FEDERAL COURT OF AUSTRALIA
Edwards v Golden Cockerel Pty Ltd [2025] FCA 152
File number(s): QUD 165 of 2022 Judgment of: COLLIER J Date of judgment: 4 March 2025 Catchwords: PRACTICE AND PROCEDURE – Application for no case to answer – Whether respondent required to elect whether to call evidence before making no case application – Respondent not required to elect whether or not to call evidence –Whether respondent had case to answer in respect of substantive application – Where large parts of amended statement of claim objected to or no longer relied on and applicant led no evidence other than her own affidavit - Application for strike out of amended statement of claim – Amended statement of claim struck out in its entirety – Substantive application dismissed
INDUSTRIAL LAW - Where applicant claimed breaches of the Fair Work Act 2009 (Cth) related to direction by respondent to receive COVID-19 vaccination – Where applicant refused to receive COVID-19 vaccination – claim of religious reasons
Legislation: Australian Immunisation Register Act 2015 (Cth)
Fair Work Act 2009 (Cth) ss 340, 351, 361
Privacy Act 1988 (Cth) s 13
Privacy Act 1988 (Cth) Sch 1 (Australian Privacy Principles) ss 3.3, 3.5
Federal Court Rules 2011 (Cth) rr 16.21 (1)(b)-(f)
Anti-Discrimination Act 1991 (Qld) ss 7, 8, 10
Human Rights Act 2019 (Qld) s 17(c)
Human Rights Act 2019 (Qld) ss 9, 10
Work Health and Safety Act 2011 (Qld)
International Covenant on Civil and Political Rights
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Sabapathy v Jetstar Airways (2021) 283 FCR 348
Wijayaweera v Saint Gobain Abrasives Pty Ltd [2012] FCAFC 128
Australian Competition & Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 17
Australian Competition & Consumer Commission v Boral Ltd (No 2) [1999] FCA 1641
Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292
Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2) [2022] FCA 132
Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943
Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770
McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828
Murdock v Virgin Australia Airlines Pty Ltd (No.2) [2023] FCA 569
Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23
Tru Floor Service Pty Ltd v Jenkins (No 2) [2006] FCA 632
Wijayaweera V St Gobain Abrasives Ltd (No 2) [2012] FCA 98
Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VR 187
Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54
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- Case
- [2025] FCA 152
- Decision Date
CaseChat Overview and Summary
The court found that Golden Cockerel was not required to elect whether to call evidence before making a no case to answer application. It also found that Golden Cockerel had no case to answer in respect of Ms Edwards' claims under sections 340 and 351 of the Fair Work Act. The court found that the amended statement of claim should be struck out in its entirety, and the substantive application dismissed. This was because large parts of the amended statement of claim were either no longer relied on or objected to, and Ms Edwards led no evidence other than her own affidavit. The court also found that Ms Edwards' affidavit was substantially inadmissible due to hearsay and opinion evidence.
The court's reasoning was based on the well-established principles for a ruling that there be no case to answer, which include situations where there is no reference to the evidence, an evidentiary hiatus, weak and unreliable evidence, or where the evidence could not support the causes of action pleaded. In this case, the court found that the evidence presented by Ms Edwards was insufficient to support her claims. The court also considered that striking out the entirety of the amended statement of claim would avoid confusion and ensure clarity in the proceedings. The court dismissed the substantive application and ordered that costs be reserved.
Orders
Orders of the court
1. There is no case to answer by Golden Cockerel Pty Ltd in respect of ss 340 and 351 of the Fair Work Act 2009 (Cth).
2. The Amended Application filed by the applicant on 14 October 2022 be dismissed.
3. In the alternative, the Amended Statement of Claim filed by the applicant on 14 October 2022 be struck out pursuant to rule 16.21(1)(b),(c),(d),(e) and (f) of the Federal Court Rules 2011 (Cth).
4. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I consider it likely that Ms Edwards’ affidavit is substantially inadmissible in its entirety. Ms Moody for Golden Cockerel submitted however that the respondent would not object to every opinion Ms Edwards expressed, because some of the opinions went to the issue of Ms Edwards’ state of mind as to her reason for refusal of the COVID-19 vaccination. In order to consider whether her ASOC presents no case for the respondent to answer, for present purposes I shall have regard to evidence on which Ms Edwards relies referable to the claims she continues to press, noting my view that, at a preliminary level, I consider her affidavit substantially inadmissible.CONSIDERATION Ultimately, Ms Edwards has claimed:·Damages for discrimination in breach of s 351 of the Fair Work Act.·Aggravated damages.·Civil penalty in respect of the Respondent’s contraventions of ss. 340 and 351 of the Fair Work Act.·Reinstatement of employment.·Costs. It is not in dispute that Golden Cockerel terminated Ms Edwards’ employment on 18 January 2022. Originally in her ASOC, Ms Edwards claimed that Golden Cockerel’s actions constituted breaches of: (a)s 340 and 351 of the Fair Work Act 2009 (Cth); (b)ss 7, 8 and 10 of the Anti-Discrimination Act 1991 (Qld); (c)s 17(c) of the Human Rights Act 2019 (Qld) and/or article 7 of the International Covenant on Civil and Political Rights; (d)various sections of the Work Health and Safety Act 2011 (Qld) and its subordinate instruments; (e)various clauses of the Golden Cockerel (Production and Distribution Employees) Enterprise Agreement 2018; (f)s 13 of the Privacy Act 1988 (Cth) and ss 3.3 and 3.5 of the Australian Privacy Principles; (g)the Australian Immunisation Register Act 2015 (Cth); and (h)the employment contract between Ms Edwards and Golden Cockerel. By the time of the most recent hearing of this matter, Ms Edwards had abandoned all but two of her claims. The claims that remained before the Court were, in summary, that Golden Cockerel breached: (a)s 340 of the Fair Work Act; and (b)s 351 of the Fair Work Act, in respect of Ms Edwards’ religion. As I have already noted in this judgment, the respondent has sought either a ruling that there be no case for it to answer, or that paragraphs (or, alternatively, the entirety) of the ASOC be struck out. Principles referable to a ruling that there be no case to answer are well-settled. The leading Australian authority in respect of such a ruling is Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 at 68 where Perry J said:As to that aspect of the matter it seems to me that there are primarily four situations in which a submission of no case to answer may be made. They are:1. Where no reference at all to the evidence is required.2.Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.3.Where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the causes of action pleaded.4.The situation where it is contended that although there is some evidence to support the plaintiff's claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant.