Kalayzich v Santa Sabina College & Anor
[2020] FCCA 11
•3 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KALAYZICH v SANTA SABINA COLLEGE & ANOR | [2020] FCCA 11 |
| Catchwords: INDUSTRIAL LAW – Fair Work – Interlocutory application by the respondents to strike out the applicant’s statement of claim – consideration of the principles relating to striking out pleadings – Federal Circuit Court not generally a court of pleadings – statement of claim as amended imperfect but capable of corrective amendment – consideration of options available in pleading a defence or seeking further particulars of the statement of claim. |
| Legislation: Evidence Act 1995 (Cth), s.131 |
| Cases cited: Arnett-Somerville v Monash Health [2016] FCA 1451 Tattsbet Limited v Morrow (2015) 233 FCR 46 |
| Applicant: | FRANK KALAYZICH |
| First Respondent: | SANTA SABINA COLLEGE |
| Second Respondent: | MAREE HERRETT |
| File Number: | SYG 3144 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Johnson |
| Solicitors for the Applicant: | Harmers Workplace Lawyers |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | Colin Biggers & Paisley |
ORDERS
The Application in a Case as amended on 17 October 2019 is dismissed.
There be no order as to costs of the Application in a Case.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3144 of 2018
| FRANK KALAYZICH |
Applicant
And
| SANTA SABINA COLLEGE |
First Respondent
| MAREE HERRETT |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The respondents in the principal proceedings (Santa Sabina and Ms Herrett) filed an Application in a Case on 9 April 2019 seeking a vacation of earlier procedural orders and orders striking out the applicant’s (Mr Kalayzich) amended statement of claim filed on 4 April 2019. The application envisaged that Mr Kalayzich would have an opportunity to amend the statement of claim. Santa Sabina also sought costs.
I adjourned the hearing of the Application in a Case part heard until the completion of a mediation that had been agreed to by the parties.
On 7 June 2019, I vacated some earlier orders that had been made on 28 March 2019 and gave Mr Kalayzich the opportunity to serve a further amended statement of claim within four weeks. The respondents’ Application in a Case was further adjourned and the matter was provisionally listed for a final hearing.
Mr Kalayzich’s further amended statement of claim was not filed within the time permitted but on 26 September 2019 I extended time to that date and gave the respondents the opportunity to file and serve any amended Application in a Case, with evidence and submissions.
I made other directions once it became apparent that the matter could not proceed to a final hearing until the strike out application had been dealt with.
The respondents filed an Amended Application in a Case on 17 October 2019 seeking the vacation of earlier orders, and orders striking out in full the further amended statement of claim lodged by Mr Kalayzich on 26 September 2019.[1] The Application in a Case as amended also envisaged that Mr Kalayzich would have an opportunity to file a second further amended statement of claim within four weeks.
[1] Filed the following day
The evidence and submissions
The strike out application was heard by me on 27 November 2019. The respondents proceeded on the basis of its Amended Application in a Case filed on 17 October 2019 and two affidavits. The first affidavit was made by Kristen Lopez on 8 April 2019. Ms Lopez is a partner in the firm of solicitors representing the respondents. Her affidavit and the annexures to it detail the procedural history of this matter to that point.
The second affidavit is by Kerry Patrick O’Brien, filed on 17 October 2019. Mr O’Brien is an employed solicitor with the respondents’ law firm. In the affidavit, he deals further with the procedural history of this matter and, in particular, communications between the parties’ solicitors.
The parties filed written submissions concerning the strike out application in advance of the hearing of it and also made oral submissions through their counsel at the oral hearing of it on 27 November 2019. I have been assisted by those submissions.
Consideration
Background circumstances
On 9 November 2018, Mr Kalayzich filed in this Court an application claiming dismissal from employment in contravention of a general protection. Pursuant to a request by the respondents, Mr Kalayzich filed a statement of claim on 25 February 2019. Following correspondence between the parties concerning deficiencies identified by the respondents affecting the statement of claim, on 4 April 2019, Mr Kalayzich filed an amended statement of claim.
On 8 April 2019, the respondents filed and served an Application in Case seeking orders to strike out Mr Kalayzich’s amended statement of claim filed on 4 April 2019. The initial strike out application followed correspondence between the parties concerning the original statement of claim. In that correspondence, the respondents’ solicitors, on 14 March 2019, set out numerous objections to Mr Kalayzich’s pleading which ran to 169 paragraphs.
As noted above, on 7 May 2019, I adjourned the Application in a Case part heard. On 7 June 2019, I ordered Mr Kalayzich to file and serve a Further Amended Statement of Claim (FASOC) by 5 July 2019. On that occasion, I also provisionally fixed the matter for hearing for five days commencing on 9 December 2019.
On 5 July 2019, Mr Kalayzich’s solicitors indicated in correspondence that he could not comply with time for filing the FASOC as directed by the 7 June 2019 orders and sought the respondents’ consent to have until 12 July 2019 to do so.
On 15 July 2019, the respondents’ solicitors wrote to Mr Kalayzich’s solicitors asking when Mr Kalayzich would serve his further amended pleading. On 19 July 2019, the respondents’ solicitors followed up and enquired again about when Mr Kalayzich would serve the FASOC.
On 30 July 2019, Mr Kalayzich’s solicitor enclosed the FASOC to a letter purportedly marked “without prejudice save as to costs”.[2] On 28 August 2019, the respondents’ solicitors responded to Mr Kalayzich’s letter setting out what they view as the unsatisfactory procedural history of this matter as well as indicating the persistent problems with the FASOC.
[2] For completeness, the respondents dispute that this correspondence was “without prejudice” in the sense that it engaged s.131 of the Evidence Act 1995 (Cth). In any event, any privilege on that basis has been waived by later disclosure of the FASOC
On 26 September 2019, I made orders vacating the hearing dates in December 2019 and preparing the present application for hearing. I also noted Mr Kalayzich’s non-compliance with the 7 June 2019 orders and ordered him to pay the respondents’ costs and disbursements of and incidental to the hearing of 26 September 2019.
Following the 26 September 2019 directions hearing, on 27 September 2019, Mr Kalayzich filed the FASOC.
The FASOC
Insofar as is relevant to the present application, the FASOC contains the following components:
a)allegations about Mr Kalayzich’s employment contract;[3]
[3] [5]-[7]
b)allegations about incidents during Mr Kalayzich’s employment prior to the termination of his employment;[4]
[4] [8]-[61]
c)allegations about purported workplace rights, namely that:
i)Mr Kalayzich’s had and exercised a workplace right within the meaning of s.341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (Fair Work Act) to make complaints or inquiries in relation to his employment;[5]
[5] [62]-[63]
ii)Mr Kalayzich had and exercised a workplace right within the meaning of s.341(1)(a) of the Fair Work Act, that being “a role and/or responsibility under s.28 of the [Work Health and Safety Act 2011 (NSW)]” or, alternatively, Mr Kalayzich “was entitled to the benefit of a workplace law under s.47 of the WH&S Act”;[6]
iii)Mr Kalayzich had and exercised a workplace right within the meaning of s.341(1)(a) of the Fair Work Act, namely he “was entitled to the benefit of a workplace instrument under clause 17.2 of the Enterprise Agreement”;[7]
d)allegations of adverse action;[8]
e)allegations that the purported adverse action was taken for a prohibited reason;[9]
f)allegations of disability discrimination in contravention of s.351 of the Fair Work Act;[10]
g)allegations of breach of the applicable enterprise agreement;[11]
h)allegations of accessorial liability for contraventions of the Fair Work Act on the part of Ms Herrett;[12]
i)allegations of breach of contract;[13]
j)orders for relief.[14]
[6] [64]-[71]
[7] [72]-[75]
[8] [76]-[85]
[9] [86]-[106]
[10] [107]-[112]
[11] [113]-[119]
[12] [120]-[137]
[13] [138]-[140]
[14] [141]-[159]
In summary, Mr Kalayzich’s purported causes of action arising from the FASOC appear to be:
a)adverse action;
b)disability discrimination;
c)breach of the enterprise agreement;
d)breach of contract; and
e)accessorial liability for (a)-(c) above by Ms Herrett.
Relevant principles
I accept the respondents’ submissions concerning the relevant principles to be applied.
The Court has power to strike out pleadings pursuant to rule 16.21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). It is not in dispute that the Federal Court Rules apply to the present application. Rule 16.21 provides:
Application to strike out pleadings
(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.
(2)A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
The power to strike out a pleading operates in conjunction with rule 16.02 of the Federal Court Rules, and Division 16.1 of the Federal Court Rules, which sets out the general requirements for the content of pleadings. In Takemoto v Moody’s Investors Service Pty Limited,[15] Flick J observed at [23] that:
As a very general proposition, the function of pleadings is to state with sufficient clarity the case that must be met: Banque Commerciale S.A., en liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286 to 287 per Mason CJ and Gaudron J. A practice of leaving a “footprint in correspondence” as a means of identifying matters in issue is to be “firmly discouraged”: White v Overland [2001] FCA 1333 at [4] per Allsop J (as his Honour then was). See also: Moss v Lowe Hunt & Partners Pty Ltd (No 2) [2011] FCA 18 at [33] per Katzmann J; SMEC Australia Pty Ltd v McConnell Dowell Constructors (Australia) Pty Ltd (No 2) [2011] VSC 492 at [9] per Vickery J. Rule 16.02(1)(b) requires a pleading to “be as brief as the nature of the case permits” and must “state the material facts on which the party relies”. A pleading which sets forth mere assertions or mere conclusions may be struck out. A pleading which sets out facts at too great a level of generality – or, conversely, with insufficient particularity – may also be struck out: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [24] per Hely J; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2008] FCA 1623 at [2] per Greenwood J.
(counsel’s emphasis retained)
[15] [2014] FCA 1081
In Takemoto, Flick J also summarised the principles applicable to an application under rule 16.21 as follows:[16]
First, the rule is “concerned only with the adequacy of the pleading” and “does not permit or allow consideration of facts or evidence outside the pleadings”.
Second, a pleading will be embarrassing, “where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”. The term “embarrassment” refers to a pleading that is “susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense”.
Third, a pleading will only be struck out as failing to disclose a reasonable cause of action or defence “where it is clear that there is no real question to be tried”. Where a claim is not so clearly untenable that it cannot possibly succeed, it will not be struck out.
Finally, and like the power conferred by s 31A, the power is to be exercised with caution and it is not to be lightly exercised. A “pedantic approach” should not be pursued.
[16] at [17]-[20]
In Braude v Tauman[17] at [57], Wigney J added to this summary that:
The power to strike out pleadings or portions of pleadings must be exercised “sparingly, with caution, and only in a clear case” (Morris v IMF Bentham Limited [2018] FCA 1009 at [67], per Wigney J) “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175 (Jenkinson J).
[17] [2018] FCA 1385
The rules and principles on pleadings are supplemented by the rules concerning particulars under Division 16.4 of the Federal Court Rules.
In Rush v Nationwide News Pty Ltd,[18] Wigney J made the following observations about the adequacy of particulars:[19]
In relation to the adequacy of particulars, r 16.41 of the Rules provides that “[a] party must state in a pleading … the necessary particulars of each claim, defence or other matter pleaded by the party”. The degree of particularity required by this general obligation depends on the circumstances of the case and the nature of the allegations: Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395 at [17]; Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 3) [2011] FCA 539 at [10]. In that context, although trite, it is worth recalling that the basic purpose of a pleading, including particulars, is to clearly define the issues to be tried, and to allow the other party an opportunity to know the case that they are required to meet: Dare v Pulham (1982) 148 CLR 658 at 664; Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [49]-[52]. If the particulars that are provided in a pleading are sufficient to achieve that objective, it is difficult to see why they should be regarded as being deficient and liable to be struck out, even if it is possible to conceive of ways the pleading could perhaps be improved.
(counsel’s emphasis retained)
[18] (2018) 359 ALR 473
[19] at [44]
Ultimately, as Katzmann J observed in Dahler v Australian Capital Territory[20] at [105]:
The obligation of the pleader is to state the material facts. That does not mean all the facts or all the relevant facts. A fact is material if it is essential to the cause of action. The expression refers to the fact or combination of facts that give rise to a right to sue: Do Carmo v Ford Excavation Pty Limited (1984) 154 CLR 234 at 245 per Wilson J. The applicant’s pleadings did not plead material facts, nor was it as brief as the nature of the case permitted. The statement of claim was discursive. It offended the rule about pleading facts, not evidence. The primary judge was correct to describe it as “replete with detailed matters of evidence”. Numerous paragraphs contained detailed extracts from correspondence. No attempt was made to summarise the effect of the correspondence or to relate it to one of the elements of the cause of action. Nor was any made to plead the material facts. Many of the allegations were peripheral to the cause of action. Where inessential facts are pleaded, they are liable to be struck out as prejudicial and embarrassing to the fair trial of the action: Bernard Cairns, Australian Civil Procedure, 10th edition, LawBook Co, 2014 (“Cairns”), [6.180].
[20] [2014] FCA 946
In addition to the principles set out above concerning the requirements for pleadings and strike out applications, there are two further matters that are relevant to the present application. First, it is important to note that Mr Kalaysich’s central claim concerns a breach of general protections under Part 3-1 of the Fair Work Act. Secondly, and a result of the first point, s.361 of the Fair Work Act has a significant role to play in these proceedings.
Section 361 provides for a reverse onus whereby a respondent must disprove the presumption that it contravened a provision of Part 3-1 of the Fair Work Act where an applicant alleges that the respondent “took…action for a particular reason or with a particular intent”. In Tattsbet Limited v Morrow,[21] Jessup J at [119] observed that:
The much larger question whether s 361(1) of the FW Act operates to reverse the onus of proof upon nothing more than the making of an allegation, without the maker of the allegation being under any obligation first to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action… it has been treated as uncontroversial that the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact…
[21] (2015) 233 FCR 46
Although Jessup J made this observation in the context of discussing what evidence an applicant required in order to engage s.361 of the Fair Work Act, the principle also applies to what an applicant must plead in a statement of claim. An allegation in a pleading by an applicant (who benefits from the reverse onus in s.361) must plead (in a proper form) the relevant circumstances that would constitute adverse action within the meaning of Part 3-1 of the Fair Work Act.
Application of the principles – respondents’ contentions
Against the principles set out above, the FASOC is said to be liable to be struck out because it:
a)is evasive and ambiguous in that it contains inconsistent, irrelevant and vague allegations, often about issues “peripheral to the cause of action” (Katzmann J in Dahler at [105]);
b)is likely to cause prejudice, embarrassment or delay in the proceeding because it is prolix, is not limited to pleading material facts but repeatedly pleads matters of evidence and asserts bare conclusions;
c)fails to disclose, at certain points, a reasonable cause of action by failing to properly plead critical objective circumstances or critical elements of particular claims.
Adverse action allegations based on the alleged exercise of workplace rights under the Fair Work Act to make complaints or inquiries in relation to employment
Mr Kalayzich, at FASOC [62], claims that he had a workplace right pursuant to s.341(1)(c)(ii) of the Fair Work Act, that being a right to make “complaints or inquiries in relation to his employment”.
In essence, Mr Kalayzich claims (at FASOC [63]) that he exercised a workplace right to make “complaints or inquiries in relation to his employment” by:
a)making the “First Homeroom Complaint”;
b)making the “Second Homeroom Complaint”;
c)making the “Grading Complaint”;
d)contesting the “2016 Allegations”;
e)contesting the “2017 Allegations”;
f)contesting the “2018 Allegations”;
g)contesting the “Final Allegations”.
Mr Kalayzich then claims that Santa Sabina took adverse action against him because he exercised these alleged workplace rights to make complaints or inquiries in relation to his employment. These pleadings are said to be liable to be struck out for the following reasons.
First, the respondents contend that the pleadings concerning the purported exercise of workplace rights “to make complaints or inquiries in relation to employment” do not comply with the pleading requirements:
a)in relation to the “First Homeroom Complaint” and the “Second Homeroom Complaint”, various parts of the pleading stray into matters of evidence and plead irrelevant allegations that would cause prejudice and increased expense for the respondents to plead to in response. For example:
i)in relation the “First Homeroom Complaint” the pleading is ambiguous and pleads matters of evidence. At FASOC [19], rather than set out the material facts said to constitute the making of a complaint, the applicant sets out essentially his evidence about what he communicated during “the First Homeroom Meeting” and to whom. Moreover, Mr Kalayzich’s version of what he said contains ambiguous and irrelevant matters such as his subjective opinion about the “Homeroom Dissolution, for example: “(b) he was not owning the Homeroom Dissolution;” and “(c) he would not know how to explain the Homeroom Dissolution to his Homeroom Group students”. The respondents assert that they cannot properly plead in defence to these matters which appear in the form of evidence, irrelevant to the cause of action. The respondents contend that doing so would only unduly increase expense and cause delay. It would also be “prejudicial and embarrassing to the fair trial of the action” (Katzman J in Dahler at [105]);
ii)in relation to the “Second Homeroom Complaint”, Mr Kalayzich similarly pleads matters of evidence and submission at FASOC [23]. In particular, Mr Kalayzich pleads to what Dr Bezzina subjectively believed. Dr Bezzina’s subjective beliefs about the “Homeroom Dissolution” are not relevant to these proceedings and cannot be the basis for a relevant complaint or inquiry in relation to Mr Kalayzich’s employment. The respondents assert that they cannot properly plead in response to these matters of evidence which are said to be irrelevant. They contend that doing so would cause prejudice, embarrassment and delay. The same principles from Dahler referred to above are said to also apply here;
iii)in relation to both the “First Homeroom Complaint” and the “Second Homeroom Complaint”, FASOC [24] pleads that “[n]otwithstanding the First Homeroom Complaint and the Second Homeroom Complaint the Applicant assisted…with the implementation of the Homeroom Dissolution”. This pleading is said to have no relevance to the adverse action claim and pleading in response to it is is said to cause the respondents prejudice, wasted cost and further delay;
b)in relation to the “Grading Complaint”, it appears to concern an alleged complaint Mr Kalayzich made as a result of his daughter, (who was also a student at the College) receiving a grading penalty for late submission of an assignment. The respondents contend that:
i)the pleadings concerning this issue do not disclose the objective circumstance that would engage the adverse action provisions, including the reverse onus in s.361 of the Fair Work Act. The allegations concerning this alleged complaint also plead matters of evidence and not the material facts. For example, FASOC [31] pleads that Mr Kalayzich’s daughter “was very distressed at having received the Assignment Penalty”. This is not a proper allegation in the context of an adverse action claim to which the respondents can properly plead in defence. It is, by definition, “peripheral to the cause of action” and contains “inessential facts…liable to be struck out as prejudicial and embarrassing to the fair trial of the action” (Dahler at [105]);
ii)the FASOC [32] states that Mr Kalayzich had “an informal conversation with…Miss Kalayzich’s Religious Education teacher, in the First Respondent’s staff room (Assignment Meeting) regarding the Assignment Penalty.” It is important to note that the “Assignment Meeting” is defined separately to the “Grading Complaint”. This creates ambiguity because it immediately confuses the factual basis upon which the applicant alleges he exercised a workplace right to make a complaint or inquiry in relation to employment. In any event, the applicant cannot rely on this pleading to support the allegation that he exercised a workplace right within the meaning of s.341(1)(c)(ii) of the Fair Work Act in circumstances where he describes the relevant “Meeting” as “an informal conversation”;
iii)further, Mr Kalayzich acknowledges (at FASOC [34(a)]) that his “concerns expressed at the Assignment Meeting were in relation to: (a) the treatment of Miss Kalayzich in her capacity as the Applicant’s daughter”. As noted above, a complaint or inquiry for the purposes of s.341(1)(c)(ii) must be “in relation to employment”. Plainly, an alleged complaint made during “an informal conversation” about “the treatment of Miss Kalayzich in her capacity as the Applicant’s daughter” is not in relation to Mr Kalayzich’s employment. For a complaint to be in relation to employment it must concern “the protection of workplace rights” and must have some connection with the applicant’s employment.[22] For these reasons, the pleadings concerning the “Grading Complaint” are internally inconsistent, ambiguous and defective. They do not support the existence of any objective circumstance engaging the adverse action provisions;
iv)finally, the FASOC [35] pleads that following the alleged complaint that Mr Kalayzich’s daughter’s mark was restored and that Mr Kalayzich’s wife spoke to the Head of School about this matter. This pleading is irrelevant to an adverse action allegation and traverses matters of evidence. Responding to it would only cause prejudice, undue expense and delay;[23]
c)in relation to the four “Allegation Responses”, the respondents contend that the pleading is likely to cause prejudice, embarrassment and delay in the proceeding. Mr Kalayzich’s pleadings on this matter are also said to be vague and ambiguous;
i)at [38] of the FASOC, Mr Kalayzich pleads matters for evidence at a level of detail that is not relevant in circumstances where he claims the 2017 Allegation Response constituted a workplace right which he exercised. At [40] of the FASOC, Mr Kalayzich alleges that at the “2017 Allegations Meeting” the “Second Respondent adopted a derisive and aggressive manner toward the Applicant”. Mr Kalayzich also alleges in particulars to this paragraph that the “Second Respondent adopted a sarcastic and intimidating tone of voice” and that she “expressed disdain for the Applicant’s responses”. Mr Kalayzich’s particulars then set out alleged words said by Ms Herrett. These pleadings are said to be vague and embarrassing. Mr Kalayzich’s particulars also are said not to serve any proper function of particulars and appear aimed at “embarrassing the respondents”. Further, [41] of the FASOC is said to be another pleading of evidence which contains Mr Kalayzich’s editorialised version of what Ms Herrett allegedly said during the relevant meeting;
ii)similarly, at [48] of the FASOC, Mr Kalayzich pleads matters of evidence and an edited summary of his “2018 Allegations Response”. That summary of his response is also said not to be a relevant matter for the purposes of establishing whether he exercised a workplace right. For example, that he may have “stated that ‘smashed’ was a common colloquialism that he often used in a sporting context” is not a relevant matter to plead in an adverse action claim. The only relevant matter is how and in what circumstances Mr Kalayzich made a complaint or enquiry in relation to his employment. The respondents contend that pleading irrelevant facts peripheral to the cause of action is oppressive to a respondent and makes a pleading liable to be struck out;[24]
iii)the pleadings concerning the “Final Allegations Response” similarly plead Mr Kalayzich’s evidence rather than material facts at [54] of the FASOC. The evidence is also said to be pleaded in a form that causes prejudice and cannot be properly responded to in a defence.
[22] Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3) (2012) 64 AILR ¶101–659 at [64] (Katzmann J)
[23] Dahler at [105]
[24] Dahler at [105]
For these reasons the respondents submit that Mr Kalayzich has not pleaded in the FASOC the objective circumstances that would give rise to the existence of a workplace right and thereby engage the reverse onus. The FASOC also is said to plead many irrelevant matters in the form of evidence. Requiring the respondents to plead a defence to the FASOC would be “oppressive, prejudicial and embarrassing in the circumstances”. All of the allegations considered above are said to be liable to be struck out. In those circumstances, the consequential pleadings alleging adverse action taken for a prohibited reason would also fall away.
The respondents contend that the pleadings alleging adverse action for a prohibited reason are also defective in their own right. For example, [78] of the FASOC pleads that “[i]n acting in an aggressive manner towards the Applicant during the 2017 Allegations Meeting (as referred to paragraph 40 above)” the respondents “negatively affected the work environment”. This pleading, which relies on the earlier pleading of “aggressive manner” at [40] of the FASOC is said to fail at the first hurdle because that pleading is itself defective for the reasons set out above. The pleading is also said to be liable to be struck out because it does not establish how “acting in an aggressive manner” constitutes adverse action within the meaning of s.342(1) of the Fair Work Act whereby the employer “injures the employee in his or her employment”. The respondents submit that, at the threshold of such an allegation, the applicant must identify and plead a relevant “injury”. This pleading is not saved by the allegation that the respondents “negatively affected the work environment”. It is important to note that the FASOC abandons the previous pleading of “Hostile Work Environment” in the amended statement of claim. The FASOC does not plead or particularise how the respondents allegedly “negatively affected the work environment” and why such allegedly negative affectation injured Mr Kalayzich in his employment or altered his position as an employee to his prejudice. In order to plead in response, the respondents assert that they must know what Mr Kalayzich means by “negatively affected” and why he says this constitutes an “injury” within the meaning of s.342(1).
Similarly, [77] and [79] of the FASOC also rely on the “negatively affected the work environment” formulation as the relevant hinge upon which Mr Kalayzich alleges adverse action. For the same reasons as noted above, these paragraphs are also said to be liable to be struck out.
The FASOC at [81]-[83] alleges that Santa Sabina took adverse action because the alleged acts pleaded in those paragraphs “caused a deterioration in the security of the Applicant’s employment and caused him to feel humiliated and marginalised in the workplace”. The use of the conjunctive is said to be significant in this context. The allegation expressly relies on both matters, together, as giving rise to adverse action for a prohibited reason. However, there is no pleading explaining how the “First Warning”, the “Second Warning” or the “Performance Management Plan” caused Mr Kalayzich to “feel humiliated and marginalised”, and why any such feelings constituted injuring Mr Kalayzich in his employment or altering his position as an employee to his prejudice. As currently formulated, the respondents assert that they cannot properly plead in defence to these allegations.
A final point the respondents make about the FASOC is that, as has been pointed out to Mr Kalayzich on previous occasions in correspondence, a claim for breach of general protections is not a vehicle for impugning the procedural fairness of an employer’s decision to terminate an employee’s employment. It is also not “a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”.[25] Moreover, the authorities recognise that electing between a claim for unfair dismissal or adverse action where the facts will support either claim is a “tactical decision” for an applicant.[26] Where an applicant, such as in this case, chooses to proceed under s.340(1) of the Fair Work Act, the consequence is that “it allow[s] the respondent the opportunity to discharge its onus of proof by proving that the dismissal was not because of a proscribed reason”.[27] It follows that the matters an applicant must plead are that which are necessary to properly allow the respondent to understand the circumstances that the applicant alleges give rise to the reverse onus. Viewed in this light, large parts of the FASOC are said to plead matters that appear to (irrelevantly and tangentially) challenge the procedural fairness of Mr Kalayzich’s dismissal as though it were an unfair dismissal claim. The respondents submit that requiring them to plead a defence to these parts of the FASOC would only cause prejudice, embarrassment, delay and increased expense.
Adverse action allegations based on the alleged exercise of workplace rights under Work Health and Safety legislation
[25] Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17 at [48]
[26] Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [136] per Rangiah J
[27] Anglo Coal at [136]
At [66]-[67] and [70]-[71] of the FASOC, Mr Kalayzich appears to rely on s.341(1)(a) of the Fair Work Act to assert that he had a workplace right within the meaning of that provision under “the WH&S Act”. Section 341(1)(a) provides, insofar as relevant, that a person has a “workplace right” if the person is “entitled to the benefit of, or has a role or responsibility under, a workplace law”.
Mr Kalyzich’s pleadings on this issue are said to suffer from a number of significant defects.
First, the FASOC does not clearly identify which “WH&S Act” Mr Kalayzich states applies in this case. The heading above [64] of the FASOC identifies “Work Health and Safety Act 2011 (NSW)” while the newly inserted [65] pleads that “[t]he WH&S Act is a law of the Commonwealth that regulates the relationships between employers and employees”. Further confusing matters is the fact that the previous iterations of the statement of claim expressly relied on “the Work Health and Safety Act 2011 (NSW)”.[28]
[28] see [100] of the amended statement of claim
Although the federal and state Work Health and Safety Acts were part of a national harmonisation of workplace health and safety legislation,[29] and several provisions of the Acts are identical, there are important differences particularly concerning their application. Moreover, different regulations have been promulgated under the different Commonwealth and State Acts. Those differences, and knowing which legal regime the applicant alleges applies, are said to be critical to the respondents’ ability to assess any relevant defences and matters to plead in response.
[29] see Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394; 86 NSWLR 142 at [12] per Bathurst CJ
At present, the respondents assert that they do not know which “WH&S Act” Mr Kalayzich says applies to his case. For that reason, the pleadings concerning the “workplace rights under the Work Health and Safety Act” are prejudicial and embarrassing. At a very minimum, Mr Kalayzich will need to replead these allegations to specify whether the Commonwealth or State Act applies.
Secondly, and related to the first point, if Mr Kalayzich relies on the Commonwealth Act, he does not plead why the Commonwealth Act applies to his circumstances. On one view, there are strong grounds to suggest that the Commonwealth Act does not apply because s.12 of the Commonwealth Act appears to limit the scope of that Act to employment by the Commonwealth or a public authority as defined by s.4 of the Commonwealth Act.
Insofar as Mr Kalayzich relies on the Commonwealth Act, the pleading does not appear to disclose a reasonable cause of action. If Mr Kalayzich relies on the Commonwealth Act as the source of a relevant workplace right, the applicant must plead the material facts and circumstances that give rise to the application of the Commonwealth Act to this particular employment relationship.
Thirdly, contrary to the allegation at [66] of the FASOC, s.28 of either the Commonwealth or State Act did not provide Mr Kalayzich with a “role or responsibility”, which is the trigger for s.341(1)(a) of the Fair Work Act. In Hansen v Mt Martha Community Learning Centre Inc[30] at [138]-[139], Jessup J affirmed the following propositions about the phrase “role or responsibility” in the context of s.341(1)(a):
a)the reference to a role or responsibility under a workplace instrument was to a role or responsibility given by the instrument, such as the role of representing employees under grievance procedures for which an instrument provides;[31]
b)the inclusion of “role or responsibility” in s.341(1)(a) is intended to provide protection for persons who perform a representative function in the workplace that is recognised under a workplace law, workplace instrument or order of an industrial body.[32]
[30] [2015] FCA 1099
[31] at [138]
[32] at [139]
The respondents submit that the authorities emphasise that s.341(1)(a) hinges on a person having roles or responsibilities under a relevant workplace law, and that the purpose of the provision fastens upon the performance of “a representative function”, such as that exercised by a union official or a particular officer appointed for particular employment-related purposes (i.e. grievance procedures). The authorities do not concern general duties of the kind provided by s.28 of the Commonwealth and State Acts. Moreover, and in line with Jessup J’s reasoning set out above, the Work Health and Safety Acts specifically provide for election of “health and safety representatives” under s.50. The respondents assert that the specific existence of such a provision provides further support for the view that the alleged “role or responsibility” asserted in the FASOC is not one recognised for purposes of s.341(1)(a) of the Fair Work Act.
The respondents submit therefore, that even if Mr Kalayzich amends the FASOC to only rely on the State Act, that reliance will also fail to disclose a reasonable cause of action because (as a matter of law) Mr Kalayzich cannot reasonably maintain the assertion that he had a “role or responsibility” under the applicable Work Health and Safety Act. Mr Kalayzich does not allege that he was elected a “health and safety representative” under s.50.
Fourthly, the respondents contend that, even if s.28 of whichever Act is engaged can amount to a “role or responsibility” for the purposes of s.341(1)(a), Mr Kalayzich has not pleaded the material facts necessary to engage either the Commonwealth or the State Act. In particular, Subdivision 2, Division 1 of Part 1 of the Acts provide “other important terms” for the operation of the Acts. The legislation identifies the terms as “important” because they provide anterior definitions that determine the application of the Act to particular circumstances and parties. Section 28 (and Division 4 in which that provision sits) picks up the various important terms. The respondents submit that, in order to properly allege the existence and exercise of a workplace right arising under s.28, Mr Kalayzich must plead, for example, that he meets the definition of a “worker” and then, by reference to the definition of “worker” in s.7, plead the material facts that would substantiate such an allegation. The Work Health and Safety Act (both State and Federal) and the Fair Work Act use different terms and definitions, and a party relying on both Acts cannot assume in a pleading that the definitions are the same. They are not. Just as Mr Kalayzich pleads at [1]-[2] of the FASOC, the material facts that engage the Fair Work Act (i.e. that Mr Kalayzich is a “national system employee” and that Santa Sabina is a “national system employer”), he must do the same if he seeks to assert the existence of a right under an applicable Work Health and Safety Act. The respondents submit that they can only plead a defence to these allegations if Mr Kalayzich pleads the material facts that he says engages an applicable Work Health and Safety Act under which he says he had a “role or responsibility”.
Finally, and further, the respondents contend that the pleading at [69]-[71] of the FASOC is also liable to be struck out. Those paragraphs contain an allegation that Mr Kalayzich had a right to be consulted under s.47 of the “WH&S Act”, and that this constituted an entitlement to the benefit of a workplace law within the meaning of s.341(1)(a) of the Fair Work Act. The FASOC defines this as the “Third Workplace Right”. In addition to the defects identified above, these pleadings are said to be superfluous and pleading in response to them would only cause prejudice, embarrassment and delay. This is said to be because, despite styling these allegations as the “Third Workplace Right” in the FASOC, Mr Kalayzich does not allege any adverse action taken because of the exercise of the “Third Workplace Right” in any other part of the pleading. The use of the defined term to specify such a right, in the context of an adverse action claim, must be for the purpose of supporting an allegation that adverse action was taken “because” the employee had or exercised a workplace right. In other words, a pleading that Mr Kalayzich exercised a workplace right must support a particular cause of action. The respondents contend that the pleadings about the Third Workplace Right does not do that.
For completeness, the respondents also assert that the pleading relying on s.47 of the Work Health and Safety Act (either State or Federal) is also defective because Mr Kalayzich overlooks and does not plead the legal requirements that enliven any obligation under s.47. Section 47 exists within Division 2 of Part 5 of the Work Health and Safety Act. Section 49, which is also in Division 2, provides that “[c]onsultation under this Division is required in relation to the following health and safety matters” and sets out six specific health and safety matters. Therefore, the anterior step before engaging any duty to consult under s.47 at all is the identification of a “health and safety matter” under s.49. Mr Kalayzich has not pleaded any “health and safety matters” under s.49 which would engage any duty to consult under s.47. Section 47(1) makes clear that the duty is to “consult, in accordance with this Division”.
Therefore, the pleadings alleging the existence and exercise of workplace rights under “the WH&S Act” are said to be vague and evasive, embarrassing, and do not disclose a reasonable cause of action.
Adverse action allegations based on the alleged exercise of workplace rights under the Enterprise Agreement
Mr Kalayaich alleges that clause 17.2 of the Enterprise Agreement applicable to his employment gave him a workplace right within the meaning of s.341(1)(a) of the Fair Work Act, namely a right to be consulted “about major workplace changes that were likely to have significant effects on him” (FASOC [75]). The FASOC defines this as the “Fourth Workplace Right”. The respondents contend that, notwithstanding the fact that this is an incorrect summary of the effect of clause 17.2 of the Enterprise Agreement, the FASOC contains contradictory and inconsistent allegations. In particular, although the applicant alleges that the “Fourth Workplace Right” required that he be consulted, he pleads at [16]-[17] of the FASOC that he in fact had a “First Homeroom Meeting” with the Acting Head of House and the Acting Head of Pastoral Care of the College. Taking Mr Kalayaich’s pleadings at their highest, Mr Kalayaich concedes that he was notified of, and had discussed with him, the purported major workplace change, which would satisfy any consultation requirement should one exist in such circumstances.
The respondents submit that, on Mr Kalayaich’s own pleading of the facts, this alleged workplace right cannot be maintained and the consequent allegations of adverse action for a prohibited reason relying on an alleged “Fourth Workplace Right”[33] also fall away.
[33] [90], [96], [98], [100], [102], [104] of the FASOC
Similarly, Mr Kalayaich’s allegations at [113]-[119] of the FASOC concerning alleged contravention of s.50 of the Fair Work Act because of an alleged breach of the Enterprise Agreement are said to suffer from the same defect identified above.
Adverse action allegations based on alleged disability discrimination
The essence of Mr Kalayzich’s claim of disability discrimination appears to be that he “suffered from the Disability which took the form of anxiety and depression as pleaded in paragraph 42”[34] and that Santa Sabina took adverse action against him because of his “Disability” in contravention of s.351(1) of the Fair Work Act. Mr Kalayzich contends that the alleged adverse action was “subjecting the Applicant to a process of increased criticism and negative scrutiny [which] … caused the Applicant to feel marginalised and negatively affected the work environment in which the Applicant was expected to carry out his duties”.
[34] [107] of the FASOC
These allegations are said to hinge off the following concepts:
a)“a process of increased criticism and scrutiny”,
b)“minor disciplinary issues concerning the Applicant’s students”, and
c)“marginalised and negatively affected the work environment”.
Each of these concepts is said to be vague and ambiguous and liable to be struck out.
First, the respondents submit that the FASOC does not adequately plead the meaning of “a process of increased scrutiny and criticism”. It is not clear what “process” the applicant alleges and why the 11 particulars at [109] of the FASOC might constitute a “process” or represent material facts for the allegation of “increased criticism and negative scrutiny”. Each of the particulars at [109] of the FASOC raise factually very different matters and cannot be the subject of a single broad definition with no precision. Moreover, noting the admonition in rule 16.41 that a party does not plead to particulars, the allegation at [109] of the FASOC must serve the function of putting the respondents on notice of precisely what the applicant is alleging when he says that he was subjected to a “process of increased criticism and negative scrutiny”.
The use of “included” in [110] of the FASOC is also said to be objectionable. The purpose of a pleading is to put the other party on notice of the case it must meet. The respondents submit that the use of the word “included” at [110] of the FASOC causes embarrassment to the respondents because they do not know in advance what, precisely, the applicant alleges constituted the “process of increased criticism and negative scrutiny”. This is said to be not a matter that can be pleaded subject to further particularisation following the service of evidence. This is, rather, said to be a fundamental allegation forming a critical component of the alleged adverse action pleaded at [111] of the FASOC. Mr Kalayzich cannot evade his obligation to outline his case in advance by using the word “included”, and then raise further matters at trial going to this point. Moreover, the respondents must know precisely what they are admitting or denying in a defence. A pleading that a “process…included” a certain matter cannot be admitted or denied without knowing exactly what else is “included” in the allegation.
Secondly, the respondents complain that the concept of “minor disciplinary issues” is also not explained with any precision. However, Mr Kalayzich pleads at [110] of the FASOC that “threatening disciplinary action over minor disciplinary issues concerning the Applicant’s students” formed an integral part of the alleged “process of increased criticism and scrutiny”. The pleading does not explain or particularise why Mr Kalayzich says that any particular disciplinary issue was “minor”. It is also not apparent how this is relevant to the adverse action allegation.
Thirdly, the respondents complain that Mr Kalayzich does not identify at [111] of the FASOC how the alleged “process of increased criticism and negative scrutiny” caused him to feel “marginalised and negatively affected the work environment” and “thereby constituted adverse action”. Again, as already noted above, there is no pleading that specifies what Mr Kalayzich means by “negatively affected the work environment”. This is said to be another objective circumstance that Mr Kalayzich must plead properly in order to engage the reverse onus. More fundamentally, as currently pleaded, the respondents say that they cannot admit or deny whether any “process” on its part caused a negative affectation to Mr Kalayzich’s work environment because they do not know with any precision the content of those allegations.
Fourthly, the respondents complain that, in alleging adverse action at [111] of the FASOC, Mr Kalayzich does not specify which item of s.342(1) of the Fair Work Act applies. The wording of [111] of the FASOC does not provide any guidance as to whether Mr Kalayzich alleges injury in his employment or alteration of his position as an employee to his detriment. This is something that must be specifically pleaded. Neither the Court nor the respondents should be left to guess which item of adverse action the applicant wishes to invoke when alleging marginalisation and negative affectation of the work environment. Put simply, even if the concepts used in this part of the pleading were not vague, evasive and embarrassing, the applicant must still expressly state (using the relevant statutory language) precisely what is the alleged adverse action.[35]
[35] see Dahler at [110]
The respondents submit that, for the purposes of these allegations, it is important to note that Mr Kalayzich does not allege that his dismissal from his employment constituted adverse action for a prohibited reason simply because he had a disability. Instead, he alleges that Santa Sabina “responded to the Applicant’s impairment in his ability to maintain a composed demeanour”[36] by taking adverse action in “subjecting” him to “a process” which “caused” him to “feel marginalised and negatively affected the work environment”.[37] This is a much more complex factual allegation than merely alleging dismissal for having a disability. Therefore, any pleading that purports to articulate the material facts underpinning this allegation must do so with sufficient precision of each constituting component. Moreover, the test in s.351 is whether an employer took adverse action “because” of, relevantly, a disability. A pleading that the respondent took adverse action in “[response] to the Applicant’s impairment”[38] is said to be “plainly not sufficient”. This allegation is said to be not saved by the pleading at [112] of the FASOC, which only highlights the inconsistent and ambiguous nature of the pleadings alleging “disability discrimination”.
[36] [109] of the FASOC
[37] [111] of the FASOC
[38] [109] of the FASOC
In the circumstances, the respondents submit that the pleadings concerning alleged contravention of s.351(1) of the Fair Work Act should be struck out.
Alleged accessorial liability
The respondents contend that, in view of the impugned paragraphs of the pleading set out above concerning the alleged liability of Santa Sabina, it follows that if the Court strikes out those pleadings then Mr Kalayzich cannot maintain the allegations against Ms Herrett for alleged accessorial liability, and that those pleadings should also be struck out.
In any event, the pleadings concerning accessorial liability are said to be also liable to be struck out pursuant to rule 16.21. Critical parts of the pleading concerning accessorial liability are said to be vague, ambiguous and likely to cause prejudice, embarrassment and delay.
For example, at [122] of the FASOC Mr Kalayzich pleads that “the Second Respondent was aware of all correspondence sent to and received from the First Respondent’s employees concerning allegations adverse to those employees”. This appears in the pleading as a bare conclusion unsupported by any other factual allegation or particulars. Mr Kalayzich then pleads at [123] of the FASOC that “[a]s a consequence of the Second Respondent’s awareness described in the preceding paragraph, the Second Respondent had knowledge of” the relevant allegations.
Rule 16.43(1) provides that a “party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.” The pleadings on accessorial liability[39] are said not to satisfy this requirement.
[39] at [120]-[137] of the FASOC
The respondents submit that, in view of the rules concerning pleading about conditions of mind and the principles regarding the role of pleadings and particulars, it is not sufficient for Mr Kalayzich to simply allege, in effect, that Ms Herrett “was aware” of all “allegations adverse to” the Santa Sabina’s employees. There is no pleading that specifies the material facts upon which Mr Kalayzich bases such an assertion. Rule 16.43(1) requires Mr Kalayzich to plead particular facts going to knowledge, and not simply assert a vague assertion that Ms Herrett was “aware”. Also, Mr Kalayzich does not specify what “adverse to those employees” means in this context, and why Ms Herrett (who is also an employee) would know about anything adverse to all other employees of Santa Sabina. It is not sufficient that the Court and the respondents must guess whether Mr Kalayzich means “adverse to [the employment conditions] of employees”. If Mr Kalayzich relies on this allegation to fix Ms Herrett with knowledge of something, he must make the exact basis known.
The respondents contend that the FASOC at [135], which alleges (in the context of an accessorial liability claim) that “the Second Respondent was personally a party to some of the adverse action”, is defective and, in the circumstances, vexatious and irrelevant for another reason. Adverse action, as relevantly defined in s.342(1), item 1, concerns action by “an employer against an employee”. As Mr Kalayzich correctly pleads at [2(d)] of the FASOC, Santa Sabina is the “employer” in this case and Ms Herrett “was, at all material times, an employee of the First Respondent”.[40] By definition, the allegation [135] of the FASOC cannot sustain and is not relevant to an allegation of accessorial liability. To require the respondents, and particularly Ms Herrett to plead in defence to this allegation, is said to be vexatious and prejudicial.
[40] [3(b)] of the FASOC
Further, the respondents complain that throughout the pleading, Mr Kalayzich relies on broad references to s.793 of the Fair Work Act as the basis for fixing Ms Herrett with alleged accessorial liability. That provision does not simply attribute the conduct of the employee to a body corporate. Section 793(1) requires Mr Kalayzich to plead specifically what “conduct” was “engaged in on behalf of a body corporate” in specified circumstances. Mr Kalayzich’s general pleading at [2(e)] of the FASOC is not sufficient. Moreover, at [78]-[80] of the FASOC, Mr Kalayzich refers incorrectly to “s.793(a)” without specifying whether he means to invoke sub-sections (1), (2) or (3). This is more than merely a typographical error. In the context of alleging aggression and negative affectation of the work environment by Ms Herrett, it is said to be not at all clear whether Mr Kalayzich means to impugn certain conduct (s.793(1)) or a state of mind (s.793(2)) on the part of Santa Sabina attributable to Ms Herrett.
Alleged breach of contract
The respondents assert that the allegations made for breach of contract cannot survive if the rest of the strike out application succeeds. Those allegations depend on the same factual matters which are subject to the same defective pleadings as set out above.
In any event, the respondents contend that the breach of contract allegations are also liable to be struck out because (unlike the causes of action arising under the Fair Work Act) Mr Kalayzich’s claims in contract do not attract the reverse onus in s.361. Therefore, Mr Kalayzich bears the legal and evidentiary burden of establishing breach, which he alleges at [138] of the FASOC. As such, it is not sufficient for him (as it may be in the context of pleading an adverse action claim) to simply assert that certain conduct by Santa Sabina was a breach of a term of the contract. Mr Kalayzich bears the onus of proving the existence of any term to be implied into a contract, and why, as well as the corresponding breach of the relevant term of the contract and must, therefore, specify precisely what conduct breached the contract and how it breached a particular term of the contract.
The respondents submit that the current pleading at [139] of the FASOC enumerates nine alleged acts of Santa Sabina and appears to claim (without any specificity) that the nine acts together “and/or” separately breached four alleged implied terms of the contract together “and/or” separately. Apart from Mr Kalayzich bearing the onus of pleading the material facts underpinning this allegation, this current pleading is said to be embarrassing and prejudicial because it does not notify Santa Sabina with any precision what case it is to meet for the contract claim. The allegations for the contract claim are rolled up and the respondent cannot properly admit or deny them with any precision or certainty.
Other asserted problems with the FASOC
In addition to the matters set out above concerning the alleged causes of action, there are said to be other defects in the FASOC that appear wholly irrelevant, disconnected from any cause of action, and are hangovers from the editing done to the amended statement of claim. In particular, [59]-[61] of the FASOC still contains a lengthy pleading about “communications to staff and students” following the termination of Mr Kalayzich’s employment. Under previous iterations of the pleading, this allegation appeared to be in support of a “misrepresentation” claim.[41] That claim has been abandoned in the FASOC. Therefore, [59]-[61] of the FASOC should also be struck out as they plead no factual matter relevant to a cause of action.
[41] see deleted paragraphs [145]-[159] of amended statement of claim
Another problem throughout the FASOC is said to be that Mr Kalayzich pleads several allegations and alternatives in the same paragraph, particularly with the use of “and/or”.[42] Paragraph [76] of the FASOC illustrates the type of rolled up pleading criticised by Katzmann J in Dahler at [108]-[110]. As her Honour observed at [110], “[e]ach of these matters should have been pleaded in separate paragraphs to enable the respondent to admit or deny them: r 16.02(1)(a).”
[42] see, for example, FASOC [76]
Application of the principles – Mr Kalayzich’s contentions
As set out extensively above, the respondents assert various deficiencies with the pleading in the FASOC concerning Mr Kalayzich’s workplace right under the Fair Work Act to make complaints or inquiries. He contends that the asserted deficiencies are without substance.
First, the respondents assert that the pleading of the “First Homeroom Complaint” and the “Second Homeroom Complaint” stray into matters of evidence and plead irrelevant allegations that would cause prejudice and increased expense to plead to in response. Attention is directed, as an “example”, to [19] of the FASOC. The respondents submit that this pleading contains “ambiguous and irrelevant matters” such as Mr Kalayzich’s “subjective opinion” about the Homeroom Dissolution. Mr Kalayzich, however, asserts that the pleading does no more than set out the nature and (in broad terms) the content of the complaint Mr Kalayzich contends (and will seek later in evidence to prove) that he made to Ms Blake and Ms van der Meer, and upon which basis he alleges adverse action was taken against him. These matters are said to be both relevant, and necessary, elements of the pleaded cause of action under s.340 in respect of the First Homeroom Complaint.[43]
[43] see [63(a)] and [90(b)] of the FASOC
Secondly, the respondents assert that the Second Homeroom Complaint contains Dr Bezzina’s subjective belief. This is said to be based on a misreading of the FASOC at [23]. The pleaded fact is not Dr Bezzina’s belief which would be irrelevant. The pleaded fact is that Mr Kalayzich, as part of his complaint to Ms Blake and Ms van der Meer, told them that he had spoken to Dr Bezzina and Dr Bezzina had expressed to them a particular viewpoint. Again, these matters are said to be properly and necessarily pleaded as identifying the material facts concerning the nature of the complaint (here, the Second Homeroom Complaint) that the applicant alleges was a basis upon which adverse action was taken against him.
Thirdly, the respondents challenge [24] of the FASOC as pleading an irrelevant matter concerning Mr Kalayzich’s cooperation with Santa Sabia in implementing the Homeroom Dissolution. Mr Kalayzich contends that, whilst strictly speaking the adverse action cause of action involving the Homeroom Dissolution is not reliant upon the facts pleaded at [24], those facts nevertheless comprise matters that will be part of Mr Kalayzich’s evidence in the case. The pleading is said not to be embarrassing. If the respondents choose not to plead to the paragraph, that is a matter for them in preparing their defence.
In relation to the Grading Complaint[44] the respondents submit that the allegation that “Miss Kalayzich was very distressed at having received the Assignment Penalty”[45] is in the nature of evidence and is peripheral to the cause of action. Mr Kalayzich submits that the submission should be rejected. The pleading at [31] of the FASOC is an asserted fact that will be sought to be proved by Mr Kalayzich (if disputed) and is relevant (at least potentially) to a fact in issue being the nature and content of the complaint that is pleaded at [33] of the FASOC. It is said to be unclear by reference to the respondents’ submissions why the pleading at [31] of the FASOC is “prejudicial and embarrassing to the fair trial of the action” warranting an order that it be struck out. Again, it remains a matter for the respondents, as to whether they choose to plead to the allegation in their defence.
[44] [25]-[35] of the FASOC
[45] [31] of the FASOC
Further, the respondents contend that the pleading at [32] of the FASOC creates ambiguity because it defines separately the Grading Complaint and the Assignment Meeting. There is said to be no ambiguity in the pleading. The basis of the asserted workplace right arising from a complaint Mr Kalayzich made during the Assignment Meeting is said to be clearly set out. Further, the respondents submit that Mr Kalayzich “cannot rely on this pleading to support the allegation that he exercised a workplace right within the meaning of s.341(1)(c)(ii) of the Fair Work Act in circumstances where he describes the relevant ‘Meeting’ as ‘an informal conversation’”. The respondents do not explain this argument. Mr Kalayzich submits that plainly, the Assignment Meeting as pleaded at [32]-[33] of the FASOC is a significant event in the cause of action because Mr Kalayzich’s complaint about the manner in which his daughter’s assignment grading was handled was a matter expressly the subject of the first warning the applicant received less than two weeks later.[46]
[46] see [36] of the FASOC
The respondents further take issue with the Grading Complaint by submitting that it is not truly a complaint in relation to Mr Kalayzich’s employment. However, Mr Kalayzich contends that the nexus of a complaint to a person’s employment may be direct or indirect.[47] As Judge Manousaridis stated in Henry v Leighton Admin Services Pty Ltd & Anor[48] at [47] by reference to Katzmann J’s remarks:
The words “direct or indirect” suggest that the subject of the complaint or inquiry need not be about employee rights and obligations; the complaint may be about some other subject that is related to the employee rights and obligations.
[47] Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3) [2012] FCA 697, [64] (Katzmann J). See also Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456 (Bromberg J) at [41]
[48] [2015] FCCA 1923
Mr Kalayzich submits that the respondents’ contention that his complaint defined as the Grading Complaint was not “in relation to” his employment should not be accepted. As is pleaded in the FASOC at [34] the Grading Complaint related to the treatment of Miss Kalayzich in her capacity as a student of Santa Sabina, to its approach to imposing assignment penalties on all students, and to the level of support provided by it to students with learning difficulties generally. Further, as stated above, Santa Sabina considered Mr Kalayzich’s raising of concerns relating to his daughter to be sufficiently connected to his employment that his conduct in doing so was the subject of disciplinary action as pleaded at [36] of the FASOC.
The respondents challenge [35] of the FASOC as irrelevant to the cause of action. Mr Kalayzich responds that the facts pleaded in the paragraph are relevant in that they go to the substance of the Grading Complaint, and are capable (if proven at trial) of supporting Mr Kalayzich’s contention that the Grading Complaint was a justified complaint made by Mr Kalayzich, and was a complaint that related (at least in part) to Santa Sabina’s assignment submission practices. The paragraph is said not to be liable to be struck out.
The respondents take issue with the four Allegations Responses, in particular identifying specific concerns with, [40], [41], [48] and [54] of the FASOC. It is submitted variously that the pleadings are vague and embarrassing, contain matters of evidence, and plead peripheral facts. Mr Kalayzich contends that the submissions should be rejected. It is noted that for the most part, the respondents do not challenge the FASOC in so far as it pleads the relevant adverse action. What is the subject of challenge are certain paragraphs of the FASOC (and even the particulars to those paragraphs). The respondents’ complaints do not justify the extraordinary order of a strike out.
First, in relation to [40] of the FASOC, the 2017 Allegations Meeting was a meeting Mr Kalayzich pleads he attended and at which Ms Herrett acted towards him in an aggressive manner. The manner adopted by Ms Herrett is one basis upon which Mr Kalayzich asserts adverse action was taken against him.[49] It is said to be appropriate and necessary for Mr Kalayzich to plead the manner in which he says Ms Herrett conducted herself at the meeting. There is nothing vague about the pleading. If the respondents require further particulars of the allegation, any such request will be considered by Mr Kalayzich. The respondents have not requested any further particulars.
[49] see [78] of the FASOC
Secondly, Mr Kalayzich submits that [41] of the FASOC contains material facts that support the cause of action.[50] It is open to the respondents to join issue in relation to the material facts pleaded concerning Ms Herrett’s conduct.
[50] [79]-[80] of the FASOC
Thirdly, Mr Kalayzich contends that [48] of the FASOC pleads the various matters that constituted the 2018 Allegations Response. The pleading must be read with [47] of the FASOC. In circumstances where the cause of action is adverse action based, in part, upon what Mr Kalayzich asserted in the 2018 Allegations Response, the respondents cannot submit that [48] of the FASOC is an inappropriate or unnecessary pleading. Again, the significance of what it is the applicant asserted in the various Allegations Responses is that it will form part of the assessment the Court will need to undertake in determining whether the asserted adverse action was taken because Mr Kalayzich exercised the workplace right in the manner in which he did. The pleading is said to adequately state the facts that, if proved, will engage the reverse onus in s.361 of the Fair Work Act. These paragraphs are said not to be liable to be struck out.
The respondents assert that [77]-[79] of the FASOC are defective because those paragraphs do not establish the relevant adverse action in the form of a relevant “injury”. To the extent the respondents submit that the FASOC needs to plead an “injury”, that submission is said to be simply incorrect. Item 1 of s.342(1) sets out the circumstances in which one person takes adverse action against another person. Relevantly, item 1 of s.342(1) provides that adverse action is taken by an employer against an employee if the employer injures the employee in his or her employment, or alters the position of the employee to the employee's prejudice. A prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right.[51]
[51] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [32]
The FASOC pleads that the failure to consult on the Homeroom Dissolution and Ms Herrett’s behaviour at the 2017 Allegations Meeting constituted either an injury to Mr Kalayzich in his employment or a prejudicial alteration in his position because those matters negatively affected the work environment in which Mr Kalayzich was expected to carry out his duties. Whether the conduct alleged by Mr Kalayzich that he suffered (if proved) constitutes an injury to Mr Kalayzich in his employment, or a prejudicial alteration to his position, are said to be matters for the Court to determine on the evidence and on consideration of any argument about the scope and meaning of the statute. On a question of pleading, the FASOC is said to be adequate. Should the respondents require particulars of [77]-[79] of the FASOC, they may seek them. No such request has been made.
In relation to [81]-[83] of the FASOC, the respondents assert that the pleading needs to set out how the First Warning, Second Warning and Performance Management Plan caused Mr Kalayzich to feel humiliated and marginalised. Mr Kalayzich submits the FASOC is not deficient for this reason. Without delving into matters that are better addressed in evidence, he contends that the FASOC pleads the relevant material facts. How an employee feels as a consequence of an employer’s actions is relevant, but not sufficient, to establishing an adverse action.[52]
[52] Arnett-Somerville v Monash Health [2016] FCA 1451 at [89]
Mr Kalayzich resists the respondents’ characterisation of the pleading as raising matters of procedural fairness that might have been part of an unfair dismissal action. He is well aware of the distinctions referred to by the respondents in their submissions. This complaint does not add to the respondents’ challenge to the FASOC. Mr Kalayzich states that he has addressed above by reference to specifically challenged paragraphs of the FASOC the shortcomings to the respondents’ complaints.
Mr Kalayzich contends that the respondents have not identified why the Court should exercise its extraordinary discretion to strike out the identified parts of the FASOC.
Challenge to pleading of adverse action based on exercise of workplace rights under Work Health and Safety legislation
Mr Kalayzich accepts a drafting error at [66] of the FASOC as pointed out by the respondents. The paragraph ought to read:
The WH&S Act is a law of the State of New South Wales that regulates the relationships between employers and employees, including by dealing with occupational health and safety matters.
(counsel’s emphasis retained)
Notwithstanding that drafting error, Mr Kalayzich otherwise rejects the challenges raised by the respondents to the alleged deficiencies to the pleading.
First, the respondents’ submission that the expression “role or responsibility” as it appears in s.341(1)(a) necessarily pertains only to a role or responsibility imposed on a person in a representative capacity is said not to be a limitation derived from the language of the statute, and in any event, is said to be inconsistent with binding authority.[53] To the extent that Jessup J suggested to the contrary in Hansen, Mr Kalayzich contends that his Honour was, with respect, wrong. The latter case was determined by Jessup J exercising the original jurisdiction of the Federal Court, whereas Auimatagi was decided by a Full Federal Court exercising the appellate jurisdiction of the Court. This Court is bound by the Full Federal Court’s judgment.
[53] Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246 at [70]-[74] (Allsop CJ, Collier and Rangiah JJ)
Secondly, the respondents’ challenge to the pleading as being deficient for failing to plead, for instance, that Mr Kalayzich is a “worker” for the purposes of the Work Health and Safety Act 2011 (NSW) (WH&S Act) is an entirely insufficient basis upon which to seek that the pleading be struck out. He contends, as referred to in the authorities referred to above, that pleadings need only adequately expose the case sought to be advanced by an applicant. In any event, s.7 of the WH&S Act relevantly provides:
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:
(a) an employee, or …
In circumstances where Mr Kalayzich pleads in the FASOC that from January 2003 to 15 August 2018 he was employed by Santa Sabina,[54] there is said to be no ambiguity, uncertainty or deficiency in the pleading as contended by the respondents. To the extent the respondents might wish to deny the application of the WH&S Act to Mr Kalayzich, for whatever reason, then they may join issue with the material facts as pleaded, for instance at [64] of the FASOC.
[54] FASOC at [1]
Fourthly, the respondents challenge the pleading of a workplace right arising by virtue of s.47 of the WH&S Act, in particular [69]-[71] of the FASOC. Mr Kalayzich will not press these paragraphs, and had intended not to include them in the FASOC.
Challenge to pleading of adverse action based on exercise of workplace rights under the Enterprise Agreement
The respondents contend two deficiencies in the identified pleading. However, Mr Kalayzich submits that neither alleged deficiency, even if made out, could constitute a basis for the pleading at [113]-[119] of the FASOC to be struck out.
First, the respondents contend that the pleading at [75] of the FASOC contains an “incorrect summary” of the effect of the identified clause of the Enterprise Agreement. If that is so, then the respondents should plead in defence to the allegation for instance by denying that Mr Kalayzich had such a workplace right as pleaded. In any event, Mr Kalayzich submits that a contest as to the meaning or effect of a clause of the Enterprise Agreement does not render the pleading at [75] of the FASOC evasive, embarrassing or liable to be struck out. The pleading is clear. For the avoidance of doubt, Mr Kalayzich maintains that there is not, in any event, any misdescription in [75] of the FASOC of the effect of the identified clause of the Enterprise Agreement.
Mr Kalayzich notes that the breach of the Enterprise Agreement is pleaded from [113] of the FASOC. No challenge is made to those paragraphs.
Secondly, the respondents contend that the pleading cannot be maintained because on Mr Kalayzich’s own case he concedes he was notified of, and had discussed with him, the purported major workplace change when he attended the First Homeroom Meeting. The respondents submit that the pleading contains, in this way, “contradictory and inconsistent allegations”. This is said not to be so. Mr Kalayzich pleads at [116] of the FASOC the specific matters he contends were not discussed with him as required under the Enterprise Agreement. Whilst the respondents might take issue with whether such requirements as arising under the Enterprise Agreement were met, or arose at all, those are matters for the respondents to plead in defence of the allegations. There is said to be no inconsistency as asserted by the respondents. This aspect of the cause of action is said not to be evasive or ambiguous.
Challenge to pleading of adverse action based on disability discrimination
There is said to be no deficiency in the FASOC in respect of Mr Kalayzich’s claim that he was the subject of adverse action in connection with his disability as pleaded at [107]-[112] of the FASOC. The process of increased criticism and negative scrutiny by Santa Sabina is particularised at [109] of the FASOC indicating to the respondents what the pleading means. This is said to be an appropriate use of particulars, the purpose of which includes limiting the generality of the pleadings, restricting the evidence to be led at trial, and informing the opposing party of the case to be met at trial and to prevent surprise.
A question that arises is whether it is necessary for Mr Kalayzich to plead further facts in support of the contention that Santa Sabina in its conduct negatively affected Mr Kalayzich’s work environment. This is said to be an instance where further pleaded facts could be the subject of criticism (and perhaps a further element to the respondents’ strike out application) as descending into pleading the evidence. Mr Kalayzich will lead evidence to establish, as a fact, that Santa Sabina, in taking the various actions particularised at [109] and [110] of the FASOC negatively affected Mr Kalayzich’s work environment and caused him to feel marginalised.
Similarly, the expression used at [110] of the FASOC, “minor disciplinary issues concerning the Applicant’s students” is said to be not so vague and ambiguous to be struck out, because it is supported by particulars, which specify what the disciplinary issues are. Whilst particulars are not to be employed in place of properly pleaded material facts, that does not mean that particulars that are given are to be ignored by a responding party who asserts that the pleading is vague and ambiguous. To that end, the respondents’ contention that Mr Kalayzich’s use of the word “included” at [110] of the FASOC would permit him “to raise further matters at trial going to this point” must, in Mr Kalayzich’s submission, be rejected. The pleading, read with the particulars, at [109]-[110] of the FASOC, identifies specifically the process of increased criticism and negative scrutiny to which Mr Kalayzich alleges he was exposed.
Mr Kalayzich accepts that [111] of the FASOC does not specify what items in s.342(1) are said to arise. Mr Kalayzich intends to rely upon the s.342(1)(b) and (c). No additional material facts need to be pleaded in this instance, and Mr Kalayzich is content formally to notify the respondents by way of particulars of the specific sub-items that form basis of the adverse action pleaded at [111] of the FASOC. Any deficiency in [111] of the FASOC is said not to be of a magnitude necessitating that the paragraph be struck out.
Challenge to accessorial liability pleading
Mr Kalayzich pleads accessorial liability in Ms Herrett in relation to Santa Sabina’s conduct contrary to ss.340(1)(a) and (b) and s.351 of the Fair Work Act.[55] The FASOC has been drafted with rule 16.43 of the Federal Court Rules in mind. The rule provides that:
[55] [120]-[132] and [133]-[137] of the FASOC respectively
(1)A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.
(2)If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.
(3)In this rule:
condition of mind, for a party, means:
(a) knowledge; and
(b) any disorder or disability of the party's mind; and
(c) any fraudulent intention of the party.
Mr Kalayzich submits that the relevant facts and circumstances upon which Mr Kalayzich relies in pleading the state of mind of Ms Herrett appear at [120]-[122] and [124]-[127] of the FASOC. It is a matter for the respondents to plead to these facts and circumstances. The pleading in this respect is compliant with rule 16.43.
The respondents take particular issue with the pleading at [122] of the FASOC. There is said to be nothing objectionable about the pleading. It is but one fact pleaded in support of the alleged state of mind of Ms Herrett as required under the Federal Court Rules. The paragraph pleads that Ms Herrett knew of correspondence sent and received by the school of which she was the principal concerning adverse allegations made against the employees of the school. The basis of the allegation is that Ms Herrett was the principal of the school. Whether Ms Herrett was, or was not, aware of such correspondence, is a matter for her to address in the defence. The pleading is not said to be vague or embarrassing. The respondents have not sought any further and better particulars from Mr Kalayzich in respect of [122] of the FASOC.
Separately the respondents challenge [135] of the FASOC as being defective. The paragraph is relevant to the cause of action for accessorial liability in that it links Ms Herrett personally to particular conduct that is the subject of adverse action allegations; specifically, those matters pleaded at [124]-[127] of the FASOC. The pleading alleges that Ms Herrett was involved in Santa Sabina’s contravention of s.351 of the Fair Work Act.[56] The FASOC does not allege that Ms Herrett herself breached s.351 of the Fair Work Act. The paragraph is said not to be liable to be struck out.
[56] as pleaded earlier at [107]-[112] of the FASOC
Lastly, the respondents challenge Mr Kalayzich’s reference throughout the FASOC to s.793 of the Fair Work Act. Subsections (1) and (2) of the section provide:
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Mr Kalayzich asserts that, as is clear from the provision itself, it is not concerned with accessorial liability, or with attributing liability for the conduct of a corporate entity to an individual officer or employee. Rather, the provision permits conduct of an individual officer or employee of a corporate entity to be attributed to the corporate entity. It is to this effect that Mr Kalayzich has utilised the section in the FASOC. For instance at [79] and [80] of the FASOC, the conduct of Ms Herrett is said to be attributed to Mr Kalayzich for the purpose of the adverse action allegations.[57]
[57] see also [4] of the FASOC in this respect which pleads for the purposes of s.793 that the acts of Ms Herrett were engaged in by her on behalf of Santa Sabina within the scope of her actual or apparent authority
The relevant “state of mind” pleading in relation to Mr Kalayzich under s.793(2) is set out at [92] and [94] of the FASOC. Those paragraphs refer expressly back to the pleading at [79] and [80] of the FASOC and in that way clearly expose the relevant officer of Mr Kalayzich (ie, Ms Herrett). Mr Kalayzich accepts that at [79] and [80] of the FASOC the pleading should refer to s.793(1)(a) of the Fair Work Act, but otherwise he rejects that the identified paragraphs ought to be struck out.
Challenge to breach of contract pleading
Mr Kalayzich submits that the pleading is not deficient as the respondents contend. First, the respondents appear to pay no regard to the earlier pleaded terms of the contract of employment.[58] The respondents have made no express challenge to the pleaded terms of Mr Kalayzich’s contract. Further, [138] of the FASOC is said not to be itself deficient as claimed. The paragraph pleads the breach of the identified terms of the contract of employment. It should be noted that the conduct pleaded in [138] of the FASOC draws on earlier pleaded conduct underpinning the applicant’s causes of action under the Fair Work Act. For instance:
[58] see [5]-[7] of the FASOC
a)the selection of Mr Kalayzich’s homeroom for dissolution is pleaded at [17] of the FASOC;
b)the failure by Santa Sabina to notify Mr Kalayzich of, or to consult with him about, the Homeroom Dissolution, is pleaded at [18] of the FASOC;
c)Ms Herrett’s aggressive conduct manner at the 2017 Allegations Meeting is pleaded at [40] of the FASOC;
d)the direction to Mr Kalayzich at the 2017 Allegations Meeting not to raise questions or enquiries in the future is pleaded at [41(b)] of the FASOC;
e)the issuing of the First Warning is pleaded at [45] of the FASOC;
f)the issuing of the Second Warning is pleaded at [50(a)] of the FASOC;
g)The advice that Mr Kalayzich would be placed on a Performance Management Plan is pleaded at [50(b)] of the FASOC;
h)the advice that Mr Kalayzich would be subject to an External Review is pleaded at [50(c)] of the FASOC;
i)the termination of Mr Kalayzich’s employment is pleaded at [56] of the FASOC.
Whilst [138] of the FASOC pleads the breach of contract by reference to one, or more, allegations of conduct by Santa Sabina, Mr Kalayzich submits that this does not make the pleading embarrassing or incapable of being pleaded to. Whether the conduct pleaded, individually or cumulatively, might give rise to a breach of any one or more of the four pleaded implied terms of the contract of employment will be an issue for trial to be determined on the evidence. Mr Kalayzich could have pleaded the breach of contract in a more prolix manner, however (as the respondents themselves submit in the present application) a pleading of that kind is to be avoided.
Mr Kalayzich submits, in short, that the FASOC pleads the relevant terms of the contract of employment, it pleads the conduct that he alleges constituted a breach of certain terms of the contract, and it pleads consequential loss. The pleading is said to be adequate and not liable to be struck out.
Response to the “other problems with the FASOC”
The respondents challenge the “rolled up” way in which certain parts of the FASOC are expressed. Attention is drawn only to [76] of the FASOC. The respondents contend that this form of pleading is liable to be struck out as it is a form of pleading that was the subject of criticism by the Federal Court in Dahler. Mr Kalayzich submits that the relevant passages in Dahler must be read in context. Justice Katzmann at [108]-[110] did not criticise the impugned pleading in that case simply because it was expressed with the inclusion of “and/or”. Rather, several elements of the cause of action in an adverse action pleading were bound together in a single paragraph. The FASOC at [76] does not suffer from this deficiency. The pleading at [76] of the FASOC is said to be clearly expressed and able to be understood. The respondents are well able to plead in defence to it.
Resolution on the strike out issue
Mr Kalayzich accepts that [59]-[61] are otiose to the FASOC and those paragraphs will not be pressed. He also concedes that [66] of the FASOC requires further amendment to refer to the NSW WH&S Act rather than the Commonwealth legislation. Mr Kalayzich further concedes some continuing minor drafting errors. In respect of [111] of the FASOC, Mr Kalayzich intends to formally notify the respondents of further particulars in order to remedy admitted deficiencies in the paragraph. He also proposes to correct some legislative section references in [79] and [80] of the FASOC. Further, Mr Kalayzich submits that the respondents can elect not to plead to certain paragraphs in the FASOC to which they object or can request further and better particulars.
In substance, Mr Kalayzich submits that no further procedural intervention by the Court is required in relation to his pleading.
The principles relevant to the Court’s exercise of power under rule 16.21 of the Federal Court Rules are well-established and are set out above. The purpose of pleadings is to narrow and define the issues, so that parties know the real issues to be decided at hearing.[59] The FASOC in my view achieves this purpose. Further relevant principles on what comprise proper pleadings are summarised by Young J in Cadence Asset Management Pty Ltd v Concept Sports Ltd[60] at [34]-[37]:
[59] Banque Commerciale SA (in liq) v Akhill Holdings Ltd (1990) 169 CLR 279 at 287-288 (Brennan J); McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [21] (Weinberg J)
[60] [2006] FCA 944
Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 (‘Akhil’) at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court.
[35] The authorities do not lay down a standard of perfection in pleadings. In Akhil, Dawson J referred, with approval, to the statement by Isaacs and Rich JJ in Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at 517 that the function of pleadings is discharged when the case is presented with reasonable clearness, and any want of clearness can be cured by amendment or by particulars.
…
It can be difficult to distinguish between a material fact and a particular: Charlie Carter at 417 per French J. The difference often turns upon the level of generality at which the material facts are alleged in a particular pleading. Consistently with the rules of pleading, a cause of action can be pleaded at different levels of generality, depending upon the nature of the case and the subject matter in question. A pleader is not compelled to plead primary or evidentiary facts. Most pleadings will set forth the material facts at a level which involves some element of conclusion concerning the factual ingredients of the cause of action. But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it: Charlie Carter at 417. On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet: see, eg, Trade Practices Commission v David Jones (Australia) Pty Ltd, supra, at 113-115.
In Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd[61] French J said at [17]:
What are "necessary" particulars of any claim, defence or other matter pleaded is a matter of judgment. The underlying principle is that the case of each of the parties is adequately exposed to the other. It is important to maintain a sense of balance in the detail of particulars sought and ordered. The provision of particulars should not be allowed unduly to increase the cost and delay associated with litigation. In contemporary commercial litigation where, frequently, the court will direct the filing of witness statements or affidavits on either side subject to the right to cross examination, the necessity for elaborate particulars and lengthy debates about them is even more questionable.
[61] [2006] FCA 1395
The High Court has said that the discretion to strike out a pleading is to be exercised with “great caution”.[62]
[62] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [6], (2005) 79 ALJR 1716 at 1719 (Gleeson CJ, McHugh, Gummow and Heydon JJ)
The respondents submit that the Court should have regard, for the purposes of determining whether the FASOC should be struck out, to the fact that the Fair Work Act imposes a “reverse onus” in s.361. Whilst I accept that an applicant is required to plead the essential material facts relevant to the cause of action advanced, the standard by which a pleading is to be held is no different in a case involving an allegation of adverse action to which s.361 applies.
In my view, while there was certainly criticisms to be made of the original statement of claim as drafted, and the amended statement of claim, the respondents’ criticisms of the FASOC are overly zealous. In that regard, the respondents’ heavy reliance on the observations of Katzmann J in Dahler is misplaced. I was one of two judges at first instance in that matter. The statement of claim the subject of those proceedings was of an entirely different order than the FASOC. There is simply no comparison between the defective pleading in Dahler and in the FASOC in this case.
Further, in my view, the respondents have been over zealous in requiring a pleading in every detail of which they can plead a defence which either accepts or denies the relevant facts. The respondents place heavy reliance on Federal Court Rules 16.07 which provides:
Admissions, denials and deemed admissions
(1) A party pleading to an allegation of fact in another party's pleading must specifically admit or deny every allegation of fact in the pleading.
(2) Allegations that are not specifically denied are taken to be admitted.
(3) However, a party may state that the party does not know and therefore cannot admit a particular fact.
(4) If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied.
Note: This rule requires a party to address each material fact pleaded in an opposing party's pleading. A general denial or an evasive answer will not be sufficient.
The respondents assert that the FASOC must plead every factual allegation with sufficient clarity (as determined by them) to enable them to admit or deny each allegation.
The rule means what it says but it does not require a respondent to admit or deny unknown facts. Further, the rule is founded on the assumption that there is sufficient clarity in an applicant’s pleading to permit an admission or denial. A respondent cannot be compelled to plead to an allegation that it does not understand.
It is a feature of this case that there are facts which may be presently unknown and which will need to be teased out as the matter progresses. These unknown or doubtful factual issues can be the subject of a request for further and better particulars, and, if the respondents are dissatisfied with any response to such a request, I would not cavil with the right of the respondents to refuse to plead a defence in respect to particular component parts of the FASOC. Indeed, it is relatively common in proceedings in this Court for a respondent to decline to plead to particular parts of a statement of claim which are regarded as unclear or outside the knowledge of the respondent.
Further, it 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. This case might hypothetically have been undertaken in the absence of pleadings. The statement of claim was prepared on behalf of Mr Kalayzich because the respondents asked for one. 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.
I conclude that the FASOC for the most part details the facts and circumstances asserted by Mr Kalayzich with sufficient clarity to enable the respondents to file a defence. As Mr Kalayzich concedes, the FASOC can be improved upon, and I propose to give him the opportunity to do so.
In all the circumstances, in my opinion, the Application in a Case as amended should be dismissed. The FASOC, while it remains imperfect, should not be the subject of a strike out order in whole or in part.
Conclusion
I have concluded that the FASOC should not be struck out in whole or part. That said, it does require further amendment and Mr Kalayzich should be given the opportunity to file a second further amended statement of claim. The respondents should have the opportunity to request further and better particulars of that pleading if required, and thereafter a defence and the filing of evidence will be required. I will hear the parties as to an appropriate timetable.
Costs
I will order that there be no order as to costs. The strike out application was not vexatious or an unreasonable act for the purposes of s.570 of the Fair Work Act. The genesis of the strike out application was an earlier iteration of the statement of claim, which required amendment, and there remain deficiencies in the FASOC which Mr Kalayzich has indicated will be corrected. Neither has the conduct of Mr Kalayzich been unreasonable in respect of his pleading. It was the respondents who requested a statement of claim and Mr Kalayzich did his best to provide one with the assistance of his legal advisors. The third iteration of the pleading is a significant improvement on the earlier attempts, due no doubt to the involvement of experienced counsel. In the circumstances, the costs of the strike out application should lie where they fall.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 March 2020
47
30
5