Lejmanoski v The University of Western Australia (No.2)
[2014] FCCA 1179
•6 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEJMANOSKI v THE UNIVERSITY OF WESTERN AUSTRALIA (No.2) | [2014] FCCA 1179 |
| Catchwords: PRACTICE AND PROCEDURE – Application to strike out paragraphs of further amended statement of claim – principles – application of Federal Court Rules 2011 (Cth). |
| INDUSTRIAL LAW – Adverse action claim. |
| Legislation: Equal Opportunity Act 1984 (WA) Federal Court Rules 2011 (Cth), rr.16.02(1)(a), (b) and (d), (2), (3) and (5), 16.03, 16.04, 16.05, 16.06, 16.07, 16.08, 16.09, 16.10, 16.11, 16.12, 16.21 |
| Aon Risk Services Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australasian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 Australian Competition and Consumer Commission v Golden West Network Pty Ltd (unreported, Federal Court of Australia, Lockhart J, 19 August 1997) Banque Commerciale S.A. en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Bartlett v Swan Television & Radio Broadcasters Pty Limited (1995) ATPR 41-434 Beach Petroleum NL v Johnson (1991) 105 ALR 456 Betfair Pty Ltd v Racing New South Wales& Anor (2010) 189 FCR 356; [2010] FCAFC 133 Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 248 CLR 500; [2012] HCA 32 Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No. 2) [2002] FCA 87 Christie v Christie (1873) LR 8 Ch App 499 Comcare v John Holland Rail Pty Ltd (No. 4) (2011) 210 IR 65; [2011] FCA 253 Davis & Ors v Commonwealth of Australia & Anor (1986) 68 ALR 18 Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 Guglielman vTrescowthick [2004] FCA 326 In re WR Wilcocks & Co Limited [1974] 1 Ch 163 Johnson Tiles Pty Ltd & Ors v Esso Australia Pty Ltd& Anor (2000) 104 FCR 564; [2000] FCA 1572 Legal Practice Board v Said (Unreported, Supreme Court of Western Australia, Seaman J, 12 January 1994) Lejmanoski v The University of Western Australia [2013] FMCA 75 Murex Diagnostics Australia Pty Limited v Chiron Corporation & Anor (1995) 55 FCR 194 Multigroup Distribution Services Pty Ltd v TNT Australia Pty Limited & Ors (1996) ATPR 41-522 O’Brien v Michel’s PatisserieWestern Australia Pty Ltd [2010] FMCA 7 Radisich v McDonald (2010) 198 IR 244; [2010] FCA 762 Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 Shelton v National Roads and Motorists Associations Ltd & Ors [2004] FCA 1393 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors (2006) 33 WAR 1; [2006] WASC 161 |
| Applicant: | LENA LEJMANOSKI |
| Respondent: | THE UNIVERSITY OF WESTERN AUSTRALIA |
| File Number: | PEG 9 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 9 August 2013 |
| Date of Last Submission: | 9 August 2013 |
| Delivered at: | Perth |
| Delivered on: | 6 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Dixon |
| Solicitors for the Applicant: | DLA Piper Australia |
| Counsel for the Respondent: | Mr R L Hooker |
| Solicitors for the Respondent: | Office of General Counsel, University of Western Australia |
ORDERS
In relation to the Respondent’s Amended Application in a Case filed 25 July 2013:
(a)the Applicant have leave to amend paragraph 37 of the Further Amended Statement of Claim within 14 days; and
(b)otherwise, the Respondent’s Amended Application in a Case be dismissed.
The matter be adjourned to 10.30am on 7 July 2014 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 9 of 2013
| LENA LEJMANOSKI |
Applicant
And
| THE UNIVERSITY OF WESTERN AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Amended Application in a Case
By an amended application in a case[1] the respondent, the University of Western Australia[2] seeks orders striking out paragraphs 8-9, 11-15, 17-20, 36 and 37 of the Further Amended Statement of Claim[3] of the applicant, Lena Lejmanoski[4] under r.16.21 of the Federal Court Rules 2011 (Cth),[5] which it argues is applicable to this Court’s supervision of pleadings to ensure that litigation is properly pursued and relevant factual issues fairly defined. The University does so on the basis that the relevant paragraphs contravene r.16.02(2) of the FC Rules.
[1] “Amended AIC”.
[2] “the University”.
[3] “Further Amended Claim”. All references to “paragraphs” hereinafter are references to the paragraphs of the Further Amended Claim, unless otherwise stated.
[4] “Ms Lejmanoski”.
[5] “FC Rules”.
The University seeks orders to strike out the abovementioned paragraphs which arise in the context of an adverse action claim[6] under the Fair Work Act 2009 (Cth)[7] and an alternative claim in breach of contract.[8] The Contract Claim is not called into issue by the Amended AIC.
[6] “Adverse Action Claim”.
[7] “FW Act”.
[8] “Contract Claim”.
The Adverse Action Claim alleges that the University failed to comply with certain obligations imposed under a Deed of Settlement[9] and a related Memorandum of Understanding[10] executed on 11 November 2011, and to which the University and Ms Lejmanoski were parties. In brief, Ms Lejmanoski alleges that because she exercised certain workplace rights – including making both an internal and external sexual harassment complaint – the University breached paragraphs 13, 14, 15.1 and 15.2 of the MOU by, amongst other things, failing to allocate to Ms Lejmanoski duties commensurate with her seniority and by failing to consider appointing her to a specific role.[11]
[9] “Deed”.
[10] “MOU”. The MOU forms the second annexure to the Deed which is attached to the Further Amended Claim.
[11] Further Amended Claim, para.32.
Background to the disputed allegations
In early October 2010 Ms Lejmanoski filed a complaint against the University in the Equal Opportunity Commission (WA).[12] The EO Complaint asserted that Ms Lejmanoski had been subject to sexual harassment and victimisation for which the University was vicariously responsible. The EO Complaint was ultimately settled on the terms and subject to the conditions set out in the Deed and the MOU.
[12] “EO Complaint”.
The paragraphs sought to be struck out traverse a wide range of asserted facts, including:
a)sexual harassment (paragraph 8);
b)unilateral removal of Ms Lejmanoski from a certain position (paragraph 9);
c)various allegations of misconduct directed at the University (paragraphs 11 and 14);
d)the suspension of Ms Lejmanoski’s right to engage in private practice (paragraph 12);
e)the unilateral transfer of virtually all of Ms Lejmanoski’s educational and administrative functions and responsibilities (paragraph 13); and
f)the resultant letter of demand from Ms Lejmanoski’s solicitors (paragraph 15).
Paragraphs 8 and 11-14 incorporate, by way of further particulars, lengthy extracts from the EO Complaint.
Paragraphs 17-20 address a variety of issues relevant to the allocation and approval of academic and administrative roles and responsibilities for the 2013 academic year.
Paragraphs 36 and 37 seek to plead and particularise the Adverse Action Claim.
Relevant legal principles
Traditionally, this Court was not a court of pleadings.[13] The then Federal Magistrates Court Rules 2001 (Cth) were however amended in 2007 to contemplate commencement of proceedings by way of a statement of claim.
[13] Rana v University of South Australia (2004) 136 FCR 344 at 355 per Lander J; [2004] FCA 559 at para.75 per Lander J.
Section 43 of the Federal Circuit Court of Australia Act 1999 (Cth)[14] provides that the practice and procedure of this Court is to be in accordance with the Federal Circuit Court Rules 2001 (Cth).[15] To the extent that the FCC Rules are insufficient, or do not make provision for a particular circumstance, s.43 of the FCCA Act further enacts that the FC Rules made under the Federal Court of Australia Act 1976 (Cth) apply with necessary modifications and subject to limited restrictions. Rules 16.02(1)(a), (b) and (d), (3) and (5), 16.03-16.12 and 16.21 of the FC Rules expressly apply to this Court’s exercise of jurisdiction, pursuant to r.1.05(2) and 3(b), Schedule 3, Part 2, Items 8-11 of the FCC Rules.
[14] “FCCA Act”.
[15] “FCC Rules”.
The general purpose of pleadings is uncontroversial. They serve:
.. to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance.[16]
[16] Banque Commerciale S.A. en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 296-297 per Dawson J (“Banque Commerciale”); see also Betfair Pty Limited v Racing New South Wales& Anor (2010) 189 FCR 356 at 375 per Keane CJ, Lander and Buchanan JJ; [2010] FCAFC 133 at para.58 per Keane CJ, Lander and Buchanan JJ.
The defining of the issues which ought to be the subject of the hearing is something which should be accomplished at an early stage. The reason is simply that if this is not done, discovery and other interlocutory procedures may well prove misdirected, wasteful and unproductive.[17]
[17] Multigroup Distribution Services Pty Ltd v TNT Australia Pty Limited & Ors (1996) ATPR 41-522 at 42, 679 per Burchett J (“Multigroup”).
“Embarrassment” in this context “… carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense”.[18]
[18] Bartlett v Swan Television & Radio Broadcasters Pty Limited (1995) ATPR 41-434 at 40,889 per Carr J (“Bartlett”); Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at para.22 per Edmonds J (“Spiteri”).
A pleading will be considered embarrassing where it contains inconsistencies or confusing or irrelevant allegations,[19] or where it leaves a party in the situation of not knowing what evidence it ought to introduce or if it contains statements irrelevant to the relief sought.[20]
[19] Shelton v National Roads and Motorists Associations Ltd & Ors [2004] FCA 1393 at para.18 per Tamberlin J.
[20] In re WR Wilcocks & Co Limited [1974] 1 Ch 163 at 166-167 per Plowman J.
“Scandal” has been defined as follows:
Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary (not relevant to the subject) allegations bearing cruelly upon the moral character of an individual is also scandalous.[21]
[21] Legal Practice Board v Said [1994] WASC, BC9401499 (Unreported, Supreme Court of Western Australia, Seaman J, 12 January 1994); see also Christie v Christie (1873) LR 8 Ch App 499 at 503 and 505 per Lord Selborne LC and 506 per Mellish LJ.
There is a significant overlap between what may be considered “scandalous”, “embarrassing”, and either “frivolous” or “vexatious”. What is however clear is that a pleading that raises a false issue is liable to be struck out.
The general principles outlined above find expression in r.16.02(1) of the FC Rules which provides that pleadings are to be “… as brief as the nature of the case permits …” and that they should also identify the issues to be resolved and state the material facts which are necessary to give the opposing party “… fair notice of the case to be made against that party at trial ….”
These principles operate with equal force in this Court and are not impeded by the statutory objectives of either informality or expedition. If anything, they are principles which, if complied with, serve only to advance the overall objective of the FCCA Act.[22]
[22] FCCA Act, ss.3(2)(a) and (b) and 42.
The pleadings under challenge should also be viewed against the backdrop of the object of the FCC Rules, which is to assist in the just, efficient and economical resolution of litigious proceedings.[23] Litigants are, by operation of the FCC Rules, also required to avoid “undue delay, and expense.”[24]
[23] See FCC Rules, r.1.03(1).
[24] See FCC Rules, r.1.03(4).
Rule 16.02(1)(d) of the FC Rules provides that a pleading must “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against the party at trial, but not the evidence by which the material facts are to be proved.”
By r.16.02(2) of the FC Rules, a pleading must not be likely to cause prejudice, embarrassment or delay in the proceeding or fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading. In considering whether to strike out all or part of a pleading on these grounds, the Court must exercise a discretion, and that discretion is one to be exercised with caution having regard to:
a)the objects of the Court;[25]
b)the mode of operation of the Court;[26]
c)the objects of the FCCA Act and FCC Rules;[27] and
d)modern case management techniques.[28]
[25] FCCA Act, s.3.
[26] FCCA Act, s.42.
[27] FCC Rules, r.1.03.
[28] Aon Risk Services Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The principles to be applied in an application under r.16.21 of the FC Rules, having regard to r.16.02(2) of the FC Rules, are summarised in Brambles Holdings Ltd v Trade Practices Commission.[29] A focus upon case management (to ensure the efficient and fair conduct of proceedings) has led to the emphasis on technical pleadings rules being diverted to an emphasis upon ensuring that, in substance, the objectives of pleadings are fulfilled.[30] Technical objections raised to pleadings on the ground of alleged want of form are, therefore, not to be enthusiastically received. The focus is upon ensuring the case is identified with clarity, so that the opposing party knows the case to be met and the issues for hearing are identified.[31]
[29] (1979) 28 ALR 191 at 193 per Bowen CJ (“Brambles Holdings”).
[30] Banque Commerciale at 286 per Mason CJ and Gaudron J.
[31] Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466 per Von Doussa J.
In O’Brien v Michel’s PatisserieWestern Australia Pty Ltd[32] the Court said that:
The modern approach to litigation is to discourage interlocutory applications of the type made here because they are extremely time consuming and costly.[33]
[32] [2010] FMCA 7 (“Michel’s Patisserie”).
[33] Michel’s Patisserie at para.9 per Lucev FM citing Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors (2006) 33 WAR 1 at 2 per Martin CJ; [2006] WASC 161 at para.2 per Martin CJ; see also Johnson Tiles Pty Ltd & Ors v Esso Australia Pty Ltd& Anor (2000) 104 FCR 564 at 586 per French J; [2000] FCA 1572 at para.50 per French J.
In Guglielman vTrescowthick[34] the Federal Court said:
Whether a pleading should be struck out depends upon whether, in the particular circumstances, it is necessary to do so in the interests of justice. If the object of pleadings is sufficiently met, the striking out of the pleading will be unnecessary.[35]
[34] [2004] FCA 326 (“Guglielman”).
[35] Guglielman at para.8 per Mansfield J.
The discretionary power to strike out portions of pleadings should accordingly be applied sparingly and only in a clear case.[36] It must be plain and obvious that impugned portions of the pleadings are unarguable before they will be struck out.[37]
[36] Brambles Holdings at 193 per Bowen CJ.
[37] Murex Diagnostics Australia Pty Limited v Chiron Corporation & Anor (1995) 55 FCR 194 at 203 per Burchett J.
Paragraphs 8-9, 11-15 and 17-20
Paragraphs 8-9, 11-15 and 17-20 of the Further Amended Claim are as follows:
8.From in or about May 2009, the Applicant was subjected to unlawful sexual harassment by her immediate superior, Professor Ichim.
Particulars of unlawful sexual harassment
Particulars of the unlawful sexual harassment are inter alia set out in the Applicant’s application in CIC 10/0521 dated 7 October 2010 lodged in the WA Equal Opportunity Commission at [3]
9.On 29 October, at a meeting between Professor Ichim and the Applicant, Professor Ichim told the Applicant that she was to be removed from her position as “Fifth Year Co-ordinator”.
…
11.On 26 April 2010 there was an allegation made against the Applicant by Professor Smith concerning an alleged failure to inform Professor Smith concerning the details of a visiting Fellow.
Particulars
Particulars are inter alia set out in the Applicant’s application in CIC 10/0521 dated 7 October 2010 lodged in the WA Equal Opportunity Commission at [5.5(a)]
12.On 17 July 2010, the Applicant’s right to private practice at the Oral Health Centre of Western Australia was suspended by Professor Smith, with effect from 31 December 2010.
Particulars
Particulars are inter alia set out in the Applicant’s application in CIC 10/0521 dated 7 October 2010 lodged in the WA Equal Opportunity Commission at [5.4]
13.On 23 July 2010, in response to a request for a minor change to workload relating to 2 sessions only, the Applicant was informed by Ms Jennifer Robinson that Professor Smith had determined to transfer all her educational, administrative, lecture and case presentation preparation, lectures and tutorial, committee work and any other tasks except clinical tutoring to other staff.
Particulars
Particulars are inter alia set out in the Applicant’s application in CIC 10/0521 dated 7 October 2010 lodged in the WA Equal Opportunity Commission at [5.6]
14.On 10 August 2010 Professor Smith made a further allegation of misconduct against the Applicant concerning examination papers.
Particulars
Particulars are inter alia set out in the Applicant’s application in CIC 10/0521 dated 7 October 2010 lodged in the WA Equal Opportunity Commission at [5.5(b)]
15.On 17 September 2010 a letter of demand was sent to the Respondent by the solicitors for the Applicant. The letter demanded inter alia that:
(a)the Respondent protect the Applicant from unlawful sexual harassment and victimisation;
(b)that the Applicant’s right to private practice be re-instated; and
(c)that the Applicant be re-instated to her position as Fifth Year Co-ordinator.
…
17.On 31 October 2011, the Dental Curriculum Committee (DCC) of the School of Dentistry purported to approve a list of Unit Co-ordinators for the year 2013 prior to any consultation taking place.
18.On 1 November 2011, the first of three general staff meetings was held, which was part of the consultation process for staff allocation for 2013. Further staff meetings were held on 22 November and 6 December 2011.
19.The process of consultation with staff continued beyond 11 November 2011.
20.On 2 November 2011, the Respondent requested to schedule a 15 minute long meeting between Professor Smith and the School of Dentistry’s Manager for preliminary discussions into the Applicant’s role in 2013. This meeting did not take place.
University’s submissions
The University submits that:
a)it is necessary to examine the function served by paragraphs 8-9, 11-15 and 17-20, namely;
i)paragraphs 8-9 and 11-14 provide the reasons why the EO Complaint was initiated;
ii)these allegations contextualise the Deed and associated MOU. It was those allegations which gave rise to the settlement. The definition of “Dispute” in paragraph 1.1 of the Deed records that “Dispute means the dispute in relation to the matters described in the letter from Lejmanoski's lawyers DLA Piper Australia dated 17 September 2010 and contained in Annexure 1 and referred to in the MOU”;
iii)that all of the paragraphs refer to incidents and events which occurred prior to the conclusion of the Deed;
iv)with the exception of paragraphs 11-15, the paragraphs are not again referred to in the Further Amended Claim;
v)the paragraphs are not alleged to be relevant to any fact which Ms Lejmanoski relies upon in asserting a breach of the general protections provisions of the FW Act;
vi)the paragraphs are not pleaded to be relevant to any relief sought by Ms Lejmanoski; and
vii)although paragraphs 11-15 are referred to in paragraph 36 (which is objected to in its own right) the reference to those paragraphs is by way of the provision of further particulars. Paragraphs 11-15 – which deal with allegations of misconduct, the removal of Ms Lejmanoski’s right to private practice, and the unilateral amendment of Ms Lejmanoski’s duties and responsibilities – are not however pleaded to be either workplace rights or amount to adverse action. Ms Lejmanoski pleads both the workplace rights she relies upon (in paragraph 33) and the categories of prejudicial conduct she alleges she was subjected to (in paragraph 35); and
b)these facts and circumstances demonstrate that an attempt at hearing to prove paragraphs 8-9, 11-15 and 17-20 could not in any way advance Ms Lejmanoski’s prospects of proving a breach of Part 3-1 of the FW Act. The Adverse Action Claim can only be established by evidence showing that the University breached the Deed or MOU because Ms Lejmanoski either exercised or threatened to exercise the workplace rights defined in paragraph 33, which in turn illustrates the irrelevance of these paragraphs to Ms Lejmanoski’s pleaded cause of action and their contravention of the provisions of r.16.02(2) of the FC Rules;
c)paragraphs 8-9, 11-14 and 17-20 offend r.16.02(2) of the FC Rules in a number of material respects, namely:
i)given their irrelevance to the cause of action pleaded in the Further Amended Claim these paragraphs are likely to cause both delay and embarrassment within the meaning of r.16.02(2) of the FC Rules;
ii)proof of these paragraphs will likely necessitate the leading of evidence which will undoubtedly extend the duration of the hearing;
iii)the allegations of, firstly, sexual harassment (paragraph 8); and secondly, those pertaining to unfounded allegations of misconduct (paragraphs 11 and 14), are scandalous; and
iv)these false issues of fact will prejudice the University, which will have to contest those issues, which will almost inevitably introduce unwarranted delay in the resolution of the actual issues;[38]
d)if paragraphs 8 and 11-14 are considered material to the Adverse Action Claim, Ms Lejmanoski has, in pleading those allegations, failed to comply with r.16.02(1) of the FC Rules by not pleading the material facts upon which she relies;
e)with particular reference to the allegations of sexual harassment (paragraph 8), the Further Amended Claim expresses what amounts to no more than a bare conclusion;
f)paragraphs 11-14 are similarly deficient, and regard need only be had to the further particulars contained in the EO Complaint to appreciate the extent to which Ms Lejmanoski has failed to plead material facts relevant to the allegations; and
g)it follows that, even were the Court (contrary to the University’s primary submission) to consider paragraphs 8 and 11-14 relevant and material to Ms Lejmanoski’s Adverse Action Claim:
i)the allegations have not been pleaded in a manner which conforms with the FC Rules;
ii)this failure is prejudicial to the University which is entitled to know the case it is required to meet; and
iii)the offending paragraphs ought accordingly be struck out.
[38] Radisich v McDonald (2010) 198 IR 244 at 253 per Gilmour J; [2010] FCA 762 at para.33 per Gilmour J.
Ms Lejmanoski’s submissions
Ms Lejmanoski submits that:
a)the matters pleaded in paragraphs 8-9, 11-15 and 17-20 are relevant to “the case to be made against the party at trial” for the purposes of r.16.02(1)(d) of the FC Rules. The paragraphs set out relevant material facts in relation to the question the Court will be called upon to determine, being the real and operative reason for actions taken[39] against Ms Lejmanoski with regard to the allocation of functions in relation to the Doctor of Dental Medicine degree;[40]
b)paragraphs 8 and 11 include allegations of material facts which form elements of the cause of action under s.340 of the FW Act, specifically the element of a workplace right, and the exercise thereof, for the purposes of s.341 of the FW Act. Moreover, the facts pleaded in paragraphs 8 and 11 are material to the claims which were extant at the time the Deed and the MOU were entered into.[41] It is from the execution of the Deed and the MOU pursuant to a dispute settlement procedure that it is alleged there was a further exercise of workplace rights;[42]
c)paragraph 9 is relevant to the allegation of prejudicial alteration of position and the relief sought;
d)Ms Lejmanoski’s workplace rights, and their exercise, are pleaded in paragraphs 33 and 34 of the Further Amended Claim. The exercise of Ms Lejmanoski’s workplace rights included:
i)the Internal Sexual Harassment Complaint – defined at paragraph 10 to include ‘allegations regarding the conduct of Professor Ichim’ which refers to the matters alleged in paragraph 8; and
ii)the EO Complaint– referred to in particulars at paragraphs 8, 11, 12, 13 and 14, and expressly pleaded at paragraph 16 of the Further Amended Claim; and
e)in each case, the allegations in paragraphs 8-9, 11-15 and 17-20 are relevant to the requisite exercise of these workplace rights, as alleged in paragraph 34 of the Further Amended Claim.
[39] Board of Bendigo Regional Institute of Technical and Further Education v Barclay& Anor (2012) (2012) 248 CLR 500; [2012] HCA 32 (“Bendigo Regional Institute”).
[40] “DMD”.
[41] The Court noted in Lejmanoski v The University of Western Australia [2013] FMCA 75 at paras.5-6 per Lucev FM that paragraphs 8-16 of the Amended Statement of Claim formed the relevant background history of the matter.
[42] Further Amended Claim, para.33(iv).
Paragraphs 36 and 37
Paragraphs 36 and 37 of the Further Amended Claim are as follows:
36.By reason of the matters pleaded in paragraphs 25 to 35 of this statement of claim, the Respondent, including through the actions of Professor Smith, took adverse action against the Applicant because of the Applicant’s exercise of her workplace rights.
Particulars
(i)The Applicant repeats the particulars set out above at paragraph 35.
(ii)The Applicant repeats paragraph 32(d) and the particulars of paragraph 32(d).
(iii)The Applicant repeats paragraphs 10-16.
37.Further or in the alternative, by reason of the matters pleaded in paragraphs 25 to 35 of this statement of claim, the Respondent threatened to engage in conduct that constitutes ‘adverse action’ within the meaning of section 342(1) item 1(b) of the FW Act in that the Respondent has threatened to injure the Applicant in her employment.
Particulars
(i)The Applicant repeats the particulars set out at paragraph 35 above.
(ii)The DMD will supersede the former Bachelor of Dental Science degree, which ceases to exist once the current cohort of Bachelor’s degree students completes in 2015. The first-year duties allocated to the Applicant under the DMD (which she currently performs) not only determine her present level of seniority and responsibility but will determine her future career path, given that the DMD will supersede the former Bachelor’s degree.
The University’s submissions
The University submits that:
a)paragraphs 36 and 37 serve to plead the reasons why the University is alleged to have transgressed the general protections provisions of the FW Act;
b)paragraph 36 – which attempts to attribute the alleged prejudicial conduct to a proscribed reason (the exercise of workplace rights) – is contradictory, internally inconsistent, and confusing. Given its ordinary meaning – and assuming “by reason of” means “because” – it conveys the following: because of prejudicial conduct (on the part of the University) and the fact that Ms Lejmanoski was possessed of certain workplace rights (and exercised those rights) and was prejudiced in her employment, the University altered her position to her prejudice and this constituted adverse action because Ms Lejmanoski exercised her workplace rights. Paragraph 36 conveys no logical or coherent assertion of either fact or law;
c)to the extent that they may be considered relevant in either interpreting or assessing the validity of the University’s objection, the particulars to paragraph 36 serve only to compound the confusion. Those particulars do not in fact refer to workplace rights but rather to three specified categories of alleged prejudice. It is accordingly somewhat difficult to comprehend the purpose sought to be achieved by the provision of further particulars in this context;
d)the particular importance in an asserted contravention of Part 3-1 of the FW Act being properly and intelligibly pleaded lies in the established orthodoxy as to how federal courts must approach the hearing and consequent fact finding of such claims in light of s.361 of the FW Act. In addressing the central question as to why certain alleged adverse action (if it indeed be adverse action) was taken in light of all the facts established at hearing, it will frequently be necessary for a respondent to lead direct evidence of a decision-maker as to matters of state of mind, intent or purpose;[43]
e)a pleading may be struck out in circumstances where it is unintelligible, ambiguous or so vague that it fails to properly identify the material factual allegations with sufficient clarity that the other party is given proper notice of the real substance of the claim.[44] That need for clarity and proper notice of the claim a respondent needs to meet, and potentially respond to by the leading of direct evidence, is enhanced by the now established doctrine as to the operation of s.361 in the overall context of Part 3-1 of the FW Act;
f)equally trite is the fact that a pleading which is susceptible to a number of meanings or interpretations or which contains inconsistent allegations qualifies as causing embarrassment within the meaning of r.16.21(1) of the FC Rules.[45] Paragraph 36 offends this provision and, on account of its ambiguity, also r.16.02(2)(c) of the FC Rules;
g)paragraph 37, for its part, is equally ambiguous, vague and contradictory. Like paragraph 36, it incorporates into itself a number of unrelated allegations which are incoherently structured; and
h)in addition, in her attempt to plead an alternative adverse action, Ms Lejmanoski has omitted to plead that the alleged adverse action (the threat to injure her in her employment) stands attributable to any proscribed reason. In short, Ms Lejmanoski has failed to plead the essential averments necessary to establish any prima facie breach of the general protections provisions. For this reason paragraph 37 also offends r.16.02(2)(c) of the FC Rules.
[43] Bendigo Regional Institute CLR at 517 per French CJ and Crennan J; HCA at paras.44-45 per French CJ and Crennan J, with whom Gummow and Hayne JJ generally agreed. See, also, Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 at paras.33-36 per Gilmour J.
[44] Multigroup at 42 per Burchett J.
[45] Bartlett; Spiteri at para.22 per Edmonds J.
Ms Lejmanoski’s submissions
Ms Lejmanoski submits that:
a)the University’s contention that paragraph 36 is contradictory, internally inconsistent or confusing appears only to be directed at the various particulars accompanying paragraph 36.[46] This is not a basis for strike-out under r.16.2 of the FC Rules;
[46] University’s Amended AIC Submissions at para.38.
b)the logical analysis of the Further Amended Claim is:
i)the University harassed and victimised Ms Lejmanoski;
ii)Ms Lejmanoski had certain workplace rights;
iii)Ms Lejmanoski sought to exercise those workplace rights by complaining about the harassment and victimisation;
iv)the parties entered into the Deed and MOU in settlement of the harassment and victimisation matters, which was executed in a further exercise of a workplace right; and
v)by reason of the exercise of all of Ms Lejmanoski’s workplace rights, and in breach of the Deed and MOU, the University took adverse action against Ms Lejmanoski;
c)paragraph 36 clearly states that the University, including through the actions of Professor Smith, took adverse action against Ms Lejmanoski because of Ms Lejmanoski’s exercise of her workplace rights. That gives rise to the Adverse Action Claim. Paragraph 36 further particularises the paragraph numbers which set out the factual basis on which this statement rests, being the actions which altered Ms Lejmanoski’s employment to her prejudice,[47] and the context in which Professor Smith was involved in the relevant matters,[48] and thereafter operated as decision-maker[49] to Ms Lejmanoski’s prejudice;
d)the University’s complaint in relation paragraph 37 appears to boil down to the failure to expressly plead at the end of the paragraph that the matters alleged occurred “because of the exercise of her workplace rights”; and
e)paragraph 37 clearly states that the University threatened to engage in conduct that constitutes “adverse action” within the meaning of s.342(1) item 1(b) of the FW Act in that the University threatened to injure Ms Lejmanoski in her employment. That meaning of adverse action in s.340 of the FW Act includes the causative aspect of the Adverse Action Claim. To the extent that the University objects to the absence of the words “because of” in paragraph 37, there can be no doubt that Ms Lejmanoski brings the claim on this basis, as set out in the prayer for relief citing the various sections of s.340 of the FW Act.
Relief and re-pleading
[47] Further Amended Claim at para.35.
[48] Further Amended Claim at paras.10-16.
[49] Further Amended Claim at para.32(d).
The University’s submissions
The University submits that:
a)it does not object to Ms Lejmanoski re-pleading paragraphs 36 and 37, subject to being heard as to costs, but it is submitted that leave to re-plead should not be granted in relation to the remaining paragraphs;
b)whether or not Ms Lejmanoski ought to be afforded the opportunity of re-pleading the balance of the paragraphs is of course dependent upon the circumstances of the case, the ultimate guiding principle being what is just;[50]
c)the fact is that the relevant paragraphs, referring as they do to events and incidents which occurred up to two and half years before the execution of the Deed, could never conceivably be relevant to the Adverse Action Claim; and
d)Ms Lejmanoski has been repeatedly warned of the deficiencies in her pleadings and she ought to have at least appreciated the fact that the paragraphs are irrelevant to the Adverse Action Claim.
[50] Guglielman at para.8 per Mansfield J.
Ms Lejmanoski’s submissions
Ms Lejmanoski submits that to the extent that the Court is of the view that any pleading is insufficient in relation to any of the paragraphs that:
a)the matter can be cured by the many case management procedures the Court has at its disposal (including the provision of further and better particulars); or
b)alternatively, leave should be granted to re-plead. This does not appear to be seriously in issue.[51]
[51] University’s Amended AIC Submissions at para.44.
Consideration
In the Court’s view the objections to paragraphs 8-9, 11-15 and 17-20 on the grounds of relevance fail.
Paragraphs 8 and 9 are relevant to what is said in paragraph 10, which paragraph is then used as the basis for a plea at paragraph 34 that by reason of those matters the applicant exercised or alternatively proposed to exercise workplace rights, with the workplace rights being broadly defined by paragraph 33 to include not only the Deed and MOU, but the legislative provisions of the Equal Opportunity Act 1984 (WA),[52] and the provisions of the relevant industrial agreement, and the policies of the University. The plea of exercise of workplace rights includes the internal sexual harassment claim referred to at paragraph 10, and paragraph 10 is relied upon as a particular of adverse action for the purposes of paragraph 36. Likewise, paragraphs 11-15, as well as paragraph 9, relate to the alleged victimisation by the University the subject of the EO Complaint pleaded in paragraph 16. That complaint is pleaded as an exercise of workplace rights at paragraph 34, no doubt by reference to the workplace rights pleaded in paragraph 33, and in particular those under the EO Act, the industrial agreements dispute settlement procedure, and the policies of the University. Paragraphs 17-20 are obviously relevant to paragraph 21 which refers to the execution of the Deed and the MOU. The MOU contained provisions in relation to the re-appointment (see paragraph 22), that Ms Lejmanoski would be considered for appointment to the role of final year co-ordinator under the 2013 Curriculum for the DMD (see paragraph 23) and that neither of Professors Smith nor Ichim would participate in decision-making for the potential appointment of Ms Lejmanoski referred to above (see paragraph 24). Paragraphs 21-24 are also claimed at paragraph 34 to be the exercise or proposed exercise of workplace rights, this time pursuant to the Deed and the MOU, which were in turn the result of the exercise of workplace rights under the dispute settlement procedures and the EO Act. The exercise or proposed exercise of workplace rights by Ms Lejmanoski then underpins at least the claim at paragraph 36 that the University took adverse action against her because of her exercise of workplace rights.
[52] “EO Act”.
These paragraphs are therefore relevant to the establishment of a workplace right by Ms Lejmanoski, and the exercise or proposed exercise of such a workplace right by Ms Lejmanoski.[53] Those workplace rights were exercised or proposed to be exercised both before and after entry into the Deed and the MOU, and a proper reading of the Further Amended Claim shows that to be the case. Further, paragraph 9 is relevant to the allegation of prejudicial alteration to position and the relief sought in that regard.
[53] FW Act, s.341.
The relevance of paragraphs 8-9, 11-15 and 17-20 precludes, in the circumstances of this case, a finding that those paragraphs, or any of them, are scandalous, embarrassing or vague. In particular, the allegation of sexual harassment by Professor Ichim, is relevant to the exercise of a workplace right by Ms Lejmanoski in complaining about that sexual harassment and making an internal sexual harassment complaint, which led, in part, to her alleging sexual harassment and victimisation in the exercise of a further workplace right in her EO Complaint, which led to the Deed and MOU which it is now asserted have been breached, and which is also said to have given rise to adverse action by the University because of the applicant’s exercise, or proposed exercise, of her workplace rights arising from the Deed and MOU: see paragraphs 32(d) and 36.
Having regard to:
a)the approach to be adopted to proceedings under the FCCA Act, FCC Rules and modern principles of case management;[54]
b)the fact that the Court ought not adopt a too pedantic approach to pleadings;[55]
c)the fact that a pleading might not fail to plead material facts in support of an allegation where such facts are set out under the heading of particulars;[56] and
d)the fact that this will be a hearing conducted on affidavit, and, therefore, all facts asserted by Ms Lejmanoski in support of the Further Amended Claim will be well-known to the University well prior to any hearing, both generally and for the purposes of any necessary rebuttal under s.361 of the FW Act,[57]
and noting that the University has already filed a defence, albeit to the original statement of claim, the Court, acting with a degree of circumspection,[58] does not consider it necessary nor appropriate in the interests of justice to strike out paragraphs 8-9, 11-15 and 17-20, even if there be a technical failure to plead a material fact.
[54] See para.21 above.
[55] Comcare v John Holland Rail Pty Ltd (No. 4) (2011) 210 IR 65 at 66-67 per Bromberg J; [2011] FCA 253 at para.3 per Bromberg J.
[56] Australasian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568.
[57] Australian Competition and Consumer Commission v Golden West Network Pty Ltd (unreported, Federal Court of Australia, Lockhart J, 19 August 1997).
[58] Davis & Ors v Commonwealth of Australia & Anor (1986) 68 ALR 18.
In relation to paragraphs 36 and 37 the form of the pleading is entirely orthodox insofar as it refers to earlier paragraphs as a plea for the basis of the alleged adverse action,[59] and otherwise intelligible. Further, insofar as the particulars are criticised, they do not stray outside of the bounds of the pleaded basis for the claims in paragraphs 36 and 37. The only legitimate objection made by the University is to paragraph 37 insofar as it appears to have failed to include reference to the necessary causative link, but as Counsel for the University properly conceded at hearing,[60] is simply a failure to omit words to the effect that the University’s alleged conduct was because of Ms Lejmanoski’s exercise of her workplace rights.
[59] BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No. 2) [2002] FCA 87 at paras.15-16 per Mansfield J.
[60] Transcript, page 6.
Conclusion and orders
In all of the above circumstances, the Court has concluded that Ms Lejmanoski ought to have leave to amend paragraph 37 within 14 days, but otherwise that the Amended AIC ought to be dismissed. The matter will be adjourned to a further directions hearing. There will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 6 June 2014
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