Edwards v Golden Cockerel Pty Ltd

Link copied
Case Copied 54 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Edwards v Golden Cockerel Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2025] FCA 152
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Ms Edwards, an applicant, brought claims against her former employer, Golden Cockerel Pty Ltd. Ms Edwards alleged that Golden Cockerel breached sections 340 and 351 of the Fair Work Act 2009 (Cth) by directing her to receive a COVID-19 vaccination. When she refused, citing religious reasons, Golden Cockerel terminated her employment. The court was required to determine whether Golden Cockerel was required to elect whether to call evidence before making a no case to answer application and whether the respondent had a case to answer in respect of the substantive application.

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

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

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.