FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Johnson v A.T. Kearney Australia Pty Ltd [2024] FedCFamC2G 1388
ORDERS
SYG 1455 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TOYIN JOHNSON
Applicant
AND: A.T. KEARNEY AUSTRALIA PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to r 16.21(1)(d) of the Federal Court Rules 2011 (Cth), the statement of claim be struck out.
2.The applicant have leave…
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Details
- Case
- [2024] FedCFamC2G 1388
- Decision Date
CaseChat Overview and Summary
The case of Johnson v A.T. Kearney Australia Pty Ltd involved a claim by an employee, Johnson, against the respondent, A.T. Kearney Australia Pty Ltd, for alleged unfair dismissal and contravention of workplace rights under the Fair Work Act 2009. The respondent sought to strike out the statement of claim on the basis that it was not sufficiently detailed and did not adequately set out the material facts upon which Johnson relied. The Federal Circuit and Family Court heard the application.
The central legal issue before the court was whether the statement of claim contained sufficient detail to enable the respondent to adequately respond to the allegations. The court had to determine if Johnson's statement of claim sufficiently alleged the material facts necessary to constitute a valid cause of action under section 340(1) of the Fair Work Act. Specifically, the court needed to assess whether the claim disclosed sufficient facts to support the allegations of adverse action and the exercise of workplace rights.
In delivering the decision, the court found that the statement of claim was indeed conclusory and did not sufficiently allege the material facts that would enable the respondent to meet the case against it. The court held that pleading conclusory words without stating the underlying facts could lead to confusion, embarrassment, or delay in the proceedings, as it would not sufficiently notify the respondent of the case it has to meet. The court noted that the material facts required under section 340(1) of the Fair Work Act needed to be clearly set out, including the nature of the adverse action taken and the exercise of workplace rights by the employee. The statement of claim was therefore struck out with leave to replead, allowing Johnson to file an amended statement of claim that provided the necessary detail.
The court ordered that the statement of claim be struck out and that Johnson be granted leave to amend the statement of claim to include the required material facts. The respondent was directed to provide Johnson with an opportunity to amend the pleadings within a specified timeframe, ensuring that the revised statement of claim would sufficiently allege the necessary facts to support the claims made.
The central legal issue before the court was whether the statement of claim contained sufficient detail to enable the respondent to adequately respond to the allegations. The court had to determine if Johnson's statement of claim sufficiently alleged the material facts necessary to constitute a valid cause of action under section 340(1) of the Fair Work Act. Specifically, the court needed to assess whether the claim disclosed sufficient facts to support the allegations of adverse action and the exercise of workplace rights.
In delivering the decision, the court found that the statement of claim was indeed conclusory and did not sufficiently allege the material facts that would enable the respondent to meet the case against it. The court held that pleading conclusory words without stating the underlying facts could lead to confusion, embarrassment, or delay in the proceedings, as it would not sufficiently notify the respondent of the case it has to meet. The court noted that the material facts required under section 340(1) of the Fair Work Act needed to be clearly set out, including the nature of the adverse action taken and the exercise of workplace rights by the employee. The statement of claim was therefore struck out with leave to replead, allowing Johnson to file an amended statement of claim that provided the necessary detail.
The court ordered that the statement of claim be struck out and that Johnson be granted leave to amend the statement of claim to include the required material facts. The respondent was directed to provide Johnson with an opportunity to amend the pleadings within a specified timeframe, ensuring that the revised statement of claim would sufficiently allege the necessary facts to support the claims made.
Orders
Orders of the court
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Background
Background to the litigation
The reason it is objectionable for a pleader to state conclusory words without also stating the facts on which the conclusory words are based is not so much that conclusory words necessarily are not material facts. As Collier J noted in Eastern Colour, pleading a conclusion may in some circumstances constitute a material fact.[29] The objection is that, if an applicant pleads conclusory words without stating the underlying facts, the respondent will not be notified, or sufficiently notified, of the facts on which the person alleging the conclusory words relies, and therefore the respondent will not be notified or sufficiently notified of the case the respondent has to meet. For that reason, pleading conclusory words is likely to “cause prejudice, embarrassment or delay in the proceeding”,[30] where “embarrassment”:[31]carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense.[29] Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263 at [40][30] FC Rules, r 16.02(2)(d)[31] Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429; (1997) ATPR 41-434, at [25]The material facts of a cause of action based on alleged contravention of s 340(1)(c) of the FW Act The material facts an applicant must allege in a statement of claim based on an alleged contravention of s 340(1) of the FW Act is determined by the text contained of s 340(1), as construed in the authorities. Subsection 340(1) relevantly provides:A person must not take adverse action against another person:(a) because the other person:(i) has a workplace right; or(ii) has, or has not, exercised a workplace right; or(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or(b) to prevent the exercise of a workplace right by the other person.Adverse action Three matters must be alleged in a cause of action based on a person’s having allegedly contravened s 340(1) of the FW Act.[32] First, the person must have taken “adverse action against another person”. That expression is defined in the table contained in s 342(1) of the FW Act, and it includes an employer dismissing an employee, and also an employer discriminating between the employee and other employees of the employer.[32] In this section of my reasons I have repeated much of what I said in Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566, at [74]-[91].“Has or has not exercised workplace right” The second matter that must be alleged is that the employee against whom the employer has taken adverse action has, or has exercised, or has not exercised, a “workplace right”. That expression is defined in s 341(1) of the FW Act, which relevantly provides:A person has a workplace right if the person:. . . .(c)is able to make a complaint or inquiry:(i) . . . . (ii) if the person is an employee – in relation to his or her employment.Complaint or inquiry
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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