Doherty v Prospa Advance Pty Ltd (No 2) - [2024] FedCFamC2G 950

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doherty v Prospa Advance Pty Ltd (No 2) [2024] FedCFamC2G 950

File number(s): SYG 1155 of 2023

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 24 September 2024

Catchwords: INDUSTRIAL LAW – practice and procedure – application for leave to file an amended points of claim – whether the proposed amended points of claim states a case based on contravention of s 62 of the Fair Work Act 2009 (Cth) – whether the proposed amended points of claim is sufficiently particularised – whether the applicant has provided all particulars she is capable of providing in support of the proposed amended points of claim – proposed amended points of claim states arguable case assuming it has stated all necessary material facts and particulars – applicant has not, however, shown she has alleged all material facts provided all particulars of which she is capable of making or providing – application for leave to file amended points of claim refused.

Legislation: Fair Work Act 2009 (Cth) s 62

Cases cited:
Deemah Marble and Granite Pty Ltd v Sutherland [2001] NSWSC 829

Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391

Monash Health v Singh [2023] FCAFC 166

Division: Fair Work

Number of paragraphs: 20

Date of hearing: 18 June 2024

Place: Sydney

Counsel for the Applicant: Mr G Fredericks

Solicitor for the Applicant: Gibson Howlin Lawyers

Counsel for the Respondent: Ms R Kumar

Solicitor for the Respondent: BlackBay Lawyers
ORDERS

SYG 1155 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ELEANOR ROSEMARY DOHERTY

Applicant

AND:
PROSPA ADVANCE PTY LTD ACN 154 775 667

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

24 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The applicant’s application for leave to file an amended points of claim is dismissed.
2.The matter be listed for a directions hearing at 9.30 am on 8 October 2024 or at such later time as may be convenient to the parties and the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
INTRODUCTION

On 30 April 2024 I published reasons for judgment (earlier reasons) on the basis of which I ordered that a notice to produce the applicant, Ms Doherty, had issued to the respondent (Prospa) be set aside.[1] In those reasons I made a number of observations about pleading and particularising a claim brought under the Fair Work Act 2009 (Cth) (FW Act) based on an alleged contravention of s 62 of the FW Act.
[1] Doherty v Prospa Advance Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FedCFamC2G 950
Decision Date: 24 September 2024

CaseChat Overview and Summary

In the matter of Doherty v Prospa Advance Pty Ltd (No 2), the applicant sought leave to amend her points of claim to allege a contravention of section 62 of the Fair Work Act 2009 (Cth), which prohibits an employer from requesting or directing an employee to work more than the maximum number of hours per week. The Federal Circuit Court was tasked with determining whether the proposed amended points of claim stated a case based on the contravention and whether they were sufficiently particularised. Additionally, the court had to consider whether the applicant had provided all particulars she was capable of providing in support of the amended points of claim.

The primary legal issues revolved around the sufficiency and particularisation of the applicant's amended points of claim. The court needed to assess whether the amended points of claim sufficiently articulated a case based on the alleged contravention of section 62 of the Fair Work Act. Furthermore, the court had to determine if the particulars provided by the applicant were adequate and if she had exhausted all potential sources of information available to her. The court considered the implications of the applicant's assertion that she had provided all particulars she was capable of providing.

The court found that the proposed amended points of claim did state an arguable case if it could be assumed that they contained all necessary material facts and particulars. However, the court was not satisfied that the applicant had provided all material facts and particulars of which she was capable of making or providing. The applicant had not demonstrated that she could not identify specific items of work, the time by which they were to be completed, or the reasons why she could not complete the work within the required time without working more than 38 hours a week. Consequently, the court refused the application for leave to file the amended points of claim.

The court's decision highlighted the importance of particularisation in legal claims, especially in employment law cases involving statutory contraventions. The refusal to grant leave to amend the points of claim emphasised the need for applicants to provide detailed and specific information to support their allegations. The court's findings underscored the necessity for thoroughness and completeness in the presentation of claims to ensure they are both arguable and substantiated by all available particulars.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Paragraph 17A of the PAPC appears to attempt to state a case to the effect I identify in the previous paragraph. Paragraph 17A of the PAPC alleges a course of conduct in which (it is alleged) Prospa requested or required Ms Doherty to perform work by set times in circumstances where: (a) Ms Doherty informed Prospa of the hours she was working (which she alleges exceeded 38 hours a week); (b) Prospa acknowledged Ms Doherty was working these hours; (c) Ms Doherty informed Prospa that she was struggling to complete the work Prospa requested or directed her to complete by the times by which she was requested or required to complete that work; and (d) Prospa nevertheless continued to require or request Ms Doherty to perform her work within the time she was directed to do so. These allegations rest on an implied assumption that the work Prospa required or requested Ms Doherty to perform by the time Prospa required or requested it be performed could only have been performed by Ms Doherty working more than 38 hours a week. On the basis of these allegations, and the implied assumption I have identified, and subject to Ms Doherty otherwise having alleged all necessary material facts, Ms Doherty will have stated a reasonably arguable claim that Prospa impliedly requested or required Ms Doherty to work more than 38 hours a week.Sufficient material facts? There is no question, however, that the PAPC does not identify necessary material facts and matters in support of Ms Doherty’s claim based on Prospa’s having impliedly required or requested Ms Doherty to work more than 38 hours a week. Paragraph 17A does not identify the work Ms Doherty alleges Prospa required or requested her to perform; or the occasion or occasions on which Prospa required or requested Ms Doherty to perform such work; or the time by which Ms Doherty alleges Prospa required or requested Ms Doherty to complete the work; or the time it took Ms Doherty to complete the work; or the matters on which Ms Doherty relies for alleging that she could not have completed the work Prospa required or requested her to complete within 38 hours a week. The question that arises is whether that should lead me to refuse Ms Doherty leave to file the PAPC. Ms Doherty, as I have noted, submits she has provided the best particulars she is capable of providing. I am not satisfied she has. Although Ms Jamieson has deposed on information and belief to the matters I have identified above, she has not deposed that Ms Doherty cannot identify: (a) any of the items of work she alleges Prospa required or requested her to complete; (b) the time by which Ms Doherty says Prospa required or requested her to complete the work; (c) the facts and matters on which Ms Doherty relies for alleging she could not perform the work by the time Prospa required or requested she perform it; (d) the occasion or occasions on which Ms Doherty alleges Prospa required or requested Ms Doherty to complete work by a certain time knowing that Ms Doherty could not complete the work within that time without Ms Doherty working more than 38 hours a week. It is, however, reasonable to expect that Ms Doherty would have had some basis within her own knowledge for making the allegations contained in paragraph 17A of the PAPC. That is, it is reasonable to expect that Ms Doherty makes the allegations in paragraph 17A of the PAPC on the basis of some recollection of actual items of work Prospa required or requested her to complete that Ms Doherty could not complete within 38 hours a week, and the reasons for which Ms Doherty says she could not reasonably have completed that work within 38 hours a week; and the occasion or occasions on which she informed Prospa she could not complete the work within the time required or requested without Ms Doherty working more than 38 hours a week; and the occasion or occasions on which Prospa nevertheless continued to require or request Ms Doherty to complete the work.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 1155 of 2023
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	24 September 2024
Catchwords:	INDUSTRIAL LAW – practice and procedure – application for leave to file an amended points of claim – whether the proposed amended points of claim states a case based on contravention of s 62 of the Fair Work Act 2009 (Cth) – whether the proposed amended points of claim is sufficiently particularised – whether the applicant has provided all particulars she is capable of providing in support of the proposed amended points of claim – proposed amended points of claim states arguable case assuming it has stated all necessary material facts and particulars – applicant has not, however, shown she has alleged all material facts provided all particulars of which she is capable of making or providing – application for leave to file amended points of claim refused.
Legislation:	Fair Work Act 2009 (Cth) s 62
Cases cited:	Deemah Marble and Granite Pty Ltd v Sutherland [2001] NSWSC 829 Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391 Monash Health v Singh [2023] FCAFC 166
Division:	Fair Work
Number of paragraphs:	20
Date of hearing:	18 June 2024
Place:	Sydney
Counsel for the Applicant:	Mr G Fredericks
Solicitor for the Applicant:	Gibson Howlin Lawyers
Counsel for the Respondent:	Ms R Kumar
Solicitor for the Respondent:	BlackBay Lawyers

SYG 1155 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ELEANOR ROSEMARY DOHERTY Applicant
AND:	PROSPA ADVANCE PTY LTD ACN 154 775 667 Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	24 SEPTEMBER 2024