Kimhi v SA Drains Pty Ltd - [2020] FCCA 3599

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIMHI v SA DRAINS PTY LTD & ANOR

[2020] FCCA 3599

Catchwords:
INDUSTRIAL LAW – Pleadings – application to strike out claim – whether claim sufficiently identified in pleadings – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.117, 125, 340 & 351

Applicant:

JORDAN STEVEN KIMHI

First Respondent:

SA DRAINS PTY LTD ACN 610 792 062

Second Respondent:

SIMON LUKASZ MUCHA

File Number:

ADG 435 of 2019

Judgment of:

Judge Heffernan

Hearing date:

17 December 2020

Date of Last Submission:

17 December 2020

Delivered at:

Adelaide

Delivered on:

23 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Manuel

Solicitors for the Applicant:

Starke Lawyers

Counsel for the Respondents:

Mr Belperio

Solicitors for the Respondents:

Welden & Coluccio Lawyers

ORDERS

The Application in a Case filed 6 November 2020 by the respondents is dismissed.
Noting the previous trial directions made in this matter, the trial will now commence on Wednesday 24 March 2021 instead of Tuesday 23 March 2021 and shall be allocated two days.
The Applicant shall file and serve their trial affidavits of all witnesses, including expert witnesses, upon whom they intend to rely at trial at least 14 days prior to the trial date.
The Respondent shall file and serve their trial affidavits of all witnesses, including expert witnesses, upon whom they intend to rely at trial at least 14 days prior to the trial date.
No later than 5 clear business days prior to the hearing, the Applicant and Respondent do file and serve an Outline of Submissions (including a List of Authorities) on which they intend to rely at trial together with a minute of order of the actual orders sought.
The costs of the Application are reserved to the trial date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 435 of 2019

JORDAN STEVEN KIMHI

Applicant

And

SA DRAINS PTY LTD ACN 610 792 062

First Respondent

SIMON LUKASZ MUCHA

Second Respondent

REASONS FOR JUDGMENT

(Settled from transcript)

I heard argument in this matter on 17 December 2020. The terms of the Application in a Case filed 6 November 2020 are that the respondent seeks that the application in relation to s 351 of the Fair Work Act 2009 (Cth) (‘the Act’) be struck out, that the applicant pay the first and second respondent’s costs of the application, and any other orders that the Court sees fit.
That Application in a Case has its genesis in the original terms of the Initiating Application that was filed in this matter on 7 November 2020. The applicants filed on 6 November and inter alia they sought an order pursuant to s 351 of the Fair Work Act 2009 (Cth) (‘the Act’). They also asserted a claim in breach of s 340. Section 340 prohibits a person from taking adverse action because another person has a workplace right or proposes to exercise the right or prevent the exercise of a workplace right. Section 351 prohibits a person from taking adverse action against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3599
Decision Date: 23 December 2020

CaseChat Overview and Summary

In *Kimhi v SA Drains Pty Ltd*, heard before Judge Heffernan in the South Australian Employment Tribunal, the applicant, Mr Kimhi, brought a claim against the respondent, SA Drains Pty Ltd. The respondent sought to strike out the applicant's claim on the basis that the pleadings did not sufficiently identify the nature of the claim being made.

The central legal issue before the Tribunal was whether the applicant's statement of claim, as filed, adequately particularised the cause of action such that the respondent could understand the case it was required to meet. This involved an assessment of the level of detail necessary in pleadings to avoid an abuse of process or unfair prejudice to the respondent.

Judge Heffernan dismissed the application to strike out the claim. The Tribunal found that while the pleadings could have been more detailed, they were sufficient to inform the respondent of the general nature of the applicant's grievance. The Judge reasoned that the respondent had not demonstrated that it was unable to understand the case against it or that it would suffer any significant prejudice by proceeding on the basis of the existing pleadings. The Tribunal indicated that any further particulars required could be sought through the usual procedural mechanisms.

Orders