Lejmanoski v The University of Western Australia (No.2)

Lena Lejmanoski (the applicant) brought proceedings against The University of Western Australia (the respondent). The respondent sought to strike out specific paragraphs of the applicant's Further Amended Statement of Claim pursuant to rule 16.21 of the Federal Court Rules 2011 (Cth), arguing these paragraphs contravened rule 16.02(2) by failing to properly define the relevant factual issues. The application concerned an adverse action claim under the Fair Work Act 2009 (Cth) and an alternative claim for breach of contract.

The court was required to determine whether the specified paragraphs of the applicant's pleading were so deficient as to warrant being struck out. These paragraphs related to allegations of sexual harassment, victimisation, unilateral removal from a position, misconduct by the University, suspension of the applicant's right to private practice, transfer of her duties, and issues concerning the allocation of academic and administrative roles for the 2013 academic year. The applicant's adverse action claim alleged that the University breached a Deed of Settlement and a Memorandum of Understanding by failing to comply with certain obligations after the applicant exercised workplace rights, including making sexual harassment complaints.

The court reasoned that while it was not traditionally a court of pleadings, the Federal Court Rules 2011 (Cth) applied to ensure litigation was properly pursued and factual issues fairly defined. The court granted the applicant leave to amend paragraph 37 of her Further Amended Statement of Claim, indicating that this specific paragraph required amendment. However, the court dismissed the respondent's application to strike out the remaining paragraphs, implying that those paragraphs, as pleaded, were considered sufficiently defined for the purposes of the litigation.

The orders made were that the applicant have leave to amend paragraph 37 of the Further Amended Statement of Claim within 14 days, and otherwise, the respondent's Amended Application in a Case be dismissed. The matter was adjourned for further directions.