
Within the Statement of Claim, the Applicant appears to raise claims that she has been subject to adverse action in contravention of various provisions of the Act. The Applicant refers expressly to sections 340(1), 340(2), 342, 345 and 351 of the Act. The material facts giving rise to the adverse action are not pleaded. For example, the Applicant states at paragraph D1(b) that one adverse action was ‘altering my position to my prejudice by reducing the security of my employment by significantly increasing my workload whilst providing a lack of support’. At paragraph D1(d), the Applicant pleads the adverse action was ‘altering my position to my prejudice by affecting the Position Alteration thereby making my ongoing employment less certain ’. The Statement Of Claim is replete with conclusory statements such as these that fail to identify the action taken, by whom it was taken, when it was taken and how it constitutes ‘adverse action’ for the purpose of section 342 of the Act. It is impossible to identify exactly what adverse action is alleged to have been taken. The pleading on this score, among other things, does not identify a reasonable cause of action, is ambiguous, is likely to cause delay, and is likely to cause prejudice to the Respondent.
The Applicant has not identified the material facts that give rise to the workplace rights she has, has exercised, has sought to exercise, or was prevented from exercising. In paragraph D, the Applicant refers to ‘Total Employment Inquiries: 3’, ‘Total Employment Complaints: 13’, ‘Total Incident of Bullying: 11’. The material facts giving rise to each of these matters is not set out. Nor are there facts set out that go to the question of whether the Applicant is ‘able to make’ the complaint: see Alam v National Australia Bank (2021) 310 IR 71 at [74]-[76], [97]. Moreover, it is not clear whether the Applicant asserts that the matters referred to in this paragraph constitute the exercise of workplace rights by her or whether, as she appears to state, they are separately to be regarded as ‘impactful instances of violation by the First Respondent against me’. If they are the latter, two issues arise. First, it is not clear how these violations give rise to any breach of the Act or other identifiable cause of action. Second, if the matters referred to in this paragraph are to be treated as separate ‘violations’, then it gives rise to an issue about whether the Applicant has, has exercised, has sought to exercise, or has been prevented from exercising, any workplace rights. In other words, it gives rise to an issue about whether the Applicant has pleaded any workplace rights.
The Applicant also asserts a contravention of section 345 of the Act. While the provision of the Act is baldly asserted, the SOC does not appear to contain any fact upon which such an allegation is based.
There are two other matters that require brief mention. The Applicant asserts a contravention of section 351 of the Act on the basis of, inter alia, disability and religion. In respect of these:
(a)the Applicant asserts she was diagnosed with ADHD in August 2023. It appears that many of the matters about which she complains precede this date. It is not clear how any claim on the basis of disability can be reasonably advanced in circumstances where the Respondent or its officers were not aware of the disability; and
(b)the Applicant claims to be a Christian. She says in the Statement of Claim that she did not disclose her faith, but when asked, said she was agnostic or expressed belief in a higher power. It is unclear how the Applicant can assert that adverse action was taken against her on the grounds of her religion, when her religion was not apparently known to those (unidentified) individuals who are said to have acted against her because of her religion.
On 29 October 2024, the Court ordered particulars to the Statement of Claim. The order was that the Applicant ‘file and serve particulars of loss and damage and how they are calculated’ including the amount of compensation and details of how it is calculated and where a penalty is sought, the amount of the penalty and how it is calculated. If the Statement of Claim is struck out, the particulars will also be struck out. Notwithstanding that, I note the following aspects of the particulars:
(a)the Applicant’s claim of damages is approximately $7.9m. That figure appears to be based on the Applicant earning her remuneration now until age 85, and also the Applicants use of a document published by the Australian Office of Impact Analysis. The calculation appears to ignore the fact that first, the Applicant remains employed and has not been dismissed, and second, that she is on WorkCover benefits; and
(b)the Applicant says there are 27 ‘non-serious contraventions’ of the Act, and one ‘serious contravention’ with the combined penalties for these totalling approximately $17m. Neither the Statement of Claim nor the particulars disclose with any precision the 27 non-serious contraventions or the one serious contravention of the Act.
Cognisant that the Applicant is unrepresented and that the drafting of pleadings can be difficult for lawyers let alone unrepresented litigants, I have examined the Applicant’s affidavit filed 31 July 2024. The affidavit, while containing a narrative history of what the Applicant says happened to her, regrettably suffers from many of the deficiencies identified in the SOC. Examples include the use of conclusionary language, the failure to identify with precision adverse action, and the failure to identify workplace rights exercised or sought to be exercised. The affidavit also attaches two letters from the Applicant’s former lawyers, McDonald Murholme. The letters are nothing if not lengthy. One fears the Applicant has spent a great deal of money in instructing her then-lawyers and having these letters prepared. Regrettably, the solicitor’s letters fail to disclose an identifiable cause of action that could stand as a pleading or points of claim.
As I have noted earlier, the Applicant accepted in correspondence with the Respondent that the requests of the Respondent made sense and were logical. Before me, she advanced no substantive submission as to why the SOC ought not be struck out. She simply indicated that she was prepared to do what is necessary to amend her claims in order to pursue them.
In my view, the Statement Of Claim is clearly deficient. It does not comply with the FCA Rules. It fails to disclose a cause of action, is ambiguous, is likely to cause delay in the proceeding, and will cause prejudice to the Respondent. Orders should be made that the SOC be struck out.
NEXT STEPS
During the course of the hearing, I asked the Applicant to articulate what her claims were, in the hope that she might be able to articulate them clearly enough that the claims could be understood by the Respondents, and the need for a formal pleading either modified or dispensed with. The Applicant, despite the Court’s best endeavours to assist, was not able to articulate any facts which gave rise to a claim capable of being pursued under the Act. I endeavoured to explain to the Applicant that while I understood she feels strongly about events she says she has been exposed to, she needs to be able to frame her complaints in the form of a recognisable cause of action. In doing this, I explained to the Applicant the essential elements of a case for adverse action under section 340 of the Act. I also explained to her that not every claim she has in mind may be worth pursuing.
The Applicant will need to replead. A legitimate question arises about how this is best done.
In my view, the Applicant should be given leave to file and serve an Amended Statement of Claim. If the Applicant adopts that course, the statement of claim will need to comply with the rules of pleadings and, inter alia, disclose a cause of action.
Alternatively, the Applicant can set out her claims in the form of the Table that was given to her by the Respondent. I asked the Respondent whether there would be any objection to that course, and none was forthcoming. Accordingly, it is open to the Applicant to pursue that approach. If she elects to adopt that course, she must make sure she clearly identifies with precision the material facts giving rise to her claims. For example, she will need to identify in respect of alleged adverse action, the action taken, who took the action, how the action is adverse, and when the action was taken. She will need to state the facts, not conclusions, and set out how the alleged facts pertaining to the action engage section 342 of the Act. When completing that part of the Table dealing with prohibited reasons, the Applicant will need to identify precisely for each complaint, the specifics of the complaint, the date when it was made, to whom it was made, and how it is said to engage section 341 of the Act. The Applicant should bear in mind that adopting this alternative course of using the Table may relieve some of the burden on her of having to comply with the formal rules of pleadings, but it does not relieve her of the obligation to set out the material facts and identify a cause of action or causes of actions upon which those facts are based.
Orders will issue for the Applicant to file and serve an amended Statement of Claim. Alternatively, the Applicant may set out the material facts and causes of action in the form of the Table sent to the Applicant by the Respondent on 28 August 2024. The Applicant is to file and serve either document within 30 days. The Respondent is to file a Defence or a document responding to any table of claims that might be filed within 60 days. The matter should then be listed before Judge Riley for further case management.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 14 March 2025
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