Hughes v Catholic Church Endowment Society
[2022] FedCFamC2G 105
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hughes v Catholic Church Endowment Society [2022] FedCFamC2G 105
File number(s): ADG 176 of 2020 Judgment of: JUDGE BROWN Date of judgment: 25 February 2022 Catchwords: INDUSTRIAL LAW – application for breach of a general protection under the Fair Work Act 2009 (Cth).
PRACTICE AND PROCEDURE – pleadings – whether statement of claim discloses a reasonable cause of action – application for dismissal – matters to be considered.
Legislation: Fair Work Act 2009 (Cth) Pt 3-1, ss 340, 341, 342, 351, 361, 550, 546.
Federal Circuit and Family Court of Australia (Division 2) Rules 2021 (Cth) rr 1.04, 1.06.
Federal Circuit Court Rules 2001 (Cth) rr 4.05, 45.08.
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 174, 190.
Federal Court of Australia Act 1976 (Cth) ss 5, 31A, 37M.
Federal Court Rules 2011 (Cth) Pt 16, rr 8.05, 16.02, 16.21
Work Health and Safety Act 2011 (Cth).
WorkHealth and Safety Act 2012 (SA).Cases cited: Adachi v Qantas Airways Limited [2019] FCCA 1107.
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279.
Bruce v Oldhams Press Ltd [1936] 1 KB 697.
Dare v Pulham (1982) 148 CLR 658.
Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17.
Gaven & Gaven (No 2) [2012] FMCAfam 1005.
Gould & Ors v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490.
Kakayzich v Santa Sabinda College & Anor [2020] FCCA 11.
Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552.
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081.
Vitale v The Trustee for the Davis Bros Unit Trust [2021] FCCA 214.Division: Division 2 General Federal Law Number of paragraphs: 91 Date of hearing: 13 December 2021 Place: Adelaide Counsel for the Applicant: Mr Manuel Solicitor for the Applicant: Starke Lawyers Counsel for the Respondents: Ms McCarthy Solicitor for the Respondents: Piper Alderman ORDERS
ADG 176 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KEIRAN HUGHES
Applicant
AND: CATHOLIC CHURCH ENDOWMENT SOCIETY
First Respondent
ANDREW PETER NEVILLE
Second Respondent
MAJELLA JOVANOVICH (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to rule 16.21 of the Federal Court Rules 2011 (Cth), the amended Statement of Claim filed by the applicant, Keiran Hughes (hereinafter referred to as “the applicant”) on 13 September 2021 be struck out in its entirety.
2.The matter be adjourned to 29 March 2022 at 10:00 am by Microsoft Teams for directions and submissions on whether the case should proceed on the basis of affidavit evidence, or whether the applicant should be given a further opportunity to amend her Statement of Claim NOTING THAT the parties will be forwarded a link for the hearing by the close of business on the day prior or can dial in on (02) 9161 1229 and use passcode 574 862 731 #
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 BROWN:
INTRODUCTION
These reasons for judgment concern the perennial problem of the application and appropriateness of pleadings, in a lower level court of general federal law jurisdiction, such as Division 2 of the Federal Circuit and Family Court of Australia, which is under an overarching legislative directive to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.[1]
[1] See Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190(1) hereinafter referred to as “the FCFCOA Act”.
The relevant proceedings arise in the court’s jurisdiction conferred by the Fair Work Act 2009 (Cth).[2] They were commenced by Keiran Hughes,[3] by means of an application filed by her solicitor on 12 May 2020.
[2] Hereinafter referred to as “the FWA”.
[3] Hereinafter referred to as “the Applicant” or “Ms Hughes”.
The relevant application named four respondents. The first respondent is the Catholic Church Endowment Society.[4] There is no controversy that Ms Hughes was employed by the Society from October 2007 as one of its parish finance liaison officer on a permanent part time basis.
[4] Hereinafter referred to as “the Society” or “the First Respondent”.
During the course of her employment, Ms Hughes alleges she was subject to bullying, which caused her to bring a worker’s compensation claim on the basis that she had suffered an injury at her workplace.
This claim was originally contested but was subsequently compromised. As a component of this settlement, Ms Hughes tendered her resignation to the Society on 25 August 2021. It would seems to be the case that there is a great deal of factual over-lap between the circumstances surrounding the worker’s compensation matter and the issues sought to be raised in the proceedings before this court.
The second, third and fourth respondents are also each employees of the Society. The second respondent, Andrew Neville,[5] was Ms Hughes’ direct supervisor. The third respondent, Majella Jovanovich,[6] was the Society’s Human Resources Manager, whilst the fourth respondent, Danielle Roacke,[7] was employed by the Society as a parish finance liaison officer, on a similar basis to Ms Hughes.
[5] Hereinafter referred to as “Mr Neville” or “the Second Respondent”.
[6] Hereinafter referred to as “Ms Jovanovich” or “the Third Respondent”.
[7] Hereinafter referred to as “Ms Roacke” or “the Fourth Respondent”.
In general terms, Ms Hughes complains that several of her workplace rights have been subject to adverse action by the Society and each of the other respondents share accessorial liability, as a consequence of their complicity in that adverse action. In due course, it will be necessary to outline, in broad terms, the legal provisions applicable to what lawyers and indeed the relevant legislation refers to as a general protection application.
It is the position of each of the respondents that, as Ms Hughes’ case is currently pleaded, they are unable to ascertain the specificity of either the workplace rights alleged to have been contravened by them and what are the details of the adverse action taken by each of them, either individually or as a group.
In these circumstances, the Society seeks the summary dismissal of Ms Hughes’ application on the basis that her Statement of Claim, as currently amended, does not disclose a reasonable cause of action and is to be characterised as unintelligible, ambitious, vague and too general as is currently pleaded and, as such, likely to cause it prejudice, embarrassment or delay, if it is allowed to stand. These reasons for judgment are directed to resolving this issue as a preliminary issue.
LEGAL PROVISIONS RELATING TO GENERAL PROTECTION CLAIMS
Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right.
Section 342(1) of the FWA contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The first item of the table provides as follows:[8]
Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
[8] The other items in the table defining adverse action are not relevant to the current matter.
The expression workplace right is defined by section 341(1) of the FWA;
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Section 12 of the FWA defines workplace law and workplace instrument. Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
As a consequence of the use of the word because in section 340 there must be a causal link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant, either as a consequence of a workplace right or one of the attributes listed in section 351.
The latter attributes, in general terms, refer to discrimination in respect of matters relating to a worker’s ethnicity, sex or level of disability and so on and so forth, which applicable Commonwealth legislation has rendered illegal.
Section 361, under the heading reasons for action to be presumed unless provided otherwise stipulates as follows:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Lawyers invariably refer to this provision as the reverse onus. The effect of section 361 is to place the onus of disproving the necessary causal link required by section 340 on any respondent concerned. In these circumstances, an application arising under Part 3-1 of the FWA involves three elements:
·Does the applicant have a workplace right or other protected attribute arising under either section 340 or 351 of the FWA?
·Did the respondent concerned take adverse action against the applicant?
·If so, was the adverse action taken because of the applicant’s possession, exercise or proposed exercise of that workplace right or because of one of the protected attributes of the applicant concerned?
In State of Victoria (Office of Public Prosecutions) v Grant, Tracey and Buchanan JJ summarised the relevant principles applicable to section 361 as follows:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[9]
Accordingly, it would appear axiomatic that any claim for compensation as a consequence of a general protection provision must firstly specify what is the workplace right pertaining to such applicant. Secondly, it must specify what is the adverse action taken which must fall with the definition provided by section 342(1). Thirdly, there must be a nexus between the two.
A breach of a workplace right under section 340 is characterised as a civil remedy provision which render the person who has committed such breach liable to the imposition of a pecuniary penalty provision pursuant to section 546, along with compensation relating to the breach.
Section 550 provides that a person who is “involved in” the contravention of a civil remedy provision is to be taken as having contravened that provision and so be liable for the imposition of a penalty under section 546 of the FWA.
Section 550(2) of the section provides a definitive list of circumstances in which a person is to be treated as being involved in a contravention. They include a person being knowingly concerned in or a party to the contravention or having aided, abetted, counselled or procured such a contravention. It is Ms Hughes position that the second, third and fourth respondents are involved in the Society’s contravention of section 340.
BACKGROUND
The proceedings were commenced in the Federal Circuit Court prior to the creation of Division 2 of the Federal Circuit and Family Court of Australia pursuant to the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth). At the time, the applicable provisions of the Federal Circuit Cout Rules 2001 (Cth) required applications to be commenced by the filing of an approved form.[10]
[10] Hereinafter referred to as “the FCC Rules”.
Pursuant to rule 4.05 of the former FCC Rules, an applicant was ordinarily required to file an affidavit stating the facts relied upon in support of the relevant application. However, pursuant to rule 4.05(2), an affidavit was not required if the proceedings were filed in the court’s Fair Work Division, in which case a Statement of Claim or points of claim could be filed. In these circumstances rule 45.08, which applied to general protection applications, mandated the approved form be accompanied by a claim, the form of which was also subject to approval.
The application is a simple document, analogous to a summons to attend court. It stipulates a place, date and time for hearing and indicates that the orders sought by the applicant and the grounds on which those orders are sought are set out in the claim accompanying the application.
In accordance with the rules, Ms Hughes’ solicitor filed such a claim contemporaneously with her application on 12 May 2020. The first mention of the matter was fixed for 14 August 2020. Pursuant to rule 4.05(3) of the former FCC Rules, if a Statement of Claim, or points of claim are filed, any relevant respondent must file a defence or points of defence instead of an affidavit. As yet, no affidavits of evidence have been filed by either party, other than affidavits of documents, which have been filed on behalf of both parties.
The term pleading refers to the formal documents, in which litigants set out the presentation of their claims and defences to those claims, in the suit, which they wish the court to determine. They are filed and served sequentially, according to the rules of the particular court in question. In Takemoto v Moody’s Investors Service Pty Limited,[11] Flick J observed that as a general proposition the function of pleadings is to state with sufficient clarity the case that must be met.
[11] Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081 at [23] (Flick J).
A Statement of Claim must identify a set of alleged facts that have a particular quality, which if established at trial, will entitle the applicant to the remedy or remedies claimed. A defence is the formal rebuttal of those alleged facts. Pleadings are required to contain statements of material fact, which a defence, in turn, will either admit or deny.
An admission will have the effect of ending factual controversy about an allegation made in a statement of fact. The intent is to confine the issues to be determined by the court invoked to resolve the dispute between the parties concerned.
Essentially, a respondent is made aware of the case it is required to meet, and an applicant knows which elements of that case are in dispute. From the court’s perspective, the controversies that it is required to adjudicate are clearly delineated at an early stage. The object being, for all concerned, the ready clarification of issues and a saving of time and resources as any need for investigation of superfluous issues is avoided.
Material facts, in this context, have been defined as facts, whose existence is necessary for the purpose of formulating a complete cause of action.[12]By necessary implication, to provide a legal answer to the cause of action so raised, a defence must provide a rebuttal of each such material fact. Accordingly, there must be a connection between the material fact alleged and a legal principle, which founds the relevant cause of action.
[12] See Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712 (Scott LJ).
In Gaven & Gaven (No 2) Judge Jarrett, of this court, succinctly summarised the distinction between an affidavit and a pleading in the following terms:
An affidavit is a statement, sworn or affirmed, by a deponent who gives evidence. The purpose of an affidavit is to provide evidence. An affidavit is different to a pleading. A pleading alleges facts and facts alone (or at least is intended so to do). An affidavit, however, is of a quite different character.[13]
[13] Gaven & Gaven (No 2) [2012] FMCAfam 1005 at [8] (Jarrett J).
Formal pleadings were not mandated in the former Federal Circuit Court by the FCC Rules. However, at the same time, the FCC Rules recognised that some types of proceedings are likely to be better served by the use of pleadings. The FCC Rules do not specifically indicate which type of cases is better suited to the use of affidavits and which is more amenable to pleadings.
This, in my view, is the source of what I termed the perennial problem of whether it is better for applicants to set out what they assert is their case in affidavit form, which is the more usual course as stipulated in the former rule 4.05, or take the option of not providing any affidavit evidence as is open pursuant to rule 45.03.
In my experience, the former course is usually the more productive one, so far as self-represented litigants are concerned, for providing the prerequisite information, for both the court itself and the relevant respondent, about what is the basis of any particular case being undertaken.
In this context, comments made by Judge Driver in Kakayzich v Santa Sabinda College & Anor are pertinent. His Honour said as follows:
[I]t is pertinent to note that the Federal Circuit Court, unlike the Federal Court, is not generally a court of pleadings. Matters most commonly proceed in the absence of pleadings on the basis of written evidence. It is with this in mind that this Court has simply adopted the rules of the Federal Court in relation to pleadings for the relatively small number of cases in which pleadings are necessary. The Parliament has tasked this Court to deal with matters of less complexity than those dealt with by the Federal Court and the Family Court... Drawn out interlocutory disputes as to the quality of a pleading so sought and provided are alien to the normal practice and procedure of the Court and should, in my view, be discouraged.[14]
[14] Kakayzich v Santa Sabinda College & Anor [2020] FCCA 11 at [134] (Driver J).
In a later case, Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd, Judge Driver after having noted the court’s remit as a lower level court directed towards resolving cases in a quick and cost effective manner with as little adherence to legal technicality as possible, observed further as follows:
The Court has, as I have noted, taken a liberal attitude to the drafting of pleadings, and I have myself had cause to express some frustration with demands for different pleadings on the basis of perceived technical defects.[15]
[15] Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552 at [8] (Driver J).
Ms Hughes original Statement of Claim was a five page document.[16] After identifying herself and each of the respondents and defining an employment relationship between her and the Society, it indicated that she had been injured, in her employment, rendering her incapacitated from 22 October 2019 onwards due to a psychological injury.[17] Significantly Ms Hughes asserted that she carried out her employment duties in accordance with her contract and the Society’s policies.[18]
[16] See Statement of Claim filed by Keiran Hughes on 12 May 2020.
[17] Ibid [1]-[8].
[18] Ibid [7].
Thereafter, under the heading Work Place Right it delineated six work place rights asserted to be applicable to Ms Hughes and germane to her claim, which can be summarised as follows:
·The right not to be bullied or harassed at work;
·The obligation of the Society to ensure that her place of work was safe in accordance with the provisions of the Work Health and Safety Act 2011 (Cth);
·She had a right not to be bullied at work as a consequence of her contract of employment and the policies of the Society itself;
·She had a right to be treated in accordance with principles of natural justice in respect of any complaints of mistreatment at work, which she made to the Society;
·She was entitled to make a formal complaint to the Society in respect of adverse treatment afforded her at work;
·She had a right which entitled her to engage in religious activities of her choice and in particular the Society was not entitled to restrict her place of worship as a consequence of her employment by it.[19]
[19] Ibid [9].
Under the heading Adverse Action the applicant claimed that she had been subject to the following conduct:
·Unfair criticism of her work;
·Arbitrary changes in her responsibilities;
·Improper warnings;
·Directed her to not speak to members of clergy, whom she knew, thus denying her the freedom to practice her religion;
·Bullying and harassment;
·Subjecting her to an unfair and biased investigation;
·Directing her to not attend her longstanding parish church.[20]
[20] Ibid [10]-[12].
Ms Hughes further claimed that Mr Neville, Ms Jovanovich and Ms Roacke were involved in each of these instances of adverse action and thus bore accessorial liability for it pursuant to the provisions of section 550 of the FWA.[21] As a remedy she sought compensation and interest, together with the imposition of civil penalties.[22]
[21] Ibid [13].
[22] Ibid [14]-[19].
The respondents filed a response to this claim on 11 June 2020 that sought the dismissal of the claim and costs. Each respondent denied having contravened any provision of the FWA. Each respondent accepted their respective designation in the Statement of Claim other than the Society characterised itself as an unincorporated association.
Each respondent denied Ms Hughes claim that she had carried out her duties in accordance with her contract and the Society’s policy. Rather the Society asserted that Ms Hughes had received a written warning that there was a conflict of interest between her duties and her activities as member of the Henley Beach Parish.[23]
[23] See Response filed on 11 June 2020 at [6].
Mr Neville, who admitted he was Ms Hughes’ direct supervisor, asserted that he had raised concerns with Ms Hughes about her interactions with other staff and external parties. Ms Jovanovich made similar assertions, whilst Ms Roacke disclaimed any knowledge of such things.[24]
[24] Ibid [20], [35]-[49].
Whilst admitting it owed obligations to Ms Hughes under the WorkHealth and Safety Act 2012 (SA), rather than the equivalent Commonwealth legislation pleaded, the Society denied that it had breached any of the applicant’s workplace rights or taken adverse action against her. In particular, it denied that the applicant had been subject to any bullying or harassment in the workplace or any of the other forms of adverse action delineated in paragraph 12 of the Statement of Claim.
Rather it was asserted that Ms Hughes had been provided with a letter on 26 March 2019 in which allegations were made that she had failed to manage a conflict of interest. In this context, it was admitted that she had been directed not to discuss the alleged conflict of interest with the other persons involved in it.
In this context, Mr Neville asserted that the letter in question recognised Ms Hughes’ status as a dedicated parishioner of the Henley Beach Parish and the role that plays in [her] life. It was further denied by Mr Neville that he had ever directed Ms Hughes not to speak to members of the clergy or to worship at the Henley Beach Parish. Otherwise both Ms Jovanich and Ms Roacke denied that the allegations of bullying and the other matters listed in paragraph 9 of the Statement of Claim amounted to workplace rights.
On 14 August 2020 orders were made for mutual informal discovery and it was noted that a request had been made for further and better particulars of the claim. On 3 November 2020, a formal application was made for further and better particulars.
Ultimately, on 13 August 2021, Judge Young ordered that the applicant was to serve further and better particulars of her claim, particularly to provide details of the actions and dates of such actions which were said to constitute the adverse action taken against Ms Hughes by both the Society and each of the other respondents.
The parties seem to have taken this order to be a direction that Ms Hughes file an amended Statement of Claim. In any event, such an amended Statement of Claim was filed on 14 September 2021. No defence has as yet been filed in respect of the amended Statement of Claim.
On 14 November 2021, the solicitor for the respondents filed an application in a case seeking that the amended Statement of Claim be struck out on the basis that it was unintelligible, ambiguous, vague and/or too general and as such likely to cause each of the respondents prejudice and delay and otherwise result in the proceedings being delayed.
PROVISIONS RELATING TO THE STRIKING OUT OF PLEADINGS
As a consequence of the inception of Division 2 of the Federal Circuit and Family Court of Australia, the respondents’ application is to be determined by reference to the FCFCOA Act.
Section 174 of the FCFCOA Act authorises the court to make rules to govern its practice and procedure but in circumstances in which those rules prove to be deficient it may apply the Federal Court Rules 2011 (Cth).[25] The court is entitled to modify these rules to suit its own idiosyncratic jurisdiction. In this context, section 190 is germane.
[25] Hereinafter referred to as “the FC Rules”.
As previously indicated, it provides a directive to the court to, in the application of its practice and procedure, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. This reflects the objects of the FCFCOA Act as contained in section 5 and is referred to as the court’s overarching purpose.
The relevant rules of Division 2 of the court are the Federal Circuit and Family Court of Australia (Division 2) Rules 2021 (Cth).[26]Rule 1.04 delineates the obligation of parties to assist the court to achieve its objectives delineated in the overarching purpose. Parties are required to avoid undue delay, expense and technicality. They are also directed to consider options for primary dispute resolution as early as possible.
[26] Hereinafter referred to as “the Division 2 Rules”. Rule 1.06 provides that these Rules principally govern general federal law proceedings in Division 2 of the Court.
The Federal Court, pursuant to section 37M of the Federal Court of Australia Act 1976 (Cth),[27] is subject to a broadly similar overarching purpose in respect of how it is directed to conduct civil proceedings coming before it. It is also subject to the direction that it consider the proportionality of the cost to the importance and complexity of the matters in dispute.
[27] Hereinafter referred to as “the FC Act”.
In respect of the manner in which proceedings are to be commenced, the requirement for the filing of an affidavit and the modification of this requirement in general protection proceedings to allow for pleading, the new rules do not modify the old regime.
In this context, by necessary implication, it seems to me to be self-apparent that parties are required to consider which of the mechanisms of pleadings, on the one hand or the filing of affidavits of evidence, on the other, in general protection proceedings, will best fulfil the aspirations of the overarching purposes, both in terms of reducing delay, the expense and technicality, and achieving the expeditious application of primary dispute resolution.
In this case, the parties were referred to a mediation, with a registrar of the court, on 8 December 2020, by Judge Heffernan (formerly of this court). This mediation has subsequently been deferred, whilst the issue regarding pleadings has played out. Essentially, it has been the Society’s position that it remains uncertain about the basis of Ms Hughes’ case and therefore a mediation is unlikely to be productive.
Regrettably, during the almost two years the proceedings have been on foot, it is my apprehension what has amounted to a drawn out interlocutory dispute as to the quality of a pleading, none of the laudable objectives of the overarching purpose have been achieved.
The Division 2 Rules do not provide a mechanism for the striking out of pleadings. In these circumstances, the court is conferred with a discretion, pursuant to rule 1.06(2) to apply the FC Rules.
Part 16 of the FC Rules, as befits a court conferred with the jurisdiction of a superior court of record,[28] contains a specific part dealing with the issue of pleadings and requires that applications more often than not be commenced with a Statement of Claim, in distinction to the Federal Circuit and Family Court.[29] Rule 16.02 provides that pleadings are required, amongst other things, to detail:
·The issues required to be resolved by the court;
·To 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 such facts are to be proved;
·The provisions of any statute relied upon.
[28] See Federal Court of Australia Act 1976 (Cth) s 5.
[29] See Federal Court Rules 2011 (Cth) r 8.05.
The formality of this process of pleadings results in the court being able to know what specific allegations are admitted and which are denied, thus allowing the parameters of the applicable case to be defined well in advance of trial.
Rule 16.21 of the FC Rules provides a specific mechanism for the striking out of a pleading. It provides as follows:
(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.
Other complimentary provisions, in both the FC Act and the FCFCOA Act, emphasise the importance of the expeditious settlement of the parameter of the dispute the court is required to resolve. These are the provisions for summary disposal of cases found to have no reasonable prospects of being successfully prosecuted.[30]
[30] Federal Court of Australia Act 1976 (Cth) s 31A; Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143.
It is the interests of both the efficient administration of justice and the overarching purpose that unmeritorious cases are identified expeditiously before either a prosecuting or defending party is put to unnecessary expense. Clearly, before the court can exercise its discretion to award summary judgment, it must know the cases on which each party depends, in terms of what are the material facts, either admitted or denied.
It is in this context that the rules in respect of pleadings must be examined. Pleadings should be an aid rather than a hindrance in determining what a party’s case is. Judge Barnes pointed to some of the bases on which a pleading can be struck out in Adachi v Qantas Airways Limited.[31]They include:
•If the pleading is susceptible to various meaning, contains inconsistent allegations, alternatives which are confusingly intermixed;
•The pleading contains defects which result in it being unintelligible, ambiguous, vague or too general;
•The pleading does not disclose a reasonable cause of action in the sense that it does not set out the material facts necessary to formulate a complete cause of action.
All these deficiencies lead to a situation in which a pleading has failed to define the issues with sufficient clarity to enable the other party to understand the case which it has to meet.
[31] Adachi v Qantas Airways Limited [2019] FCCA 1107 at [23]-[26] (Barnes J).
DISCUSSION
At the outset, it is germane to point out what a general protection application is not. They are not concerned with the generic fairness or probity of the process, which led to Ms Hughes commencing worker’s compensation proceedings and ultimately tendering her resignation to the Society. In this regard, the court is not conducting a broad inquiry as to whether Ms Hughes has been “subjected to a procedurally fair or substantially unfair outcome”.[32]
[32] See Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 at [48] (Bromberg J).
Rather, the only issue which can be subject to the determination of the court is whether the Society took some form of adverse action, as defined by the FWA, against Ms Hughes and the relevant adverse action was for a reason proscribed by the FWA. It is not a review generally of the fairness of the Society’s conduct towards Ms Hughes overall. As the Full Court observed in Khiani v Australian Bureau of Statistics:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[33]
[33] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] (Gray, Cowdroy and Reeves JJ).
In my view, the onus is on Ms Hughes to delineate the relevant material facts which establish both the workplace right on which she relies and the adverse action which she alleges has contravened such right. In my view, the amended Statement of Claim as presently drafted is more akin to an inchoate complaint that Ms Hughes has been subject to various species of unfairness in her workplace and in her parish than a properly pleaded claim of a breach of a general protection right.
In my assessment, the amended Statement of Claim does not make for easy reading. It is an extremely difficult document to follow, not least because it does not follow a coherent process of enumeration. As such, it is not possible for either Mr Neville, Ms Jovanovich or Ms Roacke to know the manner in which they are alleged to have aided or been involved in any contravention of a workplace right by the Society. Given they may each be potentially financially penalised for such contravention, this is fundamentally unfair to them.
In paragraph 3.4 and 4.7 of the amended Statement of Claim, each respondent is alleged to have implemented some form of adverse action against Ms Hughes as asserted in paragraph 8, which has been deleted. Further the involvement of each of them in the contraventions is said to be particularised in paragraph 11. However there are two paragraph numbered as 11.
I do not consider that these are pernickety objections, which can be easily characterised as slips of drafting. In my view, they are fundamental errors and lead to the various allegations of the FWA being open to characterisation as being ambiguous and vague in nature and as such capable of being categorised as embarrassing.
In my view, they follow onto the greater deficiency that none of the respondents are in a position to discern with any degree of clarity of certainty the case each have to answer. Rather each respondent, if the pleadings stand as they are, will be compelled to try and intuit the allegations made against them. This is fundamentally unfair to them.
Under the heading Workplace Rights,[34] it is asserted that the applicant has an entitlement not to bullied or harassed at work and to be provided with a safe place of work. No section of the FWA is provided to support this allegation. More significantly, in my view, no statutory provisions are supplied in respect of what is asserted to be the adverse action taken by any of the respondents concerned.
[34] See amended Statement of Claim filed by Keiran Hughes on 13 September 2021 at [9].
The particulars of the adverse action are asserted to be:
·Unfair criticism of Ms Hughes work performance;
·Mr Neville holding an unfair investigation into her work performance.
An assertion is also made that a letter of allegation was issued addressed to Ms Hughes on 26 March 2019. Who specifically wrote the letter and what it contained is unclear other than it is alleged Mr Neville and Ms Jovanovich were directly involved in formulating the unspecified allegations.
The expression workplace right is exhaustively defined in section 341 of the FWA. This being so, in my view, it is incumbent on the applicant to specify with precision the workplace right on which she relies, and the material facts that result in her assertion that she personally has such a workplace right.
More significantly, it is then necessary for her to provide the material facts on which she alleges that this workplace right, or rights have been the subject of adverse action. Again the expression adverse action is subject to exhaustive definition in section 342(1) of the FWA, which as indicated above provides four possible situations in which an employer is deemed to have taken adverse action against an employee.
The amended Statement of Claim alleges that the relevant adverse action taken against Ms Hughes was the prejudicial alteration of her position. This alteration being that she was the subject of unfair criticism and unwarranted investigation in her workplace. In this context, it is alleged that she was directed to attend a meeting with two unnamed senior managers of the Society. It is also alleged that that she was subject to arbitrary changes in her responsibilities.
These are particularised as Mr Neville removing her as the Henley Beach Parish Finance Liaison Officer, because of a false assertion of a conflict of interest and other matters relating to the parish.[35] How these amount to an adverse action, within the meaning of the FWA, is not apparent, as is the allegation that she was directed not to speak to members of the clergy.
[35] Ibid [12.13].
In my view, these allegations, including those relating to the assertion that the Society and its employees failed to act in good faith towards her, are analogous to allegations that Ms Hughes has been subject to some form of unfairness in her dealings with the Society, both in terms of her employment and the practice of her faith at a parish level. I do not consider that these issues, as currently pleaded, are amenable to action under Part 3-1 of the FWA.
In all of these circumstances, it is the submission of Ms McCarthy, counsel for the respondents that the allegations contained in the amended Statement of Claim are too vague, general and multifarious as presently pleaded. As a consequence, it is submitted that it is impossible for the respondents to respond to the amended Statement of Claim, as the connection between the various complaints in it, made by Ms Hughes against each of them, do not have sufficient, if any, nexus between any identifiable workplace right arising under the FWA and any adverse action, as defined by section 342(1), alleged against them.
As such, the amended Statement of Claim does not fulfil the basic requirement of a pleading in the sense that the respondents have not been sufficiently appraised of the case, which each has to meet. In this context, reliance is placed on statements of Judge Jarrett (as His Honour formerly was) in Vitale v The Trustee for the Davis Bros Unit Trust namely:
[A] pleading is a means of achieving procedural fairness and efficient use of judicial resources and those of the parties by the identification of what is truly at issue. The purpose of the pleading is to identify with sufficient clarity the case which must be met. The Court should consider a statement which is unintelligible, ambiguous, vague or too general, or a pleading which is capable of various meanings, as an embarrassing pleading. Ultimately, the question for the Court is whether there is sufficient information in the pleading to permit the respondents to know the case against them.[36]
[36] Vitale v The Trustee for the Davis Bros Unit Trust [2021] FCCA 214 at [6] (Jarrett J).
CONCLUSION
I agree with the submissions of counsel for the respondent. In my view, the amended Statement of Claim is irremediably bad and should therefore be struck out. As it is presently drafted, it is a difficult document to read and comprehend. Therefore, in my assessment, it would be unfair for the respondents to be called upon to answer it, within the context of a general protection application, as opposed to some other form of action.
As such, it fails to meet the fundamental function of a pleading, which is to state, with sufficient clarity, the case that must be met.[37] I do not consider that it would be fair to the respondents to be called upon to provide a defence to the amended Statement of Claim as it is currently drafted, or consistent with the overarching purpose as defined in the FCFCOA Act.
[37] Gould & Ors v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490, 517 (Isaacs and Rich JJ).
As previously indicated, the function of a properly drafted pleading is to provide procedural fairness.[38] It does so by the identification of issues in dispute, which in turn promotes the efficient conduct of proceedings, and in due course facilitates the court’s assessment of the relevance and admissibility of evidence.[39] These objectives are in keeping with the overarching purpose of the court’s civil litigation rules.
[38] See Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 286 (Mason CJ and Gaudron J).
[39] Dare v Pulham (1982) 148 CLR 658, 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ).
Thus far, the current proceedings have been far from efficient. The question remaining is what should happen next. Is this a case in which the issues arising are more amenable to being defined by affidavits of evidence being filed, rather than the case proceeding on the basis of pleadings? Is it a case which may be amenable to some form of primary dispute resolution in order to limit expense? If so, what needs to be done to prepare it for such a process?
I am not in a position to answer these questions, which depend on the attitudes of each of the parties. In addition, it is not beyond the bounds of possibility that there will be an application made pursuant to the provisions of section 143 of the FCFCOA Act. In my view, each party needs to reflect on these matters and on their obligations arising under rule 1.04(2) of the Division 2 Rules.
For these reasons, I will make an order striking out the amended Statement of Claim and listing the case for further directions on 29 March 2022 at 10:00 am at which stage the parties can make submissions as to whether the case should proceed on the basis of affidavit evidence, or alternatively, whether the applicant should be given a further opportunity to amend her Statement of Claim. At this juncture, each party can pursue any other relevant application, including in respect of the issue of costs.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 25 February 2022
SCHEDULE OF PARTIES
ADG 176 of 2020 Respondents
Fourth Respondent:
DANIELLE ROACKE
[9] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] (Tracey and Buchanan JJ).
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