John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union
[2010] FCA 1095
FEDERAL COURT OF AUSTRALIA
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2010] FCA 1095
Citation: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2010] FCA 1095 Parties: JOHN HOLLAND PTY LTD (ACN 004 282 268) v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION, TROY SMART, GRAHAM PALLOT and SHANE O'REILLY File number: WAD 53 of 2010 Judge: BARKER J Date of judgment: 2 September 2010 Catchwords: PRACTICE AND PROCEDURE - pleadings - application to strike out paragraphs of first respondent's defence - application dismissed Legislation: Federal Court Rules (Cth) O 11 r 10, O 11 r 13 Cases cited: Fire Nymph Products Ltd v Jalco Products (WA) Pty Ltd (1983) 74 FLR 102
Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2007] FCA 1621Date of hearing: 15 July 2010 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 47 Counsel for the Applicant: Ms SL Moody Solicitor for the Applicant: Herbert Geer Lawyers Counsel for the First Respondent: Ms KA Vernon Solicitor for the First Respondent: Mr JM Nicholas Counsel for the Second and Fifth Respondents: Mr TR Kucera Solicitor for the Second and Fifth Respondents: WG McNally Jones Staff Lawyers Counsel for the Third and Fourth Respondents: Mr SA Millman Solicitor for the Third and Fourth Respondents: Slater & Gordon
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 53 of 2010
BETWEEN: JOHN HOLLAND PTY LTD (ACN 004 282 268)
ApplicantAND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentAUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION
Second RespondentTROY SMART
Third RespondentGRAHAM PALLOT
Fourth RespondentSHANE O'REILLY
Fifth Respondent
JUDGE:
BARKER J
DATE OF ORDER:
2 SEPTEMBER 2010
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant’s notice of motion to strike out the first respondent’s defence, dated 16 June 2010, be dismissed.
2.The applicant pay the first respondent’s costs of the motion.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 53 of 2010
BETWEEN: JOHN HOLLAND PTY LTD (ACN 004 282 268)
ApplicantAND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentAUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION
Second RespondentTROY SMART
Third RespondentGRAHAM PALLOT
Fourth RespondentSHANE O'REILLY
Fifth Respondent
JUDGE:
BARKER J
DATE:
2 SEPTEMBER 2010
PLACE:
PERTH
REASONS FOR JUDGMENT
NOTICE OF MOTION TO STRIKE OUT DEFENCE
On 16 June 2010, the applicant filed a notice of motion objecting to aspects of the first respondent’s defence on the basis that it contained bare denials and non‑admissions. The relevant paragraphs objected to were 1.5, 1.10, 6, 8.2, 8.3, 9, 18 and 20.
ORDER MADE
On 2 September 2010, I dismissed the applicant’s motion. These are the short reasons for doing so.
PRELIMINARY OBSERVATIONS
Generally speaking, there is no particular responsibility for a party where it does not admit an allegation made in a pleading to further plead that it does not know something, or in the event that it does know something, to set out what it does know and the basis upon which it refuses to admit a fact. The same may be said in respect of a denial made in a defence of an allegation pleaded in the statement of claim. In this regard, O 11 r 13 of the Federal Court Rules relevantly states:
13Admissions and traverse
(1) …
(2) A traverse may be made either by a specific denial or by a statement of specific non‑admission.
(3) Subject to subrule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement on non‑admission of them is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any allegations as to the amount of damages is deemed to be traversed unless specifically admitted.
The point of admission and traverse is to put matters in issue so that they are appropriately defined for resolution. In Fire Nymph Products Ltd v Jalco Products (WA) Pty Ltd (1983) 74 FLR 102, the respondent did not deny that Fire Nymph was the owner of the copyright but stated that it "makes no admission" as to specified allegations. Justice Toohey, at 120, concluded that this was sufficient to put the allegation in issue, and so the pleadings were proper.
How a party pleads its defence however will usually bind it. It will not be in a position to make some positive case at trial where it has not pleaded one. In this case, the first respondent has put the applicant on notice that it either does not admit or it denies a range of allegations. Generally speaking a respondent will be precluded in those instances from advancing a positive case at trial. Relevantly, O 11 r 10 of the Federal Court Rules states:
10 Matters for specific pleading
In a pleading subsequent to a statement of claim a party shall plead specifically any matter of fact or point of law (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) that:
(a) …(b) if not specifically pleaded might take the other party by surprise; or
(c) …
In Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2007] FCA 1621, Besanko J, at para 169, found that a submission that a confidentiality agreement was void for uncertainty or void as against public policy was not permitted to be raised in circumstances where that had not been pleaded and where the court could not be satisfied that there would be no prejudice occasioned by such submissions being raised "at this late stage". The proposed submission, Besanko J said, fell "squarely within the terms of O 11 r 10" and as such was disallowed.
However, it remains for the applicant to prove the primary facts upon which causes of action it advances rely. It is not for the first respondent to assume consciously or unconsciously or to be required in some way to assume some measure of responsibility for making out the facts or isolating the facts that need to be proved or do not need to be proved by the applicant in the proceeding.
OBJECTION TO PARA 1.5 OF THE DEFENCE
In para 1(c)(iii) of the statement of claim, the applicant pleads that the first respondent is both a “person” and a “corporation” for the purposes of the Trade Practices Act 1974 (Cth) (TP Act). In the particulars to the pleading it is asserted that the first respondent is a registered organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) and a “body corporate” by virtue of s 27(a) of the FWRO Act. It is also asserted that the first respondent is a financial and/or trading corporation within the common law meaning of those expressions.
At para 1.5 of the defence, the first respondent pleads by way of admission that it is a registered organisation, pursuant to the FWRO Act but otherwise denies para 1(c)(iii) of the statement of claim.
The applicant submits that, in pleading this way, the first respondent effectively denies that it is a financial or trading corporation and denies that it is a corporation for the purposes of the TP Act.
The applicant contends the first respondent’s denial is “pregnant” in so far as some reason (legal and/or factual) lies behind it and that the first respondent must (and can only) deny the allegations because it seeks to advance some positive assertion to the contrary. The applicant says it is entitled to know that reason.
The first respondent notes the content of s 52 of the TP Act and the definitions of “corporation”, “trading corporation” and “financial corporation” in s 4 of the TP Act.
The first respondent says it is not for it to plead in effect the reasons why it says it is not a “corporation” within the meaning of the TP Act because it denies the allegation. The first respondent says that the applicant seeks to cast a burden upon the first respondent that it does not bear. I generally agree with the submissions of the first respondent. If there is a non‑admission or denial of the fact that is placed in issue and is a fact that will need to be approved by the applicant.
OBJECTION TO PARA 1.10 OF THE DEFENCE
Paragraph 1(f)(ii) of the statement of the claim pleads that the fourth respondent was an organiser with the first respondent’s Construction and General Division, WA Divisional Branch.
Paragraph 1.10 of the defence does not admit the allegation.
The applicant submits that the allegation is one that is within the ability of the first respondent to admit or deny. It contends that if the allegations is denied then the basis for the denial should be made known.
The first respondent submits however that whether or not the applicant considers this is something within its ability to admit or deny is irrelevant. The allegation is not admitted. The applicant must therefore adduce some proof in respect of it.
I accept the submission of the first respondent. The case that the applicant has to meet and the issues it must prove at trial are clear. It is open to the applicant in circumstances such as these to take steps such as issuing a notice to the first respondent to admit documents or facts before trial. Particulars of the non‑admission are not required in circumstances such as these.
OBJECTION TO PARA 6 OF THE DEFENCE
In paras 7, 8 and 9 of the statement of claim, it is pleaded that a meeting occurred on Friday 15 January 2010 which was organised and led by the third, fourth and fifth respondents, in consequence of which various employees of the applicant took strike action.
In para 6 of the defence, the first respondent pleads that it “does not admit” the allegations. The applicant says that the first respondent acknowledges it cannot claim penalty privilege as a corporation. The allegation thus made is one within its ability to admit or deny. If the allegation is denied then the basis of the denial should be made known. If the matter is not admitted equally the basis of its non-admission should be made known.
The first respondent says that the pleaded facts about who attended the meeting, what transpired at the meeting and who voted to stop work are vague and non-specific and no particulars are provided. The fifth respondent has no connection to the first respondent.
The first respondent says it is not appropriate to admit or deny such vague allegations or to positively plead to compendious allegations unrelated to it and that to plea might destroy the penalty privilege other parties are entitled to and have invoked.
Consequently, the first respondent says the applicant can be in no doubt of the case it must make a trial because it has been put to proof on each of the allegations in paras 7, 8 and 9.
I generally accept the submissions of the first respondent.
OBJECTION TO PARAS 8.2 AND 8.3
Paragraph 11 of the statement of claim pleads that the first respondent made certain representations.
In para 8.2 of the defence the first respondent denies that the matters pleaded in sub ‑paras 11(a) to 11(i) of the statement of claim were “capable of constituting representations about the applicant”. In para 8.3 of the defence the first respondent denies that the matters pleaded in sub‑paras 11(a) to 11(i) of the statement of claim were “capable of constituting representations made by the first respondent about the applicant”.
The applicant submits that in both cases, the denials are “pregnant” in that there is obviously a positive case that the first respondent seeks to assert and the applicant is entitled to know it.
The first respondent however says that its pleading makes clear from the manner in which the alleged “representations” are pleaded as arising in para 11 of the statement of claim that the first respondent denies that they:
·constituted representations about the applicant; and
·were representations made by the first respondent about the applicant.
I agree that this is so.
I also accept the first respondent’s submission that the applicant bears the burden of proving that each of sub-para (a) to (i) is a representation in the relevant sense as used under the TP Act and that the first respondent made such representations about the applicant.
I do not consider that there is any ambiguity in the position pleaded.
OBJECTION TO PARA 9 OF THE DEFENCE
In para 12 of the statement of claim the applicant pleads that the representations were made by the first respondent in the course of trade or commerce.
In para 9 of the defence the first respondent denies para 12.
The applicant contends there is clearly some positive legal and/or factual argument which the first respondent intends to advance at trial as to why para 12 is wrong and the applicant is entitled to know the basis of the denial.
The first respondent says that para 9 of the defence denies the allegation that the representations were made in the course of trade or commerce as particularised in para 12 of the statement of claim. The phrase “in trade or commerce” is an element of the statutory cause of action under s 52 of the TP Act. Clearly the denial puts the applicant on notice that it must prove such assertions and there can be no doubt the applicant knows the case it must meet at trial.
The first respondent says it is not for it to plead facts to establish why the alleged representations were not made in trade or commerce. It is for the applicant to lead evidence to satisfy the statutory criteria.
I accept the submissions of the first respondent.
OBJECTION TO PARA 18 OF THE DEFENCE
In para 21 of the statement of claim, the applicant pleads that the first respondent is vicariously liable for the conduct of the third and fourth respondents described in paras 7 to 9.
In para 18 of the defence, the first respondent “denies” para 21.
The applicant says that given the first respondent’s previous non‑admission of paras 7, 8 and 9 there must be a reason for its denial of para 21 and is entitled to know it.
The first respondent says that para 18 denies the allegation in para 21 of the statement of claim that the first respondent is vicariously liable for the conduct of the third and fourth respondents earlier pleaded. By the denial the applicant is put to proof of vicarious liability.
I accept the submission of the first respondent that there is no mistake about the case that the applicant must meet at trial and what it is required to prove.
OBJECTION TO PARA 20 OF THE DEFENCE
In paras 23 and 24 of the statement of claim the applicant pleads that by reason of the matters relevantly pleaded in paras 7, 8, 9 and 21, the first, second, third and fourth respondents engaged in conduct which is unlawful for the purposes of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act).
In para 20 of its defence, the first respondent denies the allegations.
The applicant says that given the first respondent’s previous non‑admission of paras 7, 8 and 9 and its denial of para 21 there must be a reason for its denial of paras 23 and 24 and it is entitled to know the reason.
The first respondent says that para 20 denies the allegations contained in paras 23 and 24 which plead that by reason of paras 7, 8, 9, 21 and 22 the respondents:
·aided and abetted or were knowingly concerned in the contravention of the BCII Act;
·conspired with the employees by all of the respondents;
·were involved in “the employees’ contravention of s 38 of the BCII Act”.
The first respondent says the applicant is on notice that it must prove the aiding and abetting, conspiracy and the involvement in the contravention and it is not correct to plead facts supporting its denial. I accept the submissions of the first respondent.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 8 October 2010
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