Dixon v Watpac Ltd
[2021] FCCA 622
•23 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Dixon v Watpac Ltd [2021] FCCA 622
File number(s): ADG 149 of 2020 Judgment of: JUDGE HEFFERNAN Date of judgment: 23 March 2021 Catchwords: INDUSTRIAL LAW – pleadings – application for summary judgment because of deficiency in pleadings – alternative application to strike out paragraphs of pleadings – application dismissed Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s 17A
Federal Circuit Court of Australia Rules 2001 (Cth), r 13.10
Fair Work Act 2009 (Cth), sS 341, 361, 570
Work Health & Safety Act 2012 (SA), s 19
Cases cited: Buchanan v Kontractor Pty Ltd [2020] FCCA 3331
Rangi v Kmart [2018] FCCA 2040
Australian Securities & Investments Commission v Cassimatis [2013] FCA 641
Avimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268.
Barclay Mowlem Construction v Dampier Port Authority & Anor [2006] WASC 281
Number of paragraphs: 23 Date of hearing: 11 & 23 March 2021 Place: Adelaide Counsel for the Applicant: Mr Manuel Solicitor for the Applicant: RSA Law Counsel for the Respondents: Mr Fettell Solicitor for the Respondents: DWF (Australia) Pty Ltd ORDERS
ADG 149 of 2020 BETWEEN: TERRY DIXON
Applicant
AND: WATPAC LTD ACN 010 562 562
First Respondent
CRAIG DEARLING
Second Respondent
TIMOTHY TAPE
Third Respondent
ORDER MADE BY:
JUDGE HEFFERNAN
DATE OF ORDER:
23 MARCH 2021
UPON NOTING THAT:
(a)The matter is listed for trial directions on 10 May 2021 and listed for trial from 1 September 2021; and
(b)On the last occasion, the applicant indicated that the length of trial should be increased from an estimated 3 days to an estimated 5 days
THE COURT ORDERS THAT:
1.The respondents’ Application in a Case, filed 25 January 2021, is dismissed.
2.The question of costs of the Application is reserved to the trial date.
REASONS FOR JUDGMENT
Settled from transcriptJUDGE HEFFERNAN
This is an Application in a Case, filed 25 January 2021, by the respondents in these proceedings for two orders in the alternative. The first is that pursuant to s 17A of the Federal Circuit Court of Australia Act1999 (Cth) (‘the Act’) and/or r 13.10 of the Federal Circuit Court Rules2001 (Cth) (‘the Rules’) the respondents request summary judgment to be given by way of dismissal of the applicant’s application.
In the alternative, the respondents submit that paragraphs 5.3, 9.1, 9.3, 9.4, 24, 26.2, 43, 47 and 48 of the applicant’s Application be struck out as they prejudice, embarrass or delay the fair trial of an action, or fail to disclose a reasonable cause of action. And, in other words, that if I adopt the alternative approach as articulated in the Application that the applicant be required to re-plead those paragraphs that I have just identified.
The respondent also seeks an order that the applicant pay its costs of this Application in a Case.
Similarly, the applicant seeks an order for costs in the event that I dismiss the Application and Mr Manuel directed me to s 570 of the Fair Work Act2009 (Cth) (‘the FW Act’) and I will not expand on that any more at this point.
Both parties referred me to numerous authorities which, with respect, most of them fell within the – and this is not a criticism, it is just an observation - fell within the range of usual authorities that are cited on applications such as this. And I have the benefit from both parties of a written outline of submissions that set out the position that both parties were contending for.
In rebuttal of the applicant’s submissions on the Application, it was submitted by Mr Manuel that summary dismissal is a rare and exceptional remedy and that if I detect a deficiency in the pleadings it would be the usual and most appropriate course to allow the applicant to amend. In that regard, pleadings in Fair Work matters are somewhat different, he submitted, to perhaps other civil proceedings in that there is a reversal of onus of proof on the respondents pursuant to s 361 of the FW Act.
Mr Manuel pointed out that the Federal Circuit Court is not a court of strict pleading which, of course, is well-established. The respondents referred me to, as I said, a number of cases on this matter and I have noted, in particular, the - although I will not read out from them - the observations of Judge Jarrett of this Court in Buchanan v Kontractor Pty Ltd.[1] The observations of Judge Hartnett of this Court in Rangi v Kmart[2] and the principles that were identified in those matters. Noting that the decision in Rangi picked up on the reasoning of Reeves J of the Federal Court in the matter of Australian Securities and Investments Commission v Cassimatis.[3]
[1] [2020] FCCA 3331.
[2] [2018] FCCA 2040.
[3] [2013] FCA 641.
The submissions of the respondents boil down to the assertion that there is no pleaded workplace rights within the meaning of s 341 of the FW Act, and in particular, they address that submission to paragraphs 9.1, 3 and 4 of the pleading. I am not going to quote at length from the written submissions of the respondent in that regard; obviously I have closely considered both the written and the oral submissions.
With respect to paragraph 9.1, the observations of the Full Court in Avimatagi[4] would be apposite to this case because of the fact that it relates to the first respondent and s 19 of the Work Health & Safety Act 2012 (SA) is a provision upon which the first respondent can exercise workplace rights within the meaning of s 341. However, s 19 of the FW Act does not of itself give right to a workplace right that the applicant has within the meaning of s 341.
[4] Avimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268.
Mr Manuel’s response to the complaints about the pleadings were that the complaint at paragraph 5.3 was simply, in essence, to put the respondents on notice of evidence that would ultimately be led. And the submission was directed to the practical purpose of whether or not that should be struck out. The submission was made, “Well, given that it was simply a notice-style paragraph telling the respondents of the evidence that might ultimately be led at trial there would be nothing to stop the applicant, at a trial, calling witnesses to prove that matter in any event.”
But with respect to paragraph 9 in total, that is all the paragraphs that are argued, it was submitted that the application is misconceived. Because there is a right to safety within the workplace, quite clearly, and a right not to be bullied and harassed is also a workplace right. And it is the right of the applicant to complain - which is also a workplace right.
As I have said, I do not intend to set out in full the submissions made by both of the parties. In addition to the authorities that I was referred to by the parties, I have had reference to the decision of Martin CJ of the Supreme Court of Western Australia in Barclay Mowlem Construction v Dampier Port Authority & Anor[5] from November of 2006.
[5] [2006] WASC 281.
In that decision his Honour spent some considerable time discussing the purpose of modern pleadings in light of current case flow management principles and similar considerations. He stated at paragraph 4:
It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or Defence, as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
He went on in paragraph 5 to say:
In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court those pre-trial directions would almost invariably include firstly a direction for the preparation of a trial bundle identifying the documents that will be adduced in evidence in the course of the trial. Secondly, the exchange well prior to the trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement. Thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial.
He went on to observe:
These processes leave very little opportunity for surprise or ambush at trial and it is my view that pleadings today can be approached in that context and therefore in a rather more robust manner than was historically the case. Confident in the knowledge that other systems of pre-trial case management will exist and be implemented in aid to defining the issues of apprising the parties to the proceedings of the case they have to meet.
In my view, it follows that provided a pleading fulfills its basic functions of identifying the issues, disclosing an arguable cause of action or Defence as the case may be and apprising the parties of the case they have to meet; 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 pleadings rules that evolved in and derived from a very different case management environment.
He went on to add:
In my view, the advent of contemporary case flow management techniques and the pre-trial directions to which I have referred should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.
He also went on to rather colourfully express the view:
It is my view that many of the objections which have been taken in that matter are pedantic and pettifogging in nature.
I do not suggest that the term ‘pettifogging’ would be appropriate to apply to the objections and the outline of submissions of the respondents in this matter, but it does colourfully illustrate the way in which his Honour the Chief Justice was reasoning. And he was talking about the pleadings in that matter. He went on to say:
It is my view that any lawyer looking at that pleading genuinely interested in knowing what the issues are to be tried and the case that has to be met would have no difficulty in ascertaining those matters.
The above extracts, in a sense, said at much greater length and, with respect to Mr Manuel, considerably more eloquently, exactly what Mr Manuel was submitting quite succinctly. Namely, that the parties will have the benefit of the affidavits and the very amount of detail and the precision of the issues which the respondents have identified in terms of the deficiencies in the pleadings speak to the fact conversely, and perhaps counter-intuitively, that they do and are capable of genuinely understanding the nature of the issues in dispute.
I gave very close consideration to whether or not I should order the applicants to re-plead paragraphs 9.1, 3 and 4 – and, in fact, all of the paragraphs. But I have come to the conclusion that in all of the circumstances, and given the fact that there will be directions made for affidavit material to be filed prior to trial, and the availability of other case flow techniques if the parties seek to avail themselves of them, that it is possible with sufficient precision to identify the issues raised by the applicant in these pleadings. And that accordingly, I should not be striking out the impugned paragraphs and requiring them to be re-pleaded.
It follows from that that I am satisfied that this is not one of those exceptional matters in which it would be appropriate to enter summary judgment by way of dismissal of the applicant’s application.
I have already listed this matter for trial directions on 10 May at 9.30am and we have a trial date. The matter is adjourned to the directions hearing.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Heffernan. Associate:
Dated: 29 March 2021
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