Halici v KDR Victoria Pty Ltd
[2015] FCCA 2912
•30 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALICI v KDR VICTORIA PTY LTD | [2015] FCCA 2912 |
| Catchwords: INDUSTRIAL LAW – Adverse action – claim of false imprisonment – application by respondent for parts of statement of claim to be summarily dismissed – application to strike out pleadings – consideration of pleadings in Federal Circuit Court. |
| Legislation: Fair Work Act 2009 (Cth), ss.50, 539, 545, 546 Federal Circuit Court of Australia Act 1999, s.17 |
| Spencer v Commonwealth of Australia (2010) 241 CLR 118 Rana v University of South Australia [2004] FCA 559 Leske v Trinity Lutheran College Mildura & Ors [2015] FCCA 572 Christie v Woolworths [2015] FCCA 2211 Mulhern v Bank of Queensland [2015] FCA 44 Takemoto v Moody’s Investors Service Pty Limited [2014] FLA 1081 Sterling Commerce v Iliff [2008] FCA 702 Granada Tavern v Smith [2008] FCA 646 O’Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188 Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546 O'Brien v Michel's Patisserie (WA) P/L and Calmer P/L & Ors v Michel's Patisserie (WA) P/L & Anor [2010] FMCA 7 McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 Whittaker v Child Support Registrar [2010] FCA 43 Wride v Schulze [2004] FCAFC 216 Dahler v Australian Capital Territory [2014] FCA 946 Lejmanoski v The University of Western Australia (No.2) [2014] FCCA 1179 |
| Applicant: | TAHSIN HALICI |
| Respondent: | KDR VICTORIA PTY LTD (ACN 138 066 074) KDR VICTORIA PTY LTD T/A YARRA TRAMS |
| File Number: | MLG 1129 of 2015 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 26 October 2015 |
| Date of Last Submission: | 26 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Jones |
| Solicitors for the Applicant: | Hughes Watson Marks Kennedy |
| Counsel for the Respondent: | Mr. O’Grady |
| Solicitors for the Respondent: | Thomson Geer |
ORDERS
The applicant file and serve any amended statement of claim within 21 days.
The respondent have 21 days thereafter to file any amended response or defence.
The proceedings be adjourned for further directions on 17 February 2016.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1129 of 2015
| TAHSIN HALICI |
Applicant
And
| KDR VICTORIA PTY LTD (ACN 138 066 074) KDR VICTORIA PTY LTD T/A YARRA TRAMS |
Respondent
REASONS FOR JUDGMENT
On 20 August 2015 Tahsin Halici (“the applicant”) commenced proceedings by application and statement of claim against KDR Victoria Pty Ltd T/A Yarra Trams (“the respondent”).
The applicant alleged the respondent had, inter alia, contravened the Fair Work Act 2009 (Cth) (“the FW Act”) and sought orders by way of declarations and ancillary relief.
The proceedings were given a first Court date of 23 July 2015, prior to the first Court date the respondent filed an application in a case on 6 July 2015 seeking, inter alia, that the Court strike out certain parts of the statement of claim. The applicant also filed an application in a case on 7 July 2015 but was seeking summary judgment.
At the first Court date both parties appeared represented by Counsel. The following orders were made:
“1. Pursuant to order 3.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), the time for the filing of a response under Rule 4.03 be extended to 4.00pm on 24 July 2015.
2. The respondent file any response under Rule 4.03 by 4.00pm on 24 July 2015.
3. Pursuant to order 3.05 of the Rules the time for the filing of a defence under Rule 4.05 of the Rules be extended until 14 days after the hearing and determination of the respondent’s application in a case dated 6 July 2015 (“the respondent’s application in a case”).
4. The applicant have leave to discontinue his application in a case dated 7 July 2015 with no order as to costs.
5. On or before 20 August 2015 the respondent file and serve its outline of submissions and any material it seeks to rely upon in respect of the respondent’s application in a case.
6. On or before 17 September 2015 the applicant file and serve his outline of submissions and any material he seeks to rely upon in respect of the respondent’s application in a case.
7. The Respondent’s application in a case be listed for hearing on 26 October 2015.
8. There be no order as to costs.”
It is clear from the above orders that at that time the Court was told the applicant had abandoned its summary judgment application and the respondent wished to prosecute its strike out application. The respondent subsequently filed an outline of submissions in support of the orders sought in the application in a case on 20 August 2015, and the applicant filed submissions as to why it opposed these orders on 16 September 2015.
The hearing of the respondent’s interlocutory application was fixed for 26 October 2015. On that date the respondent was represented by Mr O’Grady of Counsel and the applicant by Mr Jones of Counsel.
Each of the parties identified the material they relied on and had an opportunity to make submissions in relation to the orders that were sought.
Before turning to consider those matters and the respondent’s interlocutory application it is necessary to set out some of the uncontroversial background.
Background
The applicant is aged 51 years and has been employed by the respondent as a Revenue Protection Officer since 2008.
In June 2013 the respondent was notified of an incident and commenced an internal investigation into unauthorised printed material at its East Preston Depot (“the Depot”).
The respondent arranged for the applicant and a number of other Revenue Protection Officers to be interviewed as a part of that internal investigation at the Depot.
The applicant makes a number of allegations about what was said and done during the course of those interviews, and the internal investigation more generally, which aren’t presently relevant or necessary to resolve.
However, it is uncontroversial that the incidents that occurred on 4 June 2013 led to the involvement of the union of which the applicant was a member and was the subject of press reports and that subsequently an external review was conducted by the Victorian Employers Chamber of Commerce and Industry (“VECCI”) who produced a report at the end of that process.
It is also uncontroversial that subsequent to this the applicant was the subject of disciplinary proceedings (arising from the events that led to the internal investigation) in October 2013 and that he appealed the penalty that was imposed as a result. However, the applicant remains employed by the respondent.
On the material before the Court at least, there the matter lay until 20 May 2015 when the applicant commenced these proceedings. Shortly after he did so the respondent through its solicitors wrote to the applicant’s solicitors inviting him to amend the statement of claim that had been filed (withdrawing the allegations made therein that are now the subject of the respondent’s strike out application).
In the face of the applicant’s refusal to do so the respondent filed the interlocutory application now before the Court.
Interlocutory application
The respondent’s interlocutory application filed on 6 July 2015 sought the following orders:
“1.Paragraphs 27 to 51 (and paragraphs 1 to 3 of the relief) of the Statement of Claim filed 20 May 2015 be summarily dismissed on the basis that the claim of false imprisonment has no reasonable prospects of success.
2.Alternatively, paragraphs 27 to 51 (and paragraphs 1 to 3 of the relief) of the Statement of Claim filed 20 May 2015 be struck out on the basis that these paragraphs do not disclose a cause of action and would prejudice or delay the fair trial of the proceeding.”
As was foreshadowed in submissions and confirmed at the interlocutory hearing the applicant opposed the above orders sought by the respondent.
Statement of claim
The parts of the applicant’s statement of claim the subject of the respondent’s interlocutory application were:
“28.At about 4.00 pm on 4 June, 2013, (the start of shift), the Applicant and the other shift members (“the other shift members”):
(i)were meeting (“the meeting”) in the RPO room (“the RPO room”) at the East Preston Depot; and
(ii)were being briefed by the Shift Supervisor, Nick Polomarkakis (“Nick”).
29.The RPO room has two exits. One exit leads out into the East Preston Depot. The water coolers are adjacent to this exit and the toilets are accessed via this exit. A second exit leads to the computer room. Another door in the computer room opens onto Plenty Road.
30.At or about 4.30 pm on 4 June, 2013, the TMAO (Team Manager Authorised Officers), Mohammed Said (“Said”) and Sharon Moodie (“Moodie”), from the Respondent’s Human Resources Department:
(i) entered the RPO room; and
(ii) took over the meeting.
31.Said read from a document and informed the meeting, in words to the effect that:
(i) he and Moodie were investigating the posting of pictures on the RPO room wall, contrary to policy;
(ii)he and Moodie were involved in an investigation and not a disciplinary process;
(iii)he would interview each of the shift members individually;
(iv)because it was not a disciplinary process, the persons interviewed would not be permitted union representation; and
(v) he would begin the interviews with Nick.
PARTICULARS
Details of the policy re posting of pictures will be provided following Discovery.
A copy of the document from which Said read will be provided following Discovery.
32.Nick insisted, in words to the effect that, he be accompanied by the local union shop steward, Danny Stevic (“Stevic”).
33. Said responded to Nick, in words to the effect, that
(i)Stevic was part of the investigation and was not an appropriate representative;
(ii)in any event no union representative would be permitted; and
(iii)again reading from a document, that if anyone objected to being interviewed, without a union representative, that person would be “stood down” without pay.
34.Under protest, Nick complied and accompanied Said to a nearby room at the East Preston Depot, where Said intended to conduct the interviews.
35.After Said and Nick left the RPO room, Moodie informed the shift members in words to the effect that:
(i) they were not to leave the room;
(ii) they were not to speak on their mobile phones;
(iii) they were not to speak to each other;
(iv) they were not to leave the room to go to the toilet; and
(v)they were not to leave the room to obtain water from the nearby water cooler.
36.Initially, the shift members asked numerous questions of Stevic, including requesting him to contact the Divisional Secretary of the Tram & Bus Division of the Rail, Tram and Bus Union, Mr. Phil Altieri (“Mr Altieri”). As a result, Moodie:
(i)removed Stevic from the RPO room to the adjacent computer room; and
(ii)repeated her instructions regarding silence amongst the shift members.
37.At approximately 5.07 pm, Tolga Veli (“Veli”), one of the other shift members confined in the RPO room, noticed that Stevic had collapsed onto the floor of the computer room and attempted to go to his aid.
38. In response, Moodie:
(i)ordered the Applicant and the other shift members to leave Stevic alone;
(ii)did not provide any assistance to Stevic; and
(iii)sought instructions, by mobile phone, as to how she ought maintain security around the shift members.
PARTICULARS
Details of Moodie’s mobile phone discussions will be provided following Discovery.
39.Ultimately, Moodie called an ambulance and, upon arrival, the Ambulance Officers informed Moodie:
(i) that Stevic was in their care, and
(ii) was to be given water and access to a toilet.
40. In the meantime:
(i) Said continued the interviews; and
(ii) the shift members, other than Stevic, remained under restraint.
41.The Applicant’s interview was brief and related exclusively to his knowledge, if any, of pictures he was shown that, allegedly, had been posted on the RPO room walls.”
Position of the parties
The respondent’s submissions filed on 20 August 2015 addressed the “test for summary judgment/dismissal”[1] before submitting:
[1] See paragraphs 3-8.
“The allegations of false imprisonment in the statement of claim
12.The statement of claim does not make out the elements of the tort of false imprisonment. It alleges relevantly that:
(a)at about 4:00 PM on 4 June 2013 the Applicant was in the RPO room of the East Preston depot, a room with two exits (statement of claim [28] and [29]);
(b)at about 4:30 PM on 4 June 2013 the Applicant and others were given an instruction that they were to be interviewed regarding the posting of pictures at the depot (statement of claim [30] and [31]):
(c)the Applicant and others were told that they were not to leave the room (statement of claim [35]);
(d)the Applicant was subsequently interviewed (statement of claim [41]).
13.Whilst the Applicant asserts that "In the premises, the Applicant was falsely imprisoned in that he (i) lost his liberty and was totally restrained; and (ii) the loss of liberty and total restraint was without lawful means" (statement of claim [49]), this allegation is not supported by the "premises" established in the preceding paragraphs of the statement of claim.
14.Importantly there is no allegation that the Applicant was physically restrained or locked into any part of the East Preston depot or the East Preston depot itself. Nor is there any allegation that any threat was directed to him. At its highest, the statement of claim alleges that the Applicant was subject to a direction whilst he attended the East Preston depot as part of his paid employment, and he disputes the lawfulness and/or reasonableness of that direction.
15.On the authorities, this allegation, even if accepted, would not make out the tort of false imprisonment. It is a claim that the Applicant has no reasonable prospect of successfully maintaining.
16.In addition, the evidence filed by the Respondent shows that there were a number of points of egress that were at all times open to the Applicant on the afternoon of 4 June 2013.
Conclusion
17.The paragraphs of the statement of claim that are the subject of the Respondent’s interlocutory application, even if made out, are incapable of establishing the tort of false imprisonment. They should be dismissed by way of summary judgement.”
The applicant opposed the orders sought by the respondent. In submissions filed on 16 September 2015, the applicant set out what was said to be the “Law of Summary Dismissal”[2], the “Law of False Imprisonment”[3] before turning to what those submissions described as “Evidence/Facts”.[4] Having noted the respondent had not argued the applicant’s claims were an abuse of process[5] the applicant’s submissions addressed what was asserted to be the “Law of Strike Out”[6] before submitting:
“The Pleadings
67.It is submitted that paragraph 53 above establishes that the pleadings meet the objectives of pleadings and inform the Respondent in detail of the case to be met.
68.Alternatively, if there are defects in the pleadings, the Applicant be given leave to re-plead.
69.For the reasons given above at paragraphs 62-66, the pleadings do not constitute an abuse of process.
[2] See paragraphs [22] to [23].
[3] See paragraphs [24] to [40].
[4] See paragraphs [46] to [61].
[5] See paragraphs [62] to [66].
[6] See pages 17 to 19.
Consideration
Given the order sought by the respondent, it is appropriate to note that the Federal Circuit Court’s power of summary dismissal is governed by section 17A of the Federal Circuit Court of Australia Act 1999 (“the FCCA Act”) and rule 13.10 of the Federal Circuit Court Rules 2001 (“the Rules”).
Section 17A of the FCCA Act states:
“Summary judgment
(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
The test to be applied where the respondent’s application, a summary dismissal application, is whether or not an application has a reasonable prospect of success, not whether the application is “doomed to fail”. That is made clear by section 17A(3) as set out above.
Rule 13.10 of the Rules provides:
“Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.”
The relevant provision of the Rules of this Court follow those sections of the FCCA Act which are in the same terms as section 31A of the Federal Court of Australia Act 1976 (“the Federal Court Act”). The approach taken in cases dealing with section 31A of the Federal Court Act are generally seen as apposite in dealing with cases under section 17A of the FCCA Act.
In Spencer v Commonwealth of Australia (2010) 241 CLR 118, what was required by section 31A of the Federal Court Act was set out by their Honours Hayne, Crennan, Keifel and Bell JJ, as follows:
“…The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”
The enquiry, according to section 17A of the FCCA Act and Rule 13.10 of the Rules is whether the applicant has no reasonable prospect of successfully prosecuting the claim/s against the respondent.
However the orders sought by the respondent seek as an alternative that paragraphs 27 to 51 (and paragraphs 1 to 3 of the relief) of the statement of claim be struck out.[7]
[7] See discussion on difference between alternatives in Mulhern v Bank of Queensland [2015] FCA 44 at [50] to [61] and Takemoto vMoody’s Investors Service Pty Limited [2014] FCA 1081 at [4].
In Christie v Woolworths [2015] FCCA 2211 how the Court should approach an application to a strike out (part of or) a statement of claim was set out as follows:
“21.Rule 16.21(1) of the Federal Court Rules 2011 provides that:
Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d)is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2)A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
22.These general rules concerning pleadings need to be considered in the context of the FCCA Act. Sub-section 3(2) and (b) provides that the objects of the Court are:
o (a) to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and
o (b) to enable the Federal Circuit Court of Australia to use streamlined procedures
23. Rule 1.03 of the Rules relevantly provides that:
o (1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
o (2) In accordance with the objects of the Act, the Rules aim to help the Court:
· to operate as informally as possible
· to use streamlined processes
· to encourage the use of appropriate dispute resolution procedures.
(3)The Court will apply the Rules in accordance with their object.
24.There is also an obligation on the parties to avoid “undue delay, expense and technicality”: r.1.03(4).
25.In Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at [21] this Court observed, in relation to the FCCA Act and the Rules, that:
o “21.Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMCA Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
o (a) as informal as possible in the exercise of judicial power;
o (b) which is not protracted in its proceedings;
o (c) which resolves proceedings justly, efficiently and economically;
o (d) uses streamlined procedures; and
o (e) avoids undue delay, expense and technicality.”
26.The Federal Court dealt with the issue and nature of pleadings required in this Court in Sterling Commerce v Iliff [2008] FCA 702; (2008) 173 IR 378 (“Iliff”).
In Iliff it was alleged that an issue determined by this Court was not raised by the pleadings, evidence or submissions before it. The Federal Court (on an appeal heard by a single Judge) said as follows at [21]:
o “21. In considering this ground of appeal, “the philosophy of the Federal Magistrates Act and the intention of the Attorney-General at the time of the introduction of the Federal Magistrates Bill” in establishing the Federal Magistrates Court cannot be ignored (per Lander J in Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [34]): see also Granada Tavern v Smith [2008] FCA 646; (2008) 173 IR 328 at [106]. As Lander J stated in Rana at [37]:
§ The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice. It is a Court which should proceed without undue formality and should ensure that the proceedings are not protracted: s.42. It has abandoned the formal procedures of superior Courts. That course is consistent with the Act and the FMCA Rules.
o See also O’Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; (2002) 122 FCR 455 where the Full Court of the Federal Court (Carr, Moore and Marshall JJ) said at [16]:
§ We are prepared to accept that in a case such as the present MBF was entitled to know, as a matter of procedural fairness, that s.51A was relied on either expressly or by clear implication. It is unnecessary to address the question of whether it needed to be pleaded in this case particularly having regard to the comparative informality created by the legislative scheme governing the Federal Magistrates Court including its Rules.
28.In considering a strike out application this Court stated in Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546 at [20]:
o “20.The Court recognises that in determining to strike out all or part of a pleading it must exercise a discretion, and that that discretion is one to be exercised with caution having regard to the objects of the Federal Magistrates Act 1999 (Cth) and FMC Rules, and modern case management techniques.”
In O'Brien v Michel's Patisserie (WA) P/L and Calmer P/L & Ors v Michel's Patisserie (WA) P/L & Anor [2010] FMCA 7 Lucev FM as His Honour then was noted:
“11.The statement of claim must plead the necessary facts for the purpose of formulating a complete cause of action.[15] While it is not permissible to merely state a conclusion drawn from facts not set out in the statement of claim,[16] consideration should be given to whether the conclusionary pleading still achieves the objective of pleadings.[17] A pleading should be allowed to stand if it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action.[18]”
The substantive proceedings were filed in the Fair Work Division of the Court and application invokes the Court’s jurisdiction to deal with, inter alia, contraventions of the FW Act. Rules 45.06 and 45.09 of the Rules deal with such applications.
Notwithstanding the provisions of the Rules referred to above the applicant choose to commence proceedings with a statement of claim. The Court is not a Court of strict pleadings[8] and there are no provisions in the Rules equivalent to those in the Federal Court Rules 1979 (“the Federal Court Rules”) dealing with pleadings. However Rule 1.05(2) of the Rules provides if the Rules are insufficient in a particular case to deal with a matter the Court can have recourse to the Federal Court Rules.
[8] See Rana v University of South Australia [2004] FCA 559; 136 FCR 344.
Given the issues referred to above and approaching the respondent’s interlocutory application as a strike out application, it is important to note that the exercise of considering whether pleadings should be struck out because they disclose no reasonable cause of action is a different exercise to considering whether if the application itself should be struck out.[9]
[9] See Leske v Trinity Lutheran College Mildura & Ors [2015] FCCA 572.
In light of the concession by Counsel for the respondent that the Court could consider either order sought in the interlocutory application I will turn then to consider the paragraphs of the statement of claim the subject of the strike out application. By reason of paragraphs [27] to [51] of the statement of claim the applicant alleges false imprisonment.
In submissions the respondent’s position was:
“The allegations of false imprisonment in the statement of claim
12.The statement of claim does not make out the elements of the tort of false imprisonment. It alleges relevantly that:
(a)at about 4:00 PM on 4 June 2013 the Applicant was in the RPO room of the East Preston depot, a room with two exits (statement of claim [28] and [29]);
(b)at about 4:30 PM on 4 June 2013 the Applicant and others were given an instruction that they were to be interviewed regarding the posting of pictures at the depot (statement of claim [30] and [31]):
(c)the Applicant and others were told that they were not to leave the room (statement of claim [35]);
(d)the Applicant was subsequently interviewed (statement of claim [41]).
13.Whilst the Applicant asserts that "In the premises, the Applicant was falsely imprisoned in that he (i) lost his liberty and was totally restrained; and (ii) the loss of liberty and total restraint was without lawful means" (statement of claim [49]), this allegation is not supported by the "premises" established in the preceding paragraphs of the statement of claim.
14.Importantly there is no allegation that the Applicant was physically restrained or locked into any part of the East Preston depot or the East Preston depot itself. Nor is there any allegation that any threat was directed to him. At its highest, the statement of claim alleges that the Applicant was subject to a direction whilst he attended the East Preston depot as part of his paid employment, and he disputes the lawfulness and/or reasonableness of that direction.
15.On the authorities, this allegation, even if accepted, would not make out the tort of false imprisonment. It is a claim that the Applicant has no reasonable prospect of successfully maintaining.”
The applicant maintained in submissions that “[A]n analysis of pleadings discloses that the respondent ought be fully aware of the case to be met at trial”. The applicant submitted:
“53.The pleadings and the other documents evidence the following:
(i)the allegation is clearly total restraint without lawful reason; pleadings at [49];
(ii)the total restraint occurred between the hours of 4.30 pm and 5.40 pm; pleadings at [30] and [43];
(iii)the total restraint involved the Applicant and the other members of his shift (“the meeting”), who were being briefed by their Supervisor; pleading at [28];
(iv)the total restraint occurred in the RPO room at East Preston Depot; pleadings at [28];
(v)Yarra Trams management (“the management representatives”), in the persons of Mohammed Said and Sharon Moodie, took over the meeting; pleadings at [30];
(vi)the meeting was informed by the management representatives that they were to be interviewed regarding the posting of pictures on walls, contrary to policy; pleadings at [31];
(vii)the meeting was not told why a multi-billion dollar company would adopt the measures it did to investigate posters that, in the Applicant’s opinion, were not obscene, pornographic, blasphemous, seditious or excessively violent; pleadings at [41];
(viii)the management representatives intervention in the meeting was well planned and well executed, in that Mr Said had a written script, he was well briefed on the differences between an investigation and a disciplinary procedure, Ms Moodie was in mobile phone contact with an external advisor; pleadings at [31], [33] and [38];
(ix)the measures (“the measures”) adopted to conduct the investigation involved total restraint; pleadings at [31], [33] and [35];
(x)the meeting, through the Supervisor, protested the measures, continued to protest them, and, only participated against their will; pleadings at [32], [33], [34] and [36],
(xi)the Applicant and the other members of the meeting, other than Stevic, remained in the RPO room; pleadings at [36] and [40];
(xii)from the pleadings, the only possible explanations of why the Applicant remained in the RPO room, despite the protests over the measures, are
(a) threat of stand-down; pleadings at [33];
(b) Ms Moodie’s active guarding; pleadings at [35], [36] and [38];
(c) submission to a direction from Ms Moodie, a lawful authority; pleadings at [30], [35] and [36];
(xiii) the other documents evidence :
(a) the Applicant’s belief that he would lose his job if he did not comply;
(b) his belief that he had been intimidated;
(c) the RPO culture regarding proper behaviour when challenged by legitimate authority;
(xiv)the effect of the total restraint viz. indignity, humiliation and distress is set out in the pleadings and other documents; pleadings [57] and [58]; the Affidavit; Annexures TH 2 and TH 5 and TH-6.”
In McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 (which both parties referred to in submissions) the elements of the tort of false imprisonment were summarised as follows:[10]
[10] As referred to in Whittaker v Child Support Registrar [2010] FCA 43.
“177. The Victorian Court of Appeal discussed the elements of the tort of false imprisonment in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 (McFadzean) (special leave to appeal to the High Court was refused: see [2008] HCATrans 213). The respondents have extracted those elements in one of their sets submissions of 18 September 2009 (at para 27) as follows (references to paragraphs of the reasons for judgment omitted):
(a)the plaintiff bears the onus of proof to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment;
(b)false imprisonment is constituted by unlawfully subjecting another to total restraint of movement;
(c)the restraint must be total but it need not involve the use of force – it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion;
(d)the restraint may be comprised of a threat against the person or valuable property;
(e)the restraint must be imposed contrary to the person’s will;
(f)where there is no application of force there must be evidence of complete submission by the plaintiff;
(g)there is no false imprisonment if there is only partial obstruction of the will, whatever inconvenience it may bring, if the means of escape are available;
(h)the submission by the prisoner must be in response to duress sufficient to make any consent given ineffective to bar the action;
(i)it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiff’s decision to remain, the conduct must have overborne the plaintiff’s will;
(j)in each case, it is a question of fact whether a restriction is so severe as to be characterised as false imprisonment;
(k)whether [sic – where] there is a reasonable means of egress, it does not matter that the plaintiff did not use it – there can be no false imprisonment;
l.there are four factors to be considered in determining whether any ability to leave was a reasonable one:
i. threat or danger to self;
ii. threat or danger to property;
iii. distance and time; and
iv. legality;
m.there may need to be a serious risk (possibly even life threatening) before a means of escape is considered to be unreasonable;
n.an avenue of egress may be reasonable even if it requires a plaintiff to commit a minor trespass;
o.a mere partial interference with freedom to travel by one route does not compel a person to remain.”
Given the issues raised by the respondent in submissions in support of its strike out application it is important to note that in Dahler v Australian Capital Territory [2014] FCA 946 the Federal Court, also in the context of an application to strike out parts of an applicant’s statement of claim, noted that:
“105.The obligation of the pleader is to state the material facts. That does not mean all the facts or all the relevant facts. A fact is material if it is essential to the cause of action. …
…
107.One of the many difficulties presented by the statement of claim in the present case is the rolled-up way the two principal contentions giving rise to the claim for relief are dealt with…..”
In the context of the respondent’s strike out application, and given the approach to the principles in relation to the tort of false imprisonment referred to above, it is also timely to note that in such a claim the precise nature of the alleged confinement is important.[11]
[11] See Whittaker v Child Support Registrar [2008] FCA 188 at [28]
As the Full Court in Wride v Schulze [2004] FCAFC 216 said at [25]:
“…the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A “reasonable cause of action” for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.” (emphasis added)
The difficulty also confronting the pleadings of the applicant is that they are inadequately framed for the reasons referred to in the respondent’s submissions. Even taking into account the approach referred to in Lejmanoski v The University of Western Australia (No.2) [2014] FCCA 1179 at paragraphs [9] to [25] the applicant’s pleadings should be entirely self-contained and all necessary elements should be pleaded. Moreover it would appear one of the vices in relation to pleadings referred to in the authorities is present in the statement of claim even on the applicant’s own submissions.
In circumstances here there is no pleaded allegation of the applicant being physically restrained or locked into any part of the Depot. I accept the respondent’s submissions and am not able to identify on the material facts relied on by the applicant that it is reasonably arguable that the applicant was falsely imprisoned. Therefore the paragraphs of the statement of claim at [27] to [51] should be struck out on the basis that even if accepted they wouldn’t make out the tort of false imprisonment.
Accordingly, I would strike out paragraphs [27] to [51] of the statement of claim but as the respondent didn’t oppose it grant leave to the applicant to file and serve an amended statement of claim within 21 days. There will also be directions for the filing of any amended response, the proceedings will be adjourned to a directions hearing and costs be reserved.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 30 October 2015
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