Doherty v Prospa Advance Pty Ltd (No 2)
[2024] FedCFamC2G 950
•24 September 2024
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 Ltd [2024] FedCFamC2G 391
After I published the earlier reasons Ms Doherty submitted to Prospa a draft amended points of claim, and sought Prospa’s consent to her filing it. Prospa did not consent. That led to my listing the matter on 18 June 2024 to hear an application by Ms Doherty that she be granted leave to file an amended points of claim in the form of the draft she had provided to Prospa.
In these reasons for judgment (which assume familiarity with the earlier reasons) I consider whether I should grant Ms Doherty leave to file an amended points of claim in the form of the proposed amended points of claim (PAPC).[2]
[2] I marked the Amended Points of Claim as “MFI1”.
THE PROPOSED AMENDED POINTS OF CLAIM
The PAPC contains a number of amendments; but there are three which are relevant to these reasons for judgment. The first amendment relates to paragraph 9(a) of the points of claim (PoC) where Ms Doherty alleges that from 18 January 2022 to 11 April 2023 Prospa regularly required Ms Doherty to work approximately 70 hours per week including on weekends and most public holidays. The PAPC defines this requirement as the “Requirement”, and it proposes the addition of the following particulars to paragraph 9(a):
1.The Respondent estimates that she worked at least 70 per week for each and every week for the whole of employment, other than those weeks on which she was on annual leave.
2.Further particulars will be provided following discovery in circumstances where the whole of the material required to identify and prove with precision the hours worked in each week are exclusively within the possession of the Respondent.
3.The Applicant is unable to provide anything more than an estimate until the Respondent provides that material.
The second proposed amendment is the addition of a new subparagraph 9(aa), being the following:
The Requirement was partly express and partly implied, in the circumstances detailed at paragraphs 17A and 17B below.
The third proposed amendment to the PoC is the addition of paragraphs 17A and 17B. These appear after paragraph 17 of the PoC which alleges that from November 2022 to April 2023 Ms Doherty “continued to raise with Ms Kytic to identify the significant hours she was being required to work to complete the role”, but on a less frequent basis, as Ms Doherty believed that the hiring of new employees would eventually cause her workload to ease at some point in the future. Paragraphs 17A and 17B of the PAPC are as follows:
17A.To the extent the Requirements were implied, the Applicant relies upon those matters pleaded at paragraphs 10, 11 and 17, as well as the following matters:
(a)At all material times, the work that was given to the Applicant to complete by the Respondent was required to be completed by certain due dates that were determined by the Respondent;
(b)The due dates for any given works were usually set by the Respondent with reference to milestones in the process of launching a new product, such as the New Zealand line of credit, a new business account, and a new line of credit;
(c)The due dates for when various works had to be completed were:
(i)ordinarily communicated to the Applicant in frequent meetings with product stakeholders engaged within the Respondent she attended including as part of the liaison role identified at paragraph 10(b); or
(ii)told to the Respondent by Ms Kytic.
Particulars
Ms Kytic would broadly say words to the effect:
“After discussions with certain executives we want this activity to be completed by a certain date. I know that you have a lot on your plate, but we need to get it done”;
Further specific conversations will be described in evidence in the usual course.
(d)The Respondent would instruct the Applicant that she must complete the works by the due dates;
Particulars
i.The Respondent, by its employee Ms Kytic would say words to the Applicant to the following effect:
“We have to make sure that our deliverables are ready by the key product launch dates.”
ii.Further specific conversations will be described in evidence in the usual course.
(e)Further, it was implied by the Respondent allocating work to the Applicant that the Applicant must complete any work she had been allocated by the Respondent by the due dates set by the Respondent to ensure that any product milestones were not breached;
(f)The Applicant was required to attend recurring mandatory meetings that would occupy approximately 10 hours per week;
i.The Respondent, by its employee Ms Kytic would say words to the Applicant to the following effect:
“You have to attend these meetings. I know you have a lot of meetings, but you cannot miss these.
ii.Further specific conversations will be described in evidence
(g)Further, the Applicant was required to attend meetings at which she was a necessary attendee which would occupy approximately a further 20 hours per week.
(h)The Respondent was able to view the Applicant’s calendar, and either was aware or ought to have been aware from viewing the Applicant’s calendar that she had meetings for approximately 30 hours per week throughout the whole of her employment, and that this did not leave enough time within Ordinary Hours to complete the substantive work that needed to be completed;
(i)Further, the Applicant regularly discussed with the Respondent that she had meetings for approximately 30 hours per week throughout the whole of her employment, and that this did not leave enough time within Ordinary Hours to complete the substantive work that needed to be completed;
Particulars
i.Throughout the whole of the Applicant’s employment, the Applicant regularly said words to Ms Kytic to the following effect:
“Deborah, I just need to flag that I’m really struggling to get through all of my work. I’m just in meetings all day, and you’ve seen the hours that I’ve been working trying to get work done. Even though I am skipping any meetings that I can they still take up almost my whole day before I even get to start the work I need to do.
Ms Kytic would respond with words to the effect:
Yes I understand that you have a lot of meetings and I appreciate the extra hours you work. We will look at whether we can get further headcount to help you soon”.
ii.Further specific conversations will be described in evidence in the usual course.
(j)Despite having knowledge of the significant hours that the Applicant was working:
i.At no time was any adjustment was made by the Respondent that would enable the Applicant to reduce her hours worked;
ii.At no time was there any suggestion by the Respondent that work would be distributed away from the Applicant to ease her workload;
iii.At no time was there the offer or provision of time in lieu of hours worked by the Respondent, and
iv.The only suggestion by the Respondent as to how the Applicant might have been able to reduce her hours worked was that the Respondent indicated that it would hire additional headcount at some point in the future, however
v.as described at [16] above, the engagement of the New Employees did not alleviate the workload of the Applicant.
17B To the extent the Requirements were express, the Applicant repeats those matters pleaded at 17A above and says that by allocating work to the Applicant which could not be performed within Ordinary Hours the Respondent was expressly requiring the Applicant to work additional hours.
PARTIES’ SUBMISSIONS
Ms Doherty submitted that the PAPC articulates a clear case based on an alleged contravention of s 62 of the FW Act. Ms Doherty’s case is that, throughout her employment, Prospa required Ms Doherty to undertake and complete tasks by deadlines Prospa set; Ms Doherty consistently worked 70 hours a week in an attempt to complete those tasks; Prospa was aware of the hours Ms Doherty worked; Ms Doherty regularly informed Prospa that she was struggling to complete the tasks Prospa assigned to her within the deadlines Prospa had set; yet Prospa took no steps to reduce the work it required or requested Ms Doherty to perform. In those circumstances, Ms Doherty contends that Prospa impliedly requested or required Ms Doherty to work more than 38 hours a week.
Ms Doherty also submits that she has provided all of the particulars she is currently in a position to provide. In support of that submission Ms Doherty relies on the affidavit made by her lawyer, Ms Jamieson, in which Ms Jamieson deposes, on information and belief, that Ms Doherty did not keep an independent record of the hours she worked with Prospa; she did not keep a copy of her electronic diary with Prospa, and she did not maintain a hard copy diary; she did not retain a copy of emails or similar records she sent or received while she was employed by Prospa; she cannot provide any further details of particulars of the hours she worked with Prospa than are contained in the PAPC; and the relevant records which will enable Ms Doherty to provide further particulars are in the possession of Prospa.
Ms Doherty also relies on two authorities. One is the judgment of Young CJ in Eq in Deemah Marble and Granite Pty Ltd v Sutherland, where his Honour stated some of the elementary principles relating to the giving of particulars:[3]
[3] Deemah Marble and Granite Pty Ltd v Sutherland [2001] NSWSC 829, at
(1)The basal function of particulars is to reduce costs by alerting the opponent to the scope of the real case being made so the opponent is not caught by surprise, nor does the opponent waste time and money in preparing to meet issues that the other party does not intend to raise: see eg Sims v Wran [1984] 1 NSWLR 317, 321 and Banque Commerciale SA (In Liquidation) v Akhil Holdings Limited (1990) 169 CLR 279 at 286.
(2)Particulars are supplied of the material facts pleaded as P.E. Joske J said in Trade Practices Commission v Total Australia (1975) 24 FLR 413, 417:
“While the defendant is entitled to know the case it is called upon to meet, it is not entitled to be told the evidence that will be called to prove the case. A defendant is entitled to ask for the material facts upon which the plaintiff will rely and he may make his request for the facts and matters relied on, which is taken to mean the same thing. When he asks for the facts and circumstances relied on he is going beyond the scope of particulars, and is probing for evidence.”
(3)However, every litigation lawyer knows it may be appropriate, in order to carry out the aim which I have stated in (1), it will almost be inevitable to disclose some of the evidence, and that if this happens, it is no answer that evidence must be disclosed by the giving of the particulars. See Sims v Wran at 321 and Wilson v Wilson (1952) 69 WN 358.
(4)The party's obligation is only to supply the best particulars he or she can supply, provided that after discovery those particulars are supplemented, if possible; see Marshall v Inter-Oceanic Steam Yachting Co (1885) 1 TLR 394.
(5)When one party has the means of knowing the real facts, ordinarily the opponent will not be ordered to supply particulars until after discovery: Millar v Harper (1888) 38 Ch D 110; TPC v CC (NSW) Pty Limited (1995) 131 ALR 581, 593.
(6)The degree of particularity depends upon the nature of the case: American Flange and Manufacturing Co Inc v Rheem Australia Pty Limited [1963] NSWR 1121, 1126.
(7)In equity, because other remedies may seem appropriate, and because evidence is filed by affidavit, the Court is less likely to order particulars and will not permit parties to slow down proceedings unjustifiably in their preparation for trial.
The second authority on which Ms Doherty relies is the Full Federal Court’s judgment in Monash Health v Singh, and in particular that part of the judgment that deals with what is required to give fair notice of a claim based on an alleged contravention of s 340(1) of the FW Act.[4]
[4] Monash Health v Singh [2023] FCAFC 166, at [57]
Prospa, on the other hand, submits that Ms Doherty’s case, as framed in the PAPC, is not one that is reasonably available under s 62 of the FW Act; and that is because a case based on a contravention of s 62 of the FW Act must identify each occasion on which it is alleged that an employer requested or required the employee to work more than 38 hours a week; and the PAPC does not allege facts which identify each and every occasion on which Ms Doherty alleges Prospa requested or required her to work more than 38 hours a week. Prospa relies on the following passage from the earlier reasons:[5]
The PoC does not satisfy the minimum requirements for stating a case based on a breach of s 62(1) of the FW Act; it simply alleges that the respondent “regularly required the Applicant to work approximately 70 hours per week including on weekends and most public holiday”. This allegation is bereft of the most basic information. It does not identify by reference to date or time or place the occasions on which it is alleged the respondent required the applicant to work additional hours; it does not identify whether it is alleged that on each of those occasions the respondent conveyed the requirement expressly or impliedly; and consequently, to the extent the applicant intends to allege the respondent conveyed the requirement impliedly, the PoC does not identify the facts and matters on which the applicant intends to rely for so alleging. That the respondent has filed a defence to the PoC does not alter the fact that the PoC does not satisfy the minimum requirements for stating a case based on a breach of s 62(1) of the FW Act.
[5] Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391, at [46]
DETERMINATION
Two sets of issues arise from the parties’ competing submissions. The first is whether the PAPC sufficiently articulates a reasonable cause of action based on an alleged contravention of s 62 of the FW Act. A second set of issues arises if the first is answered in the affirmative; and these are whether paragraph 17A of the PAPC lacks material facts or particularity and, if so, whether that would be a reason to refuse to grant Ms Doherty leave to file an amended points of claim in the form of the PAPC.
Does the PAPC articulate a reasonably arguable claim based on contravention of s 62?
It may be accepted, as Prospa submits, that a person who seeks to advance a case based on a contravention of s 62 of the FW Act must identify the occasion or occasions on which it is alleged that the employer requested or required the employee to work more than 38 hours a week. The question is whether such a case is reasonably capable of being articulated on the basis of an alleged course of conduct, as paragraph 17A of the PAPC alleges, between the employer and the employee from which it may be implied that the employer had requested or required the employee to work more than 38 hours a week. That question is to be answered in the affirmative.
There is no difference in principle between an employer who expressly requests or requires an employee to work, say, 70 hours a week, and an employer who requires an employee to perform tasks by certain times which, to the knowledge of the employer, can be performed in compliance with the employer’s request or requirement only if the employee works 70 hours a week. In the latter case, the request or requirement that the employee work 70 hours a week is to be implied from the fact that the employer has requested or required the employee to perform work by certain times which, to the employer’s knowledge, could only have been performed if the employee worked 70 hours a week. Even so, however, an applicant who seeks to rely on such a case must be in a position to identify in some way:
(a)the work the employer requested the employee to perform;
(b)the time by which or the period within which the employer required the employee to complete the work;
(c)the matters on which the applicant relies for alleging that the employee could not complete the work by the time or within the period the employer required or requested it be performed;
(d)the matters on which the employee relies for alleging that the employer knew or (perhaps) ought reasonably to have known that the employee could not complete the work within the time the employer required or requested the employee to complete the work; and
(e)having the knowledge referred to in (d), the employer continued to require or request the employee to perform the work within the time the employer had required or requested the employee to perform the work.
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.
Further, Ms Doherty has not identified how her having access to the records Ms Jamieson identifies in paragraphs 2(a), (b), and (c) of her affidavit will enable Ms Doherty to provide the facts and matters to which I refer in paragraphs 16 and 17 of these reasons. If Ms Doherty is not now able to identify these facts and matters, it is difficult to see how she will be able to identify those matters from her having access to the records Ms Jamieson identifies in paragraphs 2(a), (b), and (c) of her affidavit. It is of course possible that Ms Doherty will be able to construct from such records alleged facts that identify these matters; but if this is the only way Ms Doherty says she will be able to identify the work she alleges Prospa required or requested her to perform, the time by which she was required to perform it, the matters on which she relies for alleging that she could not reasonably have completed that work within the 38 hours a week, and the matters on which she relies for alleging she had brought to the attention of Prospa that she could not complete the tasks without working more than 38 hours a week, and yet Prospa continued to require or request that Ms Doherty complete the work within the required or requested time, that would mean that Ms Doherty can state material facts on which she relies only after she gains access to Prospa’s records. In those circumstances, to grant Ms Doherty leave to file an amended points of claim in a form that does not state all necessary material facts will amount to permitting Ms Doherty to continue with this proceeding on the basis that she will formulate material facts by reference to documents Ms Doherty would seek to compel Prospa to disclose, either by discovery, or by notice to produce. That would constitute fishing.
Given that paragraph 17A of the PAPC lacks material facts to support a claim based on an implied request that Ms Doherty work more than 38 hours a week, and my not being satisfied that Ms Doherty has alleged all the material facts she is capable of alleging in support of the allegations contained in paragraph 17A of the PAPC, I do not propose to grant Ms Doherty leave to file an amended points of claim in the form of the PAPC.
DISPOSITION
I will dismiss Ms Doherty’s application for leave to file an amended points of claim, and list the matter for further directions at 9.30 am on 8 October 2024 or at such later time as may be convenient to the parties and to the Court.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 24 September 2024
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