Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.2)
[2016] FCCA 1391
•16 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALICI v KDR VICTORIA PTY LTD T/A YARRA TRAMS (No.2) | [2016] FCCA 1391 |
| Catchwords: INDUSTRIAL LAW – Alleged contravention of s.50 of the Fair Work Act 2009 (Cth) – claim of false imprisonment – application by respondent for claim of false imprisonment to be summarily dismissed or to strike out pleadings – claim of false imprisonment summarily dismissed. |
| Legislation: Fair Work Act 2009 (Cth), s.50 Federal Circuit Court of Australia Act 1999 (Cth) ss.3(2), 17A, 42, 43 |
| Cases cited: Halici v KDR Victoria Pty Ltd T/A Yarra Trams [2015] FCCA 2912 Foley v Polaroid Corporation 400 Mass. 82, 91, 508 N.E.2d 72.77 (1987) Randall’s Food Markets Inc v Johnson 891 S.W.2d 640 (1995) |
| Applicant: | TAHSIN HALICI |
| Respondent: | KDR VICTORIA PTY LTD T/A YARRA TRAMS |
| File Number: | MLG 1129 of 2015 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 10 May 2016 |
| Date of Last Submission: | 10 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2016 |
REPRESENTATION
| Senior Counsel for the Applicant: | Mr Alstergren QC |
| Junior Counsel for the Applicant: | Mr Denton |
| Solicitors for the Applicant: | Hughes Watson Marks Kennedy |
| Senior Counsel for the Respondent: | Mr O’Grady QC |
| Junior Counsel for the Respondent: | Mr Avallone |
| Solicitors for the Respondent: | Thomson Geer |
ORDERS
Pursuant to section 17A of the Federal Circuit Court of Australia Act 1999 and rule 13.10 of the Federal Circuit Court Rules 2001 there be judgment for the respondent and the applicant’s claim at paragraphs 27 to 77 (and paragraphs 1 to 3 of the relief) of the Amended Statement of Claim filed 20 November 2015 be summarily dismissed.
The respondent’s costs of the application in a case filed on 16 December 2015 be reserved.
The applicant file and serve a second further Amended Statement of Claim in conformity with these reasons within 21 days.
The respondent’s application in a case filed on 16 December 2015 and the applicant’s response filed on 22 January 2016 be otherwise dismissed.
The proceedings be adjourned to 16 September 2016 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1129 of 2015
| TAHSIN HALICI |
Applicant
And
| KDR VICTORIA PTY LTD T/A YARRA TRAMS |
Respondent
REASONS FOR JUDGMENT
Background
Tahsin Halici (“the applicant”) is a revenue protection officer employed by KDR Victoria Pty Ltd T/A Yarra Trams (“the respondent”). The background to these reasons is set out in a decision of the Court published as Halici v KDR Victoria Pty Ltd T/A Yarra Trams [2015] FCCA 2912 (“Yarra Trams No. 1”)[1] as follows:
“1.On 20 [May] 2015 Tahsin Halici (“the applicant”) commenced proceedings by application and statement of claim against KDR Victoria Pty Ltd T/A Yarra Trams (“the respondent”).
[1] see paragraphs 9 to 16.
2. …
9.The applicant is aged 51 years and has been employed by the respondent as a Revenue Protection Officer since 2008.
10.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”).
11.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.
12.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.
13.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.
14.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.
15.On the material before the Court at least, there the matter lay until 20 May 2015 when the applicant commenced these proceedings. …”
In Yarra Trams No. 1 the Court dealt with an application in a case filed by the respondent in July 2015. For the reasons set out in Yarra Trams No. 1 on 30 October 2015 the Court made the following orders:
“1. Paragraph [27] to [51] of the statement of claim filed 20 August 2015 be struck out.
2. The applicant file and serve any amended statement of claim within 21 days.
3. The respondent have 21 days thereafter to file any amended response or defence.
4. The proceedings be adjourned for further directions on 17 February 2016.
5. Costs be reserved.”
Following those orders the applicant filed an amended statement of claim on 20 November 2015 (to which it will be necessary to return). There then ensued correspondence between the solicitors for each of the parties which resulted in a request by consent for the Court to make orders for the future progress of the matter.
On 11 December 2015 the following orders were made by consent:
“1. Orders 3 and 4 of the Order of Judge O'Sullivan dated 30 October 2015 be vacated.
2. On or before Wednesday, 16 December 2015, the Respondent file and serve an Application in a Case that paragraphs 27 to 77 (and paragraphs 1 to 3 of the relief) of the amended Statement of Claim filed 20 November 2015 be summarily dismissed or alternatively struck out (Application in a Case).
3. On or before Friday, 22 January 2016, the Applicant file and serve any response to the Application in a Case.
4. On or before Friday, 5 February 2016, 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.
5. On or before Friday, 19 February 2016, the Applicant 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. The Application in a Case be listed for hearing on 3 March 2016.
7. Pursuant to order 3.05 of the Federal Circuit Court Rules 2001 (Cth), 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 Application in a Case.
8. There be no order as to costs.”
A second application in a case was filed 16 December 2015 by the respondent (“the respondent’s application in a case”). On 22 January 2016 the applicant filed a response to that application in a case. At the request of the parties the hearing of the respondent’s application in a case was first listed on 3 March 2016 and then adjourned (by consent) to 10 May 2016 to accommodate the commitments of Senior Counsel for each of the parties.
Respondent’s application in a case
In the application in a case filed 16 December 2015 (“the respondent’s application in a case”)[2] the respondent sought, so far as presently relevant, the following orders:
“1. Paragraph 27 to 77 (and paragraphs 1 to 3 of the relief) of the Amended Statement of Claim filed 20 November 2015 be summarily dismissed on the basis that the claim of false imprisonment has no reasonable prospects of success.
2. Alternatively, paragraphs 27 to 77 (and paragraphs 1 to 3 of the relief) of the Amended Statement of Claim filed 20 November 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.”
[2] see exhibit R1.
The respondent’s application in a case was supported by an affidavit of the respondent’s solicitor affirmed 16 December 2015[3], an affidavit of Stephen Silvapulle sworn 5 February 2016[4], an affidavit of Sharon Moodie sworn 5 February 2016[5], submissions filed 5 February 2016[6] and submissions in reply filed 9 May 2016[7], to which it will be necessary to return.
[3] see exhibit R2.
[4] see exhibit R5.
[5] see exhibit R4.
[6] see exhibit R3.
[7] see exhibit R6 there was no objection taken by the applicant to the respondent relying on these submissions.
In his response filed on 22 January 2016[8] the applicant sought, so far as presently, relevant the following orders:
“1. A declaration may be made under subsection 45(1) of the Federal Circuit Court Rules 2001 that the Respondent produce the complete VECCI report with annexures and any notes of the author;
2.The application in a case of the Respondent dated 16 December 2015 be dismissed.
3.Costs be awarded against the Respondent of and incidental to this Application.”
[8] see exhibit A1.
The response filed by the applicant to the respondent’s application in a case contained the following “grounds of opposition”:
“1.The Applicant opposes the application of the Respondent dated 16 December 2015 on the following basis:-
a.That he does have reasonable prospects of success prosecuting the proceedings;
b.The claim for relief is not frivolous or vexatious;
c.The claim for relief is not an abuse of the process of the Court;
d.That he does disclose a cause of action;
e. That is would not prejudice or delay the affair trial(sic) of the proceeding if paragraphs 27 to 77 (and paragraphs 1 to 3 of the relief) are heard.
2.The Applicant’s grounds of opposition are supported by the Amended Statement of Claim filed with the Court dated 20 November 2015.
3.The Applicant’s grounds of opposition and Further Order sought by the Applicant are supported by the Affidavit of Merna Maroky Harper dated 20 January 2016.
4.The Applicant further submits that it would be an injustice and wrong to deny a plaintiff resort to the ordinary processes of a Court by granting the Application of the Respondent dated 16 December 2015.”
The applicant’s response to the respondent’s application in a case was supported by an affidavit of his solicitor sworn 22 January 2016[9] and written submissions filed 19 February 2016[10] to which it will also be necessary to return.
[9] see exhibit A2 at the hearing on 10 May 2016 the applicant also relied on his affidavit filed 10 September 2015, see Annexure SS1 to Exhibit R5.
[10] see exhibit A3.
Amended statement of claim
Given the orders sought in the respondent’s application in a case it is convenient at this stage to identify the salient parts of the applicant’s amended statement of claim. Before doing so it should be recalled that in Yarra Trams No. 1 the relevant sections of the applicant’s (then) statement of claim were set out at paragraph 19.
As a result of the orders made 30 October 2015, for the reasons set out in Yarra Trams No. 1, the applicant filed an amended statement of claim on 20 November 2015, which so far as presently relevant, provided:
“Total Restraint
Confined to a Location
27.On 4 June, 2013, the Applicant was located at the East Preston Tram Depot ("the East Preston Depot") and was working the so-called 'B shift'.
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.At or about 4.30 pm on 4 June, 2013, the TMAO (Team Manager Authorised Officers), Mohammed Said ("Mr Said") and Sharon Moodie ("Ms Moodie"), from the Respondent' s Human Resources Department:
(i) entered the RPO room; and
(ii) took over the meeting.
30.Mr Said read from a document and informed the meeting, in words to the effect that:
(i) he and Ms Moodie were investigating the posting of pictures on the RPO room wall, contrary to policy;
(ii) he and Ms 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 Mr Said read is at Appendix E of the document described as the first VECCI report and referred to at paragraphs 78 to 84 below ("the first VECCI report").
A copy of the document from which Mr Said read will be provided following Discovery.
31.Mr Said directed the Applicant and the other shift members to participate in the investigation and answer questions in words to the effect, that:
(i) no union representative, including the local shop steward, Danny Stevie ("Stevie") would be permitted to accompany any interviewee; and
(ii) again reading from a document, that if anyone objected to answering questions and being interviewed, without a union representative, that person would be "stood down" without pay.
PARTICULARS
The document from which Mr Said read is at Appendix E of the first VECCI report.
The first VECCI report at Executive Summary, Section 2, dot point 7, confirms that Mr Said informed the meeting that anyone who refused to be interviewed would be stood down.
32.Ms Moodie, in response to the Applicant asking if he was permitted to go to the toilet or get a drink of water from the nearby water cooler, directed the Applicant and the other shift members in words to the effect that:
(i). they were not to leave the RPO 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 RPO room to go to the toilet; and
(v).they were not to leave the RPO room to obtain water from the nearby water cooler.
PARTICULARS
The details of Ms Moodie's directions are set out in the Applicant's email to the Rail Tram & Bus Union and his transcript of evidence to the first VECCI investigation, referred to at paragraphs 78 to 84 below.
Both the email and the transcript are available for inspection by prior appointment with the Applicant' s solicitor.
The first VECCI report at Executive Summary, Section 2, dot point 6, confirms that the Applicant and the other shift members were not to use mobile phones or speak to each other.
33.Ms Moodie, who remained in the RPO room,
(i)then took physical control of entry to and exit from the RPO room ("the active guarding"); and
(ii)took notes of what occurred and recorded her notes in a blue folder.
PARTICULARS
Ms Moodie's physical control of entry to and exit from the RPO room, during the hours 5:06 pm to 5: 19 pm on 4 June, 2013, was videoed by one of the other staff members.
The first VECCI report at Executive Summary, Section 2, dot point 5, confirms that Ms Moodie was to supervise the Applicant and the other shift members to prevent collusion.
34.At approximately 5.08 pm, Tolga Veli ("Veli"), one of the other shift members confined in the RPO room, noticed that Stevie, whom Ms Moodie had directed to wait in the computer room adjacent to the RPO room,
(i). appeared to be lying on the floor of the computer room;
(ii). suggested Stevie needed assistance; and
(iii).with the Applicant, attempted to leave the RPO room and to go to Stevie's aid.
35. In response, Ms Moodie:
(i).ordered the Applicant, Veli and the other shift members to leave Stevie alone;
(ii).physically obstructed the doorway between the RPO room and the computer room;
(iii). did not provide any assistance to Stevie; and
(iv).sought instructions, by mobile phone, as to how she ought maintain security around the shift members.
PARTICULARS
Details of Ms Moodie's instructions will be provided following Discovery.
36.Ultimately, when Mr Said returned from interviewing Nick, at Mr Said's direction an ambulance was called and, upon arrival at approximately 5:30 pm, the Ambulance Officers informed Ms Moodie:
(i) that Stevie was in their care, and
(ii) was to be given water and access to a toilet.
37. In the meantime:
(i). Mr Said continued the interviews; and
(ii).the shift members, other than Stevie and two other staff members who entered the computer room to check Stevie's welfare, remained in the RPO room and continued to comply with Ms Moodie's directions.
38.The Applicant again requested to leave the RPO room in order to go to the toilet and attempted to do so but Ms Moodie reiterated words to the effect that he was not to leave the RPO room and refused to permit him to leave the RPO room.
39.The first tranche of interviews concluded about 5.40 pm.
40.Ms Moodie did not permit the Applicant to leave the RPO room at any time from 4.30 pm to 5.40 pm on 4 June, 2013 and the Applicant did not leave the RPO room during that period.
41.In the premises, the Respondent confined the Applicant within the RPO room from 4.30 pm on 4 June, 2013 to 5.40 pm on 14 June, 2013.
42.The Applicant' s confinement to the RPO room from 4.30 pm to 5.40 pm on 4 June, 2013 is confirmed by the document released by the Respondent on 1 November, 2013, described as the first VECCI report and referred to at paragraphs 78 to 84 below.
PARTICULARS
The Respondent's cover letter to the first VECCI report and the findings of the first VECCI report at Executive Summary, Allegation 2, confirm that the Applicant and the other shift members were not permitted to leave the RPO room.
No Reasonably Available Exit
43.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.
44.Mr Said's stand down direction, referred to in paragraph 31 above, applied to any attempt by the Applicant to leave the RPO room during the hours 4.30 pm to 5.40 pm on 4 June, 2013.
45.Ms Moodie's physical control of entry to and exit from the RPO room, as set out in paragraphs 33 to 40 above, extended to any attempt by the Applicant to access the exits from the RPO room, referred to in paragraph 43 above.
46.The document released by the Respondent on 1 November, 2013, described as the first VECCI report and referred to below at paragraphs 78 to 84, confirms that the Applicant and the other shift members were not permitted to leave the RPO room.
PARTICULARS
The Respondent' s cover letter to the first VECCI report and the findings of the first VECCI report at Executive Summary, Allegation 2, confirm that the Applicant and the other shift members were not permitted to leave the RPO room.
47.In the premises, the exits from the RPO room were not reasonably available to the Applicant during the hours of 4.30 pm to 5.40 pm on 4 June, 2013.
Without Consent
48.At no time did the Applicant consent to participating in the investigation conducted by Mr Said on 4 June, 2013.
PARTICULARS
The Applicant's email to the Rail Tramways & Bus Union confirms that the Applicant never consented to be interviewed or accepted that no union delegate be present.
The transcript of Applicant's interview with the first VECCI investigation, dated 10 September, 2013, confirms that
the Applicant never consented to be interviewed or accepted that no union delegate be present.
Both the email and the transcript are available for inspection by prior appointment with the Applicant's solicitor.
49.At no time did the Applicant consent to being confined to the RPO room between 4.30 pm and 5.40 pm on 4 June, 2013
PARTICULARS
The Applicant's email to the Rail Tramways & Bus Union confirms that the Applicant never consented to be interviewed or accepted that no union delegate be present.
The transcript of Applicant's interview with the first VECCI investigation, dated 10 September, 2013, confirms that
the Applicant never consented to be interviewed or accepted that no union delegate be present.
Both the email and the transcript are available for inspection by prior appointment with the Applicant's solicitor.
50.The Applicant and the other shift members expressed their objections to being interviewed and to being confined to the RPO room, by encouraging Stevie to protest and by 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, Ms Moodie:
(i)removed Stevie from the RPO room to the adjacent computer room; and
(ii)repeated her instructions regarding silence amongst the shift members.
PARTICULARS
The Applicant's email to the Rail Tramways & Bus Union confirms that the Applicant never consented to be interviewed or accepted that no union delegate be present and expressed his protests to Stevie.
The transcript of Applicant's interview with the first VECCI investigation, dated 10 September, 2013, confirms that the Applicant never consented to be interviewed or accepted that no union delegate be present and expressed his protests to Stevie. Both the email and the transcript are available for inspection by prior appointment with the Applicant's solicitor.
51.The Applicant's objections and protests continued after 4 June, 2013 by way of Union representations and subsequently the first VECCI investigation, referred to at paragraphs 78 to 84 below.
Compliance because of Coercive Conduct
52.The Applicant refers to and repeats paragraph 31 above concerning stand down.
53.The Applicant refers to and repeats paragraphs 32 to 40 above concerning Ms Moodie's directions and active guarding.
54.The Respondent's conduct referred to in paragraphs 52 and 53 above constitutes coercive conduct.
55.The Respondent' s cover letter to the first VECCI report, dated 1 November, 2013 and the findings of the first VECCI report at Executive Summary, Allegation 3, confirm that the Applicant and the other shift members were intimidated and demeaned by the Respondent's conduct.
56.In the premises, the Applicant remained in the RPO room from 4.30 pm to 5.40 pm on 4 June, 2013 because of the coercive conduct of the Respondent.
PARTICULARS
The Applicant' s email to the Rail Tramways & Bus Union and his transcript of interview to the first VECCI investigation confirm that the Applicant remained in the RPO room because of the Respondent' s coercive conduct.
57.Alternatively, the Applicant remained in the RPO room from 4.30 pm to 5.40 pm on 4 June, 2013 because he submitted to lawful authority.
58.Because, from 4.30 pm to 5.40 pm on 4 June, 2013, the Applicant
(i). was confined in the RPO room;
(ii).had no reasonably available egress from the RPO room;
(iii). did not consent to his confinement in the RPO room;
(iv). was intimidated by the Respondent' s conduct;
(v).remained in the RPO room because of the coercive conduct of the Respondent; and
(vi). was demeaned by the Respondent's conduct
the Applicant was totally restrained and imprisoned by the Respondent during that period.
Unlawful Order
59.In Watson v Marshall & Cade [1971] HCA 33; (1971)124 CLR 621( Watson). Walsh J at (7] states that, at common law, the only lawful justification for an imprisonment is "overriding necessity for the protection of himself or others"; where himself refers to the person imprisoned.
60.The directions imposing the total restraint upon the Applicant were issued to further an investigation into a possible breach of a policy concerning the attachment of posters to the walls of the RPO room and not to protect the Applicant or others.
61.Sections 524 and 525 of the Fair Work Act 2009 are in following terms:
FAIR WORK ACT 2009 - SECT 524
Employer may stand down employees in certain circumstances
(1)An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a)industrial action (other than industrial action organised or engaged in by the employer);
(b)a breakdown of machinery or equipment. if the employer cannot reasonably be held responsible for the breakdown:
(c)a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(2)However, an employer may not stand down an employee under subsection (l) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:
(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee: and
(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.
Note1: If an employer may not stand down an employee under subsection (!), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.
Note 2:An enterprise agreement or a contract of employment may also include tenns that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).
(3)If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.
FAIR WORK ACT 2009 - SECT 525
Employee not stood down during a period of authorised leave or absence
An employee is not taken to be stood down under l)bsectio11 524(1) during a period when the employee:
(a) is taking paid or unpaid leave that is authorised by the employer;
(b) is otherwise authorised to be absent from his or her employment.
Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee would otherwise be stood down under, subsection 524(1).
62.The stand down directions issued to the Applicant were issued to further an investigation into a possible breach of a policy concerning the attachment of posters to the walls of the RPO room and were not enlivened by any of the statutory justifications set out in s 524 or s 525 of the Fair Work Act 2009.
63.Neither the contract nor the EBA contains a stand down clause.
64.In the premises, the Applicant's imprisonment, referred to at paragraph 58 above, was not lawful.
Unreasonable Order
65.The Applicant's interview with Said 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.
66.The pictures shown to the Applicant, in his opinion, were not obscene, pornographic, blasphemous, seditious or excessively violent.
PARTICULARS
Copies of the pictures shown to the Applicant will be provided following Discovery.
67.The Applicant refers to and repeats paragraphs 54 and 55 above.
68.The Respondent engaged in coercive, demeaning and intimidatory conduct to carry out an investigation into posters that were not obscene, pornographic, blasphemous, seditious or excessively violent.
69.The Respondent's conduct was not proportionate to the task to be undertaken and was, in the circumstances, unreasonable.
Vicarious Liability
70.Mr Said and Ms Moodie acted at all times in the course of their employment and in accordance with the Respondent's instructions and the Respondent's perception of their roles.
PARTICULARS
Details of the instructions issued to Mr Said and Ms Moodie will be provided following Discovery.
71.In the premises, the Respondent is vicariously liable for the actions of Mr Said and Ms Moodie at the East Preston Depot on 4 June, 2013.
Damage
72.Mr Altieri arrived at the RPO room at about 5.40 pm, and attempted to gain access to the interviews conducted by Said.
73.Mr Altieri was informed by Mr Said and Ms Moodie in words to the effect that he had no right of entry because they were conducting an investigation on behalf of the Respondent and not a disciplinary procedure.
74.Eventually, Mr Altieri's persistence succeeded and he obtained right of entry to his members.
75.The Applicant suffered indignitv and humiliation as a result of his unlawful imprisonment.
PARTICULARS
The Respondent's cover Jetter to the first VECCI report, dated 1 November 2013, and the findings of the first VECCI report at Executive Summary, Allegation 3, confirm that the Applicant and the other shift members were intimidated and demeaned by the Respondent's conduct.
76.Further, in the premises, there were aggravating factors to the total restraint in that:
(i).the Applicant was denied any communication with other shift members;
(ii).the Applicant was denied any communication with anyone else by mobile phone
(iii).the Applicant was denied access to toilet facilities; and
(iv).the Applicant was denied access to the water cooler.
77. Further, in the premises:
(i)given the Respondent's role as the provider of a public transport service on behalf of a Franchisor who represents the Crown; and
(ii)given the size of the Respondent's business operations and its access to professional advice, including professional legal and human resources advice;
the imposition of exemplary damages is appropriate.”
It is those parts of the applicant’s pleadings (in the form of the amended statement of claim) set out above that are the focus of the orders sought in the respondent’s application in a case.
Submissions of the respondent
In written submissions filed 5 February 2016 the respondent’s position was the Court should make the orders sought in the respondent’s application in a case as:
“Introduction
1.By a decision dated 30 October 2015 in this proceeding ([2015] FCCA 2912: ‘Strike Out Decision’), this Honourable Court struck out paragraphs [27] to [51] of the Applicant’s Statement of Claim dated 20 August 2015 (‘Original Statement of Claim’).
2.At paragraph [43] of the Strike Out Decision, the Court noted that the Original Statement of Claim pleaded no allegation of the Applicant being physically restrained or locked into any part of the Respondent’s East Preston Depot. The Court accepted that it was not possible to identify on the material facts relied upon by the Applicant that it was reasonably arguable that he was falsely imprisoned. The Court found that, even if accepted, the relevant paragraphs of the Original Statement of Claim would not make out the tort of false imprisonment.
3.Having been given leave to re-plead, the Applicant filed and served an Amended Statement of Claim dated 20 November 2015. At paragraphs [27] to [77], the Amended Statement of Claim alleges false imprisonment, relying on the same factual matrix that formed the basis of paragraphs [27] to [51] of the Original Statement of Claim. The Respondent’s interlocutory application seeks that paragraphs [27] to [77] of the Amended Statement of Claim be summarily dismissed, on the basis that the re-pleaded claim of false imprisonment has no reasonable prospect of success.
4.In the alternative, the Respondent’s interlocutory application seeks that the relevant paragraphs be struck out. In circumstances where the Applicant has already been put on notice of the Respondent’s concerns with the pleading, and the Court has given the Applicant an opportunity to re-plead the claim of false imprisonment, the Respondent opposes the granting of leave for the Applicant to plead a third time.
The test for summary judgment/ dismissal
5.The Defendant refers to and relies upon the Court’s analysis of the provisions and authorities governing summary judgment/dismissal at paragraphs [22] – [34] of the Strike Out Decision. In addition it makes the following points.
6.The proceedings need not be “hopeless” or “bound to fail” for them to have “no reasonable prospect of success”. The section is in the same terms as section 31A of the Federal Court of Australia Act 1976. The operation of that section was discussed in some detail in Spencer v The Commonwealth (2010) 241 CLR 118. In that case Hayne, Crennan, Kiefel and Bell JJ said:
“[51] First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
[52] Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW).
...
[56] Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.
...
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
[60] Rather, full weight must be given to the expression as a whole. 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. (our emphasis)”
7. Section 17A of the Federal Circuit Court of Australia Act 1999 and Rule 13.10 of the Federal Court Rules 2001 are intended to broaden the grounds on which the Federal Court can summarily dispose of unsustainable cases and lower the standard for strike out applications. In Longmuir & Anor v Konstantopoulos [2014] FCCA 162, Riethmuller J found useful the summary as set out by Tracey J in Deckers Outdoor Corporation Inc v Farley (No 2) [2009] FCA 256; (2009) 176 FCR 33; [2009] AIPC 92-340, where His Honour said:
“[11] Section 31A of the Federal Court Act was introduced to extend “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at 406 (per Gordon J) (quoting from the Second Reading Speech of the Minister on the Migration Litigation Reform Bill 2005 (Cth)). The section empowers the Court to give summary judgement in favour of an applicant if it is satisfied that the respondent “has no reasonable prospect of successfully defending the proceeding or [a] part of the proceeding”: see s 31A(1)(b). A defence may have no reasonable prospect of success notwithstanding that it is not “hopeless” and not “bound to fail”: see s 31A(3).
[12] Plainly, s 31A was, as Lindgren J held in White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 at 310 [54], designed “to lower the bar for obtaining summary judgment” from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-130. Although the standard which must be met by an applicant who seeks summary judgment under the Federal Court Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others. As Kenny J said in PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd (2007) 74 IPR 372; [2007] FCA 1642 at [13]:
“The key is to address the statutory question. That is, under s 31A, in order to grant summary judgment, I must be satisfied that the respondents have no reasonable prospects of success in defending the infringement claim. As s 31A(3) makes clear, this does not mean that I must be satisfied that their defence is hopeless or bound to fail.”” (our emphasis)
8. As was noted in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 at [6]:
“Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court’s decisions in Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed".
9.For a proceeding to have a “reasonable prospect of success” it must have real prospects of success as opposed to merely fanciful or arguable prospects: Field v Perpetual Limited [2010] FCA 1001; White Industries Aust Pty Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [59] and Spencer v Commonwealth of Australia [2010] HCA 28 at [17] - [26] and at [51] - [60].
10.The Respondent also notes that in the Strike Out Decision the Court made clear that:
(a) “The obligation of the pleading is to state material facts.... A fact is material if it is essential to the cause of action...” (Strike Out Decision at [39], citing with approval Dahler v Australian Capital Territory [2014] FCA 946 and Strike Out Decision at [41] citing with approval Wride v Schulze [2004] FCAFC 216 at [25]);
(b) in a claim alleging the tort of false imprisonment “the precise nature of the alleged confinement is important” (Strike Out Decision at [40]);
(c) whether a party has a reasonable prospect of successfully prosecuting the proceedings or part of the proceedings is assessed by reference to whether the proceeding or part thereof has some chance of success if regard is had only to that allegations and pleadings relied upon by the Applicant (Strike Out Decision at [41] citing with approval Wride v Schulze [2004] FCAFC 216 at [25]).
The tort of false imprisonment
11.The Respondent adopts the summary of the elements of the tort of false imprisonment set out at paragraphs [38] and [43] of the Strike Out Decision.
12.As this summary makes clear a key element of the tort is restraint. The requirement of total restraint is of long standing. In Bird v Jones (1845) 7 QB 744 Coleridge J said:
“And I am of opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and attention. A prison may have its boundary large or narrow, visible and tangible, or, the real, still in the conception only; it made sort be movable or fixed: but a boundary it must have; and that boundary the party imprisonment must be prevented from passing; he must be prevented from leaving the place, within the ambit of which the party imprisoning would confine him, except by prison breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go wither-soever one pleases; but imprisonment is something more than mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own. (our emphasis)”
13.The Respondent also draws the following propositions from Whittaker v Child Support Registrar (2010) 264 ALR 473 (“Whittaker”):
(a) the fact that an individual is “constrained” by his or her own self interest to remain in a particular location, even if that self interest is “strong and urgent”, does not constitute total restraint for the purposes of the tort: Whittaker at [93];
(b) the fact that an individual is directed in mandatory terms by a person in a position of authority to remain in a particular location will not necessarily mean that the individual has been detained for the purposes of the tort: Whittaker at [93] and [94];
(c) a subjective belief on the part of an individual that they were not free to leave until questioning was complete will not constitute imprisonment for the purposes of the tort of false imprisonment where that questioning is facultative or facilitative and, at least potentially, in the individual’s interests: Whittaker at [95], [183] – [185]
14.On appeal (Whittaker v Child Support Registrar [2010] FCAFC 112) the Full Court endorsed His Honour’s reasoning and said:
“72 At this point, it must also be said that the appellants’ case, that the refusal of permission to allow Mr Whittaker to board his flight and the direction that he should take a seat while his claim to board his flight was considered amounted to an imprisonment, is quite misconceived. Mr Whittaker was, on no view, subjected to the total restraint upon movement which is a necessary element of the tort of false imprisonment: see McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250; Louis v Commonwealth (1987) 87 FLR 277 at 282. On any sensible view of the situation, it was open to Mr Whittaker, at any time, simply to leave the airport.”
15.These propositions have direct application here. Just as it was open to Mr Whittaker to leave the departure hall “landside” at the price of missing his flight, foregoing the opportunity to perform work in Malaysia, it was open to Mr Halici to leave the East Preston depot, all be it at the price that this might lead to steps being taken against him in respect of his employment. In the event that sanctions were imposed in respect of his employer Mr Halici could exercise his rights under his contract of employment, the Yarra Trams Enterprise Agreement 2012 and under the Fair Work Act 2009 to challenge these sanctions.
The allegations of false imprisonment in the Amended Statement of Claim
16.The Amended Statement of Claim does not make out the elements of the tort of false imprisonment. Whilst there is some repetition, the material allegations appear to be 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 (Amended Statement of Claim [27] and [43]);
(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 (Amended Statement of Claim [30]]):
(c) the directions to the Applicant and others included words to the effect that ‘if anyone objected to answering questions and being interviewed, without a union representative, that person would be “stood down” without pay’ (Amended Statement of Claim [31(ii)] and [44])
(d) the Applicant and others were told that they were not to leave the room (Amended Statement of Claim [32]);
(e) Ms Moodie, an officer of the Respondent who remained in the RPO room, ‘then took physical control of entry to and exit from the RPO room (“the active guarding”); and took notes of what occurred and recorded her notes in a blue folder.’ (Amended Statement of Claim [33]);
(f) ‘Ms Moodie’s physical control of entry to and exit from the RPO room … extended to any attempt by the Applicant to access the exits from the RPO room’ (Amended Statement of Claim [45]);
(g) when another employee, whom Ms Moodie directed to wait in the computer room adjacent to the room (Mr Stevic) appeared to be lying on the floor of the computer room, Ms Moodie ‘physically obstructed the doorway between the RPO and the computer room’ (Amended Statement of Claim [34] and [35]);
(h) two other staff members entered the computer room (Amended Statement of Claim [37(ii)]);
(i) when the Applicant requested to leave the RPO room to go toilet and attempted to do so, Ms Moodie ‘reiterated words to the effect that he was not to leave the RPO room and refused to permit him to leave the RPO room’ (Amended Statement of Claim [38]);
(j) Ms Moodie did not permit the Applicant to leave the RPO room from 4.30pm to 5.40pm on 4 June 2013 (Amended Statement of Claim [40]); and
(k) the Applicant was subsequently interviewed (Amended Statement of Claim [65]).
17.These allegations need to be assessed by reference to the physical layout of the East Preston depot described in the affidavit of Sharon Moodie dated 20 August 2015.
18.Aside from the use of pejorative phrases such as “physical control” and “active guarding”, once again the Amended Statement of Claim does not contain any allegation of the Applicant being physically restrained or locked into any part of the Depot. Nor does it allege that the Applicant was given to understand that he must submit or else he would be compelled, in the sense described by Ashley J in McFadzean and Ors v CFMEU and Ors [2004] VSC 289 (‘McFadzean’) at [89]. Rather, the substance of the allegations is that the Applicant was given a direction which he disputes the lawfulness or reasonableness of. The “control” or “guarding”, such as it was, flowed from concerns the Applicant had about the impact that non-compliance with the direction might have on his employment. It was at all times open to the Applicant to leave the depot, all be it at the risk of this impact.
19.In any event the Respondent notes that the Applicant’s evidence was that the Applicant complied with this direction, not because he was compelled to do so or even because he was concerned about his employment, but because that’s what he expects when he deals with the public (Halici affidavit of 16 September 2015 at [47]).
20.The correspondence between the parties concerning the Amended Statement of Claim confirms that notwithstanding the pejorative language used the Applicant is not alleging that he was physically restrained or that unless he submitted he feared he would be physically restrained. Upon being asked to particularise what is meant in paragraph 33(i) of the Amended Statement of Claim by “physical control” and “active guarding”, and which of the two exits from the RPO room Ms Moodie is alleged to have “actively guarded” and over what period of time (Exhibit AM 9 to the affidavit of Amy Eliza Millar affirmed on 16 December 2015), the Applicant relied upon paragraphs 32 to 40 of the Amended Statement of Claim (Exhibit AM 10). Upon being asked to clarify this (Exhibit AM 11), the Applicant identified Ms Moodie’s being assigned to supervise the Applicant and others, her directions alleged in paragraph 32 of the Amended Statement of Claim, the allegations about the separation of Mr Stevic from the Applicant and other employees and associated directions, her alleged refusal to permit the Applicant and others access to the toilet and water cooler, and the allegations about her management of Mr Stevic’s collapse (Exhibit AM 12).
21.Of the matters referred to by the Applicant through his lawyers, as constituting “physical control” and “active guarding”, the only allegations of physical obstruction appear to be those contained in paragraph 35(ii) of the Amended Statement of Claim and the letter from the Applicant’s solicitors dated 27 November 2015 (Exhibit AM 10) - namely that Ms Moodie “stopped” Mr Veli from assisting Mr Stevic, and kept Mr Veli out of the computer room, and ‘put her hand up to stop him [Mr Veli], actually, like physically’ and that Mr Veli was kept at the doorway between the RPO room and the computer room.
22.Even at its highest, an allegation that Ms Moodie put up her hand to prevent another employee (Mr Veli) from using one of the RPO room’s exits to enter the computer room does not support an allegation that the Applicant was physically restrained or locked into any part of the East Preston depot or the East Preston depot itself. There is no allegation that the Applicant’s egress from the RPO Room (either to the computer room, or any other room) was physically obstructed. The RPO room had two exits, and it is alleged that it was “actively guarded” by just one person (Ms Moodie) for 70 minutes, at the same time as she took notes of what was occurring (Amended Statement of Claim [33]). Despite the allegation that Ms Moodie stopped Mr Veli from using one of those exits (to the computer room), it is alleged by the Applicant that two employees other than the Applicant used that exit to enter the computer room (Amended Statement of Claim [37(ii)]).
23.No explanation has been provided by the Applicant whether and if so, how, it is pleaded that Ms Moodie, alone, “physically controlled” and “actively guarded” two separate exits from the RPO room, or if it was only one exit which exit and for what period of time. It is common ground that Ms Moodie was the only manager in the room in which the entire shift of Revenue Protection Officers were waiting to be interviewed.
The ‘stand down’ allegation
24.Whilst it is not clear, it appears that the Applicant also relies upon the “stand down” allegations to establish that he was imprisoned. Paragraph 31(ii) of the Amended Statement of Claim alleges that Mr Said said words to the effect that the Applicant and other employees would be ‘“stood down” without pay’ if they objected to an interview without the presence of a union representative. Paragraphs 61 to 63 allege that as any such stand down would not appear to be authorised by either s. 524 or 525 of the Fair Work Act 2009 or by a clause in the Applicant’s contract of employment or by the Yarra Trams Enterprise Agreement 2012, such a stand down would be unlawful. As it is common ground that the Applicant was not “stood down” it is not clear how such a threat, even if made and even if unlawful, constitutes imprisonment. Even if such a threat were made and carried out, all that would flow is a claim for wages for the period of the stand down: Kidd v Savage River Mines (1984) 9 IR 362.
25.In any event in circumstances where the Applicant’s previous affidavit stated that the words used by Mr Said were “stood down” and that the Applicant understood this to mean termination of employment (Halici 16 September affidavit at [35]), the Respondent has sought that the Applicant particularise the words now alleged to have been used by Mr Said (Exhibit AM 9 and Exhibit AM 11).
26.The Applicant has stated through his lawyers that Mr Said read from a document (Exhibit AM 12), that the words spoken by Mr Said included the words “stand down” (Exhibit AM 12), that discovery of the document from which Mr Said read would clarify the words spoken, and ‘it is almost impossible to conceive of an industrial/employment context in which “stand down” could be construed as anything but without pay” (Exhibit AM 10).
27.The key particular which is not provided in paragraph 31(ii) of the Amended Statement of Claim is this: what are the words that the Applicant alleges he heard Mr Said say? Rather than providing this particular, the Applicant alleges that Mr Said read a document and his solicitors express their understanding of the term. Neither response advances the matter.
28.The failure to properly particularise paragraph 31(ii) aside, even if it be alleged that the words said were “stood down without pay”, that phrase would not support a conclusion that the Applicant was totally restrained by the Respondent. Indeed, even if the words used constitute a threat to Mr Halici’s employment, there would not be a restraint of the type contemplated by the tort. Rather, as was the case in Whittaker, it was open to the Applicant to leave the premises. The prospect that such departure might have led to sanctions in respect of his employment (which Mr Halici could then challenge) does not mean that he was restrained.
The claim of false imprisonment has no reasonable prospect of success, and paragraphs [27] to [77] should be summarily dismissed
29.For the reasons set out above, the Applicant’s asserted conclusions that:
(a) ‘In the premises, the Respondent confined the Applicant within the RPO room’ from 4.30pm to 5.40pm on 4 June 2013 (Amended Statement of Claim [41]);
(b) ‘In the premises, the exits from the RPO room were not reasonably available to the Applicant during the hours of 4.30pm to 5.40pm on 4 June, 2013’ (Amended Statement of Claim [47]);
(c) ‘The Respondent’s conduct referred to in paragraphs 52 and 53 … [summarised in paragraphs 16(c) to 16(j) above] constitutes coercive conduct’ from 4.30pm to 5.40pm on 4 June 2013 (Amended Statement of Claim [54]); and
(d) ‘… the Applicant was totally restrained and imprisoned by the Respondent’ from 4.30pm to 5.40pm on 4 June 2013 (Amended Statement of Claim [58]),
are not supported by the "premises" relied upon in those paragraphs of the Amended Statement of Claim.
30.On the authorities, the allegations, 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.
31.Paragraphs [27] to [77] of the Amended Statement of Claim should be dismissed by way of summary judgment.
In the alternative, the pleadings should be struck out, without leave to re-plead
32.In the alternative to seeking summary judgment, the Respondent seeks that paragraphs [27] to [77] of the Amended Statement of Claim should be struck out pursuant to rule 16.21(1) of the Federal Court Rules 2011 together with rule 1.05(2) of the Federal Circuit Court Rules 2001, on the basis that those paragraphs do not disclose a cause of action and would prejudice or delay the fair trial of the proceeding.
33.Relevantly, the Court has a discretion to order that part or all of a pleading be struck out, on the basis that the pleading:
‘(d)is likely to cause prejudice, embarrassment or delay in the proceedings; or
(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the proceeding’.
34.The Respondent refers to and repeats paragraphs 5 to 31 above. For the reasons set out above, the Respondent submits that paragraphs [27] to [77] do not disclose a reasonable cause of action of false imprisonment, nor state all of the material facts necessary to establish that cause of action. The Respondent respectfully submits that the Court ought to exercise its discretion to strike out paragraphs [27] to [77] of the Amended Statement of Claim.
35.For the reasons set out below, if the Court does strike out paragraphs [27] to [77], the Respondent opposes the granting of leave for the Applicant to file and serve a further amended statement of claim.
36.Section 37M of the Federal Court Act 1976, provides that an overarching purpose for the Federal Court’s practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. A similar object is set out in rule 1.03 of the Federal Circuit Court Rules 2001 (‘to assist the just, efficient and economical resolution of proceedings’), consistent with section 3(2) of the FCC Act.
37.The Applicant has been on notice since soon after the filing of the Original Statement of Claim that the Respondent had concerns with the manner in which the Applicant’s false imprisonment claim was drafted. The Applicant did not avail itself of that opportunity to re-plead, and then re-pleaded after the Strike Out Decision by making essentially the same allegations (with the added flourishes of alleging “physical control” and “active guarding” and words to the effect of a “stood down” without pay). The relevant events of 4 June 2013 are now 30 months past, and inevitably delay can affect the quality of witnesses’ recollections. Granting the Applicant leave to yet again re-plead the claim of false imprisonment will only lead to further delay in determining the remaining issues in the proceeding.
38. Relevantly, section 42 of the FCC Act requires that:
‘In proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.’ (emphasis added)
39.The Respondent respectfully submits that in circumstances where the Applicant’s false imprisonment claim has no reasonable prospects of success, and the Applicant has been given an opportunity to re-plead, the granting of leave to file and serve a further amended statement of claim would lead to unduly protracted proceedings.
40.Leave to re-plead is not always given: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [94]. In Kowalski v Mitsubishi Motors Australia Ltd [2010] FCAFC 73 at [81], the Full Court held that ‘having regard to the fact that the Amended Statement of Claim was the second attempt to draft a basis for his proceeding, it was open to the primary judge not to grant a further opportunity to replead. It is clear on the evidence before his Honour that such an opportunity would have been futile.’
41.The Respondent submits that, like the “lost opportunity” case of the applicant in Fuller v Tom [2012] FCA 27 at [87] and Fuller v Tom (No 2) [2012] FCA 103 at [10], upheld on appeal in Fuller v Tom [2012] FCAFC 155 at [19] and [68], this is a case where, after leave to re-plead was granted the primary claim (the false imprisonment claim) is simply untenable. In this case, the Applicant has had the benefit of legal representatives preparing the Amended Statement of Claim, and the benefit of the Strike Out Decision in pointing out the deficiencies in the Original Statement of Claim. The Respondent respectfully submits that the ‘the just, efficient and economical resolution of proceedings’ would be best served by refusing the Applicant leave to re-plead paragraphs [27] to [77] of the Amended Statement of Claim.
….
Conclusion
58. For the reasons set out above, the Respondent seeks that:
(a) the Court summarily dismiss paragraphs [27] to [77] of the Amended Statement of Claim;
(b) in the alternative, the Court strike out paragraphs [27] to [77] of the Amended Statement of Claim and refuse leave to file a further amended statement of claim;
(c) ...”
Submissions of the applicant
In written submissions filed 19 February 2016 the applicant’s position was the Court should not make the orders sought by the respondent in the respondent’s application in a case as:
“Introduction
1. By way of a second application in a case, the Respondent seeks to either summarily dismiss – or in the alternative to strike out – the Applicant’s allegations of false imprisonment.
2. The near-identical issue was ventilated before this Honourable Court on 26 October 2015 (First Hearing), following which the Applicant filed an Amended Statement of Claim on 20 November 2015 (ASOC).
3. The Respondent is yet to file a Defence.
Summary Dismissal
4. The Respondent seeks to summarily dispose of the Applicant’s allegations of false imprisonment prior to it filing a Defence. The entire basis of the Respondent’s argument at the First Hearing is premised on an alleged lack of physical force or threat.[11] It was repeatedly submitted that if the physical element was lacking, there could not possibly be any imprisonment and therefore the allegations of false imprisonment could not possibly succeed and ought be summarily dismissed. This is a mischaracterization of the tort of false imprisonment.
[11] Transcript of First Hearing 4.13; 11.1-4; 11.16-17; 12.23-26; 12.44-45; 19.30; 27.12-15.
5. In its submissions dated 5 February 2016, as an alternative, it does not seek to merely strike out the paragraphs, but rather that the relevant paragraphs ought be struck out “without leave to re-plead”. This extraordinary request will be dealt with later in these submissions, but it is suffice to say that this is simply a rewording of its request for summary dismissal. As submitted to this court at the First Hearing, the Respondent does not argue that there are incurable defects in pleading, but rather it argues that the Applicant simply has no case based on the material filed.[12]
[12] TT 6.36-41.
6. Though there have been no orders for either party to put on any evidence that it intends to rely at trial, the Respondent seeks that the Court prevent the Applicant from trying a cause of action – said cause of action being heavily dependent on factual findings – whilst relying wholly on the current evidence before the court. This, in effect, is submitting that the Applicant ought to have put on the entirety of his evidence relating to these allegations already (without any order to do so) while the Respondent has not had to do a thing. Indeed, at the First Hearing it was conceded by the Respondent that relevant evidence has been actively withheld from the Applicant.[13]
[13] TT 4.29-47. Production of the VECCI Report is still staunchly opposed.
7. There is no obligation on the Applicant to have at this stage put on all relevant evidence as to whether he will succeed in this cause of action or not. There are several other relevant witnesses that will be required to give probative evidence as to the events that took place, the actions of Ms Moodie and Mr Said, and the submissive atmosphere that was created. All that he is required to discharge is that the cause of action has a “reasonable” prospect of success.
8. To find otherwise suggests that the Applicant ought to have put on several affidavits of several different witnesses that are not party to these proceedings, all in defence of the Respondent’s interlocutory application. It is possible that these witnesses may give even more detailed and serious accounts of the events that took place than the Applicant has to date. It is possible that these witnesses may have experienced even greater fear than the Applicant did. It is possible that others may have required counseling – or worse – as a result of the treatment they received at the hands of the Respondent. In such circumstances the evidence would clearly be relevant to establish the factual matrix of the Applicant’s allegations and he ought be given the opportunity to have this ventilated at trial. Otherwise there is a real risk that there will be a denial of natural justice, something that the Court should be careful to avoid.
9. Though the High Court has espoused a more lenient test in Spencer, it must be noted that it still accepts that “the power to dismiss an action summarily is not to be exercised lightly.”[14]
[14] Spencer v The Commonwealth (2010) 241 CLR 118 at [60].
10.The Respondent seeks to run this application in a case as if it is the final hearing – relying upon an analysis of the evidence put on in support of the respective positions. This application ought be treated as any other application, and that is that it is purely interlocutory. Witnesses are not being called, evidence is not being tested. It is a drastic move to allow a party to a proceeding to be cross-examined at the interlocutory stage and should only be done sparingly with leave.[15] The wholesale reliance upon the reliability and credibility of Ms Moodie’s evidence is entirely unfair to an Applicant who quite clearly will have a conflicting version of events.
[15] See discussion of principles at Dale v Clayton Utz [2012] VSC 577 at [57]-[73].
11.The Applicant ought be afforded procedural fairness in having his allegations tried before the court in the usual way.
False Imprisonment
12.A cornerstone of the Respondent’s application is that – even if the Applicant’s evidence was accepted – it amounts to no more than a partner telling a graduate lawyer that they are not to leave until an advice is finished.[16] This is not a true analogy based on what the Applicant has filed with the Court to date. The factual matrix that the ASOC and the Applicant’s evidence alleges is that:
[16] TT 4.20-25; 10.10-12; 20.11-12.
a.On 4 June 2013, Mr Said (a big person that can have a threatening demeanor)[17] and Ms Moodie came into the East Preston Depot all of a sudden where between 10-14 workers were present and took over;[18]
[17] Affidavit of Tahsin Halici sworn 16 September 2015 (Halici affidavit) at [33].
[18] ASOC at [29] Halici affidavit, p.10.
b.Mr Said read a script from a piece of paper, warning that any non-compliance would result in workers being stood down;[19]
[19] ASOC at [30]; [31]; Halici affidavit at [28]; [32]; [35]; p.10; 21.
c.Union representation was denied;[20]
[20] ASOC at [31(i)].
d.A senior colleague with over 20 years experience with the Respondent was threatened to be stood down immediately if he did not comply in front of the Applicant;[21]
[21] Halici affidavit, p.10; 21.
e.No one was allowed to leave the room;[22]
[22] ASOC at [32].
f. No one was allowed to speak;[23]
[23] ASOC at [32]; Halici affidavit, p.10; 13; 23.
g.No one was allowed to go to the toilet;[24]
[24] ASOC at [32]; Halici affidavit, pp.10; 11; 12; 13; 23.
h.No one was allowed to have any water to drink;[25]
[25] ASOC at [32]; Halici affidavit, p.11; 23.
i. No one was allowed to talk to one another;[26] and
[26] ASOC at [32]; Halici affidavit, p.10.
j. No one was allowed to use a mobile phone.[27]
[27] ASOC at [32]; Halici affidavit, p.10.
13.In order to ensure compliance with these demands, Ms Moodie:
a. Stood in front of the group and guarded them to make sure they did not:
i.Leave the room;[28]
[28] ASOC at [38]; Halici affidavit at [39]; [42].
ii.Use a mobile phone;[29]
[29] Halici affidavit at [42].
iii.Speak to another person.[30]
[30] Halici affidavit at [42].
b. Took physical control of the entry and exit to the room;[31]
[31] ASOC at [33(i)]; [45].
c. Denied any request to use the toilet;[32]
[32] Halici affidavit, p 17.
d. Denied any request for water;[33]
[33] Halici affidavit, p 17.
e. Denied any request to leave the room;[34]
[34] Halici affidavit at [39]; p 17.
14.As a result of these sudden demands, the atmosphere collapsed[35] and workers felt so shocked that they attempted to attend interviews with each other just as a matter of support – this was denied.[36]
[35] Halici affidavit, p.10.
[36] Halici Affidavit, p. 11.
15.Another colleague was directed into an adjacent room – a direction he complied with whilst in shock and still not being able to speak.[37] Whilst in this room he was denied access to the toilet,[38] denied access to water,[39] causing him to collapse and require an emergency call to be made for an ambulance to urgently attend to him.[40] Another colleague raced to his aid but was prevented from entering the adjacent room by Ms Moodie.[41]
[37] Halici affidavit, p.11-12.
[38] Halici affidavit, p 16.
[39] Halici affidavit, p 16.
[40] ASOC at [34]; [36]; Halici affidavit at [48]; p 13; 14.
[41] ASOC at [35]; Halici affidavit at [43]; p 13; 17.
16.The Applicant, being subjected to these threats and witnessing the treatment of other colleagues in front of him felt:
a. Intimidated;[42]
[42] Halici affidavit at [37].
b. Shocked;[43]
[43] Halici affidavit, p 11.
c. Disgusted;[44]
[44] Halici affidavit, p 11; 19; 21; 23; 24.
d. Denigrated;[45]
[45] Halici affidavit, p 13; 19; 23.
e. Humiliated;[46]
[46] Halici affidavit, p 23.
f. Concerned for his wife and children;[47] and
[47] Halici affidavit, p 12.
g. That if he were not to submit to the above denials of liberty, his employment would be terminated,[48] such termination would have had a severe impact on his familial circumstances.[49]
[48] Halici affidavit, at [35]-[36]; p 12; 19; 20; 21.
[49] Halici affidavit, p 12; 22.
17.As a result of this treatment the Applicant began to receive counseling[50] and found it very difficult to discuss these events subsequently.[51]
[50] Halici affidavit, p 13.
[51] Halici affidavit, p 13; 23.
18.Through this second application, like at the First Hearing, the Respondent submits that the complete answer to this entire factual matrix is that there were seven unlocked doors at the East Preston Depot. As developed below, this submission is a gross simplification of the elements required to be decided in assessing the tort of false imprisonment – a tort that is dependent upon a finding of several facts.
19.The Respondent also seeks to rely upon the case of Whittaker v Child Support Registrar,[52] a case that concerned a airline passenger seeking to travel on a flight. To take part in international travel is not a “liberty” like speaking, drinking water or having access to the bathroom; it is (as correctly found) a “desire”. Further, and in any event, in that case a statutory defence was established[53] destroying the potential success of the allegation. The circumstances of that case are clearly not analogous.
[52] (2010) 264 ALR 473.
[53] the reason for Mr Whittaker’s departure problems were a result of an prohibition order pursuant to Child Support (Registration and Collection) Act 1988
20.At the First Hearing, the Respondent placed a heavy reliance upon watered down analogies of partners telling young lawyers to work late to meet a deadline,[54] or high school students being told to see the headmaster.[55] In these circumstances it was submitted that it would be akin to the Applicant’s case because there is potential discipline if not complied with. These types of analogies are unhelpful as it misconceives the true character of what the Applicant complains of. The Applicant was denied his liberty and basic human rights, he was not allowed to speak, make contact with anyone, drink or use the bathroom. He was not allowed to aid his fellow coworkers even when they were clearly in need of assistance.
[54] TT 4.20-25; 10.10-12; 20.11-12.
[55] TT 13.42-14.15; 20.13-14.
21.While the application in a case is framed as one seeking summary dismissal, in truth, what the Respondent is really seeking to do is try a separate question of law prior to trial. It is plain that no matter how the Applicant drafts its allegations, it will not be to the Respondent’s “satisfaction”[56] as it does not accept that the tort of false imprisonment can apply following the request of an employer to its employee. Of course it can.
[56] Exhibit AM3 of the Affidavit of Amy Eliza Millar affirmed on 6 July 2015.
22.In its submissions, the Respondent cites a passage from Bird v Jones[57], to support its contention regarding total restraint, however it fails to refer to the deciding passage of this case:
[57] (1845) 7 QB 774 per Coleridge J.
"I have no doubt that, in general, if one man compels another to stay in any given place against his will, he imprisons that other just as much as if he locked him up in a room: and I agree that it is not necessary, in order to constitute an imprisonment, that a man's person should be touched. I agree, also, that the compelling a man to go in a given direction against his will may amount to imprisonment."
23.Importantly, there is a clear distinction drawn between one being compelled to stay in “any given place” as opposed to being “locked up in a room”.
24.The above passage was cited with approval in R v Garrett[58] in establishing that the principle of false imprisonment being the “intentional and unlawful total restraint of the liberty of another person against his will. The restraining need not be by physical barrier or actual physical force”.[59] This approach is consistent with the findings in Myer Stores[60] where it was held that physical contact with the plaintiff is not necessary for false imprisonment.
[58] 50 SASR 392.
[59] Ibid at 405.
[60] Myer Stores Ltd v Soo[1991] 2 VR 597 per O'Bryan J.
25.These authorities highlight the error in the Respondent’s understanding of what is required in this case that the Applicant be physically restrained or locked in a certain room of the East Preston Depot.[61] There is no such requirement at law.
[61] Respondent’s Submissions at [18]; [22]; Exhibit AM7 of the Affidavit of Amy Eliza Millar affirmed on 16 December 2015.
26.While the Respondent relied on certain passages in Whittaker, it has not addressed the requisite elements of the tort of false imprisonment as espoused by in that case by way of summary of the Court of Appeal decision in McFadzean.[62] Given they were cited with approval by this Honourable Court in deciding the First Hearing[63] it is useful to address these elements (grouped relevantly) in respect of the present case:
[62] McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250.
[63] [2015] FCCA 2912 at [38].
(a) onus to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment
27.There are two important points that arise out of this element – particularly at such an early stage in the litigation as this:
a. express regard is had to the possibility of any restraints and any possibilities of egress being in existence; and
b. the onus is only to establish that the events can be constituted as imprisonment.
28.All that is required of the Applicant (particularly at this point of the litigation) is to establish that facts can (not will) constitute imprisonment. This approach stands to reason given that many of the below elements will be a question of fact to be determined at trial. Accordingly, in order to make out that the Applicant has “reasonable prospects of success”, it will be sufficient to demonstrate that the other elements “can” be made out.
(b), (c) and (f) unlawful, total restraint (that need not involve the use of force) with complete submission of the plaintiff
29.These elements all relate to the issue of “total restraint” that has been imposed on – and submitted to – by the prisoner.
30.It is expressly noted that the use of force is not required. Further, nowhere in the authorities does it establish that a “physical” threat or some sort of “physical” danger is required. To read this word into the test is to create an entirely different context to what has been ruled. Once again, this is a cornerstone argument of the Respondent but one that simply does not arise when applying the correct test.
31.These elements necessitate that there be some form of compulsion in the absence of submission. It is immaterial as to whether Ms Moodie (or Mr Said) may not have been strong enough to physically restrain the Applicant. The test requires that the Respondent had means to compel him into restraint by other means. In this case it can be demonstrated through imposing the fear in the Applicant of losing his employment and through the treatment of others around him, where, by way of example, the Applicant witnessed a colleague with 20 years experience be threatened with immediate termination if he did not comply with requests.[64]
[64] Halici affidavit, p.10; 21
32.In fact, if one were to accept the Respondent’s contention that exits were readily available, it may be established that the fact that the Applicant did not use these doors weighs heavily in favor of the fact that he completely submitted to the Respondent’s restraint. If it was so easy for him to simply stand up and leave, why didn’t he? There must have been something compelling to force the Applicant to submit to the circumstances for over an hour despite his feelings of disgust, contempt and humiliation.[65]
[65] See par [17] above and related fn.
33.Once established that there was total restraint, the onus for establishing that it was lawful lies with the Respondent.[66] The complete submission of the plaintiff will be a matter of evidence and something that no doubt will be tested by the Respondent.
[66] Ferguson v Queensland [2007] QSC 322 at [13] citing with approval, Carnegie v Victoria (VSC, Full Court, 14 September 1989, unreported, BC8900547).
34.The material allegation of total restraint is clearly and unambiguously pleaded in the ASOC at [27]-[42].
35.Quite clearly, these elements can be established at trial and go against an order for summary dismissal of the cause of action.
(d), (k) and (l) 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 – taking into account threat or danger to self/property; distance/time; and legality
36.Once again, these elements establish that the tort may be constituted by a mere threat. Force is not required, a physical threat or intimidation is not required. These elements depend of a finding as to what is reasonable in all of the circumstances – not just merely in the context of a floor plan.[67] To baldly submit that there were a number of unlocked doors in the Depot, therefore imprisonment cannot be made out, completely disregards all other elements of the tort and the evidence as a whole.
[67] Respondent’s submissions at [17].
37.The threat is to be determined based upon the Applicant’s personal circumstances as well as the experience of all others present. The Applicant was 50 years old, junior to those around him, a wife with personal and health issues attempting expensive and stressful IVF treatment,[68] and children. These elements could quite clearly and reasonably have played a significant part on the submission of the Applicant to the Respondent’s restraint.
[68] Halici Affidavit. p. 12.
38.It is not known at this early stage of the proceedings what evidence the other witnesses will give, however this ought weight in favour of the Applicant in that a cause of action ought not be summarily dismissed on this basis. Indeed, if the Respondent relies upon the lack of evidence of others an equally strong converse submission could be mounted in favour of the Applicant – in other words, if the Respondent’s employees were to give evidence that they felt no threat, disgust or humiliation then why has it not put on affidavits to that effect?
39.These elements (as pleaded at [43]-[47] of the ASOC) can be established at trial and goes against an order for summary dismissal of the cause of action.
(e) the restraint must be imposed contrary to the person’s will
40.The evidence of the Applicant is – and will be – unequivocal on this point, as is the allegation in the pleadings. Again, this is something that no doubt the Respondent will seek to test and will ultimately be a question for trial.
41.This element (as pleaded at [48]-[51] of the ASOC) can be established at trial and goes against an order for summary dismissal of the cause of action.
(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
42.The allegation is not one of partial obstruction or inconvenience. This is not a case where the Applicant has been diverted from his course onto another one, but where he has been confined in an environment with several other people and denied liberty and basic human rights. Such denials ought not be seen to be a mere partial obstruction.
43.This is an element that can be established at trial and goes against an order for summary dismissal of the cause of action.
(h) and (i) the submission by the prisoner must be in response to duress sufficient to make any consent given ineffective to bar the action – and this duress must have overborne the plaintiff’s will.
44.The evidence of the Applicant as to the reason for his submission is – and will be – unequivocal. It is plain that, but for the duress imposed by the Respondent, the Applicant would not have submitted to being silently confined in the Depot without recourse to water, or bathroom facilities, or standing by helplessly as a colleague lay on the ground waiting for paramedics.[69]
[69] ASOC at [35]; Halici affidavit at [43]; p 13; 17.
45.These elements (as pleaded at [52]-[58] of the ASOC) can be established at trial and goes against an order for summary dismissal of the cause of action.
(j) in each case, it is a question of fact whether a restriction is so severe as to be characterised as false imprisonment
46.The most important element to find against the granting of a summary dismissal application. As discussed above, while the Respondent seeks to place an enormous amount of weight on the interlocutory material filed by the Applicant, these submissions appear to proceed on the basis that the Applicant will be barred from leading any further evidence. There are serious questions to be tried in this case – questions involving liberty and human rights which, in a democratic society, may be the most serious questions of all.
47.Unsurprisingly, almost no two cases will be the same when it comes to allegations of false imprisonment. Given the number of different elements to the tort and the different manner of which restraint may be imposed, the factual matrix that makes up each case may vary wildly. To therefore submit that because this tort has not been established in the employment context is immaterial. In fact, it may be argued that this somewhat novel set of circumstances makes it all the more important that this cause of action against an employer is given a proper trial rather than being disposed of summarily at the earliest opportunity.
48.The Applicant has not been afforded the inherent processes of natural justice in being able to not only test the evidence of the Respondent – but to be told what the Respondent’s defence actually is.
49.This is an element that can be established at trial and goes against an order for summary dismissal of the cause of action.
(m) there may need to be a serious risk (possibly even life threatening) before a means of escape is considered to be unreasonable
50.The first thing to note about this element is that it is not proscriptive – it only “may” apply in certain circumstances. The second thing to note is that once again “serious risk” is not defined as risk on one’s physical self, rather it must be interpreted in the context of the established element that any physical force or threat or not required to prove restraint. In such circumstances, where the initial threat does not need to implicate physical risk, it must be found that the serious risk associated with a means of escape too does not need to implicate a physical risk.
51.As submitted above, the danger or “risk” being faced by the Applicant must be determined in light of all of his personal, economic and familial circumstances. The Applicant ought be allowed to put on evidence as to what sort of damage would have been suffered by the Applicant had he been dismissed.
52.This is an element that can be established at trial and goes against an order for summary dismissal of the cause of action.
(n) and (o) egress may even require a minor trespass; a mere partial interference with freedom to travel by one route does not compel a person to remain
53.These hypothetical elements are not relevant to take into consideration in this case.
The Pleading and the “Stand Down” Allegation
54.While it is acknowledged that the Applicant elected to commence this proceeding by way of Statement of Claim, this does not displace the accepted practice that this jurisdiction is not strictly a court of pleadings. The ASOC should not be assessed with a fine-tooth comb, an exercise that indeed the Respondent has not undertaken. Rather, there has been a global objection to 50 paragraphs that all relate to the one cause of action that it does not believe exists – the elements of which have already been discussed.
55.The correspondence between parties[70] demonstrates that the Respondent does not take issue with the manner in which the ASOC has been drafted. Indeed, after reviewing and engaging in numerous correspondence, the Respondent takes issue with only 2 subparagraphs[71] out of the impugned 50 that are sought to be summarily disposed of or, alternatively, struck out in this application.
[70] See exhibits MMH2-5 of the Affidavit of Merna Maroky Harper affirmed 22 January 2016.
[71] ASOC at [31(ii)] and [33(ii)].
56.It is entirely unclear what the Respondent seeks to achieve through its submissions regarding the “stand down” allegation. Is it a request for formal orders requiring further and better particulars? Is it requesting an order for interrogatories?[72] Is it a request that 33(ii) be struck out? Or is it the reliance of an allegedly ambiguous subparagraph (which can quite clearly be pleaded to by the Respondent with ease) to justify striking out the other 50 relevant paragraphs?
[72] despite the Respondent’s strong views on s45 of the FCCA Act.
57.Rather than making a formal request for Further & Better Particulars, the Respondent sought clarification of this allegation through numerous letters.[73] There was no obligation on the part of the Applicant to provide these details, but he did so nonetheless. The particulars in the ASOC and the responses received all conveyed the same message: that Mr Said read his direction off a document and the precise wording of that direction will (on the balance of probabilities) be contained in that document. This is a document that is in the control and custody of the Respondent and in the contents of the unabridged and unredacted VECCI Report at Appendix E.
[73] Ibid.
58.The VECCI Report is something that was formally requested by the Applicant through his lawyers over 2 years ago, and is yet to be produced. It is clear that the VECCI Report is in the possession of the Respondent and directly relevant to the allegation (amongst others) contained in paragraph 33(ii) of the ASOC.
59.There is no suggestion that the Respondent is incapable of pleading to the ASOC, indeed where it is an allegation such as the “stand down” allegation relating to the words used by one of its employees, it can hardly be easier to simply admit or deny this allegation.
60.If the Respondent was of the opinion that it had a strong defence to the Applicant’s allegations, it should plead it. There is a great difference between a Respondent who has a defence and a pleading that does not disclose a cause of action.
Struck Out Without Leave to Re-Plead
61.Such a course of action – prior to any defence being filed, and prior to any evidence being led – would be extraordinary and should only be granted with extreme caution. The basis for this request is merely that the cause of action is not to the Respondent’s satisfaction – that is to say, there is no basis at all. The decision of the First Hearing did not find that the Applicant’s cause of action had no reasonable prospects of success.
62.It is a bold submission on the part of the Respondent to highlight the requirement under section 42 of the Federal Circuit Court of Australia Act 1999 that proceedings ought “proceed without undue formality and must endeavor to ensure that the proceedings are not protracted” – while at the same time failing and/or refusing to plead a defence, or produce relevant documents.
63.It is submitted that – should this Honourable Court deem the substantive allegations to contain defects – the Applicant be allowed to re-plead. This would cause no real prejudice to the Respondent as it is yet file a Defence and therefore requires no re-drafting of its own.
64.…
Conclusion
71. Accordingly, the Applicant requests that:
a. The Respondent’s application[in a case] be dismissed;
b. …; and
c. ….”
Submissions in reply of the respondent
In the respondent’s submissions in reply filed 9 May 2016 it was submitted:
“1.These submissions are prepared in reply to the Applicant’s submissions dated 19 February 2016 (Applicant’s Submissions). Where terms have been defined in the Respondent’s Outline of Submissions dated 5 February 2016 (Respondent’s Submissions), the same defined terms are used in these reply submissions.
2.In relation to paragraphs 3 and the first sentence of paragraph 4 of the Applicant’s Submissions, it is appropriate that the Respondent make its application for summary dismissal or alternatively for a strike-out, before filing a Defence. If the Court be satisfied that paragraphs [27] to [77] of the Amended Statement of Claim have no reasonable prospects of success, it is appropriate that those paragraphs be dismissed or struck out at the earliest opportunity, without the Respondent being put to the expense of preparing a Defence. This is particularly the case in the light of section 570 of the Fair Work Act 2009 (FW Act), which restricts orders for costs to very limited circumstances.
The Applicant’s characterisation of the Respondent’s arguments in the First Hearing
3.Paragraph 4 of the Applicant’s Submissions contains the core reason why it is said that the Respondent’s application for summary dismissal/strike out should fail. It contains a significant mischaracterisation of the Respondent’s position. The Respondent’s position is not premised on the lack of physical force or threat, but rather flows from the lack of any allegation that the Applicant was subjected to ‘total restraint of movement’, with ‘complete submission’ by the Applicant, where the Respondent’s conduct ‘must have overborne the [Applicant’s] will’, as contemplated by the authorities.[74] At all times, it was open to the Applicant to exit the RPO room and the East Preston depot, albeit at the risk that the Applicant would expose himself to possible disciplinary consequences in relation to his employment.
[74] The applicable principles are summarised in paragraph 177 of Whittaker v Child Support Registrar (2010) 264 ALR 473, which is replicated in paragraph [38] of the Strike-Out decision.
4.Rather than engage with the Respondent’s Submissions dated 5 February 2016 in support of the application to summarily dismiss/strike out the Amended Statement of Claim, the Applicant’s Submissions refer throughout to the transcript of the hearing on 26 October 2015 which led to the Strike-Out Decision (First Hearing). The focus of these reply submissions is on paragraphs [27] to [77] of the Amended Statement of Claim, which are the only pleadings alleging false imprisonment which are currently before the Court.
5.However, if reference is to be made to the transcript of the First Hearing for the ‘entire basis of the Respondent’s argument at the First Hearing’, the transcript reveals that the Respondent’s position was that “Before there can be false imprisonment there must be imprisonment…”.[75] The Respondent’s submission that the pleading did not make out the tort of false imprisonment was based on several limbs, not just the lack of physical force or threat:
[75] TT, page 3 line 42-43
(a)“…we direct attention to the allegations in the statement of claim and the evidence filed by the applicant as to what he said to constitute imprisonment and when you strip it to its essentials it boils down to I was told by my employer to be in a particular location and I was told that if I left that location disciplinary action would be taken against me in respect of my employment…”; [76]
[76] TT, page 3 line 43 to page 4 line 1
(b)“…there was no physical restraint here”;[77]
[77] TT, Page 4 line 13
(c)“There was no threat of violence against the applicant or any other person”;[78]
[78] TT, Page 4 line 15
(d)“There was no threat to the applicant’s property”;[79]
[79] TT, Page 4 lines 15-16
(e)“…there does not appear to be any issue that there are some seven exits from the administration building at East Preston”;[80]
[80] TT, Page 8 lines 40-41
(f)“…there are two doors from the RPO room where the applicant and the others were directed to stay at the table … those doors were open or not locked at various times…”;[81]
[81] TT, Page 9 lines 8-11
(g)“…a number of employees left the building to go and have a cigarette whilst this investigation was taking place…”;[82]
[82] TT, Page 9 lines 13-14
(h)“…they’re going out to a courtyard that’s on Plenty Road. Save and except for the direction that disciplinary action would be taken against them there was nothing to stop them from keeping on walking…”;[83]
[83] TT, Page 9 lines 20-22
(i)“There was no threat that if the plaintiff did not submit he would be compelled”.[84]
[84] TT, Page 11 line 22
Little difference between the Original and Amended Statements of Claim
6.The Amended Statement of Claim suffers from the same defects as the Original Statement of Claim. This is not a matter of mere drafting of the pleadings – it is because the facts as alleged by the Applicant do not support a claim of false imprisonment. In circumstances where the Applicant has been given leave to re-plead and availed itself of that opportunity, and even in the Amended Statement of Claim the Applicant has failed to plead the requisite material facts to give rise to a claim of false imprisonment with reasonable prospects of success, it would not be extraordinary (as alleged by paragraph 5 of the Applicant’s Submissions) for the Court to refuse to grant leave for the Applicant to re-plead again.
7.The Respondent refers to the authorities referred to in paragraphs [40] and [41] of the Respondent’s Submissions. Any further attempts to re-plead the claim of false imprisonment would be futile, and having regard to the costs to the parties and the administrative burden on the Court, the Court ought to refuse leave to re-plead.
The application for summary dismissal/strike out should be assessed on the terms of the Amended Statement of Claim, and the uncontested facts
8.In relation to paragraphs 6 to 8 of the Applicant’s Submissions, the issue before the Court does not concern the state of the evidence – unless that evidence goes to uncontested facts. Rather, the question for the Court is whether the Amended Statement of Claim contains allegations of material facts which found a claim of false imprisonment with reasonable prosects of success. In this regard there is a clear distinction between allegations of material facts – eg Said said X, Moodie did and said Y and Z, from the conclusions asserted to be capable of being drawn from those facts – ie these facts constituted total restraint of movement. It is the allegations of material fact that must have reasonable prospects of making out the elements of the tort. Unless the Court (as opposed to the Applicant through the conclusions he asserts in the Amended Statement of Claim) finds that they do, the claims should be struck out. The evidence which might be relied on at trial – whether direct evidence of the Applicant and other witnesses or hearsay and/or opinion contained in the VECCI Report, are not relevant to the Court’s determination of the application for summary dismissal/strike out.
9.So too, predictions about the hypothetical evidence which might be given by other witnesses at the trial of this proceeding do not absolve the responsibility of the Applicant, if he files a statement of claim (as he has chosen to do in this case) to plead ‘the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial’.[85] The question for the Court is whether the Amended Statement of Claim establishes a claim with reasonable prospects of success that the Applicant was subjected to false imprisonment, not whether other employees were imprisoned. However, the undisputed facts that the Applicant observed other shift members leave the RPO Room (Amended Statement of Claim, paragraph 37(ii)) and at least one left the building to go outside to have a cigarette (Affidavit of Sharon Kama Moodie sworn 20 August 2015, paragraph [20]) support a conclusion that none of the team members, including the Applicant, was subjected to ‘total restraint of movement’ as required by the tort.
[85] Federal Court Rules at rule 16.02(1)(d)
10.As to the last sentence of paragraph 8 of the Applicant’s Submissions, there is no denial of justice in the Court exercising its powers to summarily dismiss an application with no reasonable prospects of success. The Applicant has had several opportunities to put before the Court a pleading which contains allegations of material facts that could constitute the tort of false imprisonment. Those opportunities have been provided in correspondence between the parties, and in the Court granting leave to the Applicant an opportunity to re-plead. Notwithstanding these opportunities, the Amended Statement of Claim (even if all its factual allegations are accepted) does not make out the alleged tort. In those circumstances, the allegation of a denial of natural justice ought to be rejected.
11.As to paragraphs 9 to 11 of the Applicant’s Submissions, the Respondent accepts that the power to summarily dismiss is not to be exercised lightly. That said, the Court does the parties (or litigants in other matters awaiting trial) no favours by allowing a case with no reasonable prospects of success proceed to trial. Absent allegations of material fact that the Applicant’s will was overborne as required by the authorities, the false imprisonment claim has no reasonable prospects of success.
12.In making its assessment at this interlocutory stage, the Court can take account of the allegations of fact contained in the Amended Statement of Claim, and the uncontested facts such as Ms Moodie’s evidence about the physical layout of the RPO room and the depot, and the conduct of at least one other team member going outside to have a cigarette. No cross-examination or trial is required in relation to these uncontested facts.
Alleged false imprisonment
13.Paragraph 12 of the Applicant’s Submissions takes an analogy, and seeks to elevate it as a cornerstone. The true cornerstone of the Respondent’s argument is that in order for there to be imprisonment there must be ‘total restraint of movement’, with ‘complete submission’ by the Applicant, where the Respondent’s conduct ‘must have overborne the [Applicant’s] will’, as contemplated by the authorities. Such a case is fundamentally different to one of a direction, coupled with potential disciplinary action, given in an employment context. The Applicant’s submissions fail to engage with the propositions that the Applicant was at the premises he had been rostered to attend and was at all times being paid for his attendance. They don’t engage with the fact that the Applicant could have left the RPO room and the Depot at any time, albeit exposing himself to possible sanction in his employment. Nor do they engage with the proposition that, at its highest, what the Applicant alleges is a threat to the future. In addition, whilst criticising the analogies proffered by the Respondent, the Applicant has failed to articulate what he says is the criteria that distinguishes his case from every other case where an employee (or for that matter a student) remains in a particular location because they have been told that they will be subject to some form of disciplinary sanction if they don’t.
14.As to the alleged ‘factual matrix’ referred to in paragraph 12 of the Applicant’s Submissions, none of those allegations either alone or in combination establish “total restraint of movement”. Indeed, the allegation that Mr Said read from a piece of paper warning that employees would be stood down contains an implicit acknowledgement that, subject to his being prepared to expose himself to being stood down, the Applicant could (among other things) have left the RPO room.
15.Further, on the Applicant’s argument, it would appear that a direction that the Applicant not leave the depot would amount to imprisonment, if accompanied by a threat of disciplinary sanction for non-compliance. On this basis, the restriction on going to the toilet or getting a drink has no bearing on whether the tort was made out. Similarly the refusal of union representation and mobile phone use do not go to the issue of restraint.
16.Paragraph 13 suffers from the same vice as the Amended Statement of Claim. In a room with two doors, and a building with seven exits, the Applicant has not explained how Ms Moodie standing with a group of employees could constitute “total restraint of movement” of the kind required by the authorities. On the material before the Court the pejorative phrases “guarded” and “physical control” mean no more than that Ms Moodie stood amongst the employees and kept them under observation. The “denial” referred to in each of paragraphs 13(c), (d) and (e) is in each case another way of expressing the allegation that Ms Moodie issued an instruction or direction, accompanied by the possibility that failure to comply might result in disciplinary action in the employment context.
17.Importantly, there is no suggestion in paragraph 13 of the Applicant’s Submissions, or anywhere in the Amended Statement of Claim, that there was any threat to do anything other than to “stand down” or otherwise discipline the Applicant in his employment. There is no allegation of a threat that the Applicant (or anyone else) would be restrained or injured, whether physically or in any other way that would overbear his will as required by the authorities, if he left the RPO room.
18.Paragraphs 14 and 15 of the Applicant’s Submissions are nothing more than an emotive description of what the Applicant alleges occurred. They do not constitute allegations of material fact capable of constituting imprisonment of the Applicant.
19.Paragraphs 16 and 17 of the Applicant’s Submissions, whilst conveying that the Applicant was upset about the way in which he was treated, reflect an acknowledgement that the alleged restraint is confined to the fact that the Applicant might have been disciplined in his employment. That is not enough. It does nothing to distinguish the Applicant’s case from the analogies suggested to the Court at the First Hearing, nor does it distinguish the Applicant’s case from the authorities (such as Whittaker v Child Support Registrar (2010) 264 ALR 473 (“Whittaker”)) where the plaintiff had available to him reasonable means of escape.
20.Paragraphs 18 and 19 of the Applicant’s Submissions acknowledge that there were seven unlocked doors at the East Preston Depot. In Whittaker, putting aside the rights or wrongs of denying the airline passenger access ‘airside’, the Court acknowledged that the passenger could leave by exiting the other way. On the facts of that case this would have involved missing his flight entailing considerable expense and inconvenience. The bottom line in this case is that there is no suggestion that if the Applicant left the RPO room – whether to go to the toilet, have a drink of water, or leave the Depot, he would be either physically restrained or subjected to compulsion that overbore his will in the way contemplated by the authorities. To the extent that he exposed himself to possible disciplinary action, he would have done so with all of the protections afforded to employees under the FW Act and the Yarra Trams Enterprise Agreement 2012.
21.On the point of principle, the analogies of a junior lawyer or school student being directed to remain in their place are apposite. The emotive language used in paragraph 20 of the Applicant’s Submissions does not change this.
22.Paragraph 21 of the Applicant’s Submissions is the closest that the Applicant comes to dealing with the Respondent’s argument, which is that, without more, a direction that an employee remain in a particular place, accompanied by an instruction that failure to do so may result in disciplinary action, is insufficient to make out the elements of imprisonment at common law.
23.The rejoinder “Of course it can” in the last sentence of paragraph 21 would appear to be unsupported by authority. It is notable that neither in the First Hearing nor in the Applicant’s Submissions has the Applicant been able to point to a single case of false imprisonment arising from the everyday occurrence of an employer requiring an employee to comply with a direction during their hours of work whilst they were being paid.
24.Paragraphs 22 and 23 of the Applicant’s Submissions rely upon an extract from the reasons of Patteson J in Bird v Jones (1845) 7 QB 744 at 751-752 (page 672). As Patteson J makes clear the tort requires compulsion that totally overbears of the will of the imprisoned. A partial obstruction of will, whatever inconvenience it entails, will be insufficient. This is made clear in the sentences which follow the extract:
“…But I cannot bring my mind to the conclusion that, if one man merely obstructs the passage of another in a particular direction, whether by threat of physical violence or otherwise, leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby to imprison him. He does him wrong, undoubtedly, if there was a right to pass in that direction, and would be liable to an action on the case for obstructing the passage, or of assault, if, on the party persisting in going in that direction, he touched his person, or so threatened him as to amount to an assault. But imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.” (our emphasis)
25.In the circumstances of the Applicant’s case, where there was no actual or threatened force, and there were available exits from the room and the building, at worst this was a partial obstruction of the will of the Applicant, not a total restraint of his movement or liberty.
26.In relation to the extract from R v Garrett (1988) 50 SASR 392, referred to in paragraph 24 of the Applicant’s Submissions, the key phrase is “total restraint of the liberty” (our emphasis). This is consistent with the authorities referred to in the Respondent’s Submissions, and above, on the tort of false imprisonment. In respect of the reliance on Myer Stores Ltd v Soo [1991] 2 VR 597, a full reading of the case reveals that the fact that the security guards in question conducted themselves to convey the impression that if Mr Soo did not accompany them he would be physically restrained was found to be decisive – see Myer Stores at pages 625 (line 44) and 627 (line 24). There is simply no allegation that either Mr Said or Ms Moodie behaved in a way that suggested they would physically restrain the Applicant if he sought to leave the RPO room or the Depot. Indeed, the evidence is that the Applicant witnessed a least one other revenue protection officer leave the RPO room and go out for a cigarette while the interviews were taking place, without any attempt at physically restraint.
27.Further, unlike the situation in Myer Stores, here the Applicant was attending the premises he had agreed to attend as part of his employment contract and was being paid for his attendance.
The elements summarised in Whittaker v Child Support Registrar (2010) 264 ALR 473
28.Paragraphs 26 to 53 of the Applicant’s Submissions discuss the principles summarised in paragraph [177] of Whittaker. It is not clear why the Applicant has grouped some of the principles as he has. Nor does it assist the Court. Many of the principles take their colour from one another, as the analysis below demonstrates. However, adopting the Applicant’s grouping ,the Respondent says as follows:
Paragraph 177(a) of Whittaker
29.Aside from the matters emphasised in paragraph 27 of the Applicant’s Submissions, the key point from paragraph 177(a) of Whittaker is that ‘the plaintiff bears the onus of proof’. On the allegations of material facts contained in the Amended Statement of Claim, taken at their highest, the Applicant does not have reasonable prospects of success of discharging this onus.
Paragraphs 177(b), (c) and (f) of Whittaker
30.In relation to paragraphs 30 to 35 of the Applicant’s Submissions (paragraphs 177(b), (c) and (f) of Whittaker), what is required is that there be ‘total restraint of movement’ - if there is no use of force there must be “complete submission” by the plaintiff who is “given to understand that without submission there will be compulsion”. Paragraph 31 of the Applicant’s Submissions seems to accept that Mr Said and Ms Moodie had no capacity to physically restrain the Applicant. Nor is there any allegation that the Applicant was given to understand that they would.
31.The kinds of “compulsion” required by paragraph 177(c) of Whittaker are illustrated by paragraphs 177(d) – a threat against the person or valuable property, (e) - restraint imposed contrary to the person’s will, and (h) – “duress sufficient to make any consent given ineffective”. In this case, there is no allegation that there would be such compulsion – only that if the Applicant did not follow instructions he may be disciplined in his employment. The alleged threat that the Applicant would be disciplined, whether that meant a stand down, dismissal or some other action, is not a threat that without submission there will be compulsion of the kind contemplated by paragraph 177(c) of Whittaker. If such a threat satisfied paragraph 177(c) of Whittaker, then every (explicit or implicit) threat to discipline an employee if they removed themselves from a particular location would involve the commission of the tort.
32.Paragraph 32 of the Applicant’s Submissions amounts to a proposition that every time a person stays in a room at the direction of another, they have been imprisoned. People comply with directions, even those they disagree with or dispute, for many reasons other than that they have been subjected to “total restraint of movement”.
33.As to paragraphs 33 to 35 of the Applicant’s Submissions, for the reasons given above, the allegations of material fact contained within the Amended Statement of Facts do not make out “total restraint of movement”.
Paragraphs 177(d), (k) and (l) of Whittaker
34.Paragraphs 36 to 39 of the Applicant’s Submissions refer to paragraphs 177(d), (k) and (l) of Whittaker, which concern the existence of a threat against the restrained person or valuable property, and the reasonableness of a means of escape. In this case, there is no allegation of a threat to the Applicant or to valuable property, and it is common ground that there were means of escape from the RPO room (two exits) and from the Depot (seven exits). The Applicant seeks to argue that those means of escape were not reasonable.
35.It is true that assessing the reasonableness of means of escape may involve consideration of the physical condition of the allegedly imprisoned person if it is relevant – see the hypothetical examples discussed by the Court of Appeal in McFazden v CFMEU and others (2007) 20 VR 250 at [66]-[67] of requiring a person to run two hours on a treadmill to open a door (“…would be unreasonable if the individual were elderly, unfit and asthmatic. But it might not be unreasonable if s/he were younger, fitter and otherwise healthy”) and crawling through an air conditioning vent for two hours (“…it might not be unreasonable in some circumstances, but it could be if the person suffered from claustrophobia.”). In the circumstances in McFazden, the Court agreed with the trial judge’s conclusion that, taking into account the age, physical condition, clothing and footwear of each protester, and the terrain, the means of escape through the bush provided reasonable egress.
36.In the present case, there is no allegation that the Applicant’s physical condition prevented the two exits from the RPO room and the seven exits from the Depot from providing reasonable means of egress. Rather, there is reference in paragraph 37 of the Applicant’s Submissions to the Applicant’s age, status as an employee and his family circumstances. These are not matters so as to make the available means of egress – walking through open and/or unlocked doors – unreasonable.
37.As to paragraph 38 of the Applicant’s Submissions, it is difficult to see how the evidence of others might be relevant and assist the Court. The Further Amended Statement of Claim contains allegations of material fact. Necessarily, those material facts concern whether the Applicant was falsely imprisoned, and therefore whether the Applicant was subjected to ‘total restraint of movement’, with ‘complete submission’ by the Applicant, where the Respondent’s conduct ‘must have overborne the [Applicant’s] will’. Evidence of whether other persons felt any threat, disgust or humiliation has not been filed, because it is not relevant to the question of whether the Applicant’s claim of false imprisonment has reasonable prospects of success.
Paragraph 177(e) of Whittaker
38.As to paragraphs 40 and 41 of the Applicant’s Submissions, the fact is that the Applicant consented to remaining in the RPO room. It is apparent that the Applicant is now unhappy that he was directed to remain there, but there is no allegation that he said (or said words to the effect of) that he did not consent or that remaining there was contrary to his will.
39.Paragraph 177I of Whittaker is not directed to the mere unhappiness of the person allegedly imprisoned, or to the fact that they might have preferred to have left but they did not do so. The operative phrase is “restraint must be imposed”, and this takes its colour from the remainder of paragraph 177, including that it must be total restraint (177(b) and (c)), duress (paragraph 177(h)), conduct must have overborne the plaintiff’s will (paragraph 177(i)) and a restriction “so severe as to be characterised as false imprisonment” (paragraph 177(j)).
Paragraph 177(g) of Whittaker
40.As to paragraphs 42 and 43 of the Applicant’s Submissions, the very essence of this case is that an alleged “partial obstruction of the will, whatever inconvenience it may bring” as enunciated in paragraph 177(g) of Whittaker is not enough. The Applicant could have left through any one of a number of exits, at any time - his complaint is that he was directed to stay and that if he left he would be exposed to disciplinary action of some kind or another. That is insufficient.
Paragraphs 177(h) and (i) of Whittaker
41.The degree of emotion in how paragraph 44 of the Applicant’s Submissions is expressed does not overcome the high bar set by paragraphs 177(h) and (i) of Whittaker. What is required is that the Applicant’s submission must be “in response to duress sufficient to make any consent given ineffective to bar the action” and that “the conduct must have overborne the plaintiff’s will”.
42.The very nature of the modern contract of employment is that both the employer and employee participate of their own free will, and each gives valuable consideration to the other. In return for the promise of payment, and other terms and conditions of employment, the employee attends work during the assigned hours and complies with directions. Often, those directions include what an employee does during working hours and where he does it. To the extent that the directions are not contemplated by the contract (i.e. are not lawful or reasonable), the remedy lies in contract or under statute (for example an unfair dismissal claim under the FW Act or a dispute about the application of the Yarra Trams Enterprise Agreement 2012.
43.In the current case, the Applicant could exercise his free will as to whether or not to comply with a direction to remain in the RPO room. Failure to comply might have had consequences but such consequences were not “so severe” (paragraph 177(j) of Whittaker) as to constitute duress or the overbearing of the Applicant’s will.
Paragraph 177(j)
44.Paragraphs 46 to 49 of the Applicant’s Submissions fail to engage with the critical words in paragraph 177(j) of Whittaker: “so severe as to be characterised as false imprisonment”. Taking the allegations of material facts contained in the Statement of Claim at their highest, the Applicant was told words to the effect that he would be stood down if he did not comply with a direction. Whether the threatened stand down was with or without pay, or even if it meant termination of employment, this is not conduct so severe as to constitute “total restraint of movement”, “duress” or overbearing of the Applicant’s will as required by the remainder of paragraph 177 of Whittaker.
45.The application for a summary dismissal is based on the allegations of material facts contained in the Amended Statement of Claim, and the uncontested facts. It is unnecessary to go further than this in determining whether the claim of false imprisonment has reasonable prospects of success.
46.As to paragraph 47 of the Applicant’s Submissions, the Respondent refers to paragraph 0 above. There is nothing novel about a set of circumstances where an employee is directed to remain at a particular location, and they comply with the direction although they are unhappy about it. Paragraph 47 appears to be a concession that the long-standing tort of false imprisonment has never been found to be made out in these everyday circumstances. What would be novel would be a finding that this common occurrence is capable, without something more such as a threat of physical compulsion, of constituting false imprisonment.
47.As to paragraphs 48 and 49 of the Applicant’s Submissions, the question of whether there are reasonable prospects of success can be determined on the basis of the Amended Statement of Claim and the uncontested facts. It is not inappropriate, where there is an unsustainable cause of action, to summarily dismiss the claim without putting the respondent to the cost and trouble of a defence, without putting the Court system to the trouble and expense of a trial, and without putting litigants in other proceedings to the delays caused by a trial where there are no reasonable prospects of success.
Paragraph 177(m)
48.As to paragraphs 50 to 52 of the Applicant’s Submissions, paragraph 177(m) of Whittaker gives colour to the remainder of paragraph 177, and it is also to be read in the context of the paragraph 177. The nature of the “serious risk (possibly even life threatening)” is to be read in the context of paragraph 177(l) which refers to threat or danger to self and threat or danger to property. These kinds of serious risks are not of the same kind as an alleged threat by an employer to subject an employee to possible disciplinary action.
Paragraphs 177(n) and (o)
49.Contrary to what is submitted in paragraph 53 of the Applicant’s Submissions, paragraphs 177(n) and (o) of Whittaker are not hypothetical examples. The Applicant had multiple avenues of egress, and they did not require the Applicant to commit trespass. If there was any partial interference with travel – say by the alleged “active guarding” (whatever that means) by Ms Moodie of one of the RPO room doors, the other RPO room door was available, and there were seven exits from the Depot. The Applicant was not compelled to remain.
The pleading and the “stand down” allegation
50.As to paragraph 54 of the Applicant’s Submissions, the Respondent adopts the comments of Judge O’Sullivan at paragraph [33] of the Strike-Out Decision.
51.As to paragraphs 55 and 56, the Structure of the Amended Statement of Claim is that, absent sub-paragraphs 31(ii) and 33(i) with which the Respondent raises issues, there are no allegations of material fact that could constitute imprisonment. Through correspondence between the lawyers, the Respondent sought to ascertain what is alleged in those paragraphs. The Applicant’s inability, or unwillingness, to properly particularise those paragraphs goes to the heart of his claim of false imprisonment, and whether that claim has reasonable prospects of success.
52.Paragraphs 57 to 60 of the Applicant’s Submissions misunderstand the nature of pleadings. Pleadings are intended to contain allegations of material facts, capable of constituting the alleged cause of action. What matters, for the purposes of the summary dismissal application, is what words the Applicant alleges he heard Mr Said say. What the Respondent has sought, through its correspondence, is clarification as to what is alleged, so that the Court can make an assessment whether there are reasonable prospects of success.
Strike out without leave to re-plead
53.As to paragraphs 61 to 63 of the Applicant’s Submissions, the Respondent repeats paragraphs 0, 0, 0, 0 and 0 above.
VECCI Report
54.Paragraphs 64 to 70 of the Applicant’s Submissions amount to little more than an application for discovery. The Respondent repeats paragraphs 49 to 52 of the Respondent’s Submissions. Any application for discovery ought to be made at the appropriate time, at least 14 days after the filing of a defence, and when it is made it ought to be considered consistent with section 45 of the FCC Act and with the rebuttable presumption that discovery and interrogatories will not be permitted: NAQR, NAQS, NASY & NATM v Minister for Immigration [2002] FMCA 271 at [5].
Conclusion
55.For the reasons set out above, the Respondent seeks that:
(a)the Court summarily dismiss paragraphs [27] to [77] of the Amended Statement of Claim;
(b)in the alternative, the Court strike out paragraphs [27] to [77] of the Amended Statement of Claim and refuse leave to file a further amended statement of claim;
(c)the Court dismiss the Applicant’s application for a declaration under section 45 of the FCC Act allowing discovery;
(d)the Court dismiss the Applicant’s application for costs.”
Submissions before the Court
In submissions before the Court Senior Counsel for the respondent argued that a direction by an employer to an employee to stay in one place during paid working hours or face disciplinary action “does not constitute imprisonment and the accusation of false imprisonment by an employer in such circumstances was so novel as to be virtually unheard of in Australian law”.
Adopting the submissions filed 5 February 2016 and the submissions in reply filed 9 May 2016 Senior Counsel for the respondent submitted the allegations made by the applicant fall short of establishing the necessary elements of the tort of false imprisonment.
In response Senior Counsel for the applicant derided the claims made on behalf of the respondent about the ‘novel’ nature of his client’s claim. Senior Counsel adopted the submissions filed 19 February 2016. It was submitted an employer can still commit the tort of false imprisonment and in the circumstances of this case where there was a ‘real’ threat it was clear this was not just an employer giving a lawful direction.
Senior Counsel for the applicant contended the respondent’s characterisation of the situation misconceived the true character of what the applicant complained of. It was submitted the applicant was denied his liberty and “basic human rights”.
Whilst acknowledging problems with the particulars in the amended statement of claim it was submitted the allegation of false imprisonment had reasonable prospects of success. Senior Counsel for the applicant argued that in confining the applicant to one room under threat of being stood down the respondent had physically constrained the applicant and made threats against his employment constituting false imprisonment.
Approach to the orders sought in the respondent’s application in a case
Recently in Fewin Pty Ltd v Burke [2016] FCA 503 Justice Markovic said in relation to the principles of summary judgment that:
“6.Section 31A(2) of the FCA Act empowers the Court to give judgment for one party against another in relation to the whole or part of a proceeding where the first party is defending the proceedings or that part of the proceeding and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceeding. Section 31A(3) of the FCA Act provides that a proceeding or a part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success.
7.It is accepted that the power to dismiss an action summarily ought not be exercised lightly. Full weight must be given to the phrase “no reasonable prospects of success”. It must be applied according to its ordinary meaning. It is not to be equated to a requirement that the proceedings be “frivolous”, “untenable”, “groundless” or “faulty”: Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer) at [58] to [60] per Hayne, Crennan, Kiefel and Bell JJ.
8.In Oliver v Commonwealth Bank of Australia (No 1) [2011] FCA 1440 at [23] Perram J noted that an examination beyond the pleadings is permitted when considering an application pursuant to s 31A of the FCA Act but observed that “there will be cases where the absence of reasonable prospects may be apparent merely from what is alleged; that is to say, the nature of the allegations made will dictate, without the possibility of a different view being taken, that there are reasonable prospects of only one outcome”. In Spencer, French CJ and Gummow J noted that s 31A will apply to a case where “the pleadings disclose no reasonable cause of action and their deficiency is incurable”: at [22].
9.Rule 26.01(1)(a) of the Rules provides that a party may apply to the Court for an order that judgment be given against another party because the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.
10.In Keenan v Bundaberg Port Authority [2016] FCA 134 Reeves J considered, among other things, an application pursuant to s 31A of the FCA Act and r 26.01(1) of the Rules. At [44] he referred to the principles applicable to such an application having recently been outlined by him in a number of decisions such as: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; Krajniw v Newman (No 2) [2015] FCA 673 and Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728. Reeves J applied those principles to the case before him but noted that it was appropriate to add that in reaching his conclusion he had also taken into account a number of “diverse and countervailing” factors which relevantly included (at [45]):
(a)the caution one should employ before summarily determining a proceeding: see Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] and [60] and Cassimatis at [50];
(b)the need to distinguish between whether the true concern is one of form or one of substance – by this I mean whether Mr Keenan has a cause of action that is not properly pleaded, or whether he has no cause of action at all: see Spencer at [23], White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at [50] and Cassimatis at [46];
(c)in addition to the circumstances outlined in Cassimatis at [47]–[49], summary judgment under s 31A of the Federal Court Act is justified where a party completely fails to identify any valid claim or cause of action or fails to provide any factual materials that could amount to such: see Mulhern v Bank of Queensland [2015] FCA 44 at [60]–[61] per Gleeson J and Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [30] per Reeves J”
Given the alternate orders sought in the respondent’s application in a case it is timely to note the comments made in Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238 where Judge Barnes noted:
“Legal Principles
9. One of the objects of the Federal Circuit Court of Australia Act 1999 (Cth) (the “FCCA Act”) is to enable the Court to operate as informally as possible in the exercise of judicial power (see s.3(2) of the FCCA Act).
10. Under s.43(1) of the FCCA Act, the practice and procedure of the Court is to be in accordance with the Federal Circuit Court Rules 2001 (Cth) (the Rules). The object of the Rules is to assist the just, efficient and economical resolution of proceedings (see r.1.03(1)). The Rules are intended to help the Court to operate as informally as possible, to use streamlined processes and to encourage the use of appropriate dispute resolution procedures (see r.1.03(2)). The Court is to apply the Rules in accordance with their objects. To assist the Court, the parties must “avoid undue delay, expense and technicality” and consider options for primary dispute resolution as early as possible (r.1.03(4)).
11. This Court is not a court of strict pleadings. However, under r.4.05 the requirement that an affidavit accompany an application (which must be in accordance with the approved form) is dispensed with if the Applicant files a statement of claim or points of claim. That is what occurred in this case. The Rules are otherwise silent in respect of pleadings.
12. Under s.43(2) of the FCCA Act, to the extent that the Rules are insufficient, the Federal Court of Australia Rules 2011 (Cth) (made under the Federal Court of Australia Act 1976 (Cth)) apply, with necessary modifications and subject to directions of this Court. This is reflected in r.1.05(2) which provides that if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules in whole or in part and modified or dispensed with as necessary. Without limiting that rule, certain provisions of the Federal Court Rules (set out in Part 2 of Schedule 3 to the Rules) are said to “apply, with necessary changes, to general federal law proceedings” (see r.1.05(3) of the Rules). Relevantly, Part 2 of Schedule 3 of the Rules expressly refers to some of the provisions in Part 16 of the Federal Court Rules which deal with the content and striking out of pleadings. In particular it incorporates (in full) r.16.21 in relation to applications to strike out pleadings and r.16.45 in relation to an application for an order for particulars, including the restrictions in r.16.45(2) and r.16.45(3) of the Federal Court Rules. It is appropriate to apply these provisions in the present case.
13. The relevant Federal Court Rules are as follows:
16.21 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.
16.45 Application for order for particulars
(1) If a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case, the party may apply to the Court for an order that the party who filed the pleading serve on the party:
(a) particulars of the claim, defence or other matter stated in the pleading; or
(b) a statement of the nature of the case relied on; or
(c) if there is a claim for damages — particulars of the damages claimed.
(2) An application under subrule (1) may be made only if:
(a) the particulars in the pleading are inadequate; and
(b) the party seeking the order could not conduct the party’s case without further particulars.
(3) A respondent who applies to the Court for an order under subrule (1) before filing the respondent’s defence must satisfy the Court that an order is necessary or desirable to enable the respondent to plead.
Note The intent of the pleading rules is that a party should include all material facts in its pleadings as initially filed so that there is no unfairness to another party by any lack of particularity. If the party has not done so, the Court may at trial refuse to allow the party to present a case that is outside the terms of their pleading.
14. It is uncontroversial that pleadings serve to define the issues between the parties and should state the party’s case with sufficient clarity to give the opposing party fair notice of the case to be met.
15. Thus, r.16.02(1)(d) of the Federal Court Rules provides that a pleading must “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against a party at trial, but not the evidence by which the material facts are proved” and r.16.03(1)(b) requires the party to plead a fact if failure to do so may take another party by surprise (also see r.16.08). It is not sufficient to state conclusions drawn from unstated facts.”
In Yarra Trams No. 1 at paragraphs [22] to [34] the approach to summary dismissal and/or strike out was set out and a number of the relevant Federal Court authorities were referred to.[86] There are a number of decisions of Judges of the Federal Court that have considered pleadings and whether those pleadings stated material facts, being facts necessary for the purposes of formulating a complete cause of action (see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413; McKellar v Container Terminal Management Services [1999] FCA 1101; Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510; Communications, Electrical Electronic Energy Information Postal Plumbing and Allied Services Union v Stanwell Corporation Ltd (No. 3) [2014] FCA 1324).
[86] see for example, Mulhern v Bank of Queensland [2015] FCA 44 at [50] to [61] and Takemoto v Moody's Investors Service Pty Limited [2014] FCA 1081 at [4].
Given the orders sought by the respondent in the respondent’s application in a case it is timely to note that in Mulhern v Bank of Queensland [2015] FCA 44 Justice Gleeson said:
“53. The power to strike out a pleading (in this case, the statement of claim) requires a consideration of the terms of that document. A pleading may be struck out if it is unintelligible, ambiguous or so vague that it fails to identify the material factual allegations to the extent that the other party is not given notice of the real substance of the claim: Priest v State of New South Wales [2006] NSWSC 12 at [34].
54. It must be apparent on the face of the statement of claim that the facts pleaded, if proved, would establish the cause of action relied upon by the relevant plaintiff or plaintiffs. In Wride v Schulze[2004] FCAFC 216 at [25], a Full Court said:
…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.
55. The power to strike out a pleading because it discloses no reasonable cause of action will be exercised only in a plain and obvious case, where it is clear that no reasonable amendment can cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [43].
56. In contrast, an application for summary judgment requires consideration of matters outside the pleading: Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081 at [4] and the cases there cited.
57. Both powers are to be exercised with caution.”
In Takemoto v Moody's Investors Service Pty Limited [2014] FCA 1081 Justice Flick considered firstly the approach to summary judgment under s.31A of the Federal Court of Australia Act 1976 and then the approach to a strike out application under rule 16.21 of the Federal Court Rules 2011 as follows:
“10.Section 31A of the Federal Court of Australia Act provides as follows:
Summary judgment
(1) The Court 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 Court 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 Court has apart from this section.
(5) This section does not apply to criminal proceedings.
It is a provision well-traversed in previous decisions of this Court, but a few basic principles as to meaning to be ascribed to this provision and the manner of its application should, again, nevertheless be expressly recognised.
11.First, s 31A was introduced by way of amendment and came into effect on 1 December 2005. It was a provision which was intended to establish a lower standard than that previously laid down by decisions of the High Court (e.g., Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125), namely that allegations are “so clearly untenable that [they] cannot possibly succeed”. See also: Hicks v Ruddock [2007] FCA 299 at [12] to [13], (2007) 156 FCR 574 at 582. The effect of s 31A is to “soften the test for a successful application for summary judgment”: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], [2009] FCAFC 117; (2009) 178 FCR 401 at 407 per Spender, Graham and Gilmour JJ.
12.Second, the exercise of the power must necessarily be approached with caution: Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 at 131 to 132 French CJ and Gummow J there observed:
[24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence...
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.
See also: Leahy v Commonwealth of Australia [2013] FCA 1454 at [22] per Foster J.
13.Third, the requirement that there be “no reasonable prospects of success” can be satisfied where there is a defect in the pleadings which cannot be cured or, alternatively, by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J (as his Honour then was).
14.Not surprisingly, considerable attention has been given to those circumstances in which this Court may be called upon to enter summary judgment – not upon the basis of resolving a legal issue – but upon the basis of resolving a factual question dividing the parties. One party may plead a material fact which is either not admitted or denied. Upon an application being made pursuant to s 31A, the Court can – in an appropriate case – resolve that factual issue. But the circumstances in which it should do so, and thereafter proceed to enter summary judgment or summarily dismiss a proceeding, should be approached with considerable caution. Although the parties may seek to adduce evidence in respect to the resolution of that factual question, the Court is called upon, in an application pursuant to s 31A, to form a view in advance of a final hearing as to how that factual question is to be resolved and whether or not it is a more proper exercise of the discretion conferred by s 31A to allow the matter to proceed to hearing.
15.When addressing the principles to be applied where summary judgment is sought and where there are disputed questions of fact, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60, (2008) 167 FCR 372 at 382 said:
[22] ...If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits. It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial.
[23] In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial.
Rares J expressed the proposition as follows:
[74] Accordingly, if Jefferson Ford is able to establish that there was a real issue of fact or a real issue of law capable of being decided in its favour then, subject to the Court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way.
Gordon J referred to the principle to be applied as follows:
[130] A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success... So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has “no reasonable prospect of success”... On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.
“Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial”: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] per Sundberg J. See also: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [25] to [45][2013] FCA 641; (2013) 220 FCR 256 at 266 to 271 per Reeves J. Summary judgment under s 31A may thus be appropriate “where the evidence is all one way so that only one conclusion can be said to be reasonable”: Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 2) [2010] FCA 919 at [108], [2010] FCA 919; (2010) 272 ALR 280 at 313 per Bennett J. Where there is “a triable issue of fact then summary judgment will not be entered”: Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567 at [47], [2009] FCA 567; (2009) 72 ACSR 264 at 273 per Besanko J.
The strike out application – r 16.21
16.Rule 16.21 of the current Federal Court Rules provides as follows:
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.
The present case does not require any great elaboration of the manner in which r 16.21 is to be either interpreted or applied. But again, a few basic principles should nevertheless be set forth.
17.First, the rule is “concerned only with the adequacy of the pleading” and “does not permit or allow consideration of facts or evidence outside the pleadings”: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4], [2008] FCA 1920; (2008) 252 ALR 41 at 43 per Finkelstein J. See also: Windsor v Sydney Medical Service Co-Operative (No 2) [2009] FCA 704 at [12] per Edmonds J.
18.Second, a pleading will be embarrassing, “where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Priest v New South Wales [2006] NSWSC 12 at [34] per Johnson J. The term “embarrassment” refers to a pleading that is “susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense”: Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], [2004] FCA 1393; (2004) 51 ACSR 278 at 283 to 284 per Tamberlin J.
19.Third, a pleading will only be struck out as failing to disclose a reasonable cause of action or defence “where it is clear that there is no real question to be tried”: Spotwire Pty Limited v Visa International Services Inc & Anor [2003] FCA 762 at [10]; Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 479 at [22], [2005] FCA 479; (2005) 65 IPR 44 at 49 per Goldberg J. Where a claim is not so clearly untenable that it cannot possibly succeed, it will not be struck out: Sun Earth Homes Pry Ltd v Australian Broadcasting Corporation (1990) 98 ALR 101 at 112 to 113 per Burchett J.
20.Finally, and like the power conferred by s 31A, the power is to be exercised with caution and it is not to be lightly exercised: Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [5] per Tracey J; Christou v Stantons International Pty Ltd [2010] FCA 1150 at [4] per McKerracher J. A “pedantic approach” should not be pursued: Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 at [14] per Logan J.”
In considering the orders sought in the respondent’s application in a case (and the applicant’s response to that) I will follow the principles referred to in the abovementioned decisions having taken into account the parties material and their respective submissions. However before turning to do so it is appropriate given the allegations made in the impugned parts of the applicant’s amended statement of claim to address the issue of how the Court should approach allegations of false imprisonment.
False Imprisonment
Given the focus of the parties on the tort of false imprisonment it is necessary to consider the elements of the tort of false imprisonment in some greater detail. Most of the standard texts define false imprisonment.[87] In Yarra Trams No. 1 the decision of the Victorian Court of Appeal in McFadzean & Ors v Construction, Forestry, Mining and Energy Union& Ors [2007] VSCA 289 (“McFadzean”) was referred to. Since that decision the legal principles associated with the tort of false imprisonment have been considered in a number of decisions of superior Courts.
[87] see for eg. John G Fleming, The Law of Torts (LBC Information Services, 9th ed, 1998) at 33
Those principles were considered in Darcy v State of New South Wales [2011] NSWCA 413 at paragraphs [141] to [146], in Young & Cooke [2013] NSWCA 79 at paragraphs [11] to [12], in Calabro v State of Western Australia [No.3] [2014] WASC 84 at paragraphs [42] to [46], and in Price v Southern Cross Television (TNT9) Pty Ltd [2014] TASSC 70 at paragraph [233] and all those decisions referred to the decision in McFadzean.
An issue which occupied considerable debate in this matter was whether the existence of any available means of escape was fatal to the applicant’s claim he had been falsely imprisoned. The authorities make clear that the essence of the cause of action of false imprisonment is the placing of a “total restraint” on the applicant’s movement and that the restraint need bear no similarity to what one would normally describe as imprisonment. As was noted in State of South Australia v Lampard Trevorrow [2010] SASC 56 at [282]: “[T]he law has moved on from such limitation”.
As noted in Yarra Trams No. 1 the elements of the tort of false imprisonment were summarised by the Victorian Court of Appeal in McFadzean.[88]
[88] see McFadzean v Construction Forestry, Mining and Energy Union [2008] HCA Trans 213 where special leave to appeal to High Court was refused.
In Whittaker & Anor v Child Support Registrar & Anor [2010] FCA 43 (a decision referred to in both parties submissions (which also referred to McFadzean)) Lindgren J reduced these elements to a series of statements at [177]:
“(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.
Persons may not feel free to leave, or not be able to leave in circumstances falling short of actual false imprisonment as was pointed out in State of South Australia v Lampard – Trevorrow [2010] SASC 56 as follows:
“282 We agree with counsel for the State that the fostering of Bruce Trevorrow does not readily fall under the heading of false imprisonment or wrongful imprisonment. In part this is attributable to the use of the word “imprisonment” to capture the factual essence of the cause of action. The factual essence of the cause of action is the placing of a “total restraint” on the plaintiff’s movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation.
283But the restraint must be total. For example, an available means of escape from a restraint might mean (depending on the circumstances) that the restraint is not total.”
In those circumstances any such restraint is not confinement or imprisonment, because the person is in reality free to leave.[89]
[89] see Balmain New Ferry Co Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379 at 387; McFadzean at [54] to [89]; State of South Australia v Lampard – Trevorrow [2010] SASC 56.
Counsel for each of the parties were unable to refer to any Australian authority that had considered a case with similar facts to this case. American case law reveals no case that holds that a threat of discharge from employment at will can effect imprisonment for tort purposes.[90] The approach in American cases is that threats of discharge from employment are not sufficient to invalidate the consent that contradicts imprisonment.[91]
[90] see Foley v Polaroid Corporation 400 Mass. 82, 91, 508 N.E.2d 72.77 (1987); See also Carter v Aramark Sports and Entertainment Services Inc 835 A.2d 262 285 (Md 2003): “voluntary consent to confinement nullifies a claim of false imprisonment, and that consent is not invalidated even if an employee is threatened with discharge”.
[91] see for example Faniel v Chesapeake & Potomac Tel.Co 404 A.2d 147, 152 (DC 92 Ct App 1979); see also Randall’s Food Markets Inc v Johnson 891 S.W.2d 640 (1995).
Relevantly, for present purposes in Calabro v State of Western Australia [No.3] [2014] WASC 84 (and in a number of other cases referred to above) the decision of the High Court in the Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 was cited and the comments of O’Connor J (Griffith and Barton J concurring) noted where it was said:
“Primâ facie, no doubt, any restraint of a person's liberty without his consent is actionable. But, when the restraint is referable to the terms on which the person entered the premises in which he complains he was imprisoned, we must examine those terms before we can determine whether there has been an imprisonment which is actionable.”[92]
[92] see also Robinson v Balmain New Ferry Co. Ltd [1910] AC 295 and Herd v Weardale Steel Coal & Coke Ltd [1915] AC 67.
As was identified in the principles referred to in McFadzean “the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will.” Importantly, where either the restraint is referrable to the terms of a contract or there is an available means of escape (depending on the circumstances) any such restraint is not confinement or imprisonment because the person is in reality free to leave (see Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 at 387, Herd v Weardale Steel Coal & Coke Ltd [1915] AC 67, McFadzean at [54] to [89] and State of South Australia v Lampard Trevorrow [2010] SASC 56).
Consideration
I have been referred to a number of authorities by Counsel. I do not consider it necessary to refer to these authorities again given the decisions referred to earlier. However all of the parties’ submissions (which contained those authorities) have been considered and taken into account.
In Yarra Trams No. 1 the relevant provisions of the FCCA Act and the Rules (for the purposes of order 1 of the respondent’s application in a case) were set out at paragraphs [22] to [28].[93]
[93] see also paragraphs [6] to [10] in Fewin Pty Ltd v Burke [2016] FCA 503.
In this case the applicant’s own pleading acknowledges the employment contract with the respondent, that it was governed by inter alia the terms of a written agreement, the Fair Work Act 2009 (Cth) and applicable industrial instruments (which included a disciplinary policy).
There is a common law obligation upon employees to obey the lawful and reasonable directions of their employers. In that regard I refer to R v Darling Island Stevedoring & Lighterage Co Ltd [1938] HCA 44; (1938) 60 CLR 601 where at 621, Dixon J said that:
“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon which it being ‘reasonable’. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of a contact of service and are ‘reasonable’.
…”
The allegations of fact on which the applicant relies for claiming that he was falsely imprisoned have been set out in the extract from the amended statement of claim in paragraph [12] of these reasons.[94] It is noteworthy that paragraph [57] of the amended statement of claim (pleaded in the alternative) was:
“57. Alternatively, the Applicant remained in the RPO room from 4:30 pm to 5.40pm on 4 June, 2013 because he submitted to lawful authority. …(emphasis added)”
[94] see also the affidavit material relied on referred to at paragraph [10] of these reasons.
I also note at paragraph [47] of his affidavit filed 16 September 2015 the applicant deposed:
“47.As it turned out, we complied with Ms Moodie’s directions because that is what we expect when we deal with the public. We expect members of the public to comply with the orders of lawful authority. However, having said that, we also know that we will frequently be confronted by people who do not understand proper behaviour.” (emphasis added)
Importantly for the purposes of the disposition of this application I accept:
“13.…The Applicant’s submissions fail to engage with the propositions that the Applicant was at the premises he had been rostered to attend and was at all times being paid for his attendance. They don’t engage with the fact that the Applicant could have left the RPO room and the Depot at any time, albeit exposing himself to possible sanction in his employment. Nor do they engage with the proposition that, at its highest, what the Applicant alleges is a threat to the future. In addition, whilst criticising the analogies proffered by the Respondent, the Applicant has failed to articulate what he says is the criteria that distinguishes his case from every other case where an employee (or for that matter a student) remains in a particular location because they have been told that they will be subject to some form of disciplinary sanction if they don’t.”[95]
[95] see respondent’s submissions in reply filed 9 May 2016.
I also accept:
“15.… [J]ust as it was open to [the appellant in Whittaker v Child Support Registrar [2010] FCAFC 112] to leave the departure hall “landside” at the price of missing his flight, foregoing the opportunity to perform work in Malaysia, it was open to [the applicant] to leave the East Preston depot, all be it at the price that this might lead to steps being taken against him in respect of his employment. In the event that sanctions were imposed in respect of his employer [the applicant] could exercise his rights under his contract of employment, the Yarra Trams Enterprise Agreement 2012 and under the Fair Work Act 2009 to challenge these sanctions.”[96]
[96] see respondent’s submissions filed 5 February 2016.
The applicant’s response to the arguments made by the respondent (in support of the orders sought), have been set out earlier. Those arguments made by the applicant in response appear to be based on the proposition that the respondent (as part of its investigation) falsely imprisoned him when he was told he would be stood down if he did not comply with the directions of the (respondent) employer. These were instructions given on behalf of the (respondent) employer which the applicant was expected to obey because of his contractual obligation to do so and during which time he was paid. On the basis of the principles set out in the authorities referred to above, if he chose to obey in order to continue in the respondent’s employment, his remaining in the room was not imprisonment.[97]
[97] see authorities in paragraphs [28] to [37] above.
The applicant was employed by the respondent and required, in accordance with the terms of his employment, to attend the Preston depot and follow lawful directions. There is no suggestion the applicant was not paid, or sought to tender his resignation during the investigation on the day. Whilst there is a dispute in this case about whether anyone who was to be stood down for not complying with a direction would be paid that is not determinative. In this case the respondent employer was enforcing the rules and regulations of the applicant’s employment (which he accepted) and as in Herd v Weardale Steel Coal & Coke Co Ltd [1915] AC 67 and Burns v Johnston [1916] 2 Ir.R 444 that is not capable of amounting to false imprisonment.
When regard is had to the principles that apply to a claim of false imprisonment, that “it is not false imprisonment to hold a man to the conditions he has accepted…” [98] and the uncontroversial background I conclude the allegations made by the applicant of false imprisonment do not disclose a reasonable cause of action and the applicant does not have any reasonable prospects of succeeding on this part of his claim.
[98] see Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 at p.72
& Burns v Johnston [1916] 2 Ir.R 444
Conclusion
Given the conclusions set out above it is not strictly necessary to deal with the applicant’s claim that the Court should make a declaration for discovery. In any event I accept the submissions of the respondent at paragraphs [42] to [52] of the submissions filed 5 February 2016 which for the sake of brevity will not be rehearsed.
As noted in the submissions of each of the parties set out above they each took opposing positions on whether the applicant should have leave to re-plead in the event the Court came to the conclusion arrived at above. In Takemoto v Moody's Investors Service Pty Limited [2014] FCA 1081 Justice Flick considered and for the reasons set out therein concluded the contractual and trade practices claims made in that case should be summarily dismissed, and said at paragraphs [87] to [96] even if judgment had not been entered on that basis liberty to re-plead those claims would have been refused. The history of this matter has been referred to earlier in these reasons and in light of the conclusions arrived at in relation to the respondent’s application in a case I see no reason not to take the same approach in this case. Therefore for the reasons set out above I will reserve the respondent’s costs and make the orders as set out at the beginning of these reasons for decision.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 16 June 2016
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