Hamdan v Miami Pharmacy Pty Ltd as trustee for Miami Pharmacy Unit Trust
[2025] FedCFamC2G 763
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hamdan v Miami Pharmacy Pty Ltd as trustee for Miami Pharmacy Unit Trust [2025] FedCFamC2G 763
File number(s): PEG 272 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 23 May 2025 Catchwords: HUMAN RIGHTS – DISCRIMINATION – application by the respondent for summary dismissal – where the applicant is in default – where the applicant failed to attend a court ordered mediation and comply with orders – application for the statement of claim to be summarily dismissed or struck out – whether the statement of claim is evasive or ambiguous – orders made striking out portions of the statement of claim – orders made for the applicant to re-plead the statement of claim and for the parties to attend a mediation Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Disability Discrimination Act 1992 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5(a), 169, 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.04(1), 13.05(1), 13.05(6), 13.06(1)(c), Item 4 of Schedule 2, Part 1
Workers Compensation and Injury Management Act 2023 (WA) s 421, Part 7, Division 2
Work Health and Safety Act 2020 (WA)
Cases cited: Altrad Australia Pty Ltd v Dropulich [2025] FCA 342
Australian Building and Construction Commissioner v Darnton-Turner [2022] FedCFamC2G 915
Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591
Bruce v Odhams Press Ltd [1936] 1 KB 697
Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200
Letang v Cooper [1965] 1 QB 232
Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52
Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159
Tahmasebi v Adelaide Transport Pty Ltd [2021] FedCFamC2G 288
Welsh v Digilin Pty Ltd [2008] FCAFC 149
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 28 April 2025 Place: Darwin Solicitor for the Applicant: Ms Cahill of Petherick Cottrell Lawyers Solicitor for the Respondent: Ms Nickels of DLA Piper Australia ORDERS
PEG 272 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NISREIN HAMDAN
Applicant
AND: MIAMI PHARMACY PTY LTD 113 244 410 AS TRUSTEE FOR THE MIAMI PHARMACY UNIT TRUST ABN 25 320 513 152 TRADING AS ADVANTAGE PHARMACY FALCON ABN 40 262 048 440
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.Paragraphs 6 to 9, 23 to 28 and 30 of the statement of claim filed 16 October 2024 be struck out.
2.The Applicant file and serve an amended statement of claim within 28 days.
3.The Respondent file and serve a defence to the amended statement of claim within 21 days of compliance with order 2.
4.The Applicant pay the Respondent’s costs thrown away in relation to the mediation on 14 February 2025, fixed in the sum of $3,517.80.
THE COURT NOTES THAT:
A.The order for costs is in the amount specified in item 4 of Schedule 2, Part 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, in respect of dispute resolution litigation intervention.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
On 30 July 2024, Nisrein Hamdan filed an application alleging unlawful discrimination under s 46PO of the Australian Human Rights Commission Act 1986 by Miami Pharmacy Pty Ltd, arising from her employment as an intern pharmacist at Advantage Pharmacy Falcon, between 27 March 2023 and 17 August 2023.
On 24 September 2024, an order was made for the applicant to file and serve a statement of claim within 14 days. An order was also made referring the matter to mediation, and requiring the applicant to provide particulars of loss with supporting documentation on a without prejudice basis, at least 14 days before the date allocated for mediation.
The applicant did not comply with these orders. A statement of claim was ultimately filed on 16 October 2024 in accordance with consent orders of that date. A defence was filed on 5 November 2024. However, the respondent wrote to the applicant alleging deficiencies in the statement of claim on 15 November 2024, 28 January 2025 and 27 February 2025, and inviting the applicant to lodge an amended statement of claim. The applicant did not acknowledge that correspondence.
The applicant provided particulars of loss on 4 February 2025, in respect of a mediation that had been scheduled to take place on 14 February 2025. On 14 February 2025, the applicant failed to attend the mediation, having been given notice of it on 29 November 2024.
On 17 March 2025, the respondent made an application that the proceedings be dismissed due to the applicant’s failure to attend the mediation. In the alternative, the respondent seeks orders that parts of the statement of claim be summarily dismissed and/or struck out.
WHAT IS THE APPLICANT’S CASE?
The applicant was employed as a permanent, full-time intern pharmacist by the respondent for approximately 7 months, commencing on 21 March 2023.
On 20 September 2023, the applicant lodged a complaint with the Australian Human Rights Commission in respect of her employment with the respondent, alleging discrimination because of disability (allergies to cleaning products), sex (female) and race (Jordanian). She also alleged that she had experienced racial hatred because of her Jordanian ethnic origin, and that she had been discriminated against in her employment because of her religion (Islam).
The applicant resigned her employment by written notice dated 30 September 2023, effective on 8 October 2023.
The Commission did not accept the complaint about racial hatred, because the complaint was not considered reasonably arguable. After the complaint was lodged, the applicant sought leave to amend it to include further allegations. On 12 June 2024, a delegate of the President granted leave to expand the subject matter of the religious discrimination complaint, but did not grant leave to include the allegations of racial discrimination in relation to co-workers allegedly saying they could not understand the applicant, and her being allegedly mocked because of her accent, because it was deemed that was insufficient information to support a reasonably arguable claim of unlawful racial discrimination.
These proceedings were commenced on 30 July 2024, and allege that the applicant was treated differently to a male intern pharmacist contrary to the Sex Discrimination Act 1984, and that she was treated differently due to her allergy to cleaning products contrary to the Disability Discrimination Act 1992. These paragraphs of the statement of claim as broadly pleaded are not taken issue with for the purposes of this application.
However, the statement of claim goes on to plead a third cause of action in breach of contract, on the basis of an allegation that the respondent failed to provide a safe work environment. This part of the statement of claim goes on to assert that the applicant was bullied on the basis of her religion. This includes particulars variously set out in the statement of claim that other employees told the applicant she could not hear because she wears a hijab, and that she was not permitted to have the day off at the end of Ramadan. It is also alleged that the applicant was bullied more generally, with co-workers mocking her accent, insulting and belittling her, and questioning her credentials.
Some of the particulars in the statement of claim cut across the Delegate’s decision to not grant leave in relation to the allegation of co-workers saying they could not understand the applicant, and her being allegedly mocked because of her accent.
The applicant makes a broad claim of breach of contract which includes reference to the Work Health and Safety Act 2020 (WA), and broadly asserts that the respondent did not take reasonable and practical steps to prevent the applicant from experiencing harm, nor provide a safe working environment.
The applicant’s case is that the respondent’s failure to ensure a safe workplace environment has caused her to experience “extremely significant harm, physical and emotional distress, included but not limited to poor self-esteem, anxiety, poor sleeping and a miscarriage”.
The respondent denies that the applicant experienced bullying, harassment or discrimination. It says that the applicant made complaints to the directors of the respondent, that the respondent took reasonable steps to address the complaints made to it by the applicant through her employment, and that it took all reasonable steps to ensure that the applicant was provided with a safe working environment, and did not experience any harm.
The applicant seeks compensation in the sum of $145,000, comprising of 4 months of lost wages in the sum of $20,000, future and past medical expenses in the sum of $10,000 and damages for hurt, injury and distress in the sum of $115,000. The applicant also seeks interest, the payment of any further entitlements accrued to her and owed by the respondent, costs, and an order for a pecuniary penalty.
The respondent denies that the applicant is entitled to this relief, or any relief.
LEGAL PRINCIPLES
Dismissing a proceeding in default
In Tahmasebi v Adelaide Transport Pty Ltd [2021] FedCFamC2G 288, Judge Brown summarised the principles that apply to the discretion to dismiss an application if an applicant is in default in the following way:[1]
[1] At [88] – [94].
The court is conferred with a discretion, pursuant to rule 13.05 to dismiss an application if the applicant concerned fails to comply with one of its orders; file and serve a document; or prosecute the proceedings with due diligence.[2]
[2] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.04.
As with all discretions, the discretion provided by rule 13.05 must be exercised judicially and according to the dictates of justice. At a fundamental level, the court has an obligation to investigate and determine a claim for judicial relief, which has been honestly made in the proceedings before it, by the suitor concerned.
On the other hand, the court retains it may be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.[3] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[3] Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32] (Tamberlin, Greenwood and Collier JJ).
In these circumstances, the authorities are clear that the application of the discretion to dismiss an application for non-compliance with an order, is not to be regarded as being commonplace in its exercise.[4] A range of factors dependant on the facts of each case will influence how the discretion is to be exercised.
[4] Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] (Lucev J).
In Lenijamar Pty Ltd v ACC (Advances) Ltd,[5] the Full Court of the Federal Court indicated that it was “undesirable [for the court] to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised”. In this context, Wilcox and Gummow JJ identified what they considered to be two obvious candidates for the exercise of the power, which can be summarised as follows:
[5] Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200.
Cases characterised by a history of non-compliance such to indicate an inability or unwillingness to co-operate with the other party or the court to bring the proceedings to hearing within an acceptable period;
Cases in which non-compliance was continuing and occasioning unnecessary delay, expense or other prejudice to the other party concerned.
In a separate but concurring judgment Pincus J said as follows in respect of the exercise of the relevant discretion:
[T]he Court may, in my opinion, take into account such matters as whether the claim or defence of the party in default appears to have substance, whether the case is one in which delay in hearing is likely to be particularly damaging to prospects of correctly deciding the dispute, whether the party applying for dismissal has itself transgressed, whether the party in default has gained some advantage by delay (for example, where it has had the benefit of an interlocutory injunction), whether credible assurances (supported, perhaps, by arrangements to commit the conduct of the matter to another firm or other counsel) have been given as to the prompt carrying out of future steps and whether the delay has been such as to induce the party not in default to think that the matter has probably gone to sleep;[6]
[6] Ibid 214-5 (Pincus J).
In Professional Administration Service Centres Pty Ltd v Commissioner for Taxation,[7] the Full Court of the Federal Court attempted to tabulate considerations which were likely to be relevant to the exercise of the discretion, which can be summarised as follows:
[7] Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52, 62 [44] (Edmonds, McKerracher and Nicholas JJ).
The nature of the default involved;
The duration of the default and whether it is continuing;
The circumstances surrounding the making of the order subsequently breached and the practices of the court concerned;
What has happened since the default, particularly whether an attempt has been made to rectify the breach;
Whether the breach creates prejudice or places an unacceptable burden on the other party;
Does the breaching party genuinely want the case to go to trial;
The stage the proceedings have reached;
Disruption to possible trial dates;
The consequences for the applicant of dismissing the application.
Pleadings
In Australian Building and Construction Commissioner v Darnton-Turner [2022] FedCFamC2G 915,[8] Judge Manousaridis summarised:
… The fundamental rule of pleading is that contained in r 16.02(1)(d) of the Federal Court Rules 2011 (Cth), which provides:
A pleading must:
….
(d) 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 that party at trial, but not the evidence by which the material facts are to be proved…
The central notion of that rule is “material facts”. That expression, when used in the context of a statement of claim, is a set of facts whose existence is, “necessary for the purpose of formulating a complete cause of action”.[9] A “cause of action” in turn has been defined as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.[10]
[8] At [18] – [19].
[9] Bruce v Odhams Press Ltd [1936] 1 KB 697, at page 712 quoted with approval by Goldberg J in Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591, at page 44, 152
[10] Letang v Cooper [1965] 1 QB 232, at pages 242-243
In Altrad Australia Pty Ltd v Dropulich [2025] FCA 342, Feutrill J said:[11]
The principles applicable to applications to strike-out pleadings are well established and need not be restated at any length. The relevant question for the purposes of the applications before me is whether the statement of claim (the pleaded material facts and particulars) meet the basic requirement of stating the applicants’ case with sufficient clarity to allow the respondents a fair opportunity to meet it. The answer to that question is influenced by s 37M of the Federal Court of Australia Act 1976 (Cth) and an understanding that contemporary case management will involve pre-trial exchanges of witness statements, expert evidence and lists of the documents upon which the parties intend to rely at trial. In these circumstances, the prospect of ‘surprise’ or ‘trial by ambush’ is quite unlikely. As I have previously said, having regard to these matters, the relevant question may be answered at the threshold by asking whether a lawyer looking at the pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, would have any difficulty in ascertaining those matters: Austin Engineering Ltd v Podulova (No 3) [2024] FCA 1001 at [46]; Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [10] (Martin CJ). Nevertheless, well established as they are, having regard to the nature of the objections taken to the statement of claim and the manner in which the arguments were presented, it is useful to elaborate on certain of the relevant principles.
8 As already mentioned, the first and third respondents invoke rr 16.21(1)(c), 16.21(1)(d) and 16.21(1)(e) as grounds for objecting to the statement of claim. As to r 16.21(1)(d), a pleading is likely to cause prejudice or embarrassment if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous or vague or too general. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c). As to r 16.21(1)(e), a reasonable cause of action is a cause of action that has some prospects of success having regard to the allegations pleaded. A pleading may be struck out for disclosing no reasonable cause of action if, accepting all material facts pleaded as true and that on all other points (except points of law) the pleading is unassailable, it would not be open to the party upon the pleading to prove facts at trial that would constitute a cause of action. However, a cause of action cannot be struck out merely on the basis that it appears to be weak. Inevitably there is overlap between the grounds in rr 16.21(c), 16.21(d) and 16.21(e): e.g., Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [25(8)], [25(11)], [25(12)], [25(13)] (Feutrill J) and the authorities there cited.
[11] At [7] – [8].
Disposal by summary dismissal and striking out pleadings
In Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718, Judge Given summarised the distinction between the relevant principles as:[12]
[12] At [15] – [18].
Section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) provides for the Court to give judgment in favour of a respondent if it is satisfied that the applicant has “no reasonable prospect of successfully prosecuting the proceeding”. For these purposes, s 143(3) makes it plain that the proceeding need not be hopeless or bound to fail in order for it to have no reasonable prospect of success.
Rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides that:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The Rules do not (themselves) make provision for strike out. However the effect of r 1.06 and Schedule 1 to the Rules is that r 16.21 of the Federal Court Rules 2011 (Cth) (FCA Rules) applies in this Court. That rule provides:
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.
In Leach v Burston [2022] FCA 87, Halley J recently distilled the relevant principles in relation to summary dismissal and strike out at [36] to [38] in such a way as to warrant their reproduction in full:
[36]The principles relevant to summary dismissal can be summarised as follows:
(a) the discretion to summarily dismiss proceedings should be exercised if, and only if, the Court is satisfied that there is no reasonable prospect of success: Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer) at [60] (Hayne, Crennan, Kiefel and Bell JJ);
(b) the enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail: Spencer at [52];
(c) the use of the word “may” in s 31A of the FCA Act is to be read as an empowering word, not for the purpose of conferring a discretion on the Court. If the Court is satisfied that a cause of action has no reasonable prospect of success, it “must” be exercised. The exercise of the power turns not on the discretion of the Court, but rather upon proof that the cause of action has no reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128]-[129] (Gordon J);
(d) full weight must be given to the expression “no reasonable prospect” as a whole, and it might readily be accepted that the power to dismiss a proceeding summarily is not to be exercised lightly: Spencer at [60]
(e) particular caution to exercise the discretion is required if there are factual disputes and evidence is not in a final form: Houston v New South Wales (No 2) [2021] FCA 637 (Houston) at [5(d)] (Griffiths J); Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [43] – [45] (Rares J);
(f) appropriate account needs to be taken of the possibility that existing authority may be overruled, qualified or further explained; summary dismissal must not be used to stultify the development of the law: Houston at [5(e)] (Griffiths J); Spencer at [25]; Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [35] (Allsop CJ, Marshall and Mansfield JJ); and
(g) the party seeking summary dismissal bears the onus of establishing the proceeding or defence has no reasonable prospects of success: Kitiko v University of Technology Sydney [2021] FCA 360 at [55] (Griffiths J).
[37]The principles relevant to the power to strike-out pleadings can be summarised as follows:
(a) the power should be employed sparingly and only in a clear case: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 (Polar Aviation) at [42]–[43] (Perram, Dodds-Streeton and Griffiths JJ). Normally, the power to strike-out should be exercised where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455;
(b) if a pleading is strike-out, a Court will ordinarily permit the party to replead unless it would be futile to do so: Nulyarimma v Thompson (1999) 96 FCR 153; [1999] FCA at [208] (Merkel J); Houston at [6];
(c) a reasonable cause of action means a case with some chance of success having regard to the pleaded allegations. The mere fact that at an interlocutory stage a case appears to be weak is not sufficient to justify striking out the proceeding: Polar Aviation at [42]; cf Davey v Bentinck [1893] 1 QB 185;
(d) the pleadings must state all material facts necessary to establish the cause of action and the relief sought: Wride v Schulze [2004] FCAFC 216 at [25] (Spender, Tamberlin and Bennett JJ); Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-13 (Scott LJ);
(e) failure to plead all material facts does not necessitate exercise of the discretion. Restraint will be appropriate where the omission has not caused confusion nor raised substantive principles, or where the deficiency can be resolved through the provision of further particulars or evidence: Deep Investments Pty Ltd v Casey [2018] FCA 603 at [211] (Gleeson J) citing HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59]; Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; [1999] ATPR 41–691 at 42 ,828–9;
[38] In Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; 386 ALR 331, Niall, Hargrave and Emerton JJA noted the “high hurdle” faced by defendants seeking to strike-out claims for failing to disclose a reasonable cause of action. Their Honours said at [35]:
Uber’s contentions on ground 1 fail to grapple with the high hurdle it must cross, and the low bar confronting the plaintiff. When a defendant contends that a statement of claim should be strike-out because it does not disclose a cause of action it is necessary for a defendant in the position of Uber to establish that it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being ‘fanciful’. It follows that, where there is a contentious or debatable point of law which arises on a pleading, it is usually inappropriate for a trial judge or the Court of Appeal to determine the issue on a strike-out application, particularly where the answer may depend upon the factual context.
SHOULD THE PROCEEDINGS BE DISMISSED, OR ALTERNATIVELY SHOULD THE STATEMENT OF CLAIM BE SUMMARILY DISMISSED AND/OR STRUCK OUT?
The respondent’s application is brought under rule 13.05(1) and/or 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Rule 13.05(1)(a) provides that if an applicant is in default, the court may order the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant. For the purpose of this rule, rule 13.04(1) sets out the circumstances whereby an applicant is in default. The circumstances include if the applicant fails to comply with an order of the court in the proceeding, or prosecute the proceeding with due diligence.
The applicant has elected to not lead evidence in the application as to why she did not attend the mediation, why she did not comply with court orders, or of her attitude toward the continuation of the proceedings more generally. It is nonetheless submitted on her behalf that there is no basis to dismiss the proceedings. The applicant has otherwise made submissions in relation to the mediation and the proceedings more generally, which are not supported by any evidence. In the hearing, it was accepted on the applicant’s behalf that there was no evidence going to a number of contentions she sought to make in writing and orally. The applicant’s failure to lead any evidence in the application has limited my ability to make any assessment of the reasonableness of the reasons for her non-compliance, and of her commitment and honesty to continue the proceedings and prosecute them with due diligence.
The extent of any explanation before the court for the applicant’s non-compliance is contained in a letter sent on 19 February 2025, when the respondent’s lawyers wrote to the applicant’s lawyers. It was stated that no explanation was provided for the applicant not attending the mediation, other than a misunderstanding possibly caused by a language barrier. Additionally, having failed to attend the mediation on 19 February 2025, there is no evidence that the applicant sought to reschedule the mediation, at that time, or at any time thereafter, and the submission made on the applicant’s behalf that she would like to reconvene a mediation is not supported by any evidence.
Additionally, the applicant’s lawyers supplied the respondent’s lawyers with particulars of loss on a without prejudice basis for the purposes of the mediation. That was however supplied late, in breach of the timeframe set out in the consent orders to do so.
I agree with the respondent’s submissions that the applicant is in default for the purpose of rule 13.04(1). She has not complied with orders of court, and she has not prosecuted the proceeding with due diligence. The circumstances in which she has failed to do so are entirely unexplained from her perspective.
Further, the respondent’s lawyers have written to the applicant’s lawyers 3 times about the alleged deficiencies in the statement of claim, and suggested an efficient and co-operative way forward. The letters were not responded to, and the timeframe in which they were written spanned across the mediation, meaning that the respondent was required to prepare for and attend the mediation on 14 February 2025 without any benefit of the applicant’s response to the issues raised in the correspondence.
It is open to me to find that the applicant is not taking the proceedings seriously, and that she is not acting consistently with the overarching purpose of the civil practice and procedure provisions set out in ss 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Notwithstanding these inadequacies, and the applicant’s default, the court has a discretion as to what orders to made in default. In Tahmasebi,[13] Judge Brown pointed out that, “Obviously, as with all discretions, the court retains the authority not to dismiss an application, on the basis of any such default, if such a step would not be in the interests of the overall administration of justice.”[14]
[13] Tahmasebi v Adelaide Transport Pty Ltd [2021] FedCFamC2G 288.
[14] At [13].
In my view, is not in the interests of the administration of justice to dismiss the proceedings, notwithstanding the egregiousness of the applicant’s conduct, which has caused unnecessary costs to be incurred by the court and by the respondent. In this latter sense, in my view the respondent can be compensated by way of an order for costs. I do not accept the applicant’s submission that there is no basis to order costs.
I also do not consider that the proceedings are at the point where trial directions ought to be made. The objects of the FCFCOA Act include to ensure that justice is delivered by federal courts effectively and efficiently.[15] It is consistent with these objects, and the overarching purpose of the civil practice and procedure provisions for there to be an emphasis on proceedings being resolved consensually, rather than through contested litigation.
[15] Section 5(a).
Under s 169 of the FCFCOA Act, the court has a discretion to refer proceedings for mediation, with or without the consent of the parties.
Rule 13.05(6) provides that the court may relevantly make an order of the kind mentioned in subrule (1), or any other order, or may give directions, and specify any consequences for non-compliance with the order, that the court thinks just.
I have come to the conclusion that it is appropriate for me to refer the matter to mediation, rather than dismiss the proceeding, notwithstanding the highly unsatisfactory nature of the applicant’s conduct, her default and her failure to conduct the proceeding in a way that is consistent with the overarching purpose of the FCFCOA Act.
As I have noted, at the hearing of the application, the applicant’s legal representative said, without evidence from the applicant, that she was agreeable to a future mediation. Notwithstanding that the applicant has not formally sought to reengage the mediation process after her failure to attend the mediation as scheduled, having regard to the objects of the FCFCOA Act, and the seriousness of the consequences for the applicant should her claim be summarily dismissed, I have determined to accede to this aspect of the applicant’s submission.
In light of the foregoing conclusions, it is necessary to determine appropriate orders in relation to the statement of claim, before the parties participate in a mediation, in order for that process to be effective.
SHOULD THE STATEMENT OF CLAIM BE SUMMARILY DISMISSED AND/OR STRUCK OUT?
This part of the applicant concerns paragraphs 6 to 9, 23 to 28 and 30 of the statement of claim, on the basis that those paragraphs are evasive or ambiguous, and fail to disclose a reasonable cause of action, or other case appropriate to the nature of the pleading. It also concerns the relief sought by the applicant relating to damages for an alleged work injury, on the basis that the applicant has failed to comply with the requirements of s 421 of the Workers Compensation and Injury Management Act 2023 (WA).
The applicant has defended the integrity of the impugned paragraphs of the statement of claim. The applicant has asserted that because the respondent has replied to those paragraphs, there is no defect. I do not accept this submission.
In my view, whilst the overall tenor of parts of the applicant’s case may be apparent on the pleadings, and whilst the respondent has been able to understand and reply in the defence in the way that it has, the statement of claim as pleaded is defective, and the defence is accordingly limited. The fact that the respondent has been able to plead to high level facts is not a complete answer to the deficiencies in the statement of claim.
The statement of claim is affected by several typographical errors, and inconsistencies. In parts, the statement of claim impermissibly makes submissions. In a number of areas, it is deficient in particulars. In other areas, it pleads particulars without reference to a pleading. However, perhaps more fundamentally, the impugned paragraphs of the statement of claim are unclear as to what the details of the causes of action are, and what case the respondent must meet.
I make the following observations:
(a)Paragraph 6 asserts that the applicant was bullied on the basis of her religion, but does not particularise the bullying, and nor does it set out the basis of the cause of action.
(b)Paragraph 7 pleads that the applicant is a follower of Islam and identifies as a practising Muslim. The particulars of this paragraph appear to have no direct relevance to this pleading.
(c)Whilst paragraph 8 asserts a pleading in invasion of privacy, it does not plead any duty of privacy, nor the basis upon which it is asserted that any such duty was breached. The particulars of paragraph 8 may be subjective matters that the applicant felt aggrieved by, but it is difficult to see as pleaded how those particulars may amount to an invasion of privacy. That paragraph also pleads bullying, but again fails to identify a cause of action.
(d)Paragraph 9 is said to be other general bullying comments, and contain a range of particulars without any reference to a pleading. They may again be matters that the applicant feels aggrieved by, but it is not possible to discern what the purpose of those facts in the statement of claim are, without more.
(e)Paragraph 10 onwards appears to assert legal principles. This portion of the statement of claim goes on to make submissions, which is not appropriate. Where facts are alleged, the respondent has treated the paragraphs as material facts that it has responded to the extent it has been able, however this does not cure the fundamental deficiencies that permeate through these paragraphs of the statement of claim.
(f)The claim in breach of contract is difficult to understand. The applicant refers to the contract of employment, but does not plead any terms of it. The statement of claim makes reference to state legislation, but by way of a submission, and it is not a proper pleading that can be responded to. It is not said how it forms part of the applicant’s cause of action.
(g)The statement of claim alleges duties that apply to managers, but no detail is provided about this pleading, or the basis of the duty. These portions of the statement of claim are also vague, and lacking in particulars.
I do not accept the applicant submission that a number of the impugned paragraphs are self-explanatory, and in broad measure the type of conduct that is set out in the statement of claim should not occur in the workplace. That is not an adequate answer to the deficiencies in the statement of claim.
The applicant is required to set out the basis of her allegations in a way that conforms with the requirements of pleadings. In my view, the statement of claim as pleaded fails to clearly articulate the basis of the alleged breach of contract. It is deficient in that it does not state all material facts. I do not consider this to be a case where the deficiencies in the statement of claim are matters that can be resolved through the provision of further particulars or evidence.
I have also been directed to the applicant’s failure to address the requirements of Part 7, Division 2 of the Workers Compensation and Injury Management Act 2023 (WA), and s 421, which restricts common law claims for workplace injuries unless the number of specified criteria have been complied with. The statement of claim does not address this. There is no evidence or pleading of any election made under that provision, nor of any evidence about what the applicant’s degree of permanent whole of person impairment is.
It is submitted on the respondent’s behalf that whilst some of the impugned paragraphs of the statement of claim may be amenable to rectification through amendment, others, such as paragraphs 8 and 9 cannot be, because they are infected by deficiencies including the failure to identify a cause of action, and the limitations of the Workers Compensation and Injury Management Act 2023, which have not been addressed.
As I have touched on, the respondent put the applicant on notice of these issues on 15 November 2024. No reply was received. The respondent renewed the requests made on 28 January 2025. Again, no reply was received. A further letter was sent on 27 February 2025. An invitation was made to the applicant for her to make an application to amend her statement of claim, including the possibility that a proposed amended statement of claim may be received by consent, failing which the applicant was put on notice of this application. Again, no reply was received. The applicant’s failure to engage meaningfully with real issues raised in the proceedings is inexplicable.
Whilst there appears to be some force in the respondent’s contentions as to summary dismissal, given the extent of the deficiencies in the statement of claim, in my view it is appropriate for me to exercise my discretion to make orders striking out paragraphs 6 to 9, 23 to 28 and 30 of the statement of claim. I will make orders that the applicant file and serve an amended statement of claim, that addresses the deficiencies that are present in it, and which it has been broadly given notice of since 15 November 2024. I will order the applicant to do so within 28 days. I will also make orders for the respondent to submit an amended defence. In my view that process should be completed before the parties attend a mediation.
SHOULD THERE BE ANY ORDER FOR COSTS?
In light of my conclusions, I will order that the applicant pay the respondent’s costs thrown away in relation to the mediation on 14 February 2025 that she did not attend, and which the respondent prepared for and attended through its company and legal representatives.
The respondent has applied for an order for costs to be fixed in the sum of $3,517.80. That is the amount specified in item 4 of Schedule 2, Part 1 of the Rules in respect of dispute resolution litigation intervention. In my view, having regard to that matter, and the circumstances that I have set out, the quantum sought by the respondent is fair and reasonable and it is appropriate for me to order that the applicant pay the respondent’s costs fixed in that sum.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 23 May 2025
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