Foxton v ACN 128 543 304 Pty Ltd (In Liquidation) & Ors and Robinson v ACN 128 543 304 Pty Ltd (In Liquidation)

The Supreme Court of Western Australia considered claims brought by Mr. Foxton and Mr. Robinson against ACN 128 543 304 Pty Ltd (in liquidation) and its directors. The employees alleged underpayment of entitlements, failure to keep employee records, failure to provide payslips, and contraventions of civil penalty provisions under the Fair Work Act 2009 (Cth). The central dispute revolved around whether the material facts supporting a claim of accessorial liability against the directors had been properly pleaded.

The court was required to determine whether the statement of claim adequately particularised the alleged conduct of the directors in their capacity as accessorial parties to the company's contraventions of the Fair Work Act. Specifically, the court had to assess if the pleadings provided sufficient factual detail to establish that the directors had aided, abetted, counselled, or procured the company's breaches, or were knowingly concerned in them.

Justice Lucev applied the principles of pleading in civil penalty proceedings, noting that while a high degree of particularity is required, it is not necessary to plead evidence. The court found that the statement of claim, as it stood, lacked the necessary factual specificity to support the claims of accessorial liability against the directors. The pleadings did not sufficiently detail the directors' knowledge or involvement in the alleged contraventions, beyond their roles as directors. Consequently, the court concluded that the material facts supporting the accessorial liability claims were not properly pleaded.