KRNJIC v Bunnings Group Ltd
[2018] FCCA 813
•5 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KRNJIC v BUNNINGS GROUP LTD | [2018] FCCA 813 |
| Catchwords: DAMAGES – global claims – ambit global claims undesirable – global claims do not enable a respondent to make proper Calderbank offer or offer of compromise – proper particularised assertions of losses ordered to be provided. |
| Legislation: Disability Discrimination Act 1992, s.35 Federal Circuit Court Rules 2001, rr.13.10, 16.21 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 |
| Other materials: Andrew Mansour, ‘Global Claims: Maze or Motorway?’ (October 1994) Building and Construction Law 314-317 |
| Applicant: | JOHN KRNJIC |
| Respondent: | BUNNINGS GROUP LTD (ACN 008 672 179) |
| File Number: | MLG 1004 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 5 April 2018 |
| Date of Last Submission: | 5 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | None |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Lander & Rogers |
ORDERS
The respondent’s application in a case filed 28 March 2018 is dismissed.
The amended statement of claim filed 11 January 2018 is struck out.
By 4pm on 20 September 2018, the applicant file and serve a further amended statement of claim with proper particulars.
The proceeding is adjourned to 21 September 2018 at 10:15am for directions.
Each party’s costs are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1004 of 2017
| JOHN KRNJIC |
Applicant
And
| BUNNINGS GROUP LTD (ACN 008 672 179) |
Respondent
REASONS FOR JUDGMENT
Introduction
Following the withdrawal of legal practitioners previously representing him, the applicant maintains this proceeding as a litigant in person claiming compensation for disability discrimination allegedly committed by the respondent. The applicant has sought damages of $40,000 for loss of income, $350,000 for pain and suffering and an amount described as pecuniary loss of $680,000, a total of $1,070,000. The respondent has denied liability to the applicant, whether on the grounds alleged or at all.
This case has not travelled very far. The applicant has filed a statement of claim and then an amended statement of claim. The respondent has filed a defence to the amended statement of claim (erroneously described as the statement of claim). Several interlocutory consent orders have been made, none of which have been especially consequential.
By application in a case filed 28 March 2018 the respondent sought orders in the alternative. First it sought an order under r.13.10 of the Federal Circuit Court Rules for the summary dismissal of the proceeding on the basis that the applicant has no reasonable prospects of successfully prosecuting the proceeding and on the basis that the proceeding is an abuse of process. The second order sought (put alternatively) was an order under r.16.21 of the Federal Circuit Court Rules that the amended statement of claim be struck out for being ambiguous or likely to cause prejudice, embarrassment or delay or that it failed to disclose a reasonable cause of action. To that the respondent added an additional prayer for relief to the effect that the applicant be denied (it meant refused) leave to re-plead, the effect of which was akin to a dismissal of the proceeding.
This being a pleading debate it was necessary for me to examine the amended statement of claim only. To that end the respondent relied in support of its application in a case on an affidavit of a solicitor, one Kaitlyn Joanne Gulle, affirmed 28 March 2018. Ms Gulle stated that she had the care and carriage of this proceeding on behalf of the respondent. To her affidavit she exhibited a collection of documents. None of that material nor even her affidavit was admissible in a consideration of an application to strike out a pleading. The authorities are of very long standing in that regard. They include Republic of Peru v Peruvian Guano Co,[1] Attorney-General (Duchy of Lancaster) v London and North Western Railway Co,[2] Fletcher v Bethom,[3] Day v William Hill (Park Lane) Ltd.[4]
[1] (1887) 36 Ch D 489 at 498
[2] [1892] 3 Ch 274
[3] (1893) 68 LT 438
[4] [1949] 1 KB 632
Synopsis
For the reasons that follow, in my judgment –
a)I refuse to dismiss this proceeding, particularly in view of the observations of the High Court in Spencer v the Commonwealth of Australia[5] and by the Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration and Border Protection,[6] summary dismissal being an order not to be lightly made;
b)I strike out the amended statement of claim;
c)I grant leave to re-plead by the filing of a further amended statement of claim within a stated period in default of which I will entertain an application for summary dismissal of this proceeding; and
d)I reserve costs.
[5] (2010) 241 CLR 118
[6] [2016] FCAFC 68
Short factual narration
The information recorded below has been divined from the amended statement of claim. None of those allegations have been tested. At this stage their veracity cannot be gainsaid. At all events, the applicant alleged certain preliminary matters in the amended statement of claim, namely –
a)the respondent conducted a commercial retail operation from premises in Preston in the state of Victoria;
b)the respondent employed the applicant from 2009 at its Preston store in the electrical department;
c)the applicant’s employment was governed by the terms of the Bunnings Warehouse and Small Formal Stores Enterprise Agreement 2013;
d)the applicant has a disability, namely a congenital left facial deformity and a left arm congenital deformity in respect of both of which at all relevant times the respondent and its employees were aware.
The applicant made 14 allegations, described as “direct discrimination”, of events between 2010 and 2017. The respondent has contended that several of those 14 allegations are statute barred on the basis that they related to events more than six years prior to the issue of this proceeding. This proceeding was commenced at 3:54pm on 16 May 2017. The relevant six-year period for the purposes of the Limitations of Actions Act (Vic) (if that legislation applies at all) would relate to a cause of action that could have been brought from May 2011.
Naturally, whether a particular issue is maintainable in a proceeding on the basis that the limitation period applies to it is a matter of considerable importance. It is not desirable for this court to be consumed in determining contested factual issues only to find that the relevant cause of action on which the factual contest depends is statute barred. I will not allow an amended pleading to go forward if the relevant cause of action is statute barred.
In paragraph 8 of his amended statement of claim the applicant relied on 14 separate incidents that the applicant said in paragraph 9 of the amended statement of claim were incidents he believed the respondent and its employees undertook because of the applicant’s disability. The 14 incidents were set out in particulars subjoined to paragraph 8. Each particular bore the heading in bold described sequentially from the first incident to the fourteenth incident. Yet also in bold were roman numerals that had no connection at all to the numbered incident to which they purported to correspond. For example, the first heading of the particulars subjoined to paragraph 8 was “xv. The First Incident”. Those roman numerals translated to 15. The roman numerals that followed bore no relationship to the number of the incident to which each allegedly corresponded. Taking another illustration, against the heading “Twelfth Incident” were the roman numerals XXVI that translated to 26. In whatever form the particulars might take hereafter, the roman numerals are to be deleted.
It is useful to paraphrase the event leading in each of the separate incidents of the particulars subjoined to paragraph 8. Relevantly paraphrased, they were as follows –
a)first incident – in September 2010 an employee of the respondent threw the applicant’s mobile telephone at the applicant;
b)second incident – in September 2010 an employee of the respondent called the applicant a fucking idiot;
c)third incident – on 31 July 2011 an employee of the respondent drove the WAVE machine in aisle 20 in a swerving manner nearly crushing the applicant;
d)fourth incident – on 5 August 2011 while in aisle 39 an employee of the respondent dropped a box onto the floor and told the applicant to pick up the box, which the applicant refused to do, whereupon that employee called the applicant a fucking poofter whose ugly face that employee would assault;
e)fifth incident – on 9 September 2011 at 4:45pm the respondent served on the applicant a warning letter for allegedly taking a 45 minute lunch break when the applicant took the lunch break between 4:10pm and 4:40pm that day, being 30 minutes in total and not 45 minutes as alleged;
f)sixth incident – on 14 November 2011 while the applicant was operating the WAVE machine and moving it from aisle 20, an employee of the respondent said to the applicant “what the fuck is wrong with you… you fucking piece of shit”;
g)seventh incident – on 12 December 2011 an employee of the respondent accused the applicant of theft in front of other employees;
h)eighth incident – in March 2012 upon the applicant’s return from stress leave the respondent moved the applicant from the electrical department to the tool shop without the applicant’s approval or prior training in matters associated with the tool shop;
i)ninth incident – on 3 June 2015 an employee of the respondent demanded the applicant to explain what the applicant had done that day, something no other employee of the respondent had been asked to do, and that same employee demanded that the applicant undertake dusting activities in the homeware section for which the applicant had not been trained;
j)tenth incident – 19 May 2015 an employee of the respondent asked the applicant what happened to his face;
k)eleventh incident – 8 June 2016 while operating the WAVE machine an employee of the respondent bullied the applicant and threatened him;
l)twelfth incident – on 9 June 2016 in the presence of other employees of the respondent one of the respondent’s employees interrogated the applicant in respect of his activities in aisle 54;
m)thirteenth incident – on 9 June 2016 one of the respondent’s employees questioned the applicant about the applicant taking a lunch break between 12:30pm and 1pm and directed the applicant to report personally to that particular employee leaving the applicant intimidated;
n)fourteenth incident – on 7 July 2016 the applicant was banned from attending the Bunnings Preston store.
The applicant asserted in paragraph 10 of the amended statement of claim that no other employee of the respondent was treated in the same manner as was the applicant in relation to the 14 incidents. In paragraph 11 of the amended statement of claim the applicant asserted that the applicant was treated materially differently to those other employees of the respondent who did not have the applicant’s disability. In paragraph 12 the applicant stated he was discriminated against on the basis of his disability, conduct forbidden by the provisions of the Commonwealth Disability Discrimination Act.
Relying upon identical grounds, the applicant stated that the respondent’s employees harassed him by reason of his disability in contravention of s.35 of the Disability Discrimination Act.
The relief sought by the applicant fell into several categories. Aside from interest and costs, the applicant claimed –
a)damages;
b)declaratory relief for various contraventions of the Disability Discrimination Act;
c)declaratory relief for various contraventions of the Fair Work Act;
d)an order for the payment of back pay, sought pursuant to s.16 of the Federal Circuit Court of Australia Act; and
e)an order for the payment of compensation under the Fair Work Act.
With that lamentably long examination of the amended statement of claim, it next became necessary to address an array of issues that flowed from the foregoing.
The Fair Work Act allegations
In the amended statement of claim no attention at all was directed to the way an order for the payment of compensation might arise. The applicant did not address the provisions of the Fair Work Act allegedly contravened, the way the contravention allegedly arose or the calculation of the sum said to be compensable by reason of any such contraventions.
If the prayer for relief is pressed for relief under the Fair Work Act the relevant claims grounding that relief must be set out in the applicant’s pleadings. In the current iteration of the amended statement of claim, the Fair Work Act is mentioned only a few places, none being substantive, namely in paragraphs 1, 2 and in the prayer for relief.
Some of the incidents mentioned in paragraph 8 of the amended statement of claim may – I repeat, may – give rise to remedies under the Fair Work Act. Unless and until the applicant properly pleads his claims under the Fair Work Act, it is impossible to tell whether the relief in paragraphs C, D, E or F can be substantiated. At present, those paragraphs cannot be maintained. They must be struck out. But so long as the Fair Work Act claims are properly pleaded and only claims not statute barred are brought this court has jurisdiction to hear such claims and the applicant should not be shut out from at least alleging those claims. Whether he can succeed on them is another thing altogether.
Discrimination claims
From the foregoing it is readily apparent that the applicant seeks a very substantial award of damages in this case. Many of the incidents on which he relies go back as far as 2010 and 2011. For that matter, only the ninth, 10th, 11th, 12th, 13th and 14th incidents occurred in or after 2015.
Two things arise from the magnitude of damages sought on the dates of the events on which the applicant relies.
First, the respondent is entitled to know not only how much in reality the applicant claims but how much in reality he can plead and prove. The total sum sought in this case is vast. It is unparticularised. It is ambit in nature. It is so general as to be borderline meaningless. The applicant cannot be permitted to vex the respondent with in terrorem threats of a massive claim when in reality (once particularised) the claim is likely to be considerably less. Any applicant in this court must be prepared to substantiate his, her or its case in terms of the sum sought. I will require the applicant to provide proper particulars of the sum sought for each head of monetary relief he claims. If different sections of legislation allegedly contravened give rise to different sums sought then the different sums claimed must be set out against the specific sections allegedly contravened. The proper particularisation of the sums claimed give a respondent and opportunity of making a Calderbank offer or a more formal offer of compromise.
The second issue about the discrimination claims is the dates. There may well be a live debate in this case about limitation periods, which legislation applies, when the time calculation commenced and whether one or more of the 14 incidents here pleaded fall inside or outside of the applicable limitation period. But in relation to incidents in 2010 and 2011 that are pleaded in paragraph 8 of the amended statement of claim the applicant should very carefully consider whether those are maintainable at law.
Next, the applicant relied on the same acts, facts and circumstances as grounding his complaints about discrimination as he did in reference to his complaints about harassment. Not all acts of discrimination in law amount to acts of harassment. The same remedies do not necessarily flow. Here, the applicant made no attempt to dissect the acts said to amount to harassment from those acts said to amount to discrimination. He made no attempt to separate the relief he claimed from the allegations of discrimination from the relief he claimed from acts of harassment. He needs to do that. If the monetary claim is different for his discrimination claim as opposed to his harassment claim, than the different sums must be set out.
Global damages claims are noxious. In state superior courts they have been frowned on for decades. I am not a supporter of unparticularised global monetary claims. Full particulars of loss and damage are required.[7]
[7] See, for example, John Holland Construction & Engineering Pty Ltd v Kvaerner R J Brown Pty Ltd & Anor (1996) 8 VR 681; The Honourable Mr Justice Byrne, ‘Total Costs and Global Claims’ (1995) 11 Building and Construction Law Journal 397-416; Michael Creedon and Kimie Tsukakoshi, ‘The global claim labyrinth’ (November 2013) Australian Construction Law Bulletin 136-140; David McAndrew, ‘Contractors’ global loss of productivity claims’ (2014) 30 Building and Construction Law 107-127; Andrew Mansour, ‘Global Claims: Maze or Motorway?’ (October 1994) Building and Construction Law 314-317.
In my view, the statement of claim should not be permitted to go forward. I will make an order to strike it out. But I refuse to make an order preventing another attempt to correct the current deficiencies. To accede to the respondent’s request in that regard would be quite wrong and wholly unjust. By a backdoor it would have the effect of stultifying the entirety of the applicant’s claim. I am not willing to do that at this stage. Such an order should not have been sought in the first place.
In my view the proper and just way forward is to strike out the amended statement of claim. I shall make such an order. Next I shall give the applicant leave to file and serve a further amended statement of claim within a particular period of time. The applicant’s solicitors whose names appear on the amended statement of claim have withdrawn. On 3 April 2018, after I formulated these reasons the applicant recorded that he has new solicitors acting for him. He should have approximately six months to amend his statement of claim. That means he will have until 20 September 2018 to file and serve a further amended statement of claim. Beyond the inconvenience of not having this litigation resolved sooner, no prejudice is caused to the respondent by that.
If the applicant fails to file and serve a further amended statement of claim by the date for which leave is given, namely 4pm on 20 September 2018, I will entertain an application for summary judgment.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 5 April 2018
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