Edwards v Golden Cockerel Pty Ltd
[2025] FCA 152
•4 March 2025
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
KTC v David [2022] FCAFC 60
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
Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118
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
R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages [2014] 1 AC 610
R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 82 Date of last submission/s: 7 June 2024 Date of hearing: 13 June 2024 Counsel for the Applicant: M A Rawlings Counsel for the Respondent: S Moody Solicitor for the Respondent: AI Group Lawyers Solicitor for the Applicant: MR Barbi Solicitor Pty Ltd ORDERS
QUD 165 of 2022 BETWEEN: LEAH EDWARDS
Applicant
AND: GOLDEN COCKEREL PTY LTD
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
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.
REASONS FOR JUDGMENT
COLLIER J:
The applicant in the substantive proceeding, Ms Leah Edwards, was employed by the respondent, Golden Cockerel Pty Ltd (Golden Cockerel), on or around 23 October 2019 until 18 January 2022. Ms Edwards sought substantive relief from Golden Cockerel referable to the termination of her employment.
Before the Court is an interlocutory application made orally on 14 April 2024 by Golden Cockerel seeking orders that:
(a)the proceeding be dismissed on the basis that Golden Cockerel has no case to answer in the substantive proceeding in respect of ss 340 or 351 of the Fair Work Act 2009 (Cth) (Fair Work Act); or
(b)the amended statement of claim filed by Ms Edwards on 14 October 2022 (ASOC) be struck out in its entirety, or specific paragraphs be struck out.
In my view, Golden Cockerel has no case to answer in the substantive proceeding in respect of ss 340 or 351 of the Fair Work Act. Further, I find that paras 1(f,) 3(b)-(h), 9, 10, 11, 12, 13, 17, 25, 31, 32, 33, 34 and 35 of the ASOC should be struck out, and further that the ASOC in its entirety should be struck out.
I have so found for the following reasons.
BACKGROUND
Initially, Ms Edwards was one of a group of eight applicants who commenced substantive proceedings against their former employer, Golden Cockerel. On 14 July 2023, seven of those applicants lodged a Notice of Discontinuance with the Court, making Ms Edwards the sole applicant remaining in this proceeding.
The relevant facts agreed between the parties can be summarised as follows:
·On 25 November 2021, Golden Cockerel introduced a COVID-19 Mandatory Vaccination Policy (the Vaccination Policy) which provided:
·each employee of Golden Cockerel was required to receive 2 doses of a COVID-19 Vaccination provisionally approved by the Australian Therapeutic Goods Administration;
·each employee of Golden Cockerel was required to provide Golden Cockerel with evidence of their vaccination status; and
·failure to comply with the Vaccination Policy would mean that an employee would not be allowed to access Golden Cockerel’s places of employment and would face disciplinary action, including dismissal.
·Ms Edwards failed to comply with the Vaccination Policy.
·On or about 11 January 2021, Golden Cockerel wrote to Ms Edwards, advising her that she had failed to comply with the Vaccination Policy, and on that basis Golden Cockerel was considering terminating her employment. Ms Edwards was given a period of time to provide evidence of her compliance with the Vaccination Policy (the date for compliance is not agreed between the parties but is irrelevant to my reasons for judgment).
·Ms Edwards did not comply with the Vaccination Policy after receiving Golden Cockerel’s correspondence of 11 January 2021.
·Golden Cockerel issued a notice terminating Ms Edwards’ employment on 18 January 2022.
When the substantive matter came on for hearing before me on 16 April 2024, Ms Edwards appeared in person. Golden Cockerel appeared represented by counsel. In summary:
·Ms Edwards had not sought to call any witnesses, but nonetheless was prepared to proceed with her application.
·Golden Cockerel objected to affidavits of Ms Lisa Mitchell and Mr Nikolai Petrovsky filed by Ms Edwards, on the basis that those witnesses were not available for cross-examination. Ms Edwards did not press reliance on those affidavits.
·Ms Edwards relied on her affidavit filed on 14 March 2023. Other than relying on that affidavit, there were no submissions of Ms Edwards either orally or in writing.
·Golden Cockerel made 22 objections to Ms Edwards’ affidavit based on opinion and hearsay. Golden Cockerel also raised concerns about the validity of a number of claims of Ms Edwards as pleaded in the ASOC.
·Following the closure of Ms Edwards’ case, Golden Cockerel sought to make submissions that:
·there was no case to answer; or
·alternatively, various provisions of the ASOC ought be struck out, or the entirety of the ASOC be struck out.
·I granted leave to Golden Cockerel to orally make its application for no case to answer, or alternatively strike out.
·I also stated that Golden Cockerel was not required at that time to elect whether to call evidence.
·I made timetabling orders for the filing of submissions by both parties, and adjourned the hearing part-heard to a date to be fixed.
Prior to the matter returning, Ms Edwards instructed legal representatives.
Both parties filed written submissions, and made oral submissions at the hearing on 13 June 2024.
PRESSED PARAGRAPHS IN THE AMENDED ORIGINATING APPLICATION AND THE AMENDED STATEMENT OF CLAIM
At the hearing on 13 June 2024, Mr Rawlings for Ms Edwards informed the Court that Ms Edwards no longer pressed numerous paragraphs in the amended originating application, and further no longer pressed a significant portion of the ASOC. Those paragraphs on which the applicant continued to rely for the purposes of the substantive proceedings were:
·in the amended originating application: paras [3]-[7]; and
·in the ASOC: paras [1]-[17], [22]-[26], [28(b)],[29(a)(i), (iv)-(v)], [29(b)(i)-(ii),(v)-(vii)], [29(c)],[30],[32(i)-(k)], [32(l)(ii)], [32(m)-(o)],[33(c)-(h)] and [36]-[39].
RESPONDENT’S SUBMISSIONS IN RESPECT OF NO CASE AND STRIKE OUT
In summary, Golden Cockerel submitted:
·There was no case to answer with respect to Ms Edwards’ pleaded causes of action which she continued to press, being alleged breach of s 351 of the Fair Work Act (based on claims of direct discrimination on the basis of “religious belief”), and alleged breach of s 340 of the Fair Work Act.
·Contrary to the applicant’s submission, on 16 April 2024 the Court ruled on the question whether Golden Cockerel should be required to make an election as to whether to call evidence. The Court had a discretion to allow the respondent to make a no case submission without being required to make an election to call evidence. The applicant did not oppose this course of action on 16 April 2024.
·The Court appropriately exercised its discretion to allow a no case submission without the respondent being required to elect to call evidence in accordance with principles explained by Perry J in Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 at 68-69, in circumstances where:
·the pleaded causes of action in the ASOC were poorly pleaded and arguably did not disclose causes of action known to law; and
·the ASOC and the pleaded causes of action within it were heavily reliant on claims that could only be proven by expert medical evidence, of which the applicant had filed none.
·Sections 340 and 351 of the Fair Work Act are civil penalty provisions, which require precision in pleadings.
·The claims relating to ss 340 and 351 of the Fair Work Act ought to be struck out pursuant to rules 16.21(1)(b),(c),(d),(e) and (f) of the Federal Court Rules.
·Paragraphs 1 (f), 3(b) to (h), 9, 10, 11, 12, 13, 17, 18, 19, 20, 21, 25, 31, 32, 33, 34 and 35 of the AOSC should be struck out as there was no evidence before the Court to support those claims.
APPLICANT’S SUBMISSIONS IN RESPECT OF NO CASE AND STRIKEOUT
Ms Edwards submitted, in summary:
·The political opinion aspect of s 351 of the Fair Work Act was not pressed (transcript page 4 lines 20-21).
·Ms Edwards’ breach of contract claim was not pressed (transcript page 4 line 23).
·If the Court must consider Ms Edwards’ evidence in considering the application, Golden Cockerel ought to be put to a call referable to its decision whether to adduce evidence.
·The Court should take a pragmatic approach as distinct from a pedantic approach to considering whether the ASOC sufficiently pleaded the causes of action alleged, including whether the pleading put the parties on notice of the case to be met, provided sufficient information to avoid surprise, defined the issues at trial and guided the parties on the permissible bounds of the evidence: Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13], Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118 at [19], and Sabapathy v Jetstar Airways (2021) 283 FCR 348 at 358-359.
·The ASOC sufficiently plead breaches of ss 340 and 351 of the Fair Work Act.
·Golden Cockerel’s reliance on Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120 should not be accepted, but rather the case should be distinguished and the Court should instead follow the approach taken by the House of Lords in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246.
·If the Williamson approach was adopted by this Court, Golden Cockerel’s “no case” application must fail.
·In respect of the respondent’s claim that there was no case to answer in respect of the applicant’s s 340 case, the respondent sought to analyse the applicant’s case in a piecemeal fashion with specific paragraphs of the ASOC being robbed of the context which comes from reading the pleading as a whole. Regarding the respondent’s claim that there was no case to answer in respect of the applicant’s s 351 case, some of the arguments relied on an analysis of the evidence which should not be considered prior to the respondent being put to a call.
EVIDENCE ON WHICH MS EDWARDS RELIES
The only evidence on which Ms Edwards relies is her affidavit filed on 14 March 2023.
Ms Edwards’ affidavit is the subject of extensive objection by the respondent on the basis of impermissible hearsay and opinion. In my view, there are valid grounds for the respondent’s objections.
I note for example paragraphs 8, 12, 15 and 21 of Ms Edwards’ affidavit which constituted opinion evidence, and were plainly inadmissible:
8.The updates and notices were very regular and, in my view, unnecessary. Each such update ramped up everyone’s anxiety about SARS-COV2, when there was no need for healthy working age Australians to be scared at all.
…
12.On 16 July 2020, the Respondent introduced a policy of temperature checking each person entering my Workplace. The security guard retained by the Respondent checked everyone’s temperatures before they entered my Workplace. There was no need for this measure to be adopted and it was very invasive. The chances of an asymptomatic person spreading SARS-COV2 in a workplace was nearly impossible, as far as I was aware.
…
15.I do not believe it was safe for employees to be forced to wear masks whilst performing physical work. I had to wear a mask for the entire duration of my shifts, including in the lunchroom, where we were allowed to take them off only to eat before putting them back in place. Given the type of work I was doing, my mask would quickly become dirty and smelly. The Respondent provided masks for us to wear, but it never gave me any instruction on how masks were to be work, for how long they were to be worn and when to change them for a new mask. I believe this showed a complete disregard for my safety, where the scientific literature shows that masks will result in reduced oxygen intake and viruses thrive in an oxygen-reduced environment.
…
21.Contrary to the Respondent’s communications that gave the impression that everyone was at risk of imminent death from COVID-19, my research showed that the risk posed by SARS-COV2 to most healthy, working age Australians was very, very small. This led me to wonder why the Respondent was deliberately ramping up the fear over the virus. I thought the more appropriate thing to do in a medical emergency was to keep everyone calm, rather than instil terror into them.
Ms Edwards repeatedly gives alleged medical opinions in her affidavit concerning COVID-19 medical treatments for which she is plainly unqualified (for example at paras 30, 51, 52, 55, 56, 57, 67, 68, 69, 73, 79, 95). Such evidence is also clearly inadmissible.
Ms Edwards gives extensive opinion evidence, including for example her opinion of what the respondent knew (para 74), her feelings of being disgusted (para 75), accusations of ignorance or lying by third parties (para 80), her view that employees were entitled to be paid for additional time spent at work (para 82), her belief that she was “[no] more dangerous than an unvaccinated person” (para 84), and her belief that “any reliance on the government to provide accurate advice was misplaced” (para 93). Such evidence is inadmissible.
Ms Edwards offers no expert medical evidence referable to COVID-19 medical treatments, or her own personal medical condition despite claiming depression.
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.
These principles have been applied in the Federal Court on many occasions: see, for example Australian Competition & Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 17, McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 at [86], Tru Floor Service Pty Ltd v Jenkins (No 2) [2006] FCA 632 and Wijayaweera v Saint Gobain Abrasives Pty Ltd [2012] FCAFC 128 at [24].
In Amcor at [63], Sackville J said of Residue:
…
Perry J made these further observations (at 69):
"As to category 1, this should normally be argued on the pleadings, preferably before the trial commences. No question of election arises in that situation. Likewise, consideration of a submission of no case to answer in category 2 should not involve an election.
As to categories 3 and 4, these situations should normally be met by the application of what I have referred to as the general rule that counsel should be called upon to elect."
[64] In my respectful opinion, these observations are helpful, provided they are not treated as a rigid categorisation to be applied regardless of the circumstances of an individual case. As Olsson J said in Popovic v Tanasijevic (No 3) [1999] SASC 339, at [14], the four categories are not necessarily absolute and exclusive and there can be hybrid situations. There must be, as his Honour pointed out, a residual discretion to apply a reasonable degree of flexibility to meet the exigencies of particular cases and to achieve a fair and just result.
In considering the present proceeding in respect of whether there is a case for the respondent to answer, the following issues require determination:
(1)whether Golden Cockerel should be put to election as to whether to call evidence prior to the Court ruling on the no case to answer issue; and
(2)whether Ms Edwards’ arguments for a breach of provisions of the Fair Work Act were properly pleaded, and if so, whether Golden Cockerel has a case to answer in respect of those arguments, concerning:
(a)Section 340 of the Fair Work Act; or
(b)Section 351 of the Fair Work Act;
Irrespective whether Golden Cockerel has a case to answer in respect of either ss 340 or 351 of the Fair Work Act, in light of the arguments put to the Court it is appropriate that I consider whether parts (or the entirety) of the ASOC should be struck out pursuant to r 16.21 of the Federal Court Rules.
(1) Should Golden Cockerel be put to election as to whether to call evidence?
Where a party submits there should be a ruling that there is no case to answer, the question arises whether that party should first be put to election as to whether they propose to call evidence, before being given the opportunity to develop the detailed arguments upon which the submission of no case was to proceed. This issue was explained by Kenny J in Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292. There her Honour said:
17The general rule is that “a decision will not be given on a submission of no case to answer unless the moving party elects to call no evidence”: see Rasomen at 223. The judge hearing the submission has a discretion to depart from this general rule, however, where the particular circumstances warrant it. In Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VicRp 18 ; [1985] VR 187 ("Protean") at 237 Tadgell J explained the nature of a no-case submission and the courses open to the judge in the following terms:
When ... a party indicates that he desires to submit that he has no case to answer upon a contested issue, he is really inviting the Judge to rule that he should not have to adduce evidence, or further evidence, on that issue in order to have it finally decided in his favour. Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call "the moving party") and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call "the respondent party"). ... The judge is entitled, for reasons that seem appropriate to him, to decline out and out to entertain such a submission at the stage at which he is asked to do so. ... Usually there would be three courses open to him, short of refusing altogether to entertain the submission, namely:
1. He might decline to entertain the submission at that stage unless the moving party were to elect before making it not to call any evidence, either generally or on the issue on which the ruling was sought; or
2. He might allow the submission to be made without putting the moving party to any election at that stage but leaving, until he had heard it, the question whether or not he would rule on it without requiring an election to be made; and having heard the submission, and any answer to it by the respondent party, he could either rule on it or not, perhaps requiring an election to be made as a prerequisite to his doing so; or
3. He might indicate that he would both entertain the submission and rule on it without requiring an election to be made by the moving party.
18The respondents submitted that not only should the Court entertain their no-case submission, but that it should do so upon the basis that they would not be put to their election. The applicant opposed this course, arguing that the no-case submission should only be heard upon the basis that the respondents were put to their election. In Protean (at 238) Tadgell J said that, in deciding upon the preferred course on such occasions, "the Judge will be guided by the nature of the case , the stage it has reached, the particular issues involved and the evidence that has been given". He added (at 238):
The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation. The imposition of such a requirement is not a right of the respondent party, for the fate of the submission of the moving party, once made, is in no sense dependent on election or no election.
Similarly in McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 Greenwood J said:
86.The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a ‘no case’ submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the ‘no case’ submission turns solely on a question of law or jurisdiction (Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud (ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff’s claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of ‘no case’ to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J.
Cases in which a Court permitted a no case submission to be made without requiring the moving party to elect whether it would call evidence are Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VR 187 and at first instance in Wijayaweera (Wijayaweera V St Gobain Abrasives Ltd (No 2) [2012] FCA 98.
In Protean, Marks J at first instance observed at 193:
Here [Counsel for the moving party] has indicated that his submissions are substantially ones of law including submissions, in effect, as I understand him, that the particulars to which evidence has been addressed cannot substantiate, or are irrelevant to, the allegations they are said to support. Further, Mr. Chernov's submissions may, if permitted, help to crystallize the relevance, if any, of the wide-ranging investigation of the financial status of the first plaintiff which has possibilities for substantial expansion should the plaintiffs be put to their election.
There is a danger, of course, that accession to this application be taken as reflecting a conclusion already formed in the mind of the judge that the submissions will succeed. That would be a wrong inference to draw. The proper inference is, I think, that the judge thinks at this stage that there are serious matters which can be raised in favour of the submissions, that his mind may be better clarified by hearing them at this stage, and that the interests of justice, convenience and saving in costs may be better served by doing so.
I should make no secret of the difficulty which I think has confronted the defendant throughout its case and persists on the present state of the evidence in relation to the allegation of fraud and deliberate lighting by or on behalf of the first plaintiff. It is apparent from the documents recently tendered that the defendant has itself been well aware of it, has been so advised and I have from time to time raised with its counsel the nature of inferences which it is contended can be drawn from the evidence.
Accordingly, that issue in particular may be usefully the subject of submissions at this stage. I am prepared to hear your submissions, Mr. Chernov, without putting you to your election.
(emphasis added)
On appeal in Protean, Young CJ materially said at 215:
…before ruling whether the submission is to be entertained without election, it will generally be necessary for the trial judge to form some preliminary estimate of the evidence: [Union Bank of Australia Ltd v Puddy [1949] VicLawRp 46; [1949] VLR 242)
In the same case, Tadgell J observed at 238:
The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation.
In Wijayaweera, Gordon J at first instance ruled that that case fell within the two categories to which Perry J had referred in Residues to which no election was required. Her Honour said:
11.The present case involves, at the very least, categories 1 and 2. Given the length of the hearing (less than one day), the serious and unsubstantiated nature of the allegations, the saving of Court time and expense and the fatal flaws in the applicant’s pleaded claim, the respondents will not be required to elect: see also Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968; (1998) 157 ALR 1 at 9 and Tru Floor at [28]-[29].
At [24] in the Full Court appeal decision in Wijayaweera, their Honours found that Gordon J made no error in exercising her Honour’s discretion on the basis of those considerations.
In the present case, Golden Cockerel sought to make a no case to answer submission on 16 April 2024 without the need for it to elect to call evidence. This submission was made at the close of Ms Edwards’ case, where:
·Ms Edwards had called no witnesses;
·Ms Edwards had relied on no expert evidence to support her claims;
·the only affidavit on which Ms Edwards relied was her own affidavit filed 14 March 2023;
·despite the matter having been set down for a 2 day hearing commencing 16 April 2024, Ms Edwards closed her case within minutes after opening her case;
·there were extensive objections by Golden Cockerel to aspects of Ms Edwards’ affidavit on the basis of opinion and hearsay, which prima facie appeared to have merit such that I was satisfied that it was likely that the evidence of Ms Edwards was substantially inadmissible;
·there appeared to be ambiguity as to the claims which Ms Edwards pressed; and
·the respondent had proposed to call several witnesses for cross-examination referable to the affidavits and expert report already filed.
In such circumstances, it appeared that reference to the evidence in the case was required only to establish that there was an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of actions pressed. Alternatively, it appeared at that preliminary stage that, on a consideration of the evidence adduced by Ms Edwards taken at its highest from her point of view, the evidence could not support the causes of action purportedly pleaded. I was satisfied that a just and convenient consideration of the case was promoted by the Court entertaining a no case submission without requiring the respondent to elect whether to call evidence, or if it did, to go to the expense of a trial of calling witnesses.
As a result, I ruled that Golden Cockerel was entitled to apply for a ruling of no case to answer, without making an election as to whether it would call evidence (transcript 14 April 2024 p 14 lines 19-21).
This ruling was not challenged by the applicant at the time. I am aware that the applicant at that stage was a litigant in person. However, trials must proceed irrespective whether one of the parties is at the disadvantage of being unrepresented. I further note that, despite me suggesting that Ms Edwards could benefit from legal advice, including potentially pro bono legal advice, such suggestion was rejected by the applicant because she was “just happy to go with the flow at the moment” (transcript 16 April 2024, page 16 line 45).
In my view, the issue of election to call evidence by Golden Cockerel was resolved on 16 April 2024, and is not open to being re-opened at this late stage.
(2) Principles concerning a no case to answer application in respect of claims involving ss 340 or 351 of the Fair Work Act
In Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 Gilmour J examined the principles concerning a no case to answer claim referable to alleged contraventions of the Fair Work Act. His Honour helpfully observed as follows:
120.In Australian Securities and Investments Commission v Healey (2011) 196 FCR 291 at [535], Middleton J approved the principles concerning a no case submission identified by Kaye J in Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 at [3] as follows:
[3] In my view the authorities, to which I shall shortly refer, establish the following broad principles which should apply to the application which is before me:
1.Where a no case submission is made in a trial by jury, the role of the judge is to determine whether, on the view of the evidence most favourable to the party against whom such a submission has been made (“the respondent party”), the jury could (not would) find in favour of the respondent party.
2.The test which is applicable, where a judge is sitting without a jury, is less stringent. In such a case the judge may uphold a no case submission, notwithstanding that the evidence, on the view most favourable to the respondent party, could support a judgment in favour of the respondent party.
3.In such a case the judge may perform an assessment of the quality of the evidence which has been called on behalf of the respondent party. In some cases, such an assessment may involve the judge evaluating the credit of witnesses from whom such evidence has been called.
4.In determining a no case submission, the judge is entitled to draw inferences from the evidence.
5.On a no case submission, the judge cannot draw an inference against the party making the submission (“the moving party”) based upon the absence of evidence from that party.
6.Although the judge, sitting alone, may assess the quality of the evidence in determining a no case submission, nonetheless the test which is to be applied by the judge, at that stage, is different to the test which the judge would apply in determining the ultimate outcome of the case, at the conclusion of a trial. Notwithstanding that the judge, in determining the no case submission, may assess the quality of the evidence, nonetheless the test remains whether, on the evidence so assessed, the judge “could” (not would) find for the respondent party on the evidence so far led. In such a case, the judge would only find against the respondent party if the evidence, so far adduced, is so unsatisfactory or inherently unreliable or equivocal that he were to conclude that he could not be reasonably satisfied of the case made by the respondent party on the evidence thus far adduced.
121. Justice Middleton at [536] observed that these propositions were consistent with authority and the Full Court’s decision in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216. This observation seems to have been directed to the question confronting his Honour and which was before the Full Court in Rasomen, whether the moving party in a no case submission ought be put to its election to call no evidence.
122. Jones v Dunkel was adverted to in Rasomen at 226, but in the context of the approach of a trial judge, sitting without a jury, faced with a no case submission. The Full Court adopted what had been said by Windeyer J in Jones v Dunkel at 330–331:
When there is no jury, the proposition “no case to answer” may obviously mean far more than, “is there evidence on which a jury could find for the plaintiff?” It may mean, “would you, the judge, on the evidence given, find for the plaintiff?”
(emphasis added)
In my respectful view, those observations equally apply in the case before me.
(a) Ms Edwards’ claim under s 340 of the Fair Work Act
Section 340 of the Fair Work Act provides:
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
To the extent pressed, and relevant, Ms Edwards in her amended originating application pleads:
The Applicants claim:
…
5.Civil penalty in respect of the Respondent’s contraventions of Ss. 340 and 351 of the Fair Work Act.
In the ASOC, Ms Edwards pleads:
33.At 25 November 2021, the Vaccination Policy was not a reasonable direction under the Employment Contracts because of the following matters:
…
BREACHES OF WORKPLACE RIGHTS
d.The following are workplace rights for the purpose of S.341 of the Fair Work Act:
i. The Applicants’ rights and entitlements under the Work Health and Safety Act, being a workplace law for the purposes of S.341(1)(a) of the Fair Work Act; and
ii. The Applicants’ rights and entitlement under the EBA, being a workplace instrument for the purposes of S.341(1)(a) of the Fair Work Act;
e.By, inter alia, the letter from the Applicants to the Respondent dated 4 January 2022, the Applicants provided notice to the Respondent that:
i. They considered that the Respondent had failed to comply with its WHS Safety and Consultation Duties;
ii. They required the Respondent to comply with its obligations under the Work Health and Safety Act;
iii. They considered that the Respondent had failed to comply with its obligations under Clause 9 of the EBA; and
iv. They required the Respondent to comply with those obligations;
f. Despite the letter specified in subparagraph e. above, the Respondent neglected to comply with its obligations under the Work Health and Safety Act and EBA:
i. For the reasons pleaded in subparagraphs 32.i to m in respect of the Work Health and Safety Act;
ii. For the reasons pleaded in subparagraphs 32.n to p in respect of the EBA; and
iii. By reason of the Bullying and Harassment pleaded in paragraphs 17 and 21 above;
g.Because of the Respondent’s failure to comply with the relevant obligations under the Work Health and Safety Act and EBA, the Applicants were unable to comply with the Vaccination Policy and could not reasonably do so until the Respondent had properly discharged the said obligations;
h.In breach of S.340 of the Fair Work Act, the Respondent has taken the following adverse action against the Applicants in accordance with S.342 of the Fair Work Act:
i. It altered each of the Applicant’s employment position with the Respondent to each Applicant’s prejudice by:
1.Continuing to enforce the Vaccination Policy against the Applicants despite failing to comply with the relevant obligations under the Work Health and Safety Act and EBA;
2. Issuing a Show Cause Notice to the Applicants;
3. Requiring each Applicant to participate in the employment disciplinary process; and
4. Engaging in the Bullying and Harassment; and
ii. It dismissed the Applicants because they did not comply with the Vaccination Policy because they were not reasonably able to do so because of the Respondent’s failure to comply with the relevant obligations under the Work Health and Safety Act and EBA.
In submissions, the applicant describes her case under s 340 of the Fair Work Act as follows:
Here, the Applicant says that she held a workplace right to be consulted to the extent recognised by the Golden Cockrel (Production and Distribution Employees) Enterprise Agreement 2018 (EBA) and Work Health and Safety Act 2011 (Qld) (WHS laws), and the Respondent took the action of disciplinary action to either prevent the exercise of the rights of consultation or because the Applicant had the right of consultation (the Section 340 Case).
In respect of Golden Cockerel’s submission of no case to answer, I make the following observations.
First, Golden Cockerel contends that no cause of action is pleaded by paras 33(d)-(f) of the ASOC. In my view this contention is correct because:
·To the extent that para 33(d) of the ASOC asserts the existence of workplace rights for the purposes of the Fair Work Act, the terms in which para 33(d) is framed are so broad as to be meaningless without particularisation. It is inadequate for Ms Edwards to simply plead that she has “a workplace right” under the Workplace Health and Safety Act. Notwithstanding the submission made by Ms Edwards’ legal representative at the hearing, these paragraphs do not plead that at relevant times Ms Edwards had any particular workplace right for the purposes of s 340 (1) of the Fair Work Act.
·As French CJ and Crennan J explained in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 at 506[5], the task of a court in a proceeding alleging a relevant contravention of the Fair Work Act is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. Again, notwithstanding the submission by Ms Edwards’ legal representative, paras 33[d]-[h] do not plead that Golden Cockerel took adverse action against Ms Edwards because she exercised an identifiable workplace right, or for any other reason proscribed by the Fair Work Act. At its highest, para 33(h)(ii) purports to plead the reason that the applicant was dismissed – noting that dismissal from employment can constitute “adverse action” – however, the reason as set out in that paragraph is not pleaded as a proscribed reason, nor is the actual meaning of para 33(h)(ii) readily discernible. On the pleadings and evidence before the Court, it is open to speculation whether Ms Edwards contends, for example, that she was dismissed because she refused to be vaccinated, or because of an alleged failure of consultation on the part of Golden Cockerel (in which case it is unclear how such workplace right constituted a reason for alleged adverse action). Such ambiguity is unacceptable in proceedings of this nature.
·The submissions of Ms Edwards that the Court should read the pleading as a whole to make sense of her claims, and that the respondent has inappropriately attacked her pleading in a piecemeal fashion, do not assist Ms Edwards’ case. As Heerey J observed in Australian Competition & Consumer Commission v Boral Ltd (No 2) [1999] FCA 1641, albeit in respect of consumer protection legislation (but nonetheless equally applicable to the present provisions of the Fair Work Act):
30.…Whether or not a proceeding under Pt IV is properly characterised as quasi-criminal, the fact remains that such cases are at a level of seriousness beyond ordinary civil contractual and tortious disputes (and the quasi-tort of s 52)… Today a finding of substantial contravention of Pt IV would rightly be seen as carrying a stigma, especially for a major corporate group. That being so, I do not think the respondents can be criticised for contesting the case at every point…
(emphasis added)
·Proceedings in which the imposition of a civil penalty is sought must be clearly pleaded, in order for the respondent to be in no doubt as to the nature of the case against it. It is plainly open to a respondent to resist such a case on the grounds of ambiguous or inadequate pleading on the part of an applicant, and to criticise the applicant’s case on that basis.
Second, there is an absence of evidence before the Court for the applicant, other than the affidavit of Ms Edwards. While Ms Edwards presses her affidavit, as I observed earlier the respondent submits that much of the affidavit is inadmissible, and I am of the view that there is merit to that submission.
In respect of Fair Work matters, I note the following observation of Logan J in Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 at [13]:
…While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
It is clear from the above authorities that the test to be applied in considering Golden Cockerel’s no case application is whether I “could” find against Golden Cockerel based on the evidence led by Ms Edwards. Although, because Golden Cockerel has not elected to call evidence, that test should not involve a detailed and evaluative analysis of the evidence (as it would if I were determining the substantive proceeding), I may assess the quality of Ms Edwards’ evidence in reaching my findings, and I have already set out in more detail my views of aspects of her evidence earlier in this judgment.
In particular, I note that Ms Edwards referred in the ASOC to a letter dated 4 January 2022 to Golden Cockerel. Despite some dispute, there is a letter of this date annexed to the affidavit of Ms Edwards as Exhibit “LE-8”, from her then-lawyer to Golden Cockerel. In that letter the then-applicants (including Ms Edwards) stated their view that “the wholesale vaccination of healthy employees who are not at risk from significant adverse complications from SARS-COV2, but may be at significant risk of adverse reactions from the vaccine, is a reasonable or proportionate response to the virus.” The letter also expressed the view that:
…any disciplinary action premised on either our clients’ failure to reveal their vaccination status or any perceived failure to submit to the vaccine, including the threat of stand-down, will be unlawful and a breach of the Fair Work Act.
Notwithstanding the existence of that letter, without further evidence and submissions referable to that evidence the existence of the letter and the assertions contained therein are not of themselves persuasive, and certainly not conclusive. There is a distinct hiatus in evidence referable to the circumstances of any action allegedly taken by Golden Cockerel against Ms Edwards. In so observing, I note not only the observation of Logan J to which I have referred, but also the evidentiary burden falling on Ms Edwards herself in cases such as this to adduce evidence as to basic jurisdictional facts inherent to her substantive claim, as explained for example in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2) [2022] FCA 132 at [114].
In any event, and despite the allegations of the applicant through her lawyers, there is no evidence before the Court that Golden Cockerel breached the Workplace Health and Safety Act, or the relevant enterprise bargaining agreement in respect of its vaccination policy, such as to found either a workplace right in the applicant, or ultimately a claim pursuant to s 340 of the Fair Work Act.
In the circumstances, the reverse onus on Golden Cockerel as employer contemplated by s 361 of the Fair Work Act is not enlivened.
I am satisfied that Golden Cockerel has no case to answer in respect of the applicant’s claim concerning s 340 of the Fair Work Act.
(b) Claim under s 351 of the Fair Work Act
Section 351 of the Fair Work Act provides:
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti‑Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti‑Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti‑Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti‑Discrimination Act 1992 (NT).
To establish breach of s 351 of the Fair Work Act, Golden Cockerel must have taken adverse action against Ms Edwards because of, relevantly, her religion. Plainly, the ASOC must plead those elements.
In relation to s 351 of the Fair Work Act, paragraphs which the applicant presses in the ASOC are:
DISCRIMINATION AND BREACH OF S.351 OF THE FAIR WORK ACT
25. The Applicants say that:
a. They each follow the Christian faith and believe in the tenets set forth in the King James Bible;
b. The Provisionally Approved COVID-19 Vaccines were developed using HEK293, which is derived from foetal kidney cells harvested from a live aborted child;
c. The Applicants only recently discovered that aborted foetal cells were used in the vaccine development process and that these cells were harvested from the foetus while it was alive;
d. The Pfizer and Moderna vaccines use mRNA to artificially alter the human body on a cellular level in circumstances where:
i. The mRNA (Messenger RNA) is programmed by the developers to instruct the body’s cells to produce SARS-COV2 spike proteins and the body’s immune system to attack the spike proteins and purge them from the body;
ii. The mRNA alters the operation of the body’s immune receptors by instructing them to attack SARS-COV2 spike proteins;
iii. The spike proteins are not isolated to the site of vaccination and have been found in every organ in the human body; and
iv. Further particulars will be provided by expert evidence;
e. Abortion and the effective torture of children (being the removal of kidney cells from a live foetus without anaesthesia) are contrary to the Applicants’ religious convictions as Christians; and
f. The Applicants also object to receiving any medication that can alter their body on a cellular level, such that the mRNA vaccines are contrary to their religious beliefs as Christians; and
g. The Provisionally Approved COVID-19 Vaccines were therefore, and are, contrary to their religious convictions as Christians and they cannot submit to vaccination.
(the Religious Beliefs).
26. The Applicants provided notice to the Respondent of their Religious Beliefs:
PARTICULARS
a. Letter from the Joint Applicants to the Respondent – 4 January 2021
…
28. Pursuant to S.351(1) of the Fair Work Act, the Respondent was, at all material times from March 2020 until the Termination Date, prohibited from taking adverse action (as defined in S.342 of the Fair Work Act) because of, inter alia, the following attributes (Protected Attributes):
a. Political opinions (as the Political Ideology in paragraph 27 is); and/orb. Religion (as where the Religious Beliefs in paragraph 25 are a fundamental part of the Christian Religion).
29. The Respondent took adverse action against the Applicants within the meaning of s.342 of the Fair Work Act (Adverse Action), because:
a. It altered each of the Applicant’s employment position with the Respondent to each Applicant’s prejudice by:
i. Making the Vaccination Policy;
ii. Implementing the Vaccination Policy;iii. Engaging in the Bullying and Harassment;iv. Demanding that the Applicants be vaccinated or lose their jobs
v. Compelling the Applicants to participate in the employment disciplinary process;
vi. Enforcing the Vaccination Policy; and/orb. It discriminated between the Applicants (and each of them) and other employees of the Respondent because:
i. It made the Vaccination Policy when it knew, or reasonably ought to have known that employees with the Protected Attributes could not reasonably comply with the Vaccination Policy;
ii. The Respondent did not intend to grant any employee an exemption premised on either of the Protected Attributes; and
iii. The Applicants knew that the Respondent did not intend to grant any exemptions premised on either of the Protected Attributes; andiv. Discrimination on the basis of an employee’s political convictions (which the Political Ideology is) is unlawful under S.7(1)(n) and 10 of the Anti-Discrimination Act (Qld);v. Discrimination on the basis of an employee’s religious convictions (as the Religious Beliefs are) is unlawful under S.7(1)(t) and 10 of the Anti-Discrimination Act (Qld);
vi. In making and enforcing the Vaccination Policy, the Respondent has required each of the Applicants to comply with a requirement or condition that had the effect of disadvantaging each Applicant because they could not reasonably comply with the Vaccination Policy because of their Protected Attributes;
vii. In continuing to enforce the Vaccination Policy after notice of the Applicants’ Political Ideology and Religious Beliefs was provided to the Respondent on 4 January 2022, the Respondent has directly discriminated against each Applicant by treating them unfavourably when compared to employees of the Respondent who did not follow the Political Ideology or hold the Religious Beliefs;
c. It dismissed the Applicants from their employment because of each Applicant’s Protected Attributes, in circumstances where the Respondent dismissed each Applicant because they did not comply with the Vaccination Policy because of their Protected Attributes.
30. In the premises of paragraphs 25 to 29 above, the Respondent has taken adverse action against each of the Applicants in breach of S.351(1) of the Fair Work Act.
(tracked changes referable to submissions of Counsel for the applicant at the hearing)
The primary issues in dispute in the present context are whether Ms Edwards has properly pleaded that she is an adherent to a “religion” for the purposes of s 351 of the Fair Work Act, if so whether she has pleaded that adverse action was taken against her because of her religion, and whether there is evidence before the Court to support any such pleadings.
The leading case for consideration in this area of law is the decision of the High Court in Church of the New Faith. Relevantly, in that case Mason ACJ and Brennan J observed at 137:
We would therefore hold that, for the purposes of the law, the criteria of religion are twofold:first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual's or a group's freedom to profess and exercise the religion of his, or their, choice.
Further, at 140 their Honours observed:
…In South Place Ethical Society (1980) 1 WLR, at p 1572; Dillon J. said:
"It seems to me that two of the essential attributes of religion are faith and worship; faith in a god and worship of that god. This is supported by the definitions of religion given in the Oxford English Dictionary (1914), although I appreciate that there are other definitions in other dictionaries and books. The Oxford English Dictionary gives as one of the definitions of religion: 'A particular system of faith and worship.'Then: 'Recognition on the part of man of some higher unseen power as having control of his destiny, and as being entitled to obedience, reverence, and worship.'"
This test limits religion to theistic religions. A similar test had been applied by the Court of Appeal in Reg. v. Registrar General; Ex parte Segerdal (1980) 1 WLR, at p 1572; (1980) 3 All ER, at p 924 , where it was held that a chapel of the Church of Scientology was not a place of meeting for religious worship. In that case, however, the statutory reference to worship suggested that Parliament had in mind a theistic religion. To restrict the definition of religion to theistic religions is to exclude Theravada Buddhism, an acknowledged religion, and perhaps other acknowledged religions. It is too narrow a test. We would hold the test of religious belief to be satisfied by belief in supernatural Things or Principles and not to be limited to belief in God or in a supernatural Being otherwise described.
In the same case Wilson and Deane JJ said at 174:
One of the more important indicia of 'a religion' is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has 'a religion'. Another is that the ideas relate to man's nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium (cf Malnak v Yogi) is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.
In Williamson, Lord Nicholls of Birkenhead (with whom Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood agreed) relevantly observed:
22.It is necessary first to clarify the court's role in identifying a religious belief calling for protection under article 9. When the genuineness of a claimant's professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: 'neither fictitious, nor capricious, and that it is not an artifice', to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52. But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its 'validity' by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Iaccobucci J also noted, at page 28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising. The European Court of Human Rights has rightly noted that 'in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed': Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, 335, para 117. The relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.
23.Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of 'manifestation' arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention: see Arden LJ [2003] QB 1300, 1371, para 258.
24.Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. Article 9 is apt, therefore, to include a belief such as pacifism Arrowsmith v United Kingdom (1978) 3 EHRR 218. The position is much the same with regard to the respect guaranteed to a parent’s “religious and philosophical convictions” under article 2 of the First Protocol: see Campbell and Cosans v United Kingdom [1983] ECHR 3; (1982) 4 EHRR 293.
Finally, and more recently, in the decision of the Supreme Court of the United Kingdom in R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages [2014] 1 AC 610, Lord Toulson (with whom Lord Neuberger, Lord Clarke and Lord Reed agreed) said:
51.Unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today's society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism. The evidence in the present case shows that, among others, Jains, Theosophists and Buddhists have registered places of worship in England. Lord Denning in Segerdal [1970] 2 QB 697, 707 acknowledged that Buddhist temples were "properly described as places of meeting for religious worship" but he referred to them as "exceptional cases" without offering any further explanation. The need to make an exception for Buddhism (which has also been applied to Jainism and Theosophy), and the absence of a satisfactory explanation for it, are powerful indications that there is something unsound in the supposed general rule.
52.Further, to confine religion to a religion which involves belief in a "supreme deity" leads into difficult theological territory. On the evidence of Mrs Wilks, Scientologists do believe in a supreme deity of a kind, but of an abstract and impersonal nature. Ideas about the nature of God are the stuff of theological debate.
…
57.Of the various attempts made to describe the characteristics of religion, I find most helpful that of Wilson and Deane JJ. For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind's place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word "supernatural" to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind's nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.
Golden Cockerel submits that Ms Edwards bears the onus of proving on the balance of probabilities that she is a member or adherent of a particular religion; and that it was a tenet of that religion that she could not submit to the relevant COVID-19 vaccines. Golden Cockerel also submits however that the ASOC does not plead that Ms Edwards was a member of a “religion”, but rather pleads that Ms Edwards “follow[s] the Christian faith and believe[s] in the tenants [sic] set forth in the King James Bible”. Further, Golden Cockerel submits that Ms Edwards does not plead that Golden Cockerel took adverse action against her because of her religion.
Ms Edwards has taken issue with the application of the decision in Church of New Faith. In my view however, the principles explained by their Honours in that case are applicable in this case. Taking into account the principles explained in Church of New Faith, Williamson and Hodkin, I am satisfied that Ms Edwards did plead that she was an adherent of the Christian religion. I note that:
·Ms Edwards’ evidence was that she believed in God;
·Her evidence at para 25 of her affidavit referred to ideas accepted by adherents of her religion, namely requiring or encouraging them to observe particular standards or codes of conduct referable to the sanctity of the human body; and
·Religious beliefs are intensely personal.
Ms Edwards pleads her religious beliefs, her objection to vaccination and that she informed Golden Cockerel of her religious beliefs. She further pleads that Golden Cockerel continued to enforce the Vaccination Policy notwithstanding being informed of the applicant’s religious beliefs, and asserted that she was the subject of discrimination compared with employees who did not hold her religious beliefs. However, even accepting this fact, Ms Edwards does not plead that Golden Cockerel took adverse action against her because of her religious beliefs, or that Golden Cockerel took adverse action which breached s 351 of the Fair Work Act.
Further, notwithstanding Ms Edwards’ evidence in her affidavit that she informed Golden Cockerel of her religious beliefs, the attention of the Court has been drawn to no credible evidence supporting that assertion, to no other evidence in support of Ms Edwards’ case that her religion prohibited vaccination, or – importantly – to any evidence that the decision maker(s) at Golden Cockerel was or were aware of Ms Edwards’ religious belief. In the letter dated 4 January 2022 from her lawyers to Golden Cockerel, the following appeared:
Religious Exemption
Neither employers nor the state government have the right to interfere with an employee’s religious freedom. Several of the Group (the Christians and Russian Orthodox Christian) have religious beliefs and follow the Christian Bible.
They are aware that the Moderna, Astra Zeneca and Pfizer vaccines have been created by using aborted foetal cells. As Christians, the use of unborn babies to create medications, and the way the cells are cultivated, are abhorrent concepts and they cannot conscientiously submit to a vaccine that has been created in that way.
Further, the Astra Zeneca vaccine has been developed using chimpanzee DNA and a chimpanzee adenovirus as the vector. This, too, is antithetical to their religious beliefs.
In the foregoing premises, it is our view that the Christians have a religious exemption in relation to the vaccines and you cannot lawfully discriminate against them on the basis of their religious convictions.
(emphasis added)
At that time however the legal representatives acted for 8 applicants, including Ms Edwards. There is no evidence before the Court that Ms Edwards was identified at that time as one of the “Several of the Group [with] religious beliefs”, or indeed one of “the Christians”.
No reverse onus of proof is enlivened in Golden Cockerel in respect of its conduct referable to Ms Edwards’ asserted religious beliefs. In my view, Golden Cockerel has no case to answer referable to s 351 of the Fair Work Act.
It follows that Ms Edwards’ amended application should be dismissed.
(3) Strike out
Finally, in the alternative Golden Cockerel has argued that paras 1 (f), 3(b) to (h), 9, 10, 11, 12, 13, 17, 18, 19, 20, 21, 25, 31, 32, 33, 34 and 35 of the ASOC should be struck out as there is no evidence before the Court to support those claims Golden Cockerel submits in the further alternative that the whole of the ASOC should be struck out pursuant to rule 16.21 (1)(b), (c), (d), (e) and (f) of the Federal Court Rules 2011 (Cth) as being opaque, internally inconsistent, failing to plead any cause of action, and embarrassing.
In particular, Golden Cockerel relies on observations of the Full Court in KTC v David [2022] FCAFC 60 at [113] to [125], and Burley J in Murdock v Virgin Australia Airlines Pty Ltd (No.2) [2023] FCA 569 at [21].
In respect of Golden Cockerel’s submission that specific paragraphs of the ASOC should be struck out, at the hearing it became apparent that a number of these paragraphs were no longer pressed by Ms Edwards, including paras 18, 19, 20, 21, 31, the bulk of 32, parts of 33, and 34. In respect of the remaining paragraphs pressed by Ms Edwards I am satisfied that:
·para 1(f) should be struck out because it is common ground that Golden Cockerel is a corporation, not a “public entity” as defined by ss 9 and 10 of the Human Rights Act 2019 (Qld);
·paras 3(b)-(h) should be struck out because they refer to persons who are no longer applicants to the proceedings;
·paras 9, 10, 11, 12, 13, 17, 25, 31, 32, 33, 34 and 35 of the ASOC plead, in summary, that Golden Cockerel’s Vaccination Policy was not safe and effective, or was unnecessary, because of assertions concerning medical issues related to COVID19. There is no evidence (including expert medical evidence) before the Court referable to these assertions; and
·such parts of paras 32 and 33 as are still pressed plead (in summary) that Golden Cockerel’s Vaccination Policy was not a lawful employment direction or policy because of alleged conduct on the part of Golden Cockerel denying Ms Edwards a workplace right, however there is no evidence referable to the lawfulness of that policy, and no evidence referable to any alleged breach of the Fair Work Act by Golden Cockerel concerning any workplace right of Ms Edwards.
At [124] in KTC v David, Wigney J (with whom Jackson J agreed) said:
124If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the “residue would be confusing”: Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305 at 323.
125Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: Allstate at 236. The power is discretionary and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175.
I further note the observations of Lockhart J in Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305 at [64] 323 to which Wigney J refers.
I am satisfied that, in circumstances where much of the ASOC is either no longer pressed by Ms Edwards, or has been struck out pursuant to r 16.21 (1) of the Federal Court Rules, to leave the residue would be confusing. On that ground alone I consider that, in the alternative, the entirety of the ASOC should be struck out.
CONCLUSION
I have found that Golden Cockerel has no case to answer in respect of claims of Ms Edwards referable to ss 340 and 351 of the Fair Work Act. As these are the only claims of substance pressed by Ms Edwards, her amended application filed on 14 October 2022 should be dismissed.
Alternatively, I have also found that paras 1(f,) 3(b)-(h), 9, 10, 11, 12, 13, 17, 25, 31, 32, 33, 34 and 35 of the ASOC should be struck out, as a result of which the entirety of the ASOC should be struck out.
As a general proposition, parties bear their own costs in respect of claims under the Fair Work Act: s 570. However, Golden Cockerel has asked to be heard in respect of costs. I will ask the parties to address me in respect of timetabling orders in respect of that issue.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate:
Dated: 4 March 2025
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