Jenkins v Suntrack Pty Ltd

[2013] FCCA 422

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENKINS v SUNTRACK PTY LTD [2013] FCCA 422

Catchwords:
PRACTICE AND PROCEDURE – Application to strike out certain paragraphs of a pleading – whether the pleading is bad because of a lack of particularity, or because the evidence necessary to support it would be inadmissible considered.

Legislation:  

Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth)

Applicant: ANDREW JENKINS

Respondent: SUNTRACK PTY LTD

File Number: SYG 908 of 2012

Judgment of: Judge Driver

Hearing date: 30 May 2013

Delivered at: Sydney

Delivered on: 30 May 2013

REPRESENTATION

Counsel for the Applicant: Mr I Latham

Solicitors for the Applicant: Turner Freeman

Counsel for the Respondent: Mr G Boyce

Solicitors for the Respondent: FCB Workplace Law

INTERLOCUTORY ORDERS

1. The Application in a Case filed on 29 January 2013 as amended is dismissed.

2. The applicant is granted leave to file and serve on the respondent any further amended points of claim by 12 June 2013.

3. The respondent is to file and serve on the applicant amended any points of defence by 28 June 2013.

4. The applicant is to file and serve on the respondent any points in reply by 5 July 2013.

5. Costs of the Application in a Case filed on 29 January 2013 as amended be reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 908 of 2012

ANDREW JENKINS

Applicant

And

SUNTRACK PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an Application in a Case in amended form, filed on 15 March 2013.  The Application in a Case seeks to strike out [28]-[32] inclusive of Amended Points of Claim, filed by the applicant (Mr Jenkins) in the principal proceedings:

   28. On about 17 February 2012 the applicant filed an application in Fair Work Australia [FWA application] alleging, inter alia, that the respondent had taken adverse action against him.

   29. In making the application, the applicant exercised or sought to exercise a workplace right within the meaning of that term in s.341 of the Act [third workplace right] being the right to initiate or participate in a process or proceedings under a workplace law.

   30. By undated letter received by the applicant on about 26 March 2012 [26 March letter] Beville threatened to take make public scandalous allegations against the applicant.

   31. The sending of the 26 March letter constituted an act of coercion in that it was action taken with intent to coerce the applicant not to exercise his workplace right.

   32. In sending the letter to the applicant, the respondent breached s.343 of the Act.

2. The Application in a Case is supported by two affidavits by Jessica Mary-Jane Fisher, made on 29 January 2013 and 20 March 2013.  The respondent in the principal proceedings (Suntrack) complains that the relevant paragraphs of the Points of Claim are not properly pleaded on their face and that essential evidence to support the assertion in these paragraphs of the Points of Claim would be inadmissible because it is a without prejudice communication.

3. The Application in a Case is opposed by Mr Jenkins, who relies upon his own affidavit made on 2 May 2013. That affidavit annexes a letter received by Mr Jenkins from his former employer, which is said to be the foundation for the pleading, which is an allegation of coercion contrary to s.343 of the Fair Work Act 2009 (Cth) (Fair Work Act). I received the letter, in part, for the purposes of today’s interlocutory hearing, in order to deal with the strike out application.

4. There is, of course, a separate question whether the letter would be admissible at a final hearing of the substantive proceedings but in the course of dealing with the strike out application, it is necessary to pay some regard to that question of admissibility. 

5. Suntrack is first concerned about the state of the pleading itself. On their face, the relevant paragraphs of the Points of Claim do not disclose with specificity the elements of the asserted breach of s.343. I concede that on their face, the impugned paragraphs of the Points of Claim are unclear. However, they become clear when regard is had to the letter which is said to support the assertion of coercion. Read in the context of the letter, the assertion could only be that Suntrack sought in the letter to coerce Mr Jenkins, to the extent of negating his choice, to discontinue a proceeding he had commenced in Fair Work Australia in relation to his dismissal from employment. While I concede that the pleading could certainly be improved upon, I would not strike out the impugned paragraphs simply on the basis of the lack of clarity on the face of those paragraphs without dealing with the issue of the letter.

6. Suntrack contends that this part of the pleading should be struck out because the only material evidence in support of it is inadmissible.  The letter in question is undated but the Amended Points of Claim assert that it was received by Mr Jenkins on or about 26 March 2012, that is, after he had been dismissed and after he had commenced proceedings in Fair Work Australia.  The letter is headed, “Without Prejudice Save As To Costs,” and was clearly intended to be a confidential communication in relation to the proceedings then on foot.

7. Prima facie, the letter would be inadmissible as a privileged communication. However, the letter contains both a stick and a carrot. The carrot is not relevant to the asserted breach of s.343 of the Fair Work Act. It is unnecessary to detail the nature of the stick and the letter is open to several interpretations. At one level, the letter may be seen to be a benign warning as to the possible consequences of pursuing litigation. On the other hand, the letter is open to an interpretation of a threat to disclose information that would be so embarrassing to Mr Jenkins as to cause him to discontinue that litigation.

8. Whether the letter should be admitted in support of the allegation is a matter that can be left to the trial of the proceedings but I am satisfied that that part of the letter which contains what I have referred to as the stick is potentially admissible, pursuant to s.131(2)(j) of the Evidence Act 1995 (Cth). I am not able to conclude that the allegation of coercion does not have reasonable prospects of success. Neither am I able to conclude that the allegation is frivolous or vexatious. I otherwise make no observation on the prospects of success of the allegation.

9. I conclude that Suntrack, has not demonstrated a case for the striking out of the impugned paragraphs of the Amended Points of Claim.  If the parties wish an opportunity to further refine the pleadings in relation to the allegation, I will give them that opportunity.  Otherwise, the issues can be left for further argument at the trial of the matter.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  11 June 2013