Jones v Harvey Industries Group Pty Ltd
[2019] WADC 161
•22 NOVEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: JONES -v- HARVEY INDUSTRIES GROUP PTY LTD [2019] WADC 161
CORAM: SCOTT DCJ
HEARD: 23 AUGUST 2019
DELIVERED : 22 NOVEMBER 2019
FILE NO/S: CIV 3056 of 2014
BETWEEN: TREVOR WAYNE JONES
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
FILE NO/S: CIV 3057 of 2014
BETWEEN: RHONDA MEGAN GADDES
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
FILE NO/S: CIV 3058 of 2014
BETWEEN: MICHAEL BRADLEY WOOD
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
FILE NO/S: CIV 3059 of 2014
BETWEEN: MARK CHARLES LINTOTT
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
FILE NO/S: CIV 3060 of 2014
BETWEEN: JAMES MULDER for the Estate of VIVIENNE MULDER
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
FILE NO/S: CIV 3061 of 2014
BETWEEN: DARRYL WERTH
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
FILE NO/S: CIV 3063 of 2014
BETWEEN: ANTONIO MICHAEL PANETTA
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
FILE NO/S: CIV 41 of 2015
BETWEEN: PAUL YERBURY
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
Catchwords:
Applications by defendant for judgment pursuant to O 16 r 1 - Alternatively to strike out statement of claim pursuant to O 20 r 19(1)(a), (b) and (d) of the Rules of the Supreme Court 1971 (WA)
Legislation:
Rules of the Supreme Court 1971 (WA), O 16, O 20 r 19
Result:
Application to strike out the cause of action referred to as the trade union term dismissed
Representation:
CIV 3056 of 2014
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
CIV 3057 of 2014
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
CIV 3058 of 2014
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
CIV 3059 of 2014
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
CIV 3060 of 2014
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
CIV 3061 of 2014
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
CIV 3063 of 2014
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
CIV 41 of 2015
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Clayton Utz |
Case(s) referred to in decision(s):
David Clarke Air Conditioning Pty Ltd ATF David Clarke Air Conditioning Trust v Quann [2016] WASC 73
Harvey Industries Group Pty Ltd v Jones [2017] WADC 74
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
SCOTT DCJ:
There are eight related actions before this court in which there are different plaintiffs but the same defendant.
In each of the actions other than CIV 3060 of 2004 it is alleged by the plaintiff that as a former employee of the defendant he/she was dismissed in breach of the employment contract alleged in that action. With respect to CIV 3060 of 2004 the former employee was Ms Mulder who is now deceased and the named plaintiff is the executor of her estate.
By an application made 14 August 2019 the defendant in each action seeks orders:
(a)that there be summary judgment for the defendant pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (RSC); and in the alternative
(b)that the plaintiff's substituted statement of claim be struck out in its entirety and the action be dismissed pursuant to O 20 r 19(1)(a), (b) and (d) of the RSC.
There is also an application by the plaintiff in the Jones action for summary judgment. Counsel for the plaintiff informed the court on 23 August 2019 that this application was in error and that the application was intended to be an application for default judgment against the defendant for failing to file and serve its defence.
In respect to this application I made an order on 23 August 2019 that the application proposed to be made by the plaintiff in the Jones action would not be dealt with pending my determination with respect to the applications made by the defendant.
As has been the case with other applications in these actions, for the sake of convenience reference to 'plaintiff' is a reference to the plaintiff in each action unless otherwise specified.
Evidence
In support of each of the defendant's applications the defendant relies on the following:
(a)the affidavit of Anna Louise Cassellas affirmed on 14 August 2019 filed in each of the actions; and
(b)the supplementary affidavit of Madelaine Clohessy sworn on 4 November 2016 in CIV 3056 of 2014.
No affidavit has been filed by any plaintiff. Counsel for the parties have each filed a written outline of submissions.
Overview
These actions have had a chequered history. Briefly:
1.Each plaintiff filed a writ of summons in March/April 2012. None of the writs were served on the defendant within 12 months of each writ being issued resulting in each of the actions being moved to the inactive cases list.
2.On 10 September 2013 the plaintiffs (other than Yerbury) filed chamber summonses to have their actions removed from the inactive cases list.
3.On 12 September 2013 Yerbury's action was dismissed.
4.On 19 September 2013 the remaining seven plaintiffs filed a chamber summons to extend the validity of the respective writs and on 15 October 2013 those applications were dismissed. On 5 February 2014 appeals by those seven plaintiffs were dismissed.
5.On 18 September 2014 new actions against the defendant were commenced by seven of the present plaintiffs and by Yerbury on 7 January 2015.
6.In November 2016 the plaintiff in each action filed and served an amended statement of claim.
7.On 22 August 2016 the defendant filed in each action an application for summary judgment pursuant to O 16 r 1 and in the alternative an application that the statement of claim in each action be struck out. The applications were heard by Derrick DCJ on 1 May 2017.
8.On 9 June 2017 Derrick DCJ handed down a reserved decision (Harvey Industries Group Pty Ltd v Jones [2017] WADC 74) and made orders in each action that:
(a)the O 16 r 1 application be dismissed;
(b)substantial parts of the amended statements of claim be struck out as disclosing no reasonable cause of action; and
(c)the plaintiff in each action file and serve a substituted statement of claim by 16 June 2017 and the defendant in each action file a substituted defence by 23 June 2017.
9.On 3 July 2017 notices of default in each action were issued notifying the parties that each action would become inactive if the plaintiffs did not enter the action for trial by 18 July 2017.
10.On 20 July 2017 by reason that the plaintiff in each action did not comply with the orders made 9 June 2017 each action was placed on the inactive cases list.
11.On either 16 or 17 January 2018 the plaintiff in each action filed an entry for trial, substituted statement of claim and schedule of damages.
12.On 12 June 2018 the defendant filed an application for orders that the entry for trial in each action be set aside as an abuse of process, alternatively that the actions be dismissed for want of prosecution. These applications were dismissed and I have since case managed these actions.
13.Over time various orders were made that the defendant give discovery in each action, however, those orders have been successfully appealed by the defendant primarily on the basis that it was appropriate for any order for discovery to abide the resolution of disputes with respect to the substituted statement of claim in each action and the provision of further and better particulars of material facts which were not pleaded and which I determined were necessary to enable the defendant to properly plead to certain allegations made in each substituted statement of claim.
14.On 22 March 2019 the plaintiff in each action filed further and better particulars of the terms of the contract pleaded in the substituted statement of claim (contract).
15.By reason that certain of those further and better particulars were determined by me to have been inadequate each plaintiff was on 23 May 2019 ordered to file and serve revised particulars (revised particulars) with respect to the terms of the contract pleaded in the substituted statement of claim in the action. Revised particulars were filed on 3 July 2019.
16.On 14 August 2019 the defendant filed these applications.
17.It has, for the sake of convenience, been the practice of the parties to refer to the Jones action as the lead action when advancing argument unless there was some disparity between the actions which would necessitate specific reference. When the substituted statement of claim in the Jones action was filed it pleaded, at par 30, express terms of an industrial agreement (Collective Agreement). However, those terms were not then reflected in the substituted statements of claim of the plaintiff in the other seven actions. In addition, as was pointed out to the solicitors for Jones, the pleadings, with respect to these express terms of the Collective Agreement were defective in that:
(a)they made reference to numbered paragraphs that were irrelevant rendering the plea nonsensical; and
(b)par 34, being the particulars relied on for the termination of employment being a wrongful dismissal, referred to numbered paragraphs which again were irrelevant and further did not make reference to par 30.
18.In the Jones action by a minute of amended substituted statement of claim dated 25 September 2019 those errors were amended in addition to which at a directions hearing on 7 November 2019 an amendment in par 31 was made.
19.At that directions hearing counsel for the plaintiffs said that it was always intended that each substituted statement of claim would include the express terms of the Collective Agreement and the breach thereof referred to in the Jones substituted statement of claim so that the pleaded causes of action in each of the eight actions would be, in essence, the same. In addition, counsel accepted that in the Werth action, in pleading the contract in par 11, an intended sub‑paragraph in the same terms as the other seven pleadings had been omitted in error.
20.Counsel for the defendant submitted that, given the history of each of these actions, the appropriate disposition was to deal with the defendant's applications having regard to the state of the substituted statements of claim at the date upon which those applications were made.
21.Whilst that submission had merit I was of the view that that was not an appropriate disposition because:
(a)In other interlocutory applications the Jones action was generally referred to as the action about which argument was to be directed. I accepted that it was always intended by the solicitors for the plaintiffs that the other seven actions would reflect the causes of actions pleaded in Jones.
(b) Whilst this was hardly an acceptable excuse given the history of these actions I considered that it was appropriate that the substituted statements of claim in the other seven actions ought to be amended so as to fall in line with the amended substituted statement of claim in Jones.
22.As a consequence I made an order that the plaintiffs in the other seven actions were to file within seven days an amended substituted statement of claim in line with the Jones pleading. Those amended statements of claim were filed.
23.Counsel for the defendant said that with respect to the plea in each action that the terms of the Collective Agreement were terms of the contract there was a need for him to consider whether there was a serious question to be tried and wished to reserve the defendant's position in each action to enable the defendant to press its O 16 application or to apply to strike out that plea. In my view that was an appropriate disposition in the circumstances.
24.The position at this directions hearing then was that I would deal with the defendant's O 20 r 19(1) application which was to be confined to strike out the plea in each amended substituted statement of claim that it was an express term of the contract that the defendant would not discriminate against the plaintiff on the grounds of joining a trade union and/or participating in trade union activity (trade union term).
Applicable principles O 20 r 19(1)(a), (b) and (d) of the RSC
An application for an order under O 20 r 19(1) must be made within 21 days (O 20.19(3)) unless leave is granted to extend the time period (O 3 r 5) in respect to which the court will take into account the principles of positive case flow management.
I am of the view that this is a case in which the plaintiffs have constantly failed to file an accurate and intelligible statement of claim in each action and to file further and better particulars of the pleaded contract which would allow the defendant to file a meaningful defence - notwithstanding orders to do so. The defendant ought not be prevented from seeking to strike out the trade union term at this time. The revised particulars in each action were filed on 3 July 2019 and the defendant's application was filed on 14 August 2019. The defendant will be granted an extension of time to file this application.
In dealing with an application pursuant to O 20 r 19(1)(a) or r 19(1)(b) of the RSC to strike out a plea in the statement of claim, as Derrick DCJ observed, it must be accepted that the plaintiff will be able to establish the material facts pleaded in the statement of claim: citing Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986); David Clarke Air Conditioning Pty LtdATF David Clarke Air Conditioning Trust v Quann [2016] WASC 73 [14].
In David Clarke Allanson J said:
On an allegation that the plea fails to disclose a reasonable cause of action, 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable … The question is whether it would be open to the plaintiffs, on the pleadings, to prove facts at the trial which would constitute a cause of action … .
In his reserved decision Derrick DCJ at [53] – [54] (in which his Honour refers to the trade union term as the non‑discrimination term) said:
There is no term in the Collective Agreement to the effect of the non‑discrimination term moreover, it is not expressly pleaded that the non-discrimination term was one of the oral terms of the contract or was contained in the defendant's relevant policies and or procedures policy handbooks and manuals. However, given that the non-discrimination term is not to be found in the Collective Agreement the only reasonable inference is that the plaintiffs, in alleging that the non-discrimination term was an express term of the contract, are alleging that it was an oral term of the contract or was expressed in the defendant's relevant policies and/or procedures, policy handbooks and manuals.
On the basis of what is before me I have some doubts about the ability of the plaintiffs to prove that the defendant's policies and/or procedures, policy handbooks and manuals form part of the contract. However, in dealing with a dismissal application I must accept that the plaintiffs will be able to establish the material facts pleaded in the amended statements of claim. Accordingly, I must accept that the plaintiffs will be able to establish that the contract was partly oral and included the defendant's relevant policies and/or procedures, policy handbooks and manuals and also that the non-discrimination term was an express term of the contract in that it was an oral term of the contract or a term expressed in the defendant's relevant policies and/or procedures, policy handbooks and manuals.
His Honour concluded that on the material before him he was unable to conclude that this allegation did not give rise to a serious question to be tried.
Relevantly in the amended substituted statement of claim in each action the plaintiff pleads:
•the employment of the plaintiff by the defendant was regulated by the Collective Agreement.
•The contract:
(a)apart from the regulation of the plaintiffs' employment by the Collective Agreement, was not in writing;
(b)was partly oral; and
(c)included the defendant's relevant policies and/or procedures, policy handbooks and manuals (which I will collectively refer to as the policies).
•The trade union term was an express term of the contract.
The revised particulars filed by each plaintiff on 3 July 2019 are not the same in each action and I will detail each of them.
Jones
(b) The plaintiff does not recall specifics of the date or terms only that he was offered employment by Jack Ragg, chief executor officer, during a conversation at the local football club just prior to when he commenced employment on 3 May 1978. Further on 3 May 1978 the plaintiff recalls speaking to Bobby Morgan, supervisor, and was advised by Bobby Morgan about the details of employment and the plaintiff's role.
(e)The plaintiff does not recall the trade union term being an express term of the contract.
Gaddes
(b)The plaintiff does not recall specifics of the date, identities or material words, only that upon arriving on the day she commenced employment in December 2004, she was provided with personal protective equipment, taken into the boning room by a boning supervisor who explained the plaintiff's employment … whilst demonstrating the role to the plaintiff.
(e)The plaintiff does not recall the trade union term being an express term of the contract and does not know whether it was in writing.
Wood
(b)The plaintiff does not recall specifics of the date, identities or material words, only that he started as a boner and the terms were explained to him just prior to commencing employment, both in 2003 and then following redundancy in 2005 when he was rehired approximately six months later.
(e)The plaintiff does not recall the trade union term being an express term of the contract and only knows that there were terms in the EBA. The plaintiff does not have a copy of any EBA.
Lintott
(b)The plaintiff does not recall specifics of the date, identities or material words, only that he got a call from someone at Harvey Beef offering the plaintiff employment as a labourer, particularly cleaning the floor of the boning room and upon commencing employment in 1995 was taken into the boning room by Ange DrMarty boning supervisor who explained the plaintiff's employment … including the plaintiff's work duties.
(e)The plaintiff does not recall the trade union term being an express term of the contract and only that he was informed by someone that he could join if he wanted to. The plaintiff does not know whether it was in writing.
Yerbury
(b)The plaintiff does not recall specifics of the date or material words, only that Peter Shine discussed the terms of employment with the plaintiff just prior to starting in August 2007.
(e)The plaintiff does not recall the trade union term being an express term of the contract and does not know whether it was in writing.
Mulder
(b)The plaintiff does not know of the dates, identities or material words of the oral contract.
(e)The plaintiff does not know whether the trade union term was a term of the contract.
Werth
(b)The plaintiff does not recall specifics of the dates, identities or material words, only that he had a meeting with Gordon Whitwell, manager, who explained the terms of the employment with the plaintiff just prior to the commencement of his employment.
(e)The plaintiff does not recall the trade union term being an express term of the contract and was of the understanding that any applicable written terms were in the relevant EBA at that time. The plaintiff does not have a copy of any EBA.
Panetta
(b)The plaintiff does not recall specifics of the dates, identities or material words, only that he started in September 1979, he spoke to Joe Schrippa, supervisor, who offered the plaintiff employment. The plaintiff commenced employment one week later and was given a shovel by a supervisor and told to shovel.
(e)The plaintiff does not recall the trade union term being an express term of the contract and does not know whether it was in writing.
Defendant's submissions
The defendant submits that with respect to each action:
(a)The revised particulars, read with the amended substituted claim of claim in each action makes clear that there was not and has never been an evidentiary basis for the alleged existence of or breach of the trade union term and as a consequence the plaintiff's claim in that regard cannot be sustained.
(b)In each action the plaintiff pleads in the amended substituted statement of claim that apart from the regulation of the employment relationship by the Collective Agreement the contract was not in writing. As Derrick DCJ found, there was no term in the Collective Agreement to the effect of the trade union term. As a consequence for there to have been an express trade union term it must either have been made orally and/or was included in the contract by the defendant's policies.
(c)In the main, the response by each plaintiff in the revised further and better particulars is that the plaintiff does not recall specifics relating to dates or material words spoken and does not recall the trade union term being an express term of the contract:
(d)Each plaintiff does not recall the existence of any oral term of the contract or the trade union term - whether oral, or included as part of the defendant's policies or otherwise and as such each plaintiff has positively asserted that there is no evidential foundation for the existence of the trade union term at all.
(e)There is no other basis, pleaded or otherwise, for the existence of the trade union term.
(f)The plaintiff does not inform the defendant of any legitimate legal basis upon which there would be an entitlement to claim damages above the amount provided for in the Collective Agreement which was paid to the plaintiff upon termination of his/her employment.
(g)Accordingly, there is no serious question to be tried.
(h)For these reasons with respect to the provisions of O 20 r 19(1)(a)(b) and (d):
(i)assuming all of the facts pleaded in the amended substituted statement claim in each action are true when read with the revised particulars there is no basis for the legal conclusions contended for by the plaintiff that the trade union term was an express term of the contract whereby the pleading fails to disclose a reasonable cause of action; and
(ii)the claim of each plaintiff that the trade union term was an express term of the contract is so obviously untenable that it cannot possibly succeed.
On the other hand the plaintiffs submit notwithstanding that:
(a)each of the plaintiffs have admitted that they cannot recall specifically how any oral terms became part of the contract insofar as they relate to the trade union terms, this is not a relevant consideration in the circumstances given the length of time that has passed between the date upon which each plaintiff was initially employed;
(b)the fact that each of the plaintiffs cannot recall the specifics of the trade union term being an express term of the contract does not evidence the non-existence of that term nor does it reflect a concession by each plaintiff that the trade union term was never an express term of the contract.
Whilst it is the case that each plaintiff says in their revised particulars that they do not recall specifics or material words comprising the oral terms of the contract into which they entered and do not recall the trade union term being an express term of the contract, that is not, in my view, an admission that there was no such term. The claim by the plaintiffs that the trade union term was an oral term and/or in the policies falls to be determined on all of the evidence at trial.
I, like Derrick DCJ, have significant reservations about the ability of each plaintiff to prove that the defendant's policies form part of the contract. In addition the revised particulars will likely provide an impediment to each plaintiff in proving that this term was an express term of the contract.
However I am to approach the application to strike out this plea on the basis that the plaintiff in each action can prove the material facts pleaded.
As a consequence I am not satisfied that with respect to the trade union term that there is no reasonable cause of action pleaded. Nor can I be satisfied that that pleading is scandalous, frivolous or vexatious or otherwise an abuse of the process of the court.
The defendant's application will be dismissed and I will hear the parties as to costs and programming orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KM
Associate to Judge Scott22 NOVEMBER 2019