Edgar v Norton Rose Fulbright AUSTRLIA Services Pty Ltd and Ors (No.2)
[2020] FCCA 520
•11 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDGAR v NORTON ROSE FULBRIGHT AUSTRLIA SERVICES PTY LTD & ORS (No.2) | [2020] FCCA 520 |
| Catchwords: INDUSTRIAL LAW – Whether s.361 of the Fair Work Act 2009, imposes a legal or evidentiary burden on a respondent. |
| Legislation: Fair Work Act 2009, ss.351, 361 Workplace Relations Act 1996, s.664 |
| Cases cited: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No.2) [2014] FCA 1032 |
| Applicant: | SUET YING (ALICE) EDGAR |
| First Respondent: | NORTON ROSE FULBRIGHT AUSTRLIA SERVICES PTY LTD |
| Second Respondent: | ALEX BOXSELL |
| Third Respondent: | LEX MELZER |
| File Number: | SYG 1937 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing date: | 26 February 2020 |
| Date of Last Submission: | 26 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Andelman |
| Solicitors for the Applicant: | Harmers |
| Counsel for the Respondents: | Mr J. Darams |
| Solicitors for the Respondents: | Lander & Rodgers |
ORDERS
The particulars of paras.20(b), 25, 28(a)(ii), 31(a)(i), 37 and 41 of the defence be struck out.
In all other respects the applicant’s application in a case filed on 24 January 2020 be dismissed.
The respondents have leave to file an amended defence within 21 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1937 of 2018
| SUET YING (ALICE) EDGAR |
Applicant
And
| NORTON ROSE FULBRIGHT AUSTRLIA SERVICES PTY LTD |
First Respondent
| ALEX BOXSELL |
Second Respondent
| LEX MELZER |
Third Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Ms Edgar, alleges that her former employer, the first respondent Norton Rose Fulbright Australia Services (“Norton Rose Fulbright”) breached its employment contact with her and contravened provisions of the Fair Work Act 2009 (Cth). She also alleges that the second and third respondents are employees of Norton Rose Fulbright and accessories to its contraventions.
The matter is proceeding on pleadings. These reasons concern Ms Edgar’s application in a case filed on 24 January 2020 in which she has sought orders striking out the following paragraphs to the respondents’ defence:
a.Paragraph 8
b.Paragraph 14(a)(ii)
c.Particulars to paragraph 15(a)(i)
d.Paragraph 15(a)(ii)
e.Paragraph 19(a)(iii)
f.Particulars to paragraph 20(b)
g.Particulars to paragraph 25
h.Particulars to paragraph 28(a)(i)
i.Particulars to paragraph 28(a)(ii)
j.Particulars to paragraph 31(a)(i)
k.Particulars to paragraph 37
l.Particulars to paragraph 41
m.Paragraph 44(a)(ii)
LEGISLATION
Pursuant to r.1.05(3)(b) and items 10 and 11 of pt.2, sch.3 to the Federal Circuit Court Rules 2001 (Cth) (“Rules”), rr.16.02(1)(a),(b),(d); 16.02(3),(5); 16.03-16.12; 16.21; 16.31-16.33; 16.41-16.45 of the FCA Rules, which are concerned with pleadings, apply in this Court.
The FCA Rules relevantly provide:
16.03 Pleading of facts
(1)A party must plead a fact if:
(a)it is necessary to plead it to meet an express denial of the fact pleaded by another party; or
(b)failure to plead the fact may take another party by surprise.
(2)However, a party need not plead a fact if the burden of proving the fact does not lie on that party.
…
16.07 Admissions, denials and deemed admissions
(1)A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.
(2)Allegations that are not specifically denied are taken to be admitted.
(3)However, a party may state that the party does not know and therefore cannot admit a particular fact.
(4)If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied.
…
16.08 Matters that must be expressly pleaded
In a pleading subsequent to a statement of claim, a party must expressly plead a matter of fact or point of law that:
(a)raises an issue not arising out of the earlier pleading; or
(b)if not expressly pleaded, might take another party by surprise if later pleaded; or
(c)the party alleges makes another party’s claim or defence not maintainable.
…
16.21 Application to strike out pleadings
(1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
…
(c)is evasive or ambiguous; or
(d)is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
…
16.42 Fraud, misrepresentation etc
A party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies.
16.43 Conditions of mind
(1)A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.
(2)If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.
(3)In this rule:
condition of mind, for a party, means:
(a)knowledge; and
(b)any disorder or disability of the party’s mind; and
(c)any fraudulent intention of the party.
…
BACKGROUND
For present purposes, the relevant chronology of events is as follows:
a)26 October 2018, statement of claim filed;
b)8 February 2019, amended statement of claim filed;
c)5 July 2019, amended statement of claim struck out;
d)22 November 2019, defence filed;
e)29 November 2019, second further amended statement of claim filed;
f)13 December 2019, the Court ordered that:
2.On or before 19 December 2019 the respondent provide substantive responses to the applicant’s request for particulars made in the letter of 5 December 2019. An objection to a request on the basis that it is not a proper request for particulars will be a substantive response;
and
g)24 January 2020, Ms Edgar filed the present application.
EVIDENCE
Ms Edgar’s application in a case was supported by the affidavit of Sophie Watson affirmed 24 January 2020 which annexed various documents including, relevantly, correspondence between the parties’ solicitors on the subject of further particularisation.
The pleadings in issue were the following:
| Second amended statement of claim | Defence |
| 8. It was a term of the Contract that the First Respondent would take reasonable care of the Applicant’s health and safety and provide for her, as far as practicable, a working environment which was safe (“Safe Work Term”). Particulars The Term was implied as a matter of fact and by operation of law. | 8. The Respondents do not know and therefore cannot admit paragraph 8. |
| 14. On 20 February 2018, the Applicant made a complaint against the Second Respondent to Ms Kate Wetherall, Human Resources Manager ("Ms Wetherall"). The Applicant said words to the effect "Mr Boxell’s behaviour towards me during the mid-year review made me feel humiliated". The Applicant also said to Ms Wetherall that Mr Boxell's behaviour was overbearing and aggressive and that she was suffering physical symptoms of stress, anxiety, loss of sleep and heart palpitations as a result of her interactions with the Second Respondent and was seeking medical advice and assistance. (“Third Complaint/Inquiry”) Particulars The complaint was made orally to Ms Wetherall in her office. | 14. As to paragraph 14: (a) the First Respondent: (i) admits that the Applicant had a discussion with Ms Wetherall on 20 February 2018 regarding her mid-year review; (ii)otherwise does not know and therefore cannot admit the allegations. … |
| 15. On 1 March 2018, the Applicant repeated the complaint referred to in paragraph 14 above against the Second Respondent to Ms Wetherall and explained how the Second Respondent’s conduct impacted on her mental health. The Applicant raised the following issues; (a) that her heart raced at the idea of working with the Second Respondent and she was concerned about seeing and/or confronting him; (b) that she felt unsafe in the presence of the Second Respondent; and (c) that the Second Respondent created an environment where the Applicant could not raise legitimate concerns. Particulars The complaint was made orally to Ms Wetherall and in writing recorded in an email. | 15. As to paragraph 15: (a) the First Respondent: (i) admits that the Applicant had a discussion with Ms Wetherall on 1 March 2018; Particulars The purpose of the discussion was to discuss the Applicant’s email to Brownyn Williams on 1 March 2018, including the health issues raised and comments that she “did not feel safe.” (ii) Otherwise does not know and therefore cannot admit the allegations; … |
| 19. The Applicant exercised this workplace right within the meaning of section 341(1)(c)(ii) of the FW Act by making: (c) the Third Complaint/Inquiry; … … | 19. As to paragraph 19, the: (a) First Respondent: … (iii) does not know and therefore cannot admit subparagraph 19(c). … |
| 20. The First Respondent took adverse action against the Applicant within the meaning of section 342(1) Item 1(a) by dismissing the Applicant because she made any one or more of the complaints or inquiries in regard to the Second Respondent and/or the Third Respondent as set out in the four complaints/inquiries referred to in paragraphs 12-14 and 17 above. Particulars The Applicant was provided with a letter of termination on 9 May 2018 by Ms O’Rourke. | 20. As to paragraph 20, the Respondents: … (b) otherwise deny the allegation. Particulars Pursuant to the letter of termination provided on 9 May 2018 (Termination Letter), the Applicant was terminated because: 1. the level of trust and confidence necessary for the continuation of the employment relationship with the Applicant’s then current reporting lines did not exist; and 2. it was not feasible for the First Respondent to establish any other reporting structure for the Applicant. |
| 25. The First Respondent took adverse action against the Applicant within the meaning of section 342 Item 1(c) by suspending her employment because she made any one or more of the complaints or inquiries in regards to the Second Respondent as set out in paragraphs 13-14 above. Particulars: The notice of suspension was made orally on 6 March 2018 by Ms Williams to the Applicant | 25. The Respondents deny paragraph 25. Particulars The Applicant was suspended with pay so she could focus on completing the complaint form for her formal complaint against the Second and Third Respondents. |
| 28. The First Respondent took adverse action against the Applicant within the meaning of section 342(2)(a) because she made any one or more of the complaints or inquiries in regard to the Second Respondent as set out in paragraphs 12-14 above by threatening the Applicant with disciplinary action. The Third Respondent said words to the effect of “I will go straight to HR and they will issue you with a final warning if you don’t apologise for your remarks about Mr Boxsell”. Particulars The threat was made orally on 5 March 2018 | 28. As to paragraph 28, the: (a) First and Third Respondents: (i) admit that the Third Respondent met with the Applicant on 5 March 2019; and Particulars The purpose of the discussion was to discuss the written communications the Third Respondent had become aware of in which the Applicant made disparaging comments about the Second Respondent. (ii) otherwise deny the allegations; and Particulars During the meeting on 5 March 2019, the Third Respondent asked the Applicant if she wanted the matter to be investigated, to which the Applicant said yes. The Third Respondent told the Applicant that if the investigation uncovered evidence of inappropriate behaviour, it might lead to a warning. … |
| 31. The First Respondent took adverse action against the Applicant within the meaning of section 342 Items 1(b) and (c) because she made any one or more of the complaints or inquiries in regard to the Second Respondent as set out in paragraph 11 by requiring the Applicant to meet face to face with the Second Respondent and Ms Wetherall. During the meeting, Ms Wetherall said words to the effect of “its not our job to go between you and Alex to be the bilateral, you should just meet with him” and when the Applicant refused, Ms Wetherall said words to the effect of “well if you are concerned about your health, then you shouldn’t go to work”. Particulars The requirement was made orally by Ms Wetherall to the Applicant on 1 March 2018. | 31. As to paragraph 31, the: (a) First Respondent: (i) admits that Ms Wetherall met with the Applicant on 1 March 2019; Particulars The purpose of the discussion was to discuss the Applicant’s email to Bronwyn Williams on 1 March 2018. … |
| 34. From about October 2017, the Applicant was suffering from stress, anxiety, loss of sleep and heart palpitations, which is a disability within the meaning of section 351 of the FW Act (“disability”). | 34. The Respondents do not know and therefore cannot admit paragraph 34. |
| 37. The First Respondent took adverse action against the Applicant by suspending her employment on 6 March 2018 because of the disability. | 37. The Respondents deny paragraph 37. Particulars The Applicant was suspended with pay on 6 May 2019 so she could focus on completing the complaint form for her formal complaint against the Second and Third Respondents. |
| 41. The First Respondent took adverse action against the Applicant by terminating her employment on 9 May 2018 because of her disability. | 41. The Respondents deny paragraph 41. Particulars Pursuant to the Termination Letter, the Applicant was terminated on 9 May 2018 because: 1. the level of trust and confidence necessary for the continuation of the employment relationship with the Applicant’s then current reporting lines did not exist; and 2. it was not feasible for the First Respondent to establish any other reporting structure for the Applicant. |
| 44. The First Respondent, through the conduct of the Second Respondent: … (c) said “Aren’t wives supposed to stay in the kitchen?” in reference to the Applicant’s upcoming wedding in October 2018; Particulars Said in or about September to October 2018 at work. … | 44. As to paragraph 44, the: (a) First and Second Respondents: … (ii) do not know and therefore cannot admit subparagraph 44(c); and … |
SUBMISSIONS
Applicant’s submissions
In Ms Edgar’s written submissions dated 12 February 2020 she submitted that paras.8, 19(a)(iii) and 34 of the defence, which pleaded “[do] not know and therefore cannot admit”, should be struck out because:
a)each of the corresponding paragraphs in the SASOC pleaded points of law;
b)those pleadings failed to disclose whether it was the facts or the law that the first respondent did not know, and so was defective;
c)it was unclear whether the respondents “admit[ted] the allegations but denie[d] that it disclose[d] a cause of action or not”;
d)rr.16.02(1)(c) and 16.08 of the FCA Rules do not permit pleading “don’t know” in respect of points of law;
e)what the respondents had denied was left to the applicant to speculate upon and so the pleadings were evasive;
f)it was embarrassing to plead “don’t know” to a point of law pleading; and
g)in the event that a point of law was denied she could seek a preliminary decision on a matter.
Ms Edgar further referred to paras.14, 15 and 44(c) of the SASOC which allege that certain conversations occurred between her and three of the first respondent’s current employees. Paragraphs 14(a)(ii), 15(a)(ii) and 44(a)(ii), the corresponding paragraphs of the defence, plead “[do] not know and therefore cannot admit”. She submitted that Norton Rose Fulbright should have made inquiries of these employees when drafting the pleadings and, given the present application, the respondents’ solicitors should have provided evidence of the inquiries that resulted in a pleading of “do not know”;
Ms Edgar argued that the particulars to paras.15(a)(i), 20(b), 25, 28(a)(i), 28(a)(ii), 31(a)(i), 37 and 41 alleged new or different facts saying that:
a)para.15(a)(i) of the SASOC pleaded to issues raised during a conversation and subsequent email correspondence between Ms Edgar and Ms Wetherill, whereas the particulars to para.15(a)(i) in the defence related to the “purpose of the discussion”;
b)paras.20 and 25 of the SASOC pleaded that Ms Edgar’s employment was suspended and subsequently terminated because she made complaints and inquiries involving the second and third respondents. However, the defence denied both allegations and instead pleaded that:
i)Ms Edgar’s employment was suspended to allow her to “focus on completing a complaint form for her formal complaint”; and
ii)Ms Edgar’s employment was terminated for reasons stated in the 9 May 2018 termination letter.
In respect of the particulars to these paragraphs, Ms Edgar submitted that:
a)in the event that the respondents wished to raise issues not contained in the SASOC they should plead all material facts and issues so as not to take her by surprise ;
b)until the parties were “joined” on all issues the pleading must continue and the respondents must include every ground upon which they wish to rely to completely or “partially defeat” her claim;
c)the respondents must plead a positive assertion if they would like to lead evidence about why her claim was “unmaintainable”;
d)an amended defence would be required if the respondents intended to lead evidence or make submissions that adverse action was not taken for a proscribed reason but for a specific reason;
e)any justifications, excuses or special matters should be pleaded. The Court would generally not infer material allegations that should have been pleaded but were not. Pursuant to rr.16.42 and 16.43 of the FCA Rules, breaches of trust or conditions of mind should be specifically pleaded.
Respondent’s submissions
In their written submissions of 19 February 2020 the respondents argued that the defence had been properly pleaded.
The respondents submitted that paras.8, 19(a)(iii) and 34 of their defence complied with rr.16.04(3) and (4) [recte: rr.16.07(3) and (4)] of the FCA Rules and had the effect of denying the allegations to which they were addressed. More specifically, the respondents submitted that:
a)they did not know, and so could not admit or deny Ms Edgar’s allegation in para.8 of her SASOC that a term of her employment contract was implied as a matter of fact and as a matter of law, this being a matter for the Court to decide;
b)whether Ms Edgar had exercised a workplace right by making the third complaint/inquiry as alleged in para.19(c) of the SASOC depended upon what she had said to Ms Wetherall during their meeting alleged in para.14 of the SASOC. Given that, at the time the defence was drawn Ms Wetherall did not remember what Ms Edgar had said, the respondents were entitled to plead that they did not know and therefore could not admit the alleged substance of the third complaint/inquiry. Nevertheless the respondents submitted that it should be taken that they had denied this allegation.
c)because they did not know whether Ms Edgar had suffered from the health conditions alleged in para.34 of the SASOC they could not admit or deny that she had suffered from a physical or mental disability covered by s.351 of the FW Act. Nor could they admit or deny any legal consequences of Ms Edgar suffering from such conditions were the Court to find that she had.
The respondents submitted that “lack of explanation” was not a proper basis to strike out the traverses they had pleaded and, in any event, they had explained in correspondence preceding the hearing of this interlocutory application why those traverses had been pleaded as they had been, namely that:
a)Ms Wetherall could not remember whether Ms Edgar had said the things alleged in paras.14 and 15 of the SASOC; and
b)Mr Boxsell could not remember whether the words alleged in para.44(c) of the SASOC were ones he had said to Ms Edgar.
In relation to the particulars of paras.15(a)(i), 20(b), 25, 28(a)(i), 28(a)(ii), 31(a)(i), 37 and 41 the respondents submitted that:
a)the particulars could not be struck out pursuant to r.16.21 of the FCA Rules because particulars are not pleadings and Ms Edgar only sought to strike out the particulars, not their related paragraphs which had been correctly pleaded;
b)in the event that Ms Edgar’s aim was, in seeking to strike out these particulars, to prevent the respondents from leading evidence on the matters raised in the particulars, such an aim was futile. This was because the underlying paragraphs, which had been properly pleaded, remained and so the respondents would still be permitted to still lead such evidence;
c)if Ms Edgar’s submission was that the respondents could not lead evidence in support of their denials of her allegations, her submission was incorrect. Simply denying an allegation did not prevent the respondents from leading evidence; and
d)even if the particulars subjoined to the denials of adverse action contraventions were to be struck out, it was not necessary to amend the defence to adduce evidence as to the reason or reasons for the adverse action because the allegations were denied. Evidence of a non-prohibited reason for the adverse action would not be contrary to those denials but consistent with them; and [18]
e)the particulars both narrowed the generality of the pleadings and informed Ms Edgar with sufficient clarity of any case she had to meet, to the extent that there was one. For example, the issue in para.25 of the pleadings was joined because Ms Edgar alleged that adverse action had been taken because her employment was suspended when she made complaints and inquiries. The respondents, who denied this allegation, were not required to plead a positive defence albeit that would have to lead evidence to dispel the presumption under s.361 of the FW Act. The particulars of the denials only served to identify the “substance” of the evidence they proposed to adduce. [19]-[22]
CONSIDERATION
The arguments concern three issues. These are whether:
a)paras.8, 19(a)(iii) and 34 of the defence should be struck out for being unclear about what part of the allegation was not admitted and for failure to plead to an allegation of law;
b)paras.14(a)(ii), 15(a)(ii) and 44(a)(ii) of the defence should be struck out because reasons for those traverses were not given: and
c)the particulars of paras.15(a)(i), 20(b), 25, 28(a)(i), 28(a)(ii), 31(a)(i), 37 and 41 of the defence should be struck out for raising allegations of fact in an impermissible way.
Paragraphs 8, 19(a)(iii) and 34
In each of paras.8, 19(a)(iii) and 34 of the defence the respondents traverse the relevant allegations in the SASOC by not admitting them. The traverses do not seek to deal separately with the factual and legal contentions advanced by the allegations. However, they do not need to. Ms Edgar can be in no doubt that she has been put to proof of the allegations she makes in those paragraphs. Nor can she be in any doubt that, by not pleading a particular defence or defences to any of these allegations, the respondents have foreclosed the ability to propound such defences and are limited to attempting to persuade the Court in due course that her allegations have not been proved. The course which the respondents have taken is not impermissible.
Ms Edgar relied in her written submissions on r.16.02 of the FCA Rules. In addresses, I incorrectly stated that the Rules do not adopt that rule for use in the Court. Rather, they adopt parts only, namely rr.16.02(1)(a), (b), (d), (3) and (5). The applicant relied in her written submissions on r.16.02(1)(c), which is not adopted. But in any event that paragraph states that a pleading must identify the issues that the party wants the Court to resolve and the respondents’ defence relevantly does that.
Rule 16.08 of the FCA Rules is the other provision on which Ms Edgar relied. She submitted that it required the respondents to plead to “point[s] of law” but she did not identify why that rule has that effect. Even if it does in a general sense, which is not apparent to me, it does not in this particular case given the respondents’ traverses, which should be taken to address every contention advanced in the allegations in question.
Paragraphs 14(a)(ii), 15(a)(ii) and 44(a)(ii)
The burden of Ms Edgar’s submissions in relation to paras.14(a)(ii), 15(a)(ii) and 44(a)(ii) of the defence was that the reasons behind the decision to plead that the allegations were not admitted ought to be exposed.
On a factual basis it appears that they were in the letter from the respondents’ solicitors to Ms Edgar’s solicitors in January 2020. The letter was not in evidence but it was referred to in addresses, and in the respondents’ written submissions, without complaint or objection and I am prepared to accept that it said what the respondents submitted it said concerning the recollections of Ms Wetherall and Mr Boxsell. That was sufficient explanation if one were needed.
However, I do not believe that one was. In support of her contention Ms Edgar referred to John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No.2) [2014] FCA 1032 but that case does support her argument. In that case Barker J said:
29In the course of making oral submissions, counsel for John Holland sought to develop the submission that under modern pleading requirements, such as those found in the Rules of this Court, a party is obliged to state its factual response to allegations made, at least where it is possessed of relevant information that enables it to do so. In a case such as the present, counsel submitted that it was open to the CFMEU to make appropriate inquiries of persons who are possessed of the facts so that it can properly inform itself for the purpose of pleading its defence. Counsel said that if a person of whom such an inquiry is made, who is entitled to claim the penalty privilege, were to claim the penalty privilege then that might be the end of the issue. But at the very least, counsel submitted, the CFMEU should be obliged to make the relevant inquiries in order to inform itself and, if challenged on a strike out application such as the present, be able to put on some evidence to indicate it has done what it could to provide a more constructive pleading than “do not know therefore cannot admit”.
…
49I reject the broad submission made that a party, such as the CFMEU in this instance, is obliged in relation to factual allegations made against it, of which it does not know the truth or falsity, to undertake positive inquiries in order to make a plea admitting or denying an allegation.
50In any case where a party fails or neglects to plead a positive case, they may well be prevented from doing so subsequently in the proceeding. The pleading frames matters in issue and if a party, such as the CFMEU, says it does not know and cannot admit certain matters then it may subsequently be bound by that pleading.
Paragraphs 15(a)(i), 20(b), 25, 28(a)(i), 28(a)(ii), 31(a)(i), 37 and 41
These parts of the defence were pleaded in an unconventional manner in that the respondents identified the contentions they would advance by purporting to particularise traverses of certain of Ms Edgar’s allegations. The Court was advised in addresses that this was done to assist the applicant and was not done because the respondents were under an obligation to disclose in the defence the contentions they would advance to rebut the presumption found in s.361 of the FW Act.
Strictly speaking that is not permissible pleading and I concede that it distracted me from the real issue which is whether the substance of those particulars had to be pleaded as separate allegations. That is to say, did the respondents carry a legal burden of proving that Norton Rose Fulbright had not taken adverse action against Ms Edgar for a prohibited reason or prohibited reasons or was their burden an evidentiary one only. Having reflected on the issue I have concluded, that it was the latter, although that is not an end to the matter.
The respondents have admitted that adverse action was taken against Ms Edgar, but that does not make out Ms Edgar’s cause of action based on that conduct. The presently relevant matter is whether the adverse action in question was taken for a prohibited reason or prohibited reasons. Ms Edgar’s allegation that it had been has the effect of requiring Norton Rose Fulbright to show that the adverse action was not so motivated but it does not alter the ultimate burden of proving all elements of the cause of action. That rests at all times on Ms Edgar’s shoulders: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 500 – 501 [108], [109] per Wilcox and Cooper JJ. The fact that s.361 casts on a respondent the burden of proving that their motivation for taking adverse action was not one prohibited by the FW Act does not change the nature of the relevant cause of action, which is contravention of the statute. In King v R (2003) 215 CLR 150, Gleeson CJ said:
In adversarial litigation, both parties cannot bear the ultimate onus of proving or disproving a single fact. The point of an onus of proof is to identify the party who is obliged to establish a fact, and who will bear the legal consequences of failure to do so. (at 158 [18])
The relevant burden borne by Norton Rose Fulbright is of rebutting the s.361 statutory presumption of which Ms Edgar was entitled to take advantage. It does not involve proof of a defence that would defeat Ms Edgar’s case even if she made out all her allegations. In that regard s.361 differs from its predecessor in the Workplace Relations Act 1996, s.664, which provided:
In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a)it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b)it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).
Nevertheless, it is not unarguable that the s.361 presumption does shift to a respondent not only an evidentiary burden but also the legal burden on the question of motivation: Cross on Evidence (online version) at [7275]. It is to be kept in mind that s.361 relevantly states:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (emphasis added)
However, I am bound by Davids Distribution v National Union of Workers.
Even so, because persuasive rebutting evidence of motivation would make Ms Edgar’s claims of adverse action not maintainable, r.16.08(c) of the FCA Rules requires the respondents, or at least Norton Rose Fulbright and the third respondent, to plead those facts they will rely on in attempting to prove that the adverse action in question was not taken for the reasons alleged by Ms Edgar. The appropriateness of requiring that those matters be specifically pleaded and particularised tends to be underscored by the fact that the respondents went to the trouble of setting out, in particulars subjoined to their traverses, the case they would be seeking to make out to rebut the s.361 presumption and so defeat the relevant allegations that the first respondent as principal and the third respondent as accessory contravened the FW Act’s adverse action provisions. In those circumstances, it is appropriate that the particulars of paras.20(b), 25, 28(a)(ii), 31(a)(i), 37 and 41 be struck out with leave to replead.
The particulars to paras.15(a)(i) and 28(a)(i) are not directed to rebutting the s.361 presumption and so need not be struck out, notwithstanding their unorthodoxy.
CONCLUSION
The particulars to paras.20(b), 25, 28(a)(ii), 31(a)(i), 37 and 41 are to be struck out and the respondents granted leave to file an amended defence within 21 days.
In all other respects the application in a case will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 11 March 2020
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