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

1. The Application in a Case filed 6 November 2020 by the respondents is dismissed.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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)

1. 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.

2. 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 an employee due to, amongst other things, a disability.

3. The respondent acknowledges that in the Amended Claim filed 17 June 2020 the s 351 aspect appears to have been abandoned and that is, of course, the position that the applicant has identified. The applicant’s claim now amounts to a claim that the applicant was not given an information sheet contrary to s 125 of the Act; he was not given access to the relevant award at any time; and that the required notice period was not provided pursuant to s 117 of the Act.

4. The submission for the respondents is that whilst those factors have been identified in the Amended Claim, it remains on its face one seeking relief for a breach of s 351 of the Act. The respondents pointed to the Court form which was used, and in particular the fact that even on the Amended Claim, the applicant has ticked ‘yes’ to the question as to whether discrimination contrary to s 351 of the Act was alleged.

5. The respondent says that it is not apparent on what basis the applicant could possibly seek relief pursuant to s 351 because he was out of time in the Fair Work Commission. Mr Belperio, for the respondents, submitted that the Amended Claim is on its face a s 351 application by virtue of the form on which the claim has been filed and that that is in effect the jurisdiction that has been invoked. On that basis alone it should be dismissed.

6. The respondents rely upon the affidavit of Mr Mucha which addresses the question of the information sheet, access to the award, and insufficient notice. In the submission of the respondents those contentions have no merit and they should also be dismissed, which was a point that Mr Manuel, for the applicant, picked up on later in his submissions when he noted, with some irony, that the respondents apply, by virtue of their Application in a Case, on one basis to strike out s 351 because of an inappropriate form and inappropriate invoking of jurisdiction pursuant to the form that was used, and yet seeks now to expand that application beyond the terms pleaded in the Application in a Case to include the strike-out or summary dismissal of the ss 125 and 117 points.

7. Insofar as the respondents contend that they have addressed and refuted the underlying factual basis, for the applicant’s claims under ss 125 and 117, Mr Manuel submits that these are matters that are ultimately for trial, and whilst Mr Belperio submits that that is an uncontested version of events, it is not appropriate simply to dismiss proceedings and that ultimately they are matters of fact which are in dispute, and which should not be resolved in a summary fashion.

8. With respect to the substantive application, Mr Manuel confirmed that the applicant is not proceeding with a s 351 claim and that paragraph 9 of the Amended Statement of Claim makes the basis upon which this matter is to proceed abundantly clear. This Court is not a court of strict pleading and is required by virtue of its founding statute to operate with a minimum of formality. The issue under the award is a matter of contest and if the applicant himself was to take matters in the same manner as the respondents, in Mr Manuel’s submission, he would be entitled to apply for summary judgment on the s 125 aspect.

9. This matter is listed for trial early next year and that is the appropriate form, Mr Manuel says, for the respondents to contest the claim made by the applicants.  There is no statutory bar to the applicant making an application alleging breaches of any prohibition sections under the legislation.

Consideration

1. I have considered the submissions of both parties as will be apparent from my brief comments to this point. As Mr Manuel pointed out, the onus in applying for summary judgment rests with the respondents. In terms of the incorrect format and invocation of jurisdiction is concerned, I think there is merit to Mr Manuel’s submission that this is not a court of strict pleading, that a reading of the document as a whole indicates the basis upon which the jurisdiction of the court is being invoked and that is with respect to ss 125 and 117 that the purpose of pleadings is to put the parties on notice. They are functional, if nothing else, and further the court form that is ultimately used is not in the nature of an incantation or some magic formula. Ultimately, it is a question of whether or not there is a basis identified in the pleadings upon which the applicant can pursue a claim. I am satisfied that the applicant has done that, irrespective of whether or not strictly speaking the correct form was used.

2. I make that finding having considered the respondents’ submission that it is not simply a question of the form and that the applicant did indicate that s 351 was a matter of contention. I am satisfied, however, that the substance of the claim has been properly identified.

3. Having said that, and acknowledging that the applicants can bring a claim under ss 125 and 117, one wonders in the circumstances as I understand them to be, exactly how much breaches of those sections, if proven, will ultimately sound in damages or pecuniary penalty. But that is ultimately a question for the hearing of this matter.

4. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 2 February 2021