Kennedy v Qantas Ground Services Pty Ltd (No 2)
[2024] ACTSC 232
•19 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kennedy v Qantas Ground Services Pty Ltd (No 2) |
Citation: | [2024] ACTSC 232 |
Hearing Date: | 17 June 2024 |
Date of Last Submissions: | 5 July 2024 |
Decision Date: | 19 July 2024 |
Before: | Mossop J |
Decision: | See [140] |
Catchwords: | PRACTICE AND PROCEDURE – PLEADINGS – Plaintiff is self‑represented litigant – case with long procedural history – no defence yet filed – whether proposed amendments to proceedings should be allowed – no issue of principle |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 35 Corporations Act 2001 (Cth) Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 406(1)(c), 425, 503, 505, 506, 509, 1701(2), 1726 Disability Discrimination Act 1992 (Cth), ss 15, 35, 125, Pt 2 Fair Work Act 2009 (Cth) Work Health and Safety Act 2011 (ACT) Work Health and Safety Regulation 2011 (ACT), ss 55C, 55D |
Cases Cited: | Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Kennedy v Qantas Ground Services Limited [2023] ACTSC 404 McGuirk v The University of New South Wales [2009] NSWSC 1424 |
Parties: | Ross Kennedy ( Plaintiff) Qantas Ground Services Pty Ltd (First Defendant) Qantas Airways Limited (Fifth Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) D Crowe (First and Fifth Defendants) |
| Solicitors Self-represented ( Plaintiff) Sparke Helmore (First and Fifth Defendants) | |
File Number: | SC 253 of 2019 |
MOSSOP J:
Introduction
1․The plaintiff has filed an application in proceeding dated 30 April 2024 seeking leave to file a document titled “2nd FURTHER AMENDED Statement of Claim—employment death or personal injury”. The application also seeks the vacation of certain directions setting a timetable for preparation of the case which were made by a Senior Deputy Registrar of the Supreme Court.
2․At the hearing on 17 June 2024, the plaintiff read an affidavit of himself dated 14 May 2024 in support of that application.
Procedural history
3․The proceedings have a long and tortured history. At various times, the plaintiff has been represented by one of five different law firms and, at other times, he has been self‑represented. He is presently self‑represented, having terminated the services of his most recently engaged solicitors.
4․The proceedings were commenced by Originating Claim dated 19 May 2020 and a Statement of Claim dated 20 May 2019. The discrepancy in dates appears to have arisen from the fact that the original document lodged for filing was requisitioned and only re‑lodged a year later. On 4 August 2020, the defendants filed an application in proceeding to set aside the Originating Claim and Statement of Claim.
5․After a variety of directions hearings, that application was heard by McWilliam AsJ on 25 June 2021, 1 April 2022, 12 July 2022, 15 September 2022, 12 October 2022, and 27 February 2023. A number of further directions hearings also took place during this period. McWilliam AsJ reserved her decision on the strike out application in March 2023.
6․McWilliam J (as her Honour had then become) handed down her decision on the strike out application on 21 December 2023: Kennedy v Qantas Ground Services Pty Limited [2023] ACTSC 404. The process undertaken by McWilliam J, as summarised in her reasons at [3], was as follows:
(a)The application to strike out the original claim was heard in June 2021. The plaintiff articulated the essence of his claim orally during the hearing. The plaintiff’s claims were recorded on transcript and with the consent of the defendants, a document entitled “Points of Claim” capturing the plaintiff’s case was then provided to him by the Court in September 2021 to finalise and file.
(b)The plaintiff then amended and finalised the document he wished to file in January 2022 and the court then worked through the revised pleading document at a hearing on 12 July 2022. The majority of the claim was struck out, but leave was granted to re-plead the claim.
(c)In October 2022, after an extension, the plaintiff served a proposed amended statement of claim of over 400 pages. The defendants objected to leave being granted for that document to be filed.
(d)In February 2023, shortly before the Court was to consider the amended statement of claim, the plaintiff indicated that he wished to rely upon a further document, which the plaintiff described as a 2nd further amended statement of claim and which he says complements, but does not replace, the amended statement of claim of October 2022.
7․The approach ultimately taken by her Honour was to put together a proposed “Further Amended Statement of Claim” from the various pleadings previously filed or provided by the plaintiff, so as to remove those paragraphs which her Honour would strike out and retain the balance of the pleading which her Honour would admit. This Further Amended Statement of Claim was then included as Annexure A to her reasons. The ultimate order made was an order granting leave to the plaintiff to file a Further Amended Statement of Claim substantially in accordance with Annexure A. That was required to be done before 31 January 2024. Her Honour made other orders and a costs order in favour of the first and fifth defendants, being Qantas Ground Services Pty Ltd (QGS) and Qantas Airways Limited (QAL), respectively. The timetable set for the filing of the Further Amended Statement of Claim was subsequently amended by her Honour to allow additional time. The Further Amended Statement of Claim was filed by the plaintiff’s then solicitor on 21 February 2024 (FASC).
8․On 26 March 2024, a timetable for the progress of the proceedings was set by a Senior Deputy Registrar. That required the defendants to file a defence by 5 April 2024 and identified a timetable for other steps leading up to a Listing Hearing.
9․However, on 2 April 2024, the plaintiff gave notice that he had terminated the instructions of his solicitors and intended to amend the FASC.
10․On 15 April 2024, a different Senior Deputy Registrar directed the plaintiff to file an application seeking leave to amend his pleadings. This is the current application which is before the court.
11․Notwithstanding that the application remained on foot and leave had not been granted, on 3 May 2024, the plaintiff lodged for filing the document titled “2nd FURTHER AMENDED Statement of Claim—employment death or personal injury” dated 29 April 2024 (2FASC).
12․On 31 May 2024, directions were made requiring the defendants to file written submissions relating to the application for leave by 5 June 2024. The plaintiff was required to file written submissions in reply by 12 June 2024. The defendants filed submissions in accordance with the directions. The plaintiff did not file any written submissions in accordance with the directions.
13․The FASC is a document of 41 pages. The defendants take no issue with this document, as they appeared to accept it is consistent with the orders made by McWilliam J. The 2FASC is a document of 133 pages. As will be apparent from its length, it involves substantial additions to the claims made by the plaintiff.
The earlier Kennedy judgment
14․In order to understand its significance for the purposes of the present application, it is necessary to understand the pleading material which was addressed by McWilliam J and the reasons that she gave for having refined the material in the way that she did in Annexure A to her reasons.
15․In her Honour’s reasons, she pointed out that, by the time of the hearing on 27 February 2023, “there is no single document that may be said to encapsulate the plaintiff’s claim, with the result that the plaintiff’s claim is unwieldy and difficult to follow”: [17]. She identified a second difficulty as being that “the claim suffers from overwhelming detail, which lacks the distinction between facts that are material to each element of a particular cause of action and matters that are more in the nature of background information, submission or evidence at trial”: [18]. She identified that this was compounded by the plaintiff’s confusion of legal terms. The sheer volume of material meant that it was not useful to go through the individual paragraphs or categories of paragraphs: [19]. Her Honour accepted that the bulk of the pleading should be struck out as it was embarrassing in the sense articulated in McGuirk v The University of New South Wales [2009] NSWSC 1424. However. she did not consider that the whole of the proceedings should be dismissed because of the inadequacy of the pleading as it existed at that time. Her Honour continued (at [25]-[26]):
25․ What can be said of the pleading here is that there are various discernible causes of action that have been pleaded, but they are buried either among other immaterial facts, evidence supporting the facts, rolled up allegations or submissions. At the heart of this claim is a person who was employed by at least one of the Defendants. He says he experienced conduct at work by his supervisors and other employees that caused him to suffer a deterioration in his mental health. As a consequence, he alleges he had to take sick leave. He further alleges that any systems that were in place to deal with complaints, performance management and return to work processes were either not adequately implemented or not followed, and that as a result he suffered an exacerbation of his mental health problems. This in turn led to him being dismissed from his employment and he has not been able to work since. That is an arguable claim in negligence and contract for failure to provide a safe system of work. If the plaintiff establishes that the employer did not follow systems required by workplace health and safety laws, then the same conduct may also give rise to a statutory cause of action.
26․ The defendants have accepted that there may be an arguable case on each of those causes of action, but they do not presently have a single cohesive document which enables them to understand the case they have to meet, let alone plead to it. They say that given the time it has taken, the case management obligations of s 5A of the [Court Procedures Act 2004 (ACT)] should operate in favour of an order disposing of the proceedings in its entirety. That may well have been appropriate if the pleading had been struck out in its entirety.
16․Her Honour adopted the approach that she did in the preparation of Annexure A “[w]ith a view to achieving certainty and limiting the scope for any further pleading that does not adhere to the pleading rules set out above”: [30]. However, her Honour did not make an order that any further amendment would require leave of the court.
17․Her Honour indicated that, except as permitted in Annexure A, the remainder of the existing pleading would be struck out. That included certain paragraphs, which were not identified, where the plaintiff indicated he no longer pressed a particular cause of action or allegation. It also included matters where there was no arguable cause of action. Her Honour gave, as an example, references to breaches of parts of the Corporations Act 2001 (Cth).
18․Her Honour then dealt with the fact that Annexure A did not contain the plaintiff’s proposed claim in contract. That was contained in Part 11 of the Amended Statement of Claim (one of the various pleading-related documents that had been provided to her Honour). She accepted that the plaintiff did plead the elements necessary to constitute a cause of action, but that the content of the terms pleaded “was vexatious and oppressive and to the extent that there were any proper contractual terms pleaded, it was not clear which conduct pleaded earlier constituted the breach”: [35]. Her Honour did not consider it appropriate for the court to attempt to re-craft the claim in an appropriate manner. Further, she referred to the fact that it was unclear what advantages a separate breach of contract case would add to the negligence claim: [36]. Her Honour did say, however, that “the present ruling does not preclude leave being granted in the future if a properly pleaded claim in contract were to be formulated”: [36].
19․She then gave reasons for dispensing with the rule requiring a defendant in personal injury proceedings to plead to particulars.
The affidavit in support of the current application
20․The affidavit in support of the current application describes the plaintiff’s history of employment with QGS and a summary of things about which he makes complaint in the proceedings. It indicates that he has not been employed in any way since his termination by QGS on 2 November 2017.
21․In relation to the process engaged in by McWilliam J, he makes complaint that:
(a)her Honour failed to go through his points of claim “paragraph by paragraph”, notwithstanding saying that she would;
(b)the solicitor and counsel for the defendants “did not adequately ‘engage with’ me in an ongoing manner … to ensure that the pleading was competent to the satisfaction” of the defendants;
(c)counsel for the defendants made a false statement to the court on 27 February 2023, that McWilliam J had said that it was the plaintiff’s final opportunity to provide a competent pleading to avert the pleading or the proceedings being struck out.
22․The plaintiff describes the chronology relating to him giving notice of his intention to file the 2FASC and identifies that at no stage have the defendants filed a defence.
23․Under a series of headings, the affidavit then addresses distinct subject matters. I will attempt to summarise the subjects dealt with to the extent that the evidence was admitted.
24․The Parkins Documents: for reasons given at [33] below, I did not admit these paragraphs into evidence.
25․Pleading 1, Annexure A and the Kennedy Judgment: The plaintiff says that he first read the annexure to McWilliam J’s judgment on 21 December 2023. He says that he noted “several errors, oversights and omissions including negligent acts, Causes of action and other matters that had been omitted from previous pleadings that I had filed in the proceedings”. He complains about the 11 month delay in giving judgment.
26․The Kennedy Judgment - errors and oversights: This section of the affidavit was in the nature of submissions and was not admitted into evidence.
27․Annexure A - errors and oversights: This section of the affidavit was in the nature of submissions and was not admitted into evidence.
28․Pleading 2 and Application in Proceeding: This relates to the proposed 2FASC which is referred to as Pleading 2. It records that he transmitted the 2FASC to the court on 29 April 2024. It identifies that, due to time constraints, he did not include a cause of action based upon the Parkins Documents. It states that the grant of leave to file the 2FASC would address the errors of the associate to McWilliam J in the preparation of Annexure A, and of Capital Lawyers in the preparation of the FASC. Reference is made to a bundle of 21 “Attachments of written communications” between the plaintiff and Capital Lawyers, which is subject to the plaintiff’s claim of legal professional privilege.
29․Capital Lawyers: This section of the affidavit describes his engagement of Mr Crabb at Capital Lawyers. The plaintiff asserts that a number of matters are relevant to the granting of leave to file the 2FASC, including:
(a)that he raised with Capital Lawyers the fact that Annexure A and the FASC did not include “all relevant Negligence, Causes of action and other matters”;
(b)that Capital Lawyers had agreed to prepare the 2FASC and seek leave for it to be filed;
(c)that he had given instructions to Capital Lawyers not to agree to a “tight timetable” at a directions hearing;
(d)that Capital Lawyers refused his instructions to seek consent to make amendments to the FASC; and
(e)that Capital Lawyers refused to send an email to the solicitor for the defendants relating, somehow, to a claim for privilege over “the Parkins Documents”.
30․Privilege claim: The affidavit records that he wishes to rely upon communications between himself and Capital Lawyers, but also wishes to claim privilege over them.
31․Prejudice to Plaintiff, Prejudice to Defendants, Case law, and Orders sought: These sections all contain material in the nature of written submissions and were not admitted. The only exception to this were two paragraphs identifying that the solicitor and counsel for the defendants had both acted in the proceedings since their commencement.
The hearing on 17 June 2024
32․At the hearing on 17 June 2024, the plaintiff moved on his application in proceeding dated 30 April 2024. He read the affidavit of himself dated 14 May 2024. There were some objections from the defendants to paragraphs in that affidavit. Those objections were ruled upon.
33․A ruling in relation to the objections to paragraphs 40-47 was deferred. Those paragraphs relate to documents referred to as “the Parkins Documents”. The paragraphs in the affidavit described the documents as material relating to an investigation conducted for the purposes of the plaintiff’s separate workers compensation proceedings in the Industrial Court. Having described the documents as demonstrating “unethical conduct” by the insurer, its lawyers, and the investigator, paragraph 47 of the affidavit says: “The Parkins Documents need to come before the Court for these proceedings.” I do not consider that these paragraphs are relevant to the present application to amend the pleadings. I therefore do not admit those paragraphs.
34․The plaintiff made written submissions of 19 pages in support of his application. His oral submissions at the hearing closely followed those written submissions.
35․The submissions placed significant reliance upon what was said to be errors by McWilliam J in her Honour’s judgment, and what were said to be defects in the pleading annexed to her Honour’s judgment as Annexure A. There were 20 categories of error identified in relation to McWilliam J’s judgment. They included the omission of causes of action “without explanation”, failing to provide an adequate legal basis to strike out the pleadings which were omitted, and omitting the cause of action relating to the claimed negligent misrepresentations made by a person identified as “Mr Stevenson”.
36․In relation to the alleged defects in Annexure A, there were 16 categories of alleged error identified. There was, once again, a complaint that causes of action had been omitted.
37․There was a complaint about the 11-month delay in delivering the judgment. The delay was alleged to have contributed to the errors in the judgment. However, it is not otherwise clear how the issue of delay would favour a grant of leave to file the amended pleading.
38․There was a complaint that “there has not been a sense of urgency from the Court” in dealing with the proceedings. The submissions suggest that the orders most recently made by the Senior Deputy Registrar, which require steps to be taken to prepare the matter for hearing, involved an overcompensation for the past lack of urgency.
39․The submissions complained about a lack of a reasonable opportunity to appeal the earlier judgment. They point to the difficulty the plaintiff faced with filing an appeal, given that judgment was delivered on 21 December 2023. They also point to factors which suggest a conscious decision by the plaintiff not to appeal nor to seek leave to appeal out of time.
40․The submissions challenged the correctness of the order made by McWilliam J which dispensed with the requirement for the defendants to plead to the particulars in the Statement of Claim.
41․The balance of the submissions then dealt with other matters relevant to determining whether or not leave should be given to permit the filing of the 2FASC. They can be summarised as follows:
(a)the prospects of success are generally not a matter for consideration and leave to amend the pleading should be granted, even if the prospects of success are low;
(b)there was no significant delay between the filing of the FASC by Capital Lawyers and the plaintiff’s notification to the defendants and the court that he wished to file an amended pleading;
(c)that delay was reasonable and justified by the conduct of his previous solicitors;
(d)pleadings have not yet closed;
(e)no hearing date has been set;
(f)the chronology of dealings following the publication of the judgment;
(g)there will be no prejudice to the defendants if the plaintiff is provided with leave to file the amended pleading;
(h)the defendants have failed to assist the court and the plaintiff to bring the proceedings to a conclusion;
(i)the pleading is clearly presented and compliant with r 509 because the amendments are neatly distinguishable and do not contain embarrassing, vexatious or frivolous claims;
(j)the proposed pleading is not an abuse of process by the plaintiff;
(k)the pleading more than adequately fulfils the basic functions of a pleading;
(l)“All Causes of action contained in Pleading 2 have previously come before the Court and the Defendants in the Plaintiff’s previous pleadings, written and oral submissions, and written communications and, hence, there should be no surprises to the Defendants in accordance with Rule 406(1)(c) of the Rules”;
(m)the same set of facts have arisen in two previous workers compensation proceedings in the Industrial Court, and two further proceedings in the Fair Work Commission (one relating to bullying and one to unfair dismissal);
(n)a handful of new issues and claims included in the pleading “all are associated with a respective Cause of action that the Plaintiff has previously pleaded” and would be unlikely to impact upon the defendants’ proposed defence in any significant manner;
(o)the plaintiff has, throughout the proceedings, withdrawn several causes of action and has not advanced other claims based upon the Parkins Documents;
(p)it is likely that the defendants will make applications relating to a limitation defence and an application claiming legal professional privilege over the Parkins Documents, which themselves will take up court time and resources;
(q)because of the long-term involvement of the solicitors and counsel for the defendants, there are few new issues that will arise in relation to the proposed pleading;
(r)QAL is a large and profitable company;
(s)none of the proposed amendments are futile, with the possible exception of whether or not the plaintiff had a private cause of action against the defendants for breach of statutory duties under the Work Health and Safety Act 2011 (ACT); however, this cause of action can be withdrawn at the hearing or argued in court;
(t)the capacity of injured workers to make claims based upon ss 55C and 55D of the Work Health and Safety Regulation 2011 (ACT) will make for “novel and good law”;
(u)the submissions and pleading are made in good faith;
(v)various submissions about the fault or lack of fault on the part of various solicitors and counsel;
(w)the court should exercise caution in dealing with self-represented litigants;
(x)the court should assist self-represented litigants to prepare pleadings that comply with the Court Procedures Rules 2006 (ACT);
(y)the plaintiff should not be prejudiced by “undue pressure” brought by a Registrar to withdraw a certain affidavit;
(z)the public confidence and interest in the efficient use of limited court resources would be enhanced by the granting of leave; and
(aa)the balancing exercise involved in consideration of these factors supports the granting of leave.
42․The defendants’ written and oral submissions responded to the material in the plaintiff’s affidavit in support of his application in proceeding. The submissions provide a summary of the position adopted by the defendants as follows:
1. Whether the plaintiff is technically entitled to amend the current pleading in reliance on r 505 of the Court Procedures Rules 2006 (Rules), him doing so would simply result in the Defendants filing an application to disallow the amendments under r 506 of the Rules and so the substantive question should be ventilated on 17 June 2024;
2. The plaintiff complains in his affidavit about the decision made by McWilliam J on 21 December 2023 (Decision) (including various elements of the hearing, spread over a number of days, which led to it) but has not sought to appeal from it;
3. The ‘new’ parts of the Proposed Pleading is deficient in many of the same ways as the various pleadings considered by McWilliam J were. The plaintiff’s attempt to avoid the consequences of her Honour’s ruling by way of a further interlocutory application is an abuse of process;
4. By reference to the unfortunate procedural history of the proceeding to date (in large part the result of the Court and the Defendants making every conceivable allowance for the plaintiff’s status as self-represented), the requirements of s 5A of the Court Procedures Act 2004 (CPA) mandate the progression of the case on the basis of the Current Pleading; and
5. In any event, the amendments to the Current Pleading proposed by the plaintiff should not be permitted to the extent they would be liable to being struck out.
43․The submissions outlined the procedural history related to the various proposed forms of a pleading. In light of this history, they develop the submission that the attempt to file the 2FASC amounts to an abuse of process. In any event, the defendants submit that leave should not be granted because it would be liable to be struck out for reasons which are elaborated upon generally but not in a “line by line” manner. Two specific submissions were raised: that the Disability Discrimination Act 1992 (Cth) does not give rise to a private cause of action, and that the court does not have jurisdiction to decide a claim under the Fair Work Act 2009 (Cth). In relation to a cause of action in contract and misrepresentation, the defendants referred to the remark of McWilliam J that it is not clear what advantage such claims would have for the plaintiff in the circumstances of the case where a cause of action in negligence is already pleaded.
44․At the hearing of the proceeding, I raised with counsel for the defendants the fact that their submissions placed heavy reliance upon the proposition that claims now sought to be advanced in the 2FASC had been the subject of consideration by McWilliam J so that the reagitation for their inclusion amounted to an abuse of process. I raised with counsel the fact that there was no material before the court that would permit any conclusion about the correctness of that proposition. Counsel sought the opportunity to provide further written submissions on that point.
45․I made a direction permitting the defendants to file any additional submissions, limited to not more than 10 pages, and for the plaintiff to file any submissions in reply, also limited to not more than 10 pages.
Material filed after hearing on 17 June 2024
46․The defendants filed a table comparing the 2FASC with the various iterations of the pleadings, or pleading-related documents, that were put before McWilliam J, and some short additional submissions. The table and submissions totalled eight pages. That was accompanied by a PDF file containing those various proposed pleadings and pleading‑related documents put before her Honour, which amounted to 1832 pages.
47․In response to this, the plaintiff was permitted to file any written submissions in reply limited to not more than 10 pages. He sought an extension of time and an increase to the page limit, initially of “an additional 6-8 pages”. A later request was made for leave to file substantially longer submissions (“I now estimate that the Submissions will extend to more than 60 pages”). The latter request was refused, and he was permitted to file written submissions limited to not more than 17 pages. The plaintiff then filed:
(a)five pages of written submissions in response to the written submissions filed by the defendants prior to the 17 June 2024 hearing;
(b)eight pages of written submissions in response to the table filed by the defendants; and
(c)53 pages of additional table, directly responsive to the content of the table provided by the defendants.
48․Given the long history of the matter and the apparent significance, in light of the defendants’ submissions, of the court having before it some evidence as to the proposed pleadings that were put before McWilliam J (notwithstanding the fact that the evidentiary material provided by the defendants was not in accordance with any leave granted by the court and two of the three sets of submissions filed by the plaintiff were not in accordance with a grant of leave), I consider it appropriate to take into account all of the material filed, despite the fact that some aspects of it were inconsistent with the orders of the court. The PDF file of 1832 pages will therefore be admitted into evidence and marked as an exhibit. Ultimately, for the reasons outlined at [59]-[61] below, detailed examination of the material that was put before McWilliam J was less significant than an assessment of the content of the proposed additions to the pleadings.
Is leave necessary?
49․Rule 505 provides that a party may, without the court’s leave, amend the party’s pleadings once before the close of pleadings, and then as often as necessary before the close of pleadings with the agreement of all other parties to the proceedings. However, this rule does not apply to an amendment for which the court’s leave is required. Rule 506 provides that where a party makes an amendment before the close of pleadings, another party may apply to the court to disallow all or part of the amendment. On such an application, the court may make any order it considers appropriate. The court is obliged (“must disallow”) all or part of the amendment if satisfied that, had an application for leave to make the amendment or part of the amendment been made, it would not have given leave to make the amendment or part.
50․The following versions of the statement of claim have been filed:
(a)19 May 2019: Statement of Claim; and
(b)21 February 2024: FASC.
51․The FASC was filed by leave of the court, given by McWilliam J.
52․Pleadings have not closed because, notwithstanding the passage of time, no defence has been filed by the defendants. Notwithstanding the lengthy and detailed process engaged in by McWilliam J, no order was made precluding the plaintiff from filing an amended pleading without leave.
53․The position is, therefore, that the plaintiff was able to file an amended pleading without leave under r 505, so long as leave was not required by another rule (such as r 503).
54․Recognising the possibility that leave may not be required, counsel for the defendants submitted that in order to avoid the necessity for a separate application to disallow the pleadings, the court on hearing the application in proceedings should deal with the matter either as an application for leave or as an application pursuant to r 506. The effect of r 506 is, in substance, to give to a defendant the capacity to compel a plaintiff to meet the hurdle of a grant of leave to file an amended pleading.
55․Because of the existence of an application for leave to make the amendments, and the capacity of the defendants to compel the application of the same test as would be required for a grant of leave to make the amendments, it is appropriate to deal with the matter as though a grant of leave to make the amendments was required. This requires the court to take into account the long procedural history that the matter has already had and not just look at the bare question of whether or not the amended pleadings would be liable to be struck out under rule 425.
Approach to the grant of leave
56․Adopting the approach that I have just outlined, it is relevant to have regard to the fact that the court has already undertaken a very extensive process to determine the claims that the plaintiff may plead and the manner in which they may be pleaded. That involved the court ruling on at least two occasions (12 July 2022 and 21 December 2023) as to which claims should be struck out and which claims should not.
57․That has resulted in a permissible pleading in the form of Annexure A to McWilliam J’s reasons. No appeal has been brought against the orders made on either of the two occasions on which rulings were made, mentioned above.
58․In circumstances where there are unchallenged orders of the court that have the effect of precluding certain claims from being included in the pleadings, it would generally be inappropriate to then permit those same claims to be included in a subsequent iteration of the pleadings. I say “generally” so as to not preclude the possibility of there being particular, unusual circumstances which would justify such a course. However, unless there are some particular circumstances which would justify such a course, then any attempt to get around an earlier unchallenged order by a further application would amount to an abuse of process or, at least, a use of the court’s processes that should not be permitted by the court.
59․However, as described earlier, the principal foundation for McWilliam J’s decision in December 2023 related to whether or not the proposed pleading was embarrassing. It did not necessarily deny the potential for there to be an arguable claim that might be put in proper (or at least adequate) form. As a result of the structure provided by Annexure A to her Honour’s reasons, and the subsequent filing of a document based upon Annexure A, the proposed pleadings, being the 2FASC, now have a coherent and intelligible structure.
60․When a comparison is made between the material contained in the 2FASC and that of the previous proposed pleadings that were dealt with by McWilliam J, it emerges that in many cases the subject matter of the 2FASC is a subject matter which was dealt with in earlier pleadings. However, it is not a case in which earlier pleadings which were rejected by McWilliam J have simply been picked up and added to the 2FASC. Rather, the subject matter of the earlier pleading has now been addressed within the framework provided by Annexure A and in a manner that, at least in some instances, does not suffer from the defects as to form that plagued the earlier documents.
61․I do not consider that it is possible to address the proposed amendments at a level of generality. That is because the issues that arise in relation to the pleading vary from paragraph to paragraph.
62․In considering whether to disallow amendments in the 2FASC, regard must be had to the principles outlined in s 5A of the Court Procedures Act 2004 (ACT) and in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175. The consideration of and ruling upon individual paragraphs takes place in a context where the plaintiff has had multiple opportunities to prepare a coherent pleading and where the 2FASC is unnecessarily lengthy and does not in any practically useful way focus upon the essential aspects of the pleaded claims. A balance must be arrived at between the desirability of the plaintiff being able to pursue the claim that he wishes to pursue, and the need to have an intelligible pleading which will enable the defendants to know the case they have to meet and allow the matter to progress towards the hearing.
Assessment of the paragraphs of the proposed amended pleading
63․The amendments prior to the first numbered paragraph are not essential but will be allowed.
64․The amendments to sub-paragraphs 5(c), (f) and (g) are not essential but will be allowed.
65․The amendments involving the addition of sub-paragraphs 5(h)-(t) are unnecessary and embarrassing, and the purpose of these recitals is not established. The amendments will be disallowed.
66․The addition of sub-paragraph 5(u) provides an unnecessary explanation of QGS which is already a defined term at paragraph 4. The amendment will be disallowed.
67․The position is the same in relation to the amendments to paragraph 7, which relates to QAL. The amendments to sub-paragraphs 7(f)-(i) are all maintainable and should be allowed. The insertion of sub-paragraphs 7(j)-(v) are embarrassing and will be disallowed. Sub-paragraph 7(w) will also be disallowed, as it repeats a definition provided in paragraph 6.
68․Paragraphs 8-15 plead facts relating to the level of profit, workforce size, workforce scope, and workplaces of the Qantas Group. These facts are relevant to the assertion that the burden of taking precautions was not unreasonable, which is pleaded at paragraph 250 of the 2FASC. They will be allowed.
69․Paragraphs 16 and 17 relate to an announcement of an “accelerated cost reduction program” which is then defined as “the 2013 ACRP”. This is subsequently referred to at sub-paragraph 84(c) in order to explain the amendment of the plaintiff’s duties. Paragraphs 16 and 17 will be allowed.
70․Paragraphs 18-30 pick up and purport to replead certain previously pleaded “questions” that were before McWilliam J. The form of the pleading is plainly defective and embarrassing and will be disallowed.
71․Paragraphs 31-33 plead an alleged admission by counsel for the defendants that there were reasonable causes of action available for negligence or breach of an employment agreement. An admission relating to the existence of a reasonably arguable cause of action is not a material fact for the purposes of establishing such a cause of action. The pleading is therefore embarrassing and will be disallowed.
72․Paragraphs 34-36 appear under the heading “Legislation applicable and Binding authority”. They refer back to the content of oral submissions made by counsel for the defendants on 27 February 2023. They are not material facts for the purposes of the plaintiff’s claims. The inclusion of these paragraphs is embarrassing, and they will be disallowed.
73․Paragraphs 39-40 set out a chronology of the offer of employment and acceptance of that offer. Some of the communications referred to in the particulars are made defined terms. None of this chronology, as distinct from the subsequent pleading of the terms of the employment agreement, involves material facts and will be disallowed.
74․Paragraph 42 relates to the contract of employment. The existing pleading describes “the Letter of Employment offer”. Proposed amendments describe aspects of the contents of that and related documents in a manner which may be linked to the alleged content of the employment agreement addressed in paragraph 43. They will be allowed.
75․The amendments to paragraph 44 have the effect of including a large number of other instruments as part of the alleged “Employment Agreement”. Although it is likely that there is some uncertainty as to the scope of some of these, I do not consider that they should be disallowed in the absence of more detailed submissions as to their inappropriateness. I accept that some of them were referred to in pleading-related documents before McWilliam J but in the absence of any specific ruling by her Honour do not consider that their inclusion would amount to an abuse of process by reason of their earlier disallowance. They will be allowed.
76․Paragraphs 45 and 46 purport to list ACT laws and regulations applicable to this matter. These paragraphs are clearly unnecessary and embarrassing and will be disallowed.
77․Similarly, paragraphs 47 and 48 purport to list Commonwealth laws and regulations applicable to this matter. Such a list is clearly unnecessary and embarrassing and will be disallowed.
78․Paragraphs 49-52 assert that various Work Safe ACT codes of practice and Safe Work Australia codes of practice are applicable to the plaintiff’s employment. These bare statements have no consequence and will be disallowed.
79․The amendments in paragraphs 53-55 are designed to elaborate upon the pleading that was at paragraph 54. They will be allowed.
80․The amendment to paragraph 58 seeks to add a number of implied terms said to arise in the Employment Agreement. They include terms to pay the employee in particular circumstances, an alleged duty to manage conflicts of interests in respect of internal workplace investigations, and a duty in relation to payment of workers compensation payments. Although some of the asserted implied terms appear unlikely, they are not so implausible as to require that they be disallowed. They will be allowed.
81․Paragraphs 59-62 appear under the heading “Contract of Services”. Paragraph 62 reproduces in a different position the allegation that the plaintiff was jointly employed “as a result of a complex and ambiguous, 3-way or triangular, labour-hire work arrangement”. The bulk of the new material in these paragraphs appears to be an elaboration upon the factual basis for this existing assertion. So far as paragraph 60 is concerned, this asserts that the Employment Agreement itself created a “Contract of Services” between three parties: the plaintiff, QGS, and QAL. Without further explanation, it is hard to see how such a three-way contract could arise, but the assertion is no more difficult to address than the opening words of 62 which are already in the pleading. These paragraphs will be allowed. However, the heading “Particulars” prior to paragraphs 60 and 62 will be disallowed.
82․Paragraph 63-112 are all proposed insertions to the pleadings. The relevant headings within these parts of the pleading are:
(a)The QGS Medicare Pre-employment medical assessment (paragraphs 63-71);
(b)The QAL in-house Pre-employment medical assessment (paragraphs 72-75);
(c)‘Safety-sensitive’ role (paragraphs 76-80);
(d)Work duties (paragraphs 81-83);
(e)Work duties as amended (paragraphs 83-84);
(f)Position Description (paragraphs 85-92);
(g)Inherent requirements of the role (paragraphs 93-98);
(h)Job Safety Analysis (paragraphs 99-103);
(i)Labour-hire work arrangements as varied (paragraphs 104-105);
(j)Supervision of Plaintiff on 13 March 2013 (paragraphs 106-111);
(k)Supervision of Plaintiff from 14 March 2013 (paragraphs 112-116); and
(l)Examinations, Assessments and Investigations (paragraphs 117-120 and paragraph 112 (owing to the fact that there is a discontinuity in the numbering)).
83․Of these, headings (a)-(c) (paragraphs 63-80) impliedly assert processes that ought to have been undertaken by a “reasonably-skilled employer” in the circumstances of the defendants. However, they are not tied into anything and hence are embarrassing and should be disallowed. If they are picked up elsewhere, then they are so lengthy and detailed as to not allow the identification of the point of substance that the plaintiff wishes to make and will be disallowed on that basis.
84․Headings (d) and (e) (paragraphs 81-84) plead matters of detail which go beyond material facts. They will be disallowed.
85․Headings (f)-(h) (paragraphs 85-103) contain assertions about the obligations of the defendants and make reference to material that was provided to someone identified as Dr Walker. The pleadings are not picked up elsewhere in any meaningful way and are embarrassing. They will be disallowed.
86․Heading (i) (paragraphs 104-105) includes allegations about QGS’s conduct relating to variation of labour hire work arrangements. This aspect of the pleadings is not picked up elsewhere in any meaningful way and is embarrassing. It will be disallowed.
87․Headings (j) and (k) (paragraphs 106-116) assert various deficiencies in the supervision of the plaintiff. Various failures on the part of the defendants are asserted in relation to the “Supervisor Policy”. The relevance of these pleadings is not clear as they are not picked up elsewhere. To the extent that they could be picked up as an aspect of asserted negligence, they fail to meet the function of a pleading of disclosing, in a manner as brief as the nature of the case permits, the actual point to be relied upon. They will be disallowed.
88․Heading (l) (paragraphs 117-120 and 112) is based upon the proposition that it was “an express and implied term” of the Employment Agreement that the defendants were required to provide procedural fairness “in respect of any examination, assessment or investigation” in relation to the plaintiff’s employment. It is then asserted that a large number of examinations, assessments and investigations did not involve the provision of procedural fairness. The pleading is defective in that no foundation for the existence of such an express or implied term is established. It is not a matter where the pleading should be permitted on the basis that the defendants might be able to request particulars. Instead, the pleading in its present form will be disallowed.
89․Paragraphs 115-118 remove the relatively straightforward allegation which was set out in the FASC that the plaintiff’s employment was terminated on 2 November 2017, that he appealed the determination decision, and that the human resources manager refused the appeal. Instead, the replacement paragraphs (119-135) contain an extremely detailed chronology of the events leading up to the termination. The level of detail with which the events are pleaded is unnecessary, having regard to the fact that they are not picked up elsewhere in the pleading. They go impermissibly beyond the material facts required in a pleading. These paragraphs will be disallowed.
90․Paragraph 137, although marked up as an amendment, repeats a statement which existed at paragraph 2.10 of the FASC. It will be allowed.
91․Paragraph 138 is the commencement of the claim in negligence. The headings within this section are as follows:
(a)Negligent acts and omissions (paragraphs 139-141);
(b)Nervous shock (paragraphs 142-164); and
(c)Negligent misrepresentations and misstatements (paragraphs 165-173).
92․Under heading (a), paragraphs 140 and 141 provide:
140Personal injury arising from employer’s negligent acts and omissions;
Particulars
141The Plaintiff relies upon negligent acts and omissions as detailed and previously filed in these proceedings.
93․The statement in paragraph 141 is obscure and embarrassing because it does not make clear what negligent acts and omissions are being referred to. The issue of a breach of duty of care is addressed later in the pleadings. Paragraphs 139-141 will be disallowed.
94․Under heading (b) “Nervous shock” (paragraphs 142-164) are allegations of personal injury arising from mental or nervous shock caused by the employer’s negligence. The subsequent paragraphs include 19 “episodes” which are said to have given rise to such a condition. They include many aspects of the investigation and review of the plaintiff’s performance at work. They involve matters of detail which are inserted in a location inconsistent with the structure of the pleading. If any of them are picked up in the subsequent allegations of breach of the defendants’ duty of care, then the pleading is so lengthy and detailed as to make it embarrassing. Paragraphs 142‑164 will be disallowed.
95․Heading (c) (paragraphs 165-173) alleges negligent misrepresentations and misstatements. It is alleged that personal injury has arisen from those misrepresentations and misstatements. The injuries are described as “6 relapses in total”. It is alleged that there were 86 negligent misrepresentations and misstatements made by eight “persons, officers and employees” of QGS, and 445 negligent misrepresentations and misstatements made by 15 “persons, officers and employees” of QAL. The claim is an unusual one in that it asserts injury, presumably mental injury, by reason of negligent misrepresentations or misstatements. The negligence or falsity relating to the 531 statements is not pleaded, although a footnote to the pleading indicates that a list of misrepresentations and misstatements has been provided to the solicitors for the defendants. The absence of any pleading indicating the basis upon which the negligence or falsity of the statements made, the implausibility of the connection between those statements and personal injury on the part of the plaintiff, and the volume of statements alleged to have been falsely made lead me to the conclusion that these claims are vexatious and ought to be disallowed. The amendments to paragraphs 165-173 will be disallowed.
96․Paragraphs 174-188, which relate to the defendant’s duty of care, contain limited amendments to the existing pleading. The amendment seeks to remove the allegation that the defendants were vicariously liable for their agents but include an allegation that the defendants are vicariously liable for any negligence of an independent contractor or subcontractor. This is an unusual amendment to make, given that it is contrary to authority: see Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48. It also involves removal of the pleading that the defendants are liable for the acts or omissions of their agents, a proposition which is supportable. I will allow the balance of these amendments, but I will disallow the amendments to paragraphs 179 and 188.
97․Paragraphs 189-203 appear under the heading “Standard and Content of the Duty of Care Owed”. The FASC is relatively brief and straightforward, asserting that the defendants had a duty to “devise, establish, maintain, monitor, resource, commit to and enforce a safe system or safe place of work”, including various matters. The 2FASC seeks to add 12 pages of detailed pleadings as to the content of that duty.
98․Paragraph 191, which in the FASC pleaded a duty to provide a safe system and safe place of work, has had added to it some additional obligations including a duty to devise, establish, maintain, monitor, resource, commit to and enforce “Procedures and SOPs” and “Programs”. The meaning of these two terms is, in the context in which they appear, unclear and, hence, embarrassing. To the extent that they might, by implication, have been explained by paragraphs 192-197, those paragraphs are to be disallowed (see below) and hence sub-paragraphs 191(c) and (d) will also be disallowed.
99․The pleading in 192-193 is so detailed as to be positively unhelpful. It both fails to articulate the actual case to be run by the plaintiff and to state that case in a manner as brief as the nature of the case allows. Instead, it creates a sprawling range of allegations addressing every conceivable complaint that the plaintiff may have had about his employer and the workplace. They include, for example, an obligation to establish a human resources management system that encompassed items such as:
(vi)at the very least to ensure that the chances of a return to work for the Plaintiff were optimised, Mascot-based HR officer Ms Abby Becroft should have had responsibility for the 3rd Fitness-for-duty examination given that she was responsible for the ACT along with NSW, and no explanation was provided to the plaintiff as why Ms Denne took over the case manager role from Mr Ferhan on about 16 December 2016.
100․Similarly, it alleges that the risk management system should have incorporated an item “(xiv) ensuring that paternity leave of 6 weeks taken by Mr Stevenson in 2016 was risk‑managed” and “(xxxi) ensuring that Mr Stevenson did not allocate 100% of blame upon the Plaintiff for causing ‘the Golf Buggy incident’”.
101․The low prospects of succeeding in establishing such broad ranging and detailed duties as part of the duty of care, along with the wide‑ranging and numerous allegations, indicate that this pleading is embarrassing or vexatious or both. The amendments in paragraphs 192-193 will be disallowed.
102․Paragraphs 194-197 appear to be subsidiary definitional paragraphs for the purposes of references to “QN Procedures and SOPs” and QN Programs. Given that the earlier paragraphs to which these definitions refer have been disallowed, these paragraphs will be disallowed as well.
103․Paragraphs 198 and 199 elaborate upon the content of the requirement for safe plant and premises, tools, machinery and equipment. It includes three particular aspects of that allegation. These are reasonably brief and coherent. The paragraphs will be allowed.
104․Paragraph 200 is an elaboration upon what was previously particulars to paragraph 3.4 of the FASC. It now serves the function of particularising the obligation in paragraph 191(h) and is picked up in 193(c)(xxiv) (which has been disallowed). The amendments involve an elaboration upon the previous pleading and appear to be unnecessarily detailed and without strong prospects of being established as part of the common law duty of care. However, they are not so unmanageable as to be embarrassing or vexatious. They will be allowed.
105․Paragraph 201 involves particularisation of the obligation pleaded in sub‑paragraph 3.4(c) of the FASC, which in the 2FASC has become sub‑paragraph 191(i). The 2FASC seeks to add five pages of detailed particulars as to the content of this obligation. These additional pleadings will be disallowed for the same reasons given in relation to paragraphs 192‑193 above. That means that sub‑paragraphs 201(b)D-E will be disallowed.
106․Paragraph 202 appears to define a concept referred to as “the Fitness-for-duty examination procedure”. That is something which is contained within sub‑paragraph 193(c)(xxv), which has been disallowed. Hence, paragraph 202 (which contains some 27 sub-paragraphs over two-and-a-half pages) will also be disallowed.
107․Paragraph 203 asserts that the Fitness-for-Duty examination procedure was not put in place for a particular examination by Dr Walker. Having regard to the fact that the previous paragraph has been disallowed and the relevance of the pleading at paragraph 203 is not clear, this paragraph will also be disallowed.
108․Paragraphs 204-211 relate to the foreseeability of the risk of harm. That pleading was previously contained in paragraphs 3.5-3.8 of the FASC. The 2FASC seeks to reformulate the three different risks (Risk A, Risk B and Risk C) which were articulated in paragraph 3.5 of the FASC. The reformulation in paragraph 205 is to expand the description of these risks in a manner which is not obviously of any assistance and includes some unhelpful conclusory language but are not so defective as to warrant disallowance. They will be allowed.
109․The position is the same in relation to the amendments to paragraphs 206 and 207, which will also be allowed.
110․Paragraphs 208-211 are all new inclusions. They fall under the heading “Higher probability of psychological injury requiring higher standard of care”. Paragraph 209 commences “The Court must establish that there was a higher probability of the Plaintiff suffering a relapse of the PEIs …”. These paragraphs appear to be in the nature of submissions and will be disallowed.
111․Paragraphs 212-248 identify the breaches of the duty of care. They are relevant to the negligence claim. The pleadings amend and expand the claims of breach.
112․Paragraph 215 is a paragraph which asserts breaches of obligations in paragraph 193, which has been disallowed, as well as other generally worded and non‑specific obligations. Because paragraph 215 is dependent upon paragraph 193 and its terms are otherwise embarrassing, it will be disallowed.
113․Paragraph 217 elaborates upon what was contained in paragraph 3.10 of the FASC. The amendments are not such as are required to be disallowed. They will be allowed.
114․Paragraphs 220 and 221 assert a failure to prepare human resources policies, or “adequate and suitable” human resources policies, on particular topics. These paragraphs are additions to what was in the FASC. Insofar as they assert an absence of policy, the causal link to any harm is not subsequently established. Insofar as they assert that “adequate and suitable” policies have not been prepared, then their meaning is obscure and inconsistent with identifying what is really in issue in the case in a manner that is as brief as the nature of the case allows. Paragraphs 220 and 221 will be disallowed.
115․Paragraph 222 asserts a failure to provide the plaintiff with a copy of 12 asserted human resources policies. It is a new paragraph. There is no pleaded causal connection to any harm. In those circumstances, its inclusion is embarrassing or vexatious. Paragraph 222 will be disallowed.
116․The plaintiff has made some additions to paragraph 227, which was paragraph 3.15 in the FASC. A series of 27 additional items have been added to the six already pleaded. The descriptions of the new items in paragraph 227 are, in many cases, unclear or obscure. The multitude of the proposed additions and the absence of any clearly pleaded causal connection between any of these items and any damage suffered, indicates that the inclusion of these additional items renders the pleading embarrassing or vexatious. Sub-paragraphs 227(g)-(gg) will be disallowed.
117․The paragraphs 230-231 are seemingly out of place, because they split paragraph 229 from its particulars. Despite this, and although paragraphs 230 and 231 do not have any obvious merit, their brevity and comprehensibility mean that they should not be disallowed. They will be allowed.
118․The amendment to paragraph 234 remains understandable, notwithstanding that some of the amendments to paragraph 201 have been disallowed. Paragraph 234 will be allowed.
119․The amendments to the particulars to paragraph 235 elaborate upon them but do not render them embarrassing, oppressive or vexatious. Paragraph 235 will be allowed.
120․The amendments to paragraphs 236-241 are modest and do not result in a need to disallow these paragraphs. The same as the case in relation to the amendment to paragraphs 242-245. These amendments will be allowed.
121․Paragraph 246 is an amended version of paragraph 3.25 of the FASC. It adds to the particulars of harassment and discrimination. The amendments, while substantial, are not such as to render the paragraph practically unmanageable. Paragraph 246 and its particulars will be allowed.
122․Paragraph 248 relates to the second breach period. It involves allegations that the defendants failed to take particular steps during the second breach period. Some amendments to existing paragraphs are made. A variety of additional allegations are added in relation to the claim that there was a failure to take adequate steps to manage the plaintiff’s return to work. The failure is extended to the management of the plaintiff’s two workers compensation claims. Seven new circumstances are added in sub‑paragraph 248(e), relating to conduct by the defendants’ workers compensation insurer. The number of different allegations made, and the difficulty of attributing the conduct of the workers compensation insurer to the defendants, comes close to indicating that the new pleadings are vexatious or embarrassing. However, having regard to the fact that they fit within the structure of the existing pleadings and may be responded to relatively easily, they will be allowed. There are also amendments and additions to the balance of the paragraph which relates to matters of fine detail about the conduct which build upon the existing pleadings. They will also be allowed.
123․Paragraph 250 asserts that the burden of taking precautions was not unreasonable. The particulars of that are elaborated upon. Reference is made back to the pleading involving the level of profit pleaded in paragraph 9. The amendments will be allowed.
124․The amendments to paragraphs 251-258 are relatively modest ones which occur within the framework of the existing pleading. They will be allowed.
125․From paragraph 259 to paragraph 297, 19 pages of detailed allegations have been added. They appear to be under a general heading of “Probation”. They include hundreds of sub-paragraphs. They assert that a variety of procedures ought to have been undertaken by the defendants and were not. They are not tied into the framework of the existing pleading. They contain assertions of numerous different duties arising in various circumstances. Their lack of brevity, lack of integration with the existing pleading, wrapped up assertions of duty, and their sheer volume make them vexatious and embarrassing. Paragraphs 259-297 will be disallowed.
126․There are only minor changes to the claims for breach of statutory duty at 298‑289 (again, owing to the fact that there is a discontinuity in the numbering of paragraphs). These paragraphs will be allowed.
127․Paragraphs 291 (as appears on page 111 of the 2FASC) to 346 contain nine allegations of breaches of the Disability Discrimination Act 1992 (Cth). A claim for breach of the Act had been made before McWilliam J but then withdrawn. The present claims appear to be substantially broader than the earlier articulated claim. Eight of the allegations involve a breach of s 15 of the Act. The ninth alleges a breach of s 35. Both ss 15 and 35 are within Pt 2 of the Act. The problem with the pleading is that the Act does not give rise to a private cause of action. Section 125 provides:
125 Unlawful act not basis of civil action unless expressly so provided
(1)This Act does not confer on a person a right of action in respect of the doing of an act that is unlawful under a provision of Part 2 unless a provision of this Act expressly provides otherwise.
(2)For the purposes of subsection (1), a reference to an act that is unlawful under a provision of Part 2 includes a reference to an act that is an offence under a provision of Division 4 of that Part.
128․Because the provisions of Pt 2 of the Act do not confer on the plaintiff a right of action, the pleading does not disclose a reasonable cause of action and paragraphs 291‑346 will be disallowed.
129․Paragraph 349 provides:
The Plaintiff relies upon previous submissions made in these proceedings of discriminatory conduct of the Defendants including conduct as outlined below which contravened provisions found under Division 3 (Workplace rights) pursuant to the Fair Work Act 2009 (Cth);
130․There are then 51 sub-paragraphs of particulars which describe particular factual circumstances.
131․The pleading is embarrassing as it refers to “previous submissions” outside the 2FASC and to unspecified provisions “found under Division 3 (Workplace rights)”. The pleading is embarrassing in that it does not adequately identify what statutory entitlements are relied upon. Had those been relied upon, then it would have been necessary to determine whether or not the court had jurisdiction in relation to any claim based upon them. Paragraphs 348 and 349 will be disallowed.
132․Paragraphs 350-430 include new claims for breach of contract. They build upon the broad allegations as to what constituted terms of the plaintiff’s employment contract. They are numerous and involve some uncertainties of language or particularisation. They are, however, understandable. As McWilliam J pointed out, there may well be limited utility in bringing a contractual claim in addition to the claim in negligence. However, that is not a basis upon which the claims should be disallowed. Paragraphs 350-430 will be allowed.
133․Paragraph 431 identifies particulars of injuries. Amongst some identifiable psychiatric illnesses are added “burnout” and “stress”. These are not recognised psychiatric illnesses. They may not be the subject of an award of damages: Civil Law (Wrongs) Act 2002 (ACT), s 35. Sub-paragraphs 431(j) and (k) will be disallowed.
134․Paragraph 432 provides particulars of disabilities alleged to be suffered by the plaintiff. These are elaborated upon by numerous additions. They are numerous, but understandable and fit within the structure of the pleading. They will be allowed.
135․Paragraph 434 provides particulars of damages. Amendments have been made to add additional categories of damages and to remove numerical specifications of the damages claimed. The removal of the specification of particular sums is not inappropriate. A number of the additional categories of damages are liable to be disallowed because they are repetitive of other categories or relate to claims which have been disallowed. The additional items which fall into that category are paragraphs 434(j), (k), (l), (m), (n), (o), and (q) and they will be disallowed.
136․The amendments to paragraph 435 are not inappropriate. They will be allowed.
Vacation of timetable
137․The plaintiff’s application in proceeding also seeks the vacation of the orders made by a Senior Deputy Registrar on 26 March 2024. They provided a timetable up to the point of a listing hearing in August 2024. They were made at a time when the plaintiff was legally represented. The timetable has been completely disrupted by the present application. It is appropriate to vacate those orders.
Pleading to particulars
138․Notwithstanding the submissions by the plaintiff to the contrary, I consider that the dispensation with the need to comply with rule 443 made by McWilliam J was appropriate. It is even more appropriate in circumstances where the scope of the already voluminous pleading has been further expanded by the 2FASC.
Costs
139․The defendants sought costs of the application in proceeding. To the extent that the defendants have successfully resisted the grant of leave, they are entitled to their costs. To the extent that leave has been granted to permit the amendment of the pleadings, that is an indulgence to the plaintiff who has had multiple opportunities over years in order to put forward an adequate pleading. Having regard to both of those factors and the default position articulated in r 1726, I do not consider that there is any adequate basis upon which to deny the defendants their costs. The defendants should have their costs of the application in proceeding dated 30 April 2024. An order will be made pursuant to rule 1701(2) that they be not recoverable until the proceedings end.
Orders
140․The orders of the court are:
1.The document headed “2nd FURTHER AMENDED Statement of Claim—employment death or personal injury” lodged 3 May 2024 be marked as exhibit 1, “Proposed Second Further Amended Statement of Claim”, but not filed.
2.The amendments to the following paragraphs of the Proposed Second Further Amended Statement of Claim in the form lodged 3 May 2024 are disallowed:
(a)Sub-paragraphs 5(h)-(t);
(b)Sub-paragraph 5(u);
(c)Sub-paragraphs 7(j)-(v);
(d)Paragraph 7(w);
(e)Paragraphs 18-30;
(f)Paragraphs 31-33;
(g)Paragraphs 34-36;
(h)Paragraphs 39-40;
(i)Paragraphs 45-46;
(j)Paragraphs 47-48;
(k)Paragraphs 49-52;
(l)The heading “Particulars” prior to paragraphs 60 and 62;
(m)Paragraphs 63-80;
(n)Paragraphs 81-84;
(o)Paragraphs 85-103;
(p)Paragraphs 104-105;
(q)Paragraphs 106-116;
(r)Paragraphs 117-120 and 112;
(s)Paragraphs 119-135;
(t)Paragraphs 139-141;
(u)Paragraphs 142-164;
(v)Paragraphs 165-173;
(w)Paragraphs 179 and 188;
(x)Sub-paragraphs 191(c)-(d);
(y)Paragraphs 192-193;
(z)Paragraphs 194-197;
(aa)Sub-paragraphs 201(b)D-E;
(bb)Paragraph 202;
(cc)Paragraph 203;
(dd)Paragraphs 208-211;
(ee)Paragraph 215;
(ff)Paragraphs 220-221;
(gg)Paragraph 222;
(hh)Sub-paragraphs 227(g)-(gg);
(ii)Paragraphs 259-297;
(jj)Paragraphs 291-346;
(kk)Paragraphs 348-349;
(ll)Sub-paragraphs 431(j)-(k); and
(mm)Sub-paragraphs 434(j), (k), (l), (m), (n), (o), and (q).
3.The plaintiff has leave and is directed to file and serve a Third Further Amended Statement of Claim based upon the Proposed Second Amended Statement of Claim referred to in order 1 but giving effect to the disallowance of the amendments to the paragraphs referred to in order 2, by 2 August 2024.
4.Subject to order 3, the plaintiff may not file any further amended pleading without the leave of the court.
5.The plaintiff is to pay the defendants’ costs of the application in proceeding dated 30 April 2024 and costs thrown away by reason of the amendment of the pleadings, but those costs may not be assessed until the proceeding ends.
6.The defendants are to file any defence by 23 August 2024.
7.The operation of r 443 of the Court Procedures Rules 2006 (ACT) is dispensed with insofar as it extends to any requirement for the defendants to plead to particulars.
8.The directions made on 26 March 2024 are discharged.
9.The proceedings are listed before Mossop J on 30 August 2024 at 9:30am for directions.
10.The parties are to provide agreed or competing directions (limited to not more than two pages) for the preparation of the matter up to a Listing Hearing by email to the associate to Mossop J by 4:00pm on 28 August 2024.
| I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 19 July 2024 |
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