Farac v Pendal Group Limited (No 4)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Farac v Pendal Group Limited (No 4) [2023] FedCFamC2G 225

File number(s): SYG 2443 of 2020
Judgment of: JUDGE CAMERON
Date of judgment: 21 March 2023
Catchwords:

PRACTICE AND PROCEDURE – application to strike out parts of statement of claim – whether application duplicative and an abuse of process – whether provisions should be struck out – relevant considerations.

PRACTICE AND PROCEDURE – application for leave to file a further amended statement of claim – relevant considerations.   
Legislation:

Fair Work Act 2009 (Cth) ss 340, 341, 342, 352

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01, item 14 sch 1

Federal Court Rules 2011 (Cth) rr 1.32, 16.02, 16.21

Workers Compensation Act 1987 (NSW) s 248
Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256

Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd (2008) 78 IPR 586

Brosnan v Katke [2012] FCA 1249

Commonwealth v Verwayen (1990) 170 CLR 394

Farac v Pendal Group Limited (No 3) [2023] FedCFamC2G 220

Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41

J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581

Lamont v University of Queensland (No 2) [2020] FCA 720

National Parks and Wildlife Service v Pierson [2002] NSWCA 273

Nominal Defendant v Manning (2000) 50 NSWLR 139

Radisich v McDonald (2010) 198 IR 244

SZSRR v Minister for Immigration and Border Protection [2017] FCA 328

Tran v Singh [2019] FCA 70
Division: General
Number of paragraphs: 66
Date of hearing: 9 March 2023
Place: Sydney
Counsel for the Applicant: Ms R. Francois
Solicitor for the Applicant: Kennedys
Counsel for the Respondents: Mr D. Mahendra
Solicitor for the Respondents: MinterEllison

ORDERS

SYG 2443 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PETER ADAM FARAC

Applicant
AND:

PENDAL GROUP LIMITED (ACN 126 385 822)

First Respondent

RICHARD BRANDWEINER

Second Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

21 March 2023

THE COURT ORDERS THAT:

1.The applicant have leave to file a further amended statement of claim in the form circulated by email on 17 February 2023 subject to the omission of the following proposed paragraphs: 12(f); 18A; 18B; 19A; 45A; 45B; 66(f)(i), (ii) and (iv); and 66(h)(i) and (iv).

2.The respondents’ application to strike out various paragraphs of the amended statement of claim and thus of the proposed further amended statement of claim be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and…

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Details
Case
[2023] FedCFamC2G 225
Decision Date

CaseChat Overview and Summary

In the matter of Farac v Pendal Group Limited (No 4), the Federal Court considered an application by the respondents to strike out certain paragraphs of the applicant's amended statement of claim (ASOC). The applicant, Mr Farac, had previously filed a statement of claim (SOC) against Pendal Group Limited, alleging various breaches of employment law. The respondents sought to have specific paragraphs of the ASOC struck out on the grounds of insufficiency and ambiguity. The Court was required to determine whether the proposed amendments to the ASOC met the necessary legal standards and whether the amendments should be allowed.

The key legal issues before the Court were whether the proposed paragraphs in the ASOC were sufficiently clear and specific to provide Pendal with fair notice of the claims and whether they disclosed a reasonable cause of action. The Court examined the requirements for pleadings under the Federal Court Rules and the relevant case law, considering whether the proposed amendments would permit the real issues between the parties to be ventilated and decided. The Court also had to assess whether the proposed pleadings were likely to cause prejudice, embarrassment, or delay in the proceedings.

The Court found that most of the proposed paragraphs in the ASOC did not meet the necessary standards and were struck out. However, certain paragraphs, such as those relating to the alleged threats to Mr Farac's employment security and the prohibited motivations for the adverse actions, were deemed necessary to allow Mr Farac to succeed in his action. These paragraphs were permitted to remain in the ASOC, subject to certain omissions and clarifications. The Court concluded that the respondents' application to strike out various paragraphs of the ASOC would be dismissed, and Mr Farac was granted leave to file his final amended statement of claim (FASOC) with the specified omissions.

The Court's decision highlighted the importance of ensuring that pleadings are clear, specific, and sufficient to inform the respondent of the case they have to meet. While the Court was inclined to allow amendments to address deficiencies, it was also mindful of the need to prevent unnecessary delays and abuse of process. Ultimately, the Court's ruling aimed to balance these considerations, ensuring that the proceedings could proceed with the necessary clarity and fairness.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Paragraph 45(b) alleges that on 13 March 2020, while on personal leave, Mr Farac was asked to provide:… detailed medical evidence about his medical condition and its impact on his ability to perform the inherent requirements of the Role (Medical Evidence Request) … For the reasons given in relation to para.45(a), para.45(b) will not be struck out.Paragraph 46(c) In para.46(c) it is alleged that in its letter of 27 April 2020 Pendal advised Mr Farac that it would:… if it was determined that Mr Farac was unable to perform the inherent requirements of his role, consider (amongst other things) the termination of Mr Farac’s employment (Termination Threat). Mr Farac submitted, amongst other things, that the Pendal letter of 27 April 2020 threatened the security of his employment by advising that its continuity might depend on medical advice. [T99] The respondents submitted that the letter in question did not, in fact, intimate a potential dismissal and that what it did say did not amount to an injury in employment. Mutatis mutandis, for the reasons given in relation to para.45(a), para.46(c) will not be struck out.Paragraphs 48(b), 64L and 64N Mutatis mutandis, for the reasons given in relation to para.45(a), paras 48(b), 64L and 64N will not be struck out.Paragraphs 66(f), (g), (h) and (m) I have already found, in the context of the application for leave to amend, that paras, 66(f), (g), (h) and (m) should be allowed subject to the rejection of some particulars. The reasons for allowing various particulars also imply findings that paras.66(f), (g), (h) and (m) should not be struck out.Paragraphs 71, 72, 75A Paragraphs 71, 72, 75A were not addressed separately in submissions but in Ms Kelly’s affidavit in support of the application in a proceeding for strike out, affirmed on 8 February 2023, it was said that the matters those paragraphs pleaded did not amount to an injury to Mr Farac in his employment. That is correct but irrelevant. These paragraphs are concerned to allege a prohibited motivation for conduct alleged to be adverse action in breach of the FW Act. Given the findings in relation to paras.66(f), (g), (h) and (m) these are necessary pleadings if Mr Farac is to succeed in his action. Therefore they will not be struck out.Paragraphs 76A and 76B Although they were pleaded in the ASOC, these paragraphs are not included in the FASOC and so need not be considered further.CONCLUSION The respondents’ application to strike out various paragraphs of the ASOC, and thus of the proposed FASOC will be dismissed. Mr Farac will have leave to file his FASOC subject to the omission of the following proposed paragraphs: 12(f); 18A; 18B; 19A; 45A; 45B; 66(f)(i), (ii) and (iv); and 66(h)(i) and (iv).

Decision

Reasons for decision

Although they were pleaded in the ASOC, these paragraphs are not included in the FASOC and so need not be considered further.CONCLUSION The respondents’ application to strike out various paragraphs of the ASOC, and thus of the proposed FASOC will be dismissed. Mr Farac will have leave to file his FASOC subject to the omission of the following proposed paragraphs: 12(f); 18A; 18B; 19A; 45A; 45B; 66(f)(i), (ii) and (iv); and 66(h)(i) and (iv).

Ratio Decidendi

Legal Principle Established

Mr Farac objected to the proposal that the strike out application should be ventilated a further time, submitting that it was an abuse of process. However, repetition of an interlocutory application and its arguments is not necessarily an abuse of process: see Nominal Defendant v Manning (2000) 50 NSWLR 139 at 167 [122]; National Parks and Wildlife Service v Pierson [2002] NSWCA 273 at [17] and Tran v Singh [2019] FCA 70 at [16]. The strike out application argued and decided on 9 February 2023 was determined by the view I took that the deficiencies in the pleading of Mr Farac’s claims could be addressed by further particulars providing some fact-based clarity to the allegations. My preference for that course, for practical reasons, meant that it was not necessary to determine the merits of the respondents’ application which, it will be observed, was not dismissed in terms and whose reagitation was expressly contemplated in the orders of 13 February 2023. In all the circumstances I am not persuaded that the respondents commit an abuse of process by seeking to have their application considered in more particularity now.CONSIDERATION Proposed amendments In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, the High Court identified various considerations relevant to whether an amendment should be permitted but, noting that the trial has already been delayed for other reasons, the parties in this matter were substantively concerned with only one issue – whether the allegations that Mr Farac wished to raise had sufficient merit that he should be permitted to plead them. Having regard to that focus and to the circumstance more generally, it is not necessary in these reasons to set out all the issues discussed in Aon v ANU or their subsequent consideration in the cases. Pleadings should be in a form that permits the real issues between the parties to be ventilated and decided, the rules of court having always provided that amendments to pleadings may be allowed for that purpose: Commonwealth v Verwayen (1990) 170 CLR 394 per Dawson J at 456. When considering whether the merits of a proposed pleading justify it being permitted, the Court is concerned with whether, as a matter of form, it discloses a reasonable cause of action and whether, as a matter of substance, it raises a real or genuine dispute as to any material fact that might reasonably be resolved in the applicant’s favour: cf Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 at 43-44 [4]-[6]; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [6]; Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at 272 [47]-[48]; Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd (2008) 78 IPR 586 at 593 [28]. Relevant principles were summarised by Greenwood J in Brosnan v Katke [2012] FCA 1249:15 A statement of claim must, as briefly as the nature of the case permits, state the material facts on which the applicant relies that are necessary to give a respondent fair notice of the case to be made against that party at the trial of the action but not the evidence by which the material facts are to be proved: rule 16.02(1)(b) and (d). The pleading must identify the issues to be resolved at trial, make reference to any statute relied upon and identify the specific relief claimed: rule 16.02(1)(c), (e) and (f). A pleading must not be ambiguous or be likely to cause prejudice, embarrassment or delay in the proceeding or fail to disclose a reasonable cause of action or other case appropriate to the nature of the claim to be made at trial: rule 16.02(2)(c), (d) and (e). A pleading which offends against the rule is susceptible of strike-out: rule 16.21(1)(c), (d) and (e).16 In considering whether a pleading fails in the relevant respects, the Court accepts at face value the facts asserted in the pleading.17 An applicant must plead a fact if a failure to do so might take a respondent by surprise: rule 16.03(1)(b).…20 As to particulars, the applicant must state in the pleading or in a document filed and served with the pleading, the “necessary particulars of each claim pleaded by the party”: rule 16.41(1). The object of particulars is to limit the generality of the pleading. Particulars serve the purpose of telling the respondent the nature of the case the respondent has to meet at trial; preventing the respondent being taken by surprise at trial; and, enabling the respondent to gather evidence directed to answering the case to be made: rule 16.41(2).21 Particulars do not operate to circumscribe, modify or alter the cause of action sued upon. The function of particulars is to limit the issues of fact to be investigated: Mummery v IrvingsPty Ltd (1956) 96 CLR 99 at 110 and 111; Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189 at 201.22 An applicant must plead the cause of action or case to be made at trial with sufficient particularity to serve these purposes.23 The adequacy of the statement of claim is ultimately to be addressed by reference to whether the claim is pleaded at a level of particularity that is sufficient to define the issues and inform the respondent of the case it has to meet in the context of the particular allegations being made.Not every element of r.16.02 of the FCA Rules cited by his Honour is incorporated in the Rules of this Court. However, in an application for leave to amend, those omitted elements ought nevertheless to be considered because they are found in r.16.21 of the FCA Rules, which is incorporated in the Rules, and there is no point in permitting an amendment if it is liable to be stuck out for being deficient by reference to any of those considerations: SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [47]-[48].