Dyball v Brookfield Properties Australia Pty Ltd
[2024] FCA 1335
•31 October 2024
FEDERAL COURT OF AUSTRALIA
Dyball v Brookfield Properties Australia Pty Ltd [2024] FCA 1335
File number: WAD 147 of 2024 Judgment of: FEUTRILL J Date of judgment: 31 October 2024 Date of publication of reasons: 19 November 2024 Catchwords: PRACTICE AND PROCEDURE – application to strike out paragraphs of concise statement – whether material scandalous, vexatious or frivolous or abuse of process – application for suppression and non-publication orders – public interest in open justice Legislation: Fair Work Act 2009 (Cth) ss 44, 55A, 65A, 83, 84, 539, 539(2)
Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF(1), 37AG, 37AG(1)(a), 37AG(2), 37AH, 37M; Pt VAA
Federal Court Rules 2011 (Cth) rr 16.21, 16.21(a), 16.21(b). 16.21(c), 16.21(d), 16.21(e), 16.21(f)
Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 22 Date of hearing: 31 October 2024 Counsel for the Applicant: Mr N Ellery Solicitor for the Applicant: MDC Legal Counsel for the Respondents: Ms H Millar Solicitor for the Respondents: Minter Ellison ORDERS
WAD 147 of 2024 BETWEEN: KELLY DYBALL
Applicant
AND: BROOKFIELD PROPERTIES AUSTRALIA PTY LTD
First Respondent
NICHOLAS OZICH
Second Respondent
CLIFFORD WINBY (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
31 OCTOBER 2024
THE COURT ORDERS THAT:
1.The interlocutory application filed by the respondent on 28 September 2024 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)FEUTRILL J:
This is an interlocutory application brought by the respondents to strike out two paragraphs of the applicant’s concise statement filed 17 June 2024; namely, paragraph 9 and paragraph 50. If struck out, the respondents press an application pursuant to s 37AH of the Federal Court of Australia Act 1976 (Cth) for orders for non-publication or suppression of the parts of the concise statement that have been struck out.
The application to strike out is brought under r 16.21 of the Federal Court Rules 2011 (Cth). The principles applicable to applications of that nature are well established and I do not need to rehearse them. Those principles can apply to concise statements where, in accordance with the Rules, the statements form part of the ‘pleadings’ for the purposes of identifying the issues in the proceeding. This proceeding is at an early stage and no orders have been made regarding the manner in which the issues will ultimately be determined in the proceeding. It may be that it is appropriate for this case to proceed on formal pleadings, or it may be that it proceeds on concise statements, augmented with affidavits or witness statements, but at present, it is too early to make a judgment on how the issues should be defined. Otherwise, the role concise statements perform, as has been explained in a number of authorities of other judges of this Court, is not exactly equivalent to pleadings.
Nonetheless, I accept that a concise statement that contains scandalous and irrelevant material may be struck out and, in that regard, rr 16.21(a), 16.21(b) and 16.21(f) of the Rules may be applicable, that is, where the statement contains scandalous material or contains frivolous or vexatious material, or is otherwise an abuse of the process of the Court.
Given the purpose of concise statements, it is more difficult to identify circumstances in which passages could be struck out on the grounds in rr 16.21(c), 16.21(d) and 16.21(e) of the Rules. Namely, that the passage is evasive or ambiguous or is likely to cause prejudice, embarrassment or delay in the proceedings or fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading. The reason I say that is because by its nature, a concise statement is just that, a concise statement. It is not intended to include all of the material facts that would normally be included in a pleading that would allow a party to know with a greater degree of precision the case that will need to be met at trial. In my view, having regard to s 37M of the Federal Court Act, applications to strike out concise statements on any of those grounds should not be encouraged.
Turning then to the paragraphs in question. The respondents’ application with respect to paragraph 9 of the concise statement falls into the former rather than the latter category. Namely, it is said that the allegations are scandalous and irrelevant and for that reason, should be struck from the concise statement.
The nature of the allegations made are that one of the respondents had displayed a discriminatory attitude towards another female employee that was overheard by the applicant, and that former employee's employment was terminated in April 2019, which is a considerable period of time earlier than the allegations that form the substance of the applicant's contentions in her concise statement. Accordingly, on the face of it, the remoteness in time and the singularity of the allegation does not have any obvious and direct relevance to the allegations otherwise made in the concise statement.
Nonetheless, the applicant contends that she will allege at trial that the events in 2019 reflect an attitude on the part of one of the respondents towards employees in a similar position to the position the applicant was in at the time of the alleged contraventions of the Fair Work Act 2009 (Cth) against her. The applicant wishes to make a case at trial that the previous statements and actions of that respondent are in the nature of similar fact or propensity evidence that reveals something about the state of mind of that respondent at the time of the alleged contraventions relevant to the proceeding.
Having regard to the nature of concise statements and questions of relevance that relate to evidence that may be sought to be led at trial, I do not consider it to be appropriate to strike out a paragraph of a concise statement on the ground that it is irrelevant in circumstances where the issues have not been completely defined at this stage of the proceeding, the parties have not opened their cases at trial and the precise manner in which the allegations in question may or may not be relevant to the issues, as eventually defined, cannot be assessed. In those circumstances, I do not regard the allegation to be so obviously irrelevant that it ought to be struck out at this stage.
I also have reservations about the extent to which the allegations can be properly characterised as scandalous, albeit that they are in a form that, because of the use of the adjective ‘discriminatory attitude’, can or are capable of causing a degree of embarrassment, reputational harm and (or) offence to the person who is the subject of that allegation. But in my estimation, the allegations do not rise to allegations that are typically described as scandalous. Namely, criminal conduct, dishonesty or serious allegations of misconduct that reflect poorly on a person's morality, or contain some element of moral turpitude. Thus, I do not intend to strike out paragraph 9 on the grounds asserted.
As to paragraph 50, the allegation concerns certain alleged contraventions of the Fair Work Act in ss 65A, 83 and 84 of that Act were, in respect of four of the respondents, in each instance, a serious contravention as defined in s 55A of the Fair Work Act. A serious contravention involves a contravention of a civil remedy provision, and civil remedy provisions are described in s 539 of the Fair Work Act. The complaint the respondents make is that none of the provisions described in the table under s 539(2), refer to ss 65A, 83 or 84 of the Fair Work Act.
However, as the applicant points out, one of the provisions listed as a civil remedy provision is s 44 of the Fair Work Act. Section 44 refers to the National Employment Standards and each of the relevant sections falls within the meaning of a National Employment Standard. Consequently, to any person reading the concise statement, intending to understand the allegations that are made, it would be clear to that person that what is alleged, in effect, is a breach of a civil remedy provision through the route of s 44 of the Fair Work Act. Accordingly, I do not consider the absence of any express reference to s 44 of the Fair Work Act in paragraph 50 so denudes the concise statement of meaning that it fails to disclose a reasonable cause of action or meets any of the other descriptors of inadequate pleading in r 16.21(c), 16.21(d) or 16.21(e) of the Rules.
As mentioned in exchanges with counsel during oral submissions, in my view, an application to strike out of that nature is precisely the kind of application that is to be discouraged and is not consistent with s 37M of the Federal Court Act. Accordingly, paragraph 50 will not be struck out. Having regard to the view I have reached in respect to the strike out application on paragraph 9 and paragraph 50, it is not strictly necessary to deal with the application for suppression and non-publication, as that application was predicated on the assumption that the allegations would be struck out, and if struck out, should be suppressed or not published.
However, I do think it is important to express brief reasons as to why, even if I had been prepared to strike out those paragraphs, I would not have acceded to the application for a suppression and non-publication order.
Again, the principles applicable to making suppression and non-publication orders have been the subject of a number of previous decisions of judges of this Court and the Full Court. I do not need to set them out or restate them. By and large the principles are contained in Pt VAA of the Federal Court Act. The authorities to which I have alluded provide an explanation of those principles and have developed general principles that guide the application of those provisions. But of course, judicial pronouncements about how one is to apply provisions of the Federal Court Act cannot be considered to change the text of the Act, which is, of course, the source of the power and the limitations on it.
Of particular importance in the application of Pt VAA of the Federal Court Act is s 37AE. It provides that:
In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Section 37AF(1), in turn, provides:
(1)The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
Section 37AG relevantly provides:
(1)The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
…
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
On this application, the respondents sought to bring themselves within s 37AG(1)(a), that is, it is necessary to prevent prejudice to the proper administration of justice. Allegations of the kind made in paragraph 9 and paragraph 50 of the applicant's concise statement are routinely made in this and other courts. Ensuring that allegations of that kind are aired and determined in open court and in public benefits rather than prejudices the administration of justice and promotes the public interest in open justice.
A party making an allegation in a pleading is mere assertion. It is not evidence. It is not fact. It is not tested. Members of the public who are interested can be assumed to understand those matters. If an allegation is withdrawn or struck out, that is where the matter ends. If it is tried, the evidence will be heard in open court and a decision made. It is important to the public interest in open justice that all those steps take place in the open and in public.
As has been said by other judges in other cases, litigants, as members of our community, must accept that when allegations are made against them, they may come with a degree of embarrassment and reputational harm. That is the price we all pay for a system of open justice.
The observations I have made are not intended to mean that in certain circumstances where allegations that are scandalous and irrelevant are made, and it is against the public interest and necessary for the administration of justice that they be suppressed or not published, that such an order should not be made in those circumstances. The observations I have made are directed at the kinds of allegations that are made in concise statements in this case.
For the reasons given, in my view, they are not allegations of a kind that lend themselves to suppression or non-publication orders being made for the reasons given.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate:
Dated: 19 November 2024
SCHEDULE OF PARTIES
WAD 147 of 2024 Respondents
Fourth Respondent:
MARNIE RHODES
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