Gill v Karan Grewal Pty Ltd
[2020] FCCA 1202
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL v KARAN GREWAL PTY LTD | [2020] FCCA 1202 |
| Catchwords: PRACTICE AND PROCEDURE – Pleadings – application to strike out statement of claim. |
| Legislation: Fair Work Act 2009 (Cth), sub-div.B, div.3, pt.6-1 Federal Circuit Court of Australia Act 1999 (Cth) ss.14, 18 Federal Circuit Court Rules 2001 (Cth) rr.1.03(1), 16.05(2)(c), 21.02, 21.10, Sch.1 Disability Discrimination Act 1992 (Cth) s.6 |
| Cases cited: Gill v Karan Grewal Pty Ltd (No.2) [2019] FCCA 2025 Hinchliffe v University of Sydney [2004] FMCA 640 |
| Applicant: | RAJWINDER KAUR GILL |
| Respondent: | KARAN GREWAL PTY LTD ACN 604 162 576 T/A CURRY PALACE INDIAN RESTAURANT |
| File Number: | PEG 279 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 January 2020 |
| Date of Last Submission: | 23 January 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Chapmans Barristers & Solicitors |
| Solicitors for the Respondent: | Friedman Lurie Singh & D'Angelo |
ORDERS
In the statement of claim filed on 14 August, 2019:
(a)strike out paragraphs 28 – 30 with leave to replead;
(b)in paragraph 31 strike out the words “the common law duty and/or” and the words “and/or DDA statutory duty”.
The applicant file and serve an amended statement of claim no later than 4:00pm on 5 June, 2020;
If the applicant fails to comply with order 2 of these orders, then the application filed 14 July, 2017 shall stand dismissed pursuant to r.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth);
The respondent file and serve a defence to the amended statement of claim no later than 4:00pm on 25 June, 2020;
The applicant pay the respondent’s costs of and incidental to:
(a)the application in a case filed on 12 April, 2019;
(b)the application in a case filed on 18 September, 2019; and
(c)the application in a case filed on 16 October, 2019
in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).
For the purposes of order 5 hereof:
(a)by 4:00pm on 5 June, 2020 the respondent must file and serve on the applicant a schedule setting out the items and amounts claimed pursuant to Schedule 1 of the Federal Circuit Court Rules 2001 in satisfaction of the costs orders herein;
(b)by 4:00pm on 25 June, 2020 the applicant must file and serve on the respondent a schedule setting out the items and amounts to which, she concedes, the respondent is entitled in satisfaction of the costs orders herein.
Otherwise the application in a case filed on 18 September, 2019 and the application in a case filed on 16 October, 2019 are dismissed;
The application is adjourned to 2:15pm on 26 June, 2020 for further directions. For that purpose, both parties have leave to appear by telephone.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 279 of 2017
| RAJWINDER KAUR GILL |
Applicant
And
| KARAN GREWAL PTY LTD ACN 604 162 576 T/A CURRY PALACE INDIAN RESTAURANT |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced in the Federal Court of Australia on 12 May, 2017. On 31 May, 2017 they were transferred to the Federal Circuit Court.
On 14 July, 2017 the applicant filed an amended application. In that application she seeks damages for breaches of the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1994 (Cth) from the respondent. It was not until 14 August, 2019 that the applicant filed a statement of claim in respect of her application. Her statement of claim appears to expand her claim to add a claim for damages at common law. The respondent is yet to file a defence to the statement of claim.
The present interlocutory applications were filed on 18 September, 2019 by the respondent and on 16 October, 2019 by the applicant.
In its application the respondent seeks orders for the costs of two earlier applications in a case, the first filed by the respondent filed on 21 January, 2019 and the second filed by the applicant on 12 April, 2019. It also seeks an order that the statement of claim be struck out, and that the amended application be dismissed with costs on an indemnity basis. In the alternative, the respondent seeks an order that “the proceedings be stayed pending payment of all costs and interest payable by the applicant to the respondent”.
By her application in a case filed on 16 October, 2019 the applicant seeks judgment against the respondent in default of the delivery of a defence and an order that the respondent pay her costs of the action. By way of alternative relief, she seeks an order that the respondent file a defence to the statement of claim.
On 30 October, 2019 both interlocutory applications came before the Court. Directions were made for the filing and service of outlines of submission and any further evidence upon which the applicant or the respondent sought to rely in respect of those matters. The application was listed for hearing before me.
The respondent’s application in a case
The costs orders sought in this application relate to the costs incurred by the respondent in connection with the two applications in a case; one filed in January, 2019 by the respondent and the second filed in April, 2019 by the applicant. The first of those applications sought an order that the principal proceedings be dismissed because the applicant had failed to comply with certain orders made by the Court on 7 December, 2018. The second application sought an extension of time within which the applicant could comply with the orders made on 7 December, 2018 and with which she conceded she had not complied. She also sought an extension of time within which to pay the respondent’s costs that had been ordered on 7 December, 2008. At the hearing of the application she abandoned her application for an extension of time within which to pay the costs.
Those two applications in a case were dealt with by another judge of this court. The background and the result of them are recorded in the reasons for judgment of Judge Kendall in Gill v Karan Grewal Pty Ltd (No.2) [2019] FCCA 2025. I will not repeat what his Honour set out there between [3] and [22] by way of background. Neither party suggests that what his Honour there recorded was inaccurate. His Honour granted the applicant the extensions for which she had applied. He extended the time within which she might file a statement of claim.
As to the respondent’s application for dismissal, his Honour declined to dismiss the application although noted that the way in which it had been progressed by her lawyers was “entirely unsatisfactory”. His Honour recorded at [58] of his reasons:
The Court notes that the applicant’s approach (or rather her lawyer’s approach) is entirely unsatisfactory. Relevantly, in the course of this proceeding the applicant has:
a) failed to comply with an order of the Court (dated 30 June 2017) that a statement of claim be filed by 14 July 2017 (instead filing an amended application) and an order that an affidavit of service be filed by 21 July 2017;
b) filed an outline of submissions five days after the time allowed by an order of the Court (dated 16 March 2018). The Court notes that the respondent also filed their submissions five days after the time allowed;
c) failed to file the statement of claim in accordance with the 2018 Orders;
d) failed to pay costs as ordered in the 2018 Orders and March Orders; and
e) failed to file an outline of submissions in accordance with the April Orders.
In the result, on 26 July, 2019 Judge Kendall ordered:
1. The applicant file and serve a statement of claim by 16 August 2019.
2. If the applicant fails to comply with Order 1 of these orders, then the application filed 14 July 2017 be dismissed under r.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
3. The application in a case filed 21 January 2019 be dismissed.
No costs orders were made. Specifically there was no reservation of costs. There was before his Honour at least one application for costs, because the application filed on 21 January, 2019 sought that the principal proceedings be dismissed “with costs”. As to the applicant’s application for an extension, the respondent filed no response to that application and so it appears that there was no formal written application for costs of that application by the respondent.
There had been some costs orders made on the respondent’s dismissal application while it was on foot. It appears that it initially came on for hearing on 29 March, 2019 but on that day, the hearing of the respondent’s application in a case was not completed because, I suspect the applicant indicated that she wished to file an application for an extension of time to comply with the December, 2018 orders. The hearing of the respondent’s dismissal application was adjourned and the applicant was ordered to pay the respondent’s costs of appearance fixed in the sum of $305. The respondent’s dismissal application and the applicant’s extension application then came before the Court for directions on 17 April, 2019. On that occasion there was an order that “costs of today be reserved”.
As I have already indicated, the dismissal application and the extension application were heard and determined by Judge Kendall. His Honour’s orders disposed of the issue of costs of the respondent’s dismissal application. That application was dismissed. Although his Honour’s reasons for judgment do not contain a discussion about the question of costs, his order dismissing the application was unqualified. That application having been before the Court and dismissed, the Court is no longer seized of that application and there is no longer any power to make an order for costs in respect of it. No source of power is identified in the respondent’s submissions that would enable the Court to now revisit the effect of the orders of Judge Kendall. There was no attempt by the respondent to engage rule 16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth). In any event, the material relied upon by the respondent for the purposes of this application would be insufficient to engage that rule.
The applicant argues in her written submissions in answer to this costs application that “the respondent’s application amounts to an attempt to relitigate and overturn the previously determined issue of liability for the 21 January and 12 April, 2019 costs.” Insofar as the argument concerns the respondent’s dismissal application the argument has merit. The question of the costs of the dismissal application have been heard and determined and there is no basis before me to revisit those costs.
To the extent that the respondent’s application in a case filed on 18 September, 2019 seeks an order for costs in respect of the dismissal application filed by the respondent on 21 January, 2019, that application is dismissed.
The position is different with respect to the costs of the applicant’s extension application. The order of Judge Kendall made on 26 July, 2019 did not purport to deal with any question of costs in respect of the application filed on 12 April, 2019. That is not surprising because there is no application for an order for costs of that application in any document filed by the respondent at that time. As I have already observed, the respondent filed no response to the applicant’s extension application. I have had regard to the written submissions filed by the respondent filed on 17 June, 2019 for the purposes of the hearing before Judge Kendall. There is no application for costs contained within those written submissions. In circumstances where there was no application for costs before his Honour, it is unsurprising that he has not referred to or determined such an application in his reasons for judgment.
On what basis then does the respondent now pursue an application for those costs? The application filed on 12 April, 2019 has been dealt with and determined. The Court is no longer seized of it. Absent any particular express power to deal with the question of costs of that application, in my view, the Court has no power to now revisit those costs.
However, FCCR 21.02 provides that an application for an order for costs may be made at any stage in a proceeding. That supplies, in my view, the necessary power for the Court to consider the application for costs that the respondent now pursues in respect of the extension application filed on 12 April, 2019.
As I have set out above, by that application the applicant sought an indulgence, namely an extension of time within which to comply with aspects of the earlier orders of Judge Lucev. Ordinarily a party who seeks an indulgence from a court, such as an extension of time, must pay the costs associated with seeking that indulgence. In Holt v Wynter (2000) 49 NSWLR 128 at [119] the principle was expressed in this way: “…ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable”.
In this case, the respondent’s opposition to the applicant’s extension of time application could not be said to be wholly unreasonable. There was nothing unreasonable about the respondent’s opposition to the applicant’s extension application. Given her history of non-compliance and failure to meet time limits as recited in Judge Kendall’s judgment, one might have thought that it was entirely reasonable that the respondent would oppose the extension of time application. The making of a “springing order” underscores that history of default and the seriousness with which the Court reviewed the unsatisfactory nature of the way in which her proceedings had progressed.
It is appropriate that the respondent should have its costs of and incidental to the application in a case filed by the applicant on 12 April, 2019. The respondent seeks an order for costs against the applicant, or alternatively the applicant’s solicitors. I take that to mean that in the event that the respondent was unsuccessful in obtaining an order for costs against the applicant then the Court should consider making the order for costs against the applicant’s solicitors. However it was the applicant who sought the indulgence, and whilst Judge Kendall’s reasons record that the applicant’s failure to file her statement of claim in accordance with the December, 2018 order was “entirely the fault of the lawyers”, the failure to comply with the costs order was not the fault of the lawyers at all. In the circumstances, the order should be against the applicant. It will be a matter for her to determine whether she should seek indemnity for those costs from her lawyers.
The next issue which arises is whether the costs ought to be ordered on the indemnity basis as the respondent claims or on the more usual party and party basis and, in which event, whether they should be fixed by reference to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) or assessed according to the Federal Court Rules 2011. The parties addressed the former of those issues but not the latter.
When exercising its jurisdiction and power to make an order for costs, this Court may set the amount of the costs, the method by which the costs are to be calculated, refer the costs for taxation or set a time for payment of the costs: FCCR 21.02(2). As to the basis upon which the costs ought to be assessed, the starting point is that ordinarily costs, if they are to be awarded, will be assessed according to the event based scale set out in Part 1 of Schedule 1 to the Federal Circuit Court Rules: FCCR 21.10; Hinchliffe v University of Sydney [2004] FMCA 640 at [10]; Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 at [43]; applied in Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359.
Here the respondent argues that an order for indemnity costs is appropriate because “this is clearly case where the interlocutory stages have been unnecessarily delayed by the failures of the applicant and/or her solicitors”. The respondent further points to what is said to be an attempt by the applicant to mislead the Court as to her financial circumstances. Neither of those matters, however, satisfy me that it is appropriate to depart from the event based scale set out in the Federal Circuit Court Rules. I am not satisfied that an indemnity costs order is warranted in the circumstances. I have carefully considered the history of the proceeding set out in the judgment of Judge Kendall but find myself unable to conclude that is appropriate in the circumstances of this case to make an order for indemnity costs, especially where each side seems to wish to take every point available to it.
The respondent has not particularised the costs that might be payable to it under the under Schedule 1 to the Federal Circuit Court Rules. In those circumstances, it is appropriate that directions be made for the respondent to file a schedule of the costs so claimed and for the applicant to file a schedule of costs that she concedes are appropriate in respect of the application filed on 21 April, 2019. Upon receipt of those schedules, and subject to any request by the parties for a further oral hearing, I intend to assess the quantum of the costs on the papers.
The next aspect of the respondent’s application to be considered is the respondent’s claim that the applicant’s statement of claim filed on 14 August, 2019 be struck out with costs. It is to that application that I now turn.
In his reasons for judgment, Judge Kendall considered the statement of claim that the applicant sought to deliver and in respect of which she sought an extension of time. His Honour had the following to say about it:
46. Having reviewed the statement of claim, a number of misnomers are identified:
a) there is reference to a second respondent when there is in fact no second respondent in these proceedings. This was a matter which was identified in Gill No.1 at [36], where the application made allegations against the director of the respondent, as opposed to the respondent. Plainly there is no second respondent to these proceedings and any references to the “second respondent” would be liable to be struck out if the statement of claim were allowed to be filed. This is one of the “slips” the applicant’s lawyer referred to in oral submissions to this Court;
b) at [20] a statement is made that the “Second Respondent threatened the Applicant that unless she was able to continue her normal duties he would terminate her employment and her visa would also be cancelled”. At [47] in Gill No.1, reference was made to the need for such a statement, in very similar terms, to be “properly pleaded and particularised”. Clearly, the drafter of the statement of claim has not noted these comments and has again made a broad assertion without providing particulars;
c) at [29], the statement of claim refers to particulars of the “Duty of Care” that was allegedly owed to the applicant. The relevance of these matters to a discrimination claim are unclear and are more suited to a negligence claim (as the respondent submits) or work health and safety legislation;
d) the applicant has not pleaded particulars of any comparator for the purpose of s.5 of the Disability Discrimination Act 1992 (Cth) (the “DD Act”) and has not particularised the facts which are said to constitute a requirement or condition that was unreasonable as provided in s.6 of the DD Act;
e) the applicant has pleaded that the respondent breached s.11 of the DD Act because it caused the applicant to suffer an “unjustifiable hardship”. Section 11 of the DD Act provides no more than a definition of “unjustifiable hardship” for the purposes of providing an exception (or defence in some sense) to persons found to have discriminated against an individual;
f) when pleading the breaches of the relevant provisions of the DD Act and the Sex Discrimination Act 1984 (Cth), the applicant has done no more than paraphrase the legislative provisions with the inclusion of “applicant” and “pregnancy”. There has been no attempt to particularise;
g) the applicant pleads that she was discriminated against on the grounds of her disability and pregnancy by way of her being dismissed from her employment. In Gill No.1 at [29]-[33] Judge Lucev found that any alleged discrimination on the basis of the applicant’s termination was outside the parameters of the original complaint and not within the jurisdiction of this Court to consider. That it has been pleaded again and despite this finding is “problematic”, to say the least; and
h) the applicant pleads that she has and continues to suffer “loss and damage”. Despite this, there are no particulars as to the quantum of loss and damage already suffered, or how that will be calculated and why the applicant continues to suffer loss and damage. While quantum is ultimately a matter for the Court, there is still a need for some particularisation in relation to this issue in the pleadings before this Court.
On 14 August, 2019 the applicant filed and served upon the respondent her statement of claim. On 13 September, 2019 the respondent’s solicitor wrote to the applicant’s solicitor about the statement of claim and said:
In summary, the major defects which exist in the Statement of Claim which has been filed are as follows:
1. Paragraph 28 refers to a "common law duty of care" which is not within the scope of your client's application which pursuant to the Australian Human Rights Commission Act 1986 ("AHRC Act") is based on alleged breaches of the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth);
2. paragraphs 30(a) to (d), insofar as they purport to particularise facts and circumstances giving rise to a common law duty of care are irrelevant and outside the scope of the your client's application;
3. paragraph 30(d)(iii) is irrelevant as the Applicant cannot bring a claim in these proceedings based on an allegation that the alleged discriminatory act which the Respondent committed against it was her dismissal;
4. in relation to paragraph (b) under the heading "Particulars of Respondent's Breach of SDA and DDA Statutory Duty" in the Statement of Claim, no particulars are given of the alleged acts of discrimination and further no particulars are given of any comparator;
5. at paragraph (c) under the same heading, no particulars are given of any alleged acts of discrimination;
6. at paragraph (d) under the same heading, no particulars are given of any alleged acts of discrimination and further reference is made to the Applicant's alleged dismissal which is outside the jurisdiction of the Court;
7. in relation to paragraphs (e), (f) and (h) under the same heading, pregnancy does not amount to a "disability" under the DDA;
8. in relation to paragraph (g) under the same heading, Section 11 of the DDA does not contain any statutory obligation which may be breached.
9. Paragraph 31 is in its entirety irrelevant as it seeks to quantify alleged loss and damage suffered by the Applicant after her alleged termination and the loss and damage alleged is on the face of it the result of the termination of the Applicant's employment and not any act of discrimination which is within the parameters of the AHRC complaint on which the application is based. I effect therefore, the applicant had not alleged any relevant loss or damage.
In the circumstances, unless your client files and serves an Amended Statement of Claim on or before 4.30pm on 17 September 2019, our client will make an application within a case to strike out the Statement of Claim as filed and for consequential orders including the dismissal of your client's claim and costs.
The evidence shows that the applicant’s solicitor wrote to the respondent’s solicitor upon receipt of that correspondence and sought an additional 48 hours within which to consider the complaints about the statement of claim and to respond. That request was refused. The present application was filed on 18 September 2019. When the application came before me for hearing the applicant’s solicitor suggested that complaint was properly made about the respondent’s solicitor’s conduct because the applicant’s solicitor remained willing to talk about defects in the statement of claim and consider them and to resolve the matter through discussion. The filing of the strikeout application, it was said, forestalled that possibility. Consistent with that, the applicant’s written submissions dealing with this aspect of the present application fixated upon the Federal Circuit Court Rules and the obligation on parties to use the rules to assist the just, efficient and economical resolution of proceedings: FCCR 1.03(1). The applicant submitted that the respondent’s demand that the applicant file and serve an amended statement of claim within two working days and its “hasty” rejection of the request for further time to consider the alleged defects in the statement of claim amounted to unreasonableness on the part of the respondent and was contrary to the spirit of the FCC rules. On that basis, the applicant says that the respondent’s application should be dismissed.
However, what is remarkable in my view, is that between the correspondence to which I have just referred, the filing of the present application and the hearing of it before me (some four months) the applicant’s solicitor made no attempt to respond to the criticisms of the statement of claim made by the respondent. One might have thought that if there was an eye attuned to the avoidance of delay and unnecessary cost and expense the applicant’s solicitor might have put pen to paper in an effort to deal with the concerns raised about the statement of claim. But it seems none was made notwithstanding that the applicant’s solicitor still avowed a desire to negotiate through the issues with the statement of claim with the respondent’s solicitor.
I refuse to dismiss the respondent’s application on the basis that the application has been brought in breach of the spirit of the Federal Circuit Court Rules.
The statement of claim is a difficult document. It is confused and confusing. It is apparently the case, I was told in submissions, that on two occasions the applicant, through her solicitor, has been urged to engage competent junior counsel experienced in the area of her claim to assist with the drawing and settling of the statement of claim. For reasons that are not clear, it seems that those suggestions have not been taken up or, if they have, the person engaged to do the work does not meet the description of that suggested by the other judges of this Court who have had dealings with this case.
Some of the complaints made about the statement of claim by the respondent have merit. I will turn to those complaints now.
Dealing with the points made by the respondent’s solicitor in paragraphs 1 and 2 of the extract I have set out above, the argument is misconceived. A proceeding in the Federal Circuit Court may deal with more than one cause of action. Section 14 of the Federal Circuit Court of Australia Act 1999 (Cth) provides that in every matter before the Federal Circuit Court the Court must grant absolutely, or on such terms and conditions as it thinks just, all remedies to which any of the parties appear to be entitled in respect of the legal or equitable claim properly brought forward by him or her in the matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
There is nothing in the Federal Circuit Court Rules, or more generally, which prevents the applicant from prosecuting an application for relief by reference to more than one cause of action where those causes of action are based on the one set of facts. Thus, here the relationship of employer and employee that the applicant claims existed between herself and the respondent will give rise to certain common law duties of care as well as duties which arise in a statutory context such as the Sex Discrimination Act, the Disability Discrimination Act and the Fair Work Act 2009 (Cth). That the applicant seeks to pursue relief for more than one cause of action based on the one set of facts is unremarkable. That part of her claim for relief is based upon breaches of the Sex Discrimination Act or the Disability Discrimination Act does not mean that she may not pursue those causes of action in conjunction with another cause of action that does not arise under those Acts. Provided she satisfies the jurisdictional requirements to pursue those applications in this Court, that they are all pursued in the one application is unremarkable.
Moreover, that one of her causes of action she wishes to pursue may be a cause of action with which this Court ordinarily has no jurisdiction to entertain is no answer having regard to s.18 of the FCCA Act. By that section, jurisdiction is conferred on the Federal Circuit Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court is invoked. The pursuit of a common law action in conjunction with a claim for breach of the Sex Discrimination Act or the Disability Discrimination Act where those causes of action arise out of the same factual matrix is entirely legitimate.
The real problem with the applicant’s case based on a common law duty of care is that the duty of care that she identifies is not one which is known to the law, at least in so far as I know. The duty that she pleads in paragraph 28 of her statement of claim is “a common-law duty of care not to unlawfully discriminate against her”. I was taken to no authorities which would establish that such a duty of care exists. Ordinarily speaking, in the employment context the duty of care is expressed in terms of a duty of care to avoid foreseeable risk of harm to the employee. Statutory schemes such as workplace safety legislation or perhaps the various pieces of discrimination legislation, which contain particular prohibitions sometimes inform the content of a duty.
Apart from pleading a duty of care that probably does not exist, there is a further difficulty with the pleading in this respect. In paragraph 30 the applicant purports to plead a common-law duty without specifying the nature or content of that duty and then purports to give particulars of the facts and circumstances giving rise to the duty. But the particulars do not do that. Rather than particularising the facts and circumstances that are said to give rise to the duty of care, the particulars attempt to define the duty of care said to be owed by particularising its content. The pleading, with respect, makes little sense.
Paragraphs 28 and 30 of the statement of claim should be struck out because they do not, in my view, plead a cause of action known to the law.
I will now deal with the matters raised in paragraph 3 and 6 of the letter I have extracted above from the respondent’s solicitors. It is asserted there that the applicant’s claims that she was terminated are irrelevant because she cannot bring a claim in these proceedings based on an allegation that the alleged discriminatory act was her dismissal. In my view, that as a proposition of law is incorrect. An act of discrimination against the applicant, whether discrimination under the Disability Discrimination Act or the Sex Discrimination Act could well be constituted by her dismissal from her employment. Dismissing her from her employment because of a disability has the potential to fall within the conduct proscribed by ss.6(1) or 6(2) of the Disability Discrimination Act. If she was terminated because she was pregnant, it is plainly arguable that ss.5(1)(b) or 7(1) of the Sex Discrimination Act is engaged.
In my view there is nothing to prevent the applicant relying upon the termination of her employment as an act of discrimination which engages either the Disability Discrimination Act or the Sex Discrimination Act.
Having said that, her claim based on the Disability Discrimination Act cannot succeed. Her case as it is pleaded relies upon the proposition that she had a disability “namely her pregnancy”. Pregnancy is not a disability for the purposes of the Disability Discrimination Act. Disability is defined in the disability discrimination act as follows:
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Having regard to that definition it is immediately apparent that pregnancy does not fall within the definition of disability for the purposes of that Act. I note that the applicant pleads that she was injured at work because she was burnt by some hot fat and was unable to work in her usual duties because of those injuries but those injuries, and the disability that they caused, do not seem to be part of her disability discrimination claim. She relies upon her pregnancy alone to make out that cause of action. Further, even if it might be said that by reason of her pregnancy she has partially lost her bodily functions (see (a) of the definition of disability) she pleads no material facts which would bring her within that definition in any event.
Paragraph 30(e), 30(f), 30(g) and 30(h) (where each of them secondly appear) should be struck out because they reveal no cause of action for breach of the Disability Discrimination Act.
Complaint is made by the respondent about paragraph 30(b) under the heading “PARTICULARS OF RESPONDENTS BREACH OF SDA AND DDA STATUTORY DUTY” in the statement of claim. The complaint is that no particulars are given of the alleged acts of discrimination and no particulars are given of any comparator. The complaints are well-made. There are no particulars. Moreover, the pleading is confused and confusing. It is entirely unclear from that paragraph whether the applicant is intending to plead direct discrimination under s.5(1) of the Sex Discrimination Act or indirect discrimination under s.5(2) of that Act. The applicant’s statement of claim pleads elements of both without any clarity. Apart from this difficulty, this paragraph should be struck out for another reason that I will come to shortly.
The respondent makes a similar complaint about 30(c) and 30(d) under the heading “PARTICULARS OF RESPONDENTS BREACH OF THE SDA AND DDA STATUTORY DUTY”. The complaint is one of a lack of particularity. The complaint is well-made. However it can be cured by a request for particulars.
There is a difficulty, however, with the pleading in subparagraphs 30(b) and 30(c) under the heading “PARTICULARS OF RESPONDENTS BREACH OF THE SDA AND DDA STATUTORY DUTY”. The applicant’s claim is clearly that she was discriminated against because she was pregnant. Sections 5 and 7 of the Sex Discrimination Act operate independently and exclusively of each other. As was observed in Stanley v Service to Youth Council Incorporated (2014) 225 FCR 317 at [10]:
Section 7 has been held to operate exclusively of s 5. That is to say, in those cases in which a woman claims to have been treated unfavourably because of her pregnancy, or because of a characteristic that pertains generally to, or is imputed to, pregnant women, s 7 operates to the exclusion of s 5: Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 327-8; Thomson v Orica [2002] FCA 939 at [170]; (2002) 116 IR 186 at 230-1.
So much of the statement of claim that relies upon section 7 of the Sex Discrimination Act must be struck out.
Finally, the respondent argues that paragraph 31 of the statement of claim is irrelevant. That paragraph deals with the applicant’s loss. As the respondent suggests, it seeks to quantify the applicant’s alleged loss and damage by reference to her termination. The respondent argues that paragraph 31 alleges loss which “is on the face of it the result of the termination of the applicant’s employment and not any act of discrimination which is within the parameters of the AHRC complaint on which the application is based”.
In my view, this argument has no merit. Termination of employment can be discrimination for the purposes of the Sex Discrimination Act. Terminating a pregnant employee may well be treating that employee in a way which engages section 7(1)(b) of that Act. If that is so, and damages flow from the act of discrimination (i.e. the termination) the applicant can pursue that loss.
Lest it be thought by the respondent that compensation for termination of employment is only available under the Fair Work Act 2009, it seems to me that there is nothing in that Act which would prevent an action in this Court which deals with claims for compensation arising out of discrimination in the form of termination of employment whilst it is the case that relief is available under the Fair Work Act for adverse action which takes the form of the termination of employment, there is nothing in that Act which obliges an employee to pursue a remedy under that Act. A claim for relief under the Fair Work Act is a claim which the applicant may have chosen to initiate but was not obliged to initiate. The Fair Work Act does not oblige an employee whose employment has been terminated to pursue relief under that Act rather than alternative relief. There are provisions that are designed to avoid a multiplicity of proceedings, but there is no suggestion here that the applicant has made any application under the Fair Work Act and so the provisions of Subdivision B, Division 3, Part 6-1 of the Fair Work Act have no application.
Thus, in respect of the statement of claim it seems to me that there are significant and serious defects with that document. Those matters to which I have referred should be struck out. There should be no leave to re-plead in respect of the common law duty, the claim under the Disability Discrimination Act or the claim under section 5 of the Sex Discrimination Act. Those claims are not maintainable and, apart from anything else, they add nothing to the applicant’s claims. That leaves a claim under ss.7 and 14 of the Sex Discrimination Act which is at the moment bereft of particulars.
Next, the respondent argues that the application should be dismissed because the applicant has not paid the costs order that was made in December, 2018. The applicant’s failure to pay the costs order is no basis upon which her application should be dismissed. Nor is it a basis upon which the application should be stayed. The respondent has the benefit of the costs order against the applicant. If the respondent says that it should be enforced then the respondent is entitled to take enforcement proceedings against the applicant to enforce the order. There is no order staying execution of that costs order and the position under the FCC Rules is not that an interlocutory costs order cannot be enforced before the conclusion of the proceedings.
In my view it is inappropriate to order the dismissal of the proceedings, or a stay of them, until those costs are paid.
The applicant’s application for judgment
The applicants request for judgment by default is also misconceived. In circumstances where the respondent had taken issue with the statement of claim, for good reason, it was appropriate for the respondent to take up those deficiencies in the statement of claim with the applicant. The applicant’s solicitor’s response however, was inappropriate. Rather than attempt to address those deficiencies the response was to bring an application for default judgment. There is an argument between the parties about whether there was an obligation on the respondent to file a defence at all. The applicant argues that the rules of this Court were engaged so as to require the respondent to file a defence within 28 days of service of the statement of claim. The respondent argues that because the statement of claim was delivered pursuant to an order of a judge rather than pursuant to the power to deliver the statement of claim under the FCC Rules, the rules requiring the defendant to file a defence were not engaged.
I do not intend to determine that argument because it is unnecessary to do so. Even if the rule requiring the defence to be delivered was engaged, as a matter of discretion I would refuse relief in the circumstances I have outlined above.
Costs of this application
Both the application made by the respondent and the applicant’s application have come about because of the difficulties with the statement of claim. As indicated, the respondent’s complaints about those difficulties are well-made. The respondent should have its costs of these applications. Those costs should be assessed on a standard basis and in accordance with Schedule 1 of the Federal Circuit Court Rules. It is appropriate to direct that the parties bring in a further schedule dealing with the costs of this application as I have indicated they should do with respect to the earlier costs orders.
Orders
I will make directions for the exchange of cost schedules as I have foreshadowed above.
If the statement of claim filed on 14 August, 2019 had struck from it the matters that I have referred to above (paragraphs 28, the references throughout the document to the Disability Discrimination Act, the references throughout it to the “common law duty of care” and paragraph 30 in its entirety, save for paragraphs (c) and (d)) what would remain between paragraphs 27 and 31 would be almost meaningless. In those circumstances it seems appropriate to strike out the entirety of the statement of claim between paragraphs 27 and 31 and give the applicant leave to replead her claims pursuant to section 7 and 14 of the Sex Discrimination Act.
Given all that has gone before in these proceedings and the failed attempts by the applicant to put on a sufficient statement of claim, it is appropriate to make another “springing order” which would operate to dismiss the applicant’s principal application in the event that she did not file an amended statement of claim within the time limited by my orders for her so to do.
The applicant’s application for judgment by default must be dismissed with costs.
Accordingly, I make the orders set out at the commencement of these reasons.
Certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 May, 2020.
Associate:
Date: 15 May, 2020
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