Manivannan v Tata Consultancy Services Limited
[2023] FedCFamC2G 904
•12 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manivannan v Tata Consultancy Services Limited [2023] FedCFamC2G 904
File number(s): SYG 1205 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 12 October 2023 Catchwords: PRACTICE & PROCEDURE – Pleadings – application for summary dismissal – alternative application to strike out – relevant considerations. Legislation: Fair Work Act 2009 (Cth) ss 144, 145, 203, 204, 340, 341, 343, 344, 345, 351, 355, 536CA, 536D, 557A
Crimes Act 1900 (NSW)
Work Health and Safety Act 2011 (NSW)
Privacy Act 1988 (Cth)
Taxation Administration Act 1996 (NSW)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 14.10, sch 1 item 14
Federal Court Rules 2011 (Cth) r 16.21
Cases cited: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Leach v Burston [2022] FCA 87
Krajniw v Newman (No 2) [2015] FCA 673
Division: Fair Work Number of paragraphs: 45 Date of hearing: 23 February 2023 Place: Sydney For the Applicant: The Applicant appeared in person by teleconference Counsel for the Respondent: Ms R. Kumar Solicitor for the Respondent: Herbert Smith Freehills ORDERS
SYG 1205 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJESH MANIVANNAN
Applicant
AND: TATA CONSULTANCY SERVICES LIMITED (ABN 28109981777)
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
12 OCTOBER 2023
THE COURT ORDERS THAT:
1.Paragraphs 11, 27 and 28(a), (b), (e), (f) and (g) of the statement of claim filed on 20 September 2022 be struck out.
2.The applicant provide to the respondent copies of all documents referred to in the remainder of the statement of claim filed on 20 September 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
In this proceeding, the applicant, Mr Manivannan filed an originating application on 10 August 2022. An accompanying statement of claim was prolix and on 9 September 2022 Mr Manivannan was given leave to file a shorter points of claim. On 20 September 2022 he filed a second statement of claim (SOC). The SOC variously alleged against the respondent, Tata Consultancy Services Limited (TCS), breach of contract, negligence and breaches of ss.340(1)(a); 341(1); 343(1)(a), (b); 344(c), (e); 345(1)(a), (b); 351(1); 355(a), (c), (d); 557A(1)(a), (b) and (2)(a), (b) of the Fair Work Act 2009 (Cth) (FW Act). Contraventions of the Crimes Act 1900 (NSW), Work Health and Safety Act 2011 (NSW), Privacy Act 1988 (Cth), Taxation Administration Act 1996 (NSW) and ss.536CA(1), (2), 536D(1)(a), (b), of the FW Act were also alleged in the SOC but are no longer pressed. Mr Manivannan sought compensation in respect of superannuation; overtime allowances and after-hours allowances; costs; pecuniary penalties; and orders that his “unlawful employment agreements” were null and void and that TCS issue a job duties letter and a note of appreciation on their official letterhead.
On 17 November 2022 TCS filed an application in a proceeding returnable on 24 January 2023 seeking the summary dismissal or striking out of aspects of the SOC. On 17 January 2023 Mr Manivannan provided further and better particulars to TCS following which the matter was listed for directions on 20 January 2023 at which time TCS was permitted to amend its application in a proceeding and the 24 January 2023 hearing was stood over to 23 February 2023.
On 7 February 2023 TCS filed an amended application in a proceeding seeking the summary dismissal of paragraphs 27, 28(a), 28(b), 28(c), 28(e), 28(f) and 28(g) of the SOC or, in the alternative, orders striking out paragraphs 11, 27, 28(a), 28(b), 28(c), 28(e), 28(f), 28(g) of the SOC. For the reasons that follow, the latter relief will be granted.
TCS also sought an order that Mr Manivannan provide it with copies of all documents referred to in the SOC. At the hearing of this interlocutory application that prayer was not pressed with any vigour but in any event Mr Manivannan agreed to provide the documents sought. There will be an order accordingly.
LEGISLATION AND RULES
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) relevantly provides:
143 Summary judgment
…
(2) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
...
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) relevantly provide:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
...
14.10 Documents referred to in document or affidavit
(1)If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
(2)The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:
(a)provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b)claim that the document is privileged from production and state the grounds; or
(c)state that the document is not in the possession, custody or control of the party to whom the request was made and state that party’s knowledge, information or belief about its whereabouts.
…
Rule 16.21 of the Federal Court Rules 2011 (Cth) (FCA Rules), which is applied in this Court by virtue of item 14 of sch.1 to the Rules, relevantly provides:
16.21 Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
…
CONSIDERATION
Under s.143 of the FCFCOA Act, all or part of a proceeding may be dismissed if it has no reasonable prospects of success, in the sense that a proceeding or part of it raises no real or genuine dispute as to any question of law or material fact that might reasonably be resolved in the applicant’s favour: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 at 44 [6]; Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at 272 [47]–[48], while under item 14 of sch.1 to the Rules and r.16.21 of the FCA Rules, a pleading may be struck out because fails to disclose a reasonable cause of action or manifests any of the other flaws prescribed in that rule: Leach v Burston [2022] FCA 87 at [36]–[38]. The rule is “concerned only with the adequacy of the pleading” and “does not permit or allow consideration of facts or evidence outside the pleadings”: Imobilari at 43 [4].
Paragraph 11 of the SOC – contract objectionable and contained misrepresentations
Paragraph 11 of the SOC said:
On February 21, 2020, the applicant realized that the terms mentioned in the employment agreements (“Deputation Letter,” “International Assignment Agreement, “Employment Contract”) were objectionable and contained misrepresentations of facts as listed below …
Then followed 17 subparagraphs particularising allegedly objectionable or misleading provisions of the documents in question.
That pleading does not identify the misrepresentations said to have been made in the provisions referred to in the subparagraphs. It also fails to identify in what respect those provisions were “objectionable”, what that term means in the circumstances and why it provides a cause of action. Even if the Court were to permit the allegation to be augmented by statements included in the particulars supplied in response to TCS’s request for further and better particulars, which would not be an appropriate course, it is not apparent that that prolix and obscure particularisation included any material which might have given this paragraph substance, in the sense of identifying a reasonable cause of action. Nor did identify any other part of the SOC which did. That being so, the paragraph will be struck out.
Paragraph 27 of the SOC – breach of contract
Paragraph 27 of the SOC said:
The respondent owes the applicant duty of care to ensure contractual obligations to the applicant are not violated. Also, the respondent is responsible for providing the workplace free from discrimination, unequal treatment, bullying, and harassment as the respondent claims to be an Equal Opportunity Employer.
Then followed 5 subparagraphs particularising examples of what Mr Manivannan said were breaches of contract:
a.The respondent failed to provide the Superannuation financial entitlement to the applicant as mandated by Australian law and breached its contractual obligations to the applicant.
b.The respondent failed to rectify the misrepresentations in the applicant's employment agreements despite the applicant making several requests. The respondent breached its contractual obligations to the applicant.
c.The respondent failed to place the applicant on the client project based on the applicant’s knowledge and experience.
d.The respondent failed to discharge the responsibilities in accordance with the defendant’s code of conduct principles and the guidelines as set out in the policies and procedures of the defendant’s HR policies.
e.The respondent intentionally brought the employee into conflict with Australian laws and regulations by not allowing the applicant to pay the Superannuation tax to the Australian Government. Additionally, the respondent breached the contract by publishing fraudulent information in its employment records that Tata Consultancy Services Ltd sponsored the applicant's Permanent Residency Self-Obtained, Skilled - Independent (subclass 189) – Visa Grant Number: 0059569045385.
Particulars were sought in relation to the alleged duty to ensure contractual obligations were not violated and Mr Manivannan responded that the source of that alleged duty of care was:
… Workplace laws (i.e., Fair Work Act 2009, Work Health and Safety Act 2011, and general law concerning the Contract, Workplace Instruments (Tata Code of Conduct Human Resource Policy, additional Human Resource policies, employment agreements – ‘Deputation Letter,’ ‘International Assignment Agreement,’ and ‘Employment Contract Letter.'
Those instruments were quoted in excessive and undiscriminating length in the further and better particulars such that whatever point Mr Manivannan was seeking to make was obscured rather than elucidated. Mr Manivannan has failed to identify in an intelligible manner the source of the duty he alleged.
The second part of the allegation alleged an obligation to provide a workplace free from discrimination, unequal treatment, bullying and harassment. It is to be presumed that it propounded some form of breach of contract and to the extent that that is so, it is incomplete and fails to plead such a breach effectively. To the extent that it alleges a different sort of duty, it should not have been included in this allegation of breach of contract. Particulars of the allegation were sought and Mr Manivannan replied:
The Applicant, in paragraph 18(a) above, identified and provided the Usual Particulars of the core entitlements of the Workplace laws, Workplace Instruments, and employment contracts. The identified entitlements (please refer to above para 18(a)) impose the obligations (i.e., a duty or commitment) to the Respondent to provide the workplace free from discrimination, unequal treatment, bullying, and harassment.
This statement was supported by references to various instruments but no contractual entitlements were identified.
This paragraph of the SOC manifests no sufficiently clear source of the rights alleged. Even with the additional information provided by the further and better particulars it identifies no recognizable cause of action and so will be struck out.
Paragraph 28 of the SOC – breach of FW Act
Paragraph 28 of the SOC alleged that TCS contravened various FW Act provisions that were set out in a number of related subparagraphs. Using the same lettering as used in the SOC, the breaches alleged in relevant subparagraphs may be paraphrased as follows:
(a)s.340(1)(a): TCS took adverse action against Mr Manivannan because he asked it on multiple occasions to rectify misrepresentations in his employment agreements and raised concerns about other irregularities;
(b)s.345(1)(a) and (b): TCS made false or misleading representations concerning Mr Manivannan's “legitimate employment entitlements” and declined to rectify misrepresentations in his employment agreements. It also provided dishonest responses to Mr Manivannan to deter him from further exercising his workplace rights;
(c)…
(d)…
(e)s.343(1)(a) and (b): TCS subjected Mr Manivannan to psychological threat by asking him to book tickets to India each time a project ended and intended to prevent him from exercising his workplace rights;
(f)s.344(c) and (e): TCS exerted undue pressure on Mr Manivannan by “psychologically threatening [him] to return to India” each time a project ended and by forcibly making him agree to the deduction of amounts payable to him for the performance of work. TCS also failed to pay Mr Manivannan various allowances; and
(g)s.355(a), (c) and (d): TCS took coercive action against Mr Manivannan by not giving him managerial responsibilities commensurate with his role as “Technical Lead” and demoted him to “Support Analyst”.
Paragraph 28(a) – breach of s.340(1)(a)
The allegation was that TCS took adverse action against Mr Manivannan because he asked it on multiple occasions to rectify misrepresentations in his employment agreements and raised concerns about other irregularities. Section 340(1)(a) of the FW Act provides:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
…
Mr Manivannan made a vague and diffuse response to the request for further and better particulars of this allegation of unlawful adverse action. When identifying the workplace rights whose exercise allegedly led to adverse action being taken against him, he did no more than refer to s.341 of the FW Act, and did not specify which of the workplace rights it identified were relied on. Earlier, in further and better particulars of paras.13, 14, 20 and 22 of the SOC, where it was alleged that Mr Manivannan had exercised a workplace right, reference was made in general terms to the FW Act, the “Work, Health and Safety Act 2011” (WHS Act), TCS’s Code of Conduct and other unidentified instruments and agreements, but which of their provisions had been or were relied on were not identified. Mr Manivannan did say in his further and better particulars that the FW Act and the WHS Act permitted him to bring proceedings but any such right was irrelevant to the cause of action pleaded.
In particularising this allegation, Mr Manivannan relied on the six occasions of adverse action he had alleged in paras.16 to 23 of the SOC. However, most of those allegations were unspecific:
(a)para.16 referred to three events without identifying which one, which combination or whether every one of them was adverse action;
(b)para.17 referred to two events without identifying which or whether each of them was adverse action;
(c)para.18 referred to a number of unidentified events without specifying when they occurred;
(d)para.19 referred to two events without identifying which or whether each of them was adverse action; and
(e)paras.20 and 22 did not refer to any conduct on the part of TCS, its employees or agents that could be characterised as adverse action.
When asked to identify in what way that conduct was adverse action, Mr Manivannan’s further and better particulars contended that it was adverse action because it:
(a)injured him in his employment;
(b)was a prejudicial alteration of his position;
(c)amounted to discrimination between him and other employees of TCS; and
(d)threatened adverse action of that sort and/or the organisation of such action.
However, it was not made clear whether the conduct complained of was adverse action in all of these respects, in some of them or in one only.
The particularisation does not provide clarity sufficient for the respondent to be able to plead to para.28(a). Put another way, Mr Manivannan has failed to identify how TCS contravened s.340 of the FW Act. For that reason the sub-paragraph will be struck out.
Paragraph 28(b) – breach of ss.345(1)(a) and(b)
The allegation was that TCS:
(a)made false or misleading representations concerning Mr Manivannan's “legitimate employment entitlements”;
(b)declined to rectify misrepresentations in his employment agreements; and
(c)provided dishonest responses to Mr Manivannan to deter him from further exercising his workplace rights.
Section 345(1)(a) and (b) of the FW Act provides:
345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Mr Manivannan contended in the further and better particulars that the “legitimate employment entitlements” in question had been workplace rights supplied by unidentified provisions of the Code of Conduct and other TCS policies, the FW Act, the WHS Act, contractual documents associated with his employment with TCS and the law of contract and that the misrepresentations arose out of “conduct and by silence” by TCS Executives. No particulars of those individuals and their conduct and/or silence were provided, however. Further, although s.345 of the FW Act concerns misrepresentations made knowingly or recklessly, Mr Manivannan did not provide a substantive response to TCS’s request for particulars of the knowledge or recklessness of the makers of the alleged misrepresentations.
Absent proper particulars, no reasonable cause of action is disclosed. Consequently, this sub-paragraph will be struck out.
Paragraph 28(c) – breach of ss.536CA(1) and (2)
Section 536CA of the FW Act provides:
536CA Dishonesty
(1) For the purposes of this Part, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
(2) In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.
That provision is definitional in nature and provides no relevant rights to Mr Manivannan. Further although para.28(c) of the SOC was referred to in TCS’s application for strike out or summary dismissal, no submissions were addressed to it, presumably because in his 17 October 2022 letter to TCS’s solicitor he advised he would not press this paragraph, and so no orders will be made in relation to it.
Paragraph 28(e) – breach of ss.343(1)(a) and (b)
The allegation was that TCS:
(a)subjected Mr Manivannan to psychological threat by asking him to book tickets to India each time a project ended; and
(b)intended to prevent him from exercising his workplace rights.
Section 343(1)(a) and (b) of the FW Act provides:
343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way
The “psychological threat” alleged in para.28(e) of the SOC was particularised as the “false and misleading representations” referred to earlier, namely the conduct and silence of TCS executives in relation to Mr Manivannan’s “legitimate employment entitlements”. It was further particularised as the six alleged instances of adverse action cited earlier. It was stated that these occasions of adverse action:
… resulted in the high degree of compulsion and pressure in the mind of the Applicant to discourage him from further exercising his workplace rights to get the legitimate employment entitlements he deserved to get. The high degree of compulsion and pressure created in the Applicant’s mind by the Adverse Action (01 - 06) is referred to here as ‘Psychological threat.’
However, it should be recalled that the allegation in question is that “TCS subjected Mr Manivannan to psychological threat by asking him to book tickets to India each time a project ended”.
The workplace rights which this allegation says Mr Manivannan was discouraged from using were particularised as the workplace rights provided by s.341(1) of the FW Act and referred to earlier in relation to para.28(a), namely the ones whose exercise in 2020, 2021 and 2022 had led to “the Adverse Action (01 - 06)” being taken against him. That is to say, the rights Mr Manivannan particularised in relation to para.28(a) as having been exercised were the ones he particularised in relation to para.28(e) as those that he had been prevented from exercising.
The particularisation of this subparagraph of the pleading makes no sense and as a result the allegation, as particularised, discloses no reasonable cause of action. The subparagraph will be struck out.
Paragraph 28(f) – breach of ss.344(c) and (e)
The allegation was that TCS:
(a)exerted undue pressure on Mr Manivannan:
(i)by “psychologically threatening [him] to return to India” each time a project ended; and
(ii)by forcibly making him agree to the deduction of amounts payable to him for the performance of work; and
(b)failed to pay him various allowances.
Section 344(c) and (e) of the FW Act provides:
344 Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
…
(c) agree to, or terminate, an individual flexibility arrangement; or
…
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
The psychological threat alleged in this subparagraph was particularised in the same terms as was the similar allegation in para.28(e) of the SOC.
The material particulars of the allegation that Mr Manivannan’s agreement to deductions from his salary were “forcibly” obtained from him were:
… The Respondent’s silence and conduct of declining to correct the misrepresentations in the employment agreements forced the Applicant to agree to deduct the “Notice Recovery Amount” per the unlawful employment agreements. The Applicant wouldn’t have incurred the “Notice Recovery Amount” had the Respondent issued the legal employment agreements per the Applicant’s Permanent Residency status.
…
The Respondent’s declining to correct the misrepresentations in the employment agreements forced the Applicant to agree to deduct the “Notice Recovery Amount” per the unlawful employment agreements. The Applicant wouldn’t have incurred the “Notice Recovery Amount” had the Respondent issued the legal employment agreements per the Applicant’s Permanent Residency status and the Tata Code of Conduct Human Resource Policy.
Mr Manivannan’s point appears to have been that deductions were made from his salary pursuant to “unlawful employment agreements” which contained misrepresentations that had not been corrected by TCS. In the particulars of this subparagraph Mr Manivannan also said in that regard:
Page number: 16 of the ‘International Assignment Agreement’ provided to the Applicant says,
“During your employment with TCS, either you or TCS can terminate the appointment by giving you ninety (90) calendar days written notice or 3 month's basic salary in lieu of the notice, If you are covered under International Assignment Agreement, either you or TCS can terminate the appointment by giving 90 calendar days written notice as set out in the Separation Policy of TCS. TCS reserves the right, if it is in the interest of the business and current assignment, to ask you to complete your notice period or decide whether your existing earned vacation or basic salary in lieu of notice period may be adjusted against the entire or partial notice period.”
As explained above in various paragraphs, the ‘International Assignment’ category of the employment agreements won’t apply to the Applicant per the guidelines set out in the Tata Code of Conduct HR policy and other additional Human Resources policies. In paragraph 18(a) above, the Applicant provided the core entitlements of all the Human Resources policies.
The Respondent didn’t rectify the misrepresentations in the employment agreements (i.e., Deputation Letter, International Assignment Agreement, Employment Contract) despite multiple requests made by the Applicant.
Notwithstanding those passages, the allegation of misrepresentation remains unsupported by meaningful particulars. The allegation of contractual misrepresentations was made in para.27(b) of the SOC whose related particulars identified them to be the:
'Deputation Letter,’ ‘International Assignment Agreement,’ and ‘Employment Contract'
because
The Respondent issued these categories of employment agreements to the Applicant by violating the requirements set out in the Respondent's Human Resources policies …
Therefore any terms and conditions parcel of the specified employment agreements become invalid by default and amounts to ‘misrepresentation of fact’ as these categories (i.e., Deputation, International Assignment) of the employment agreements themselves won’t apply to the Applicant per Tata Consultancy Services Human Resources policies …
How the “International Assignment Agreement” was superseded by the other industrial instruments Mr Manivannan cited at great length in para.18(a) of the further and better particulars was not specified by him and was not apparent. It also means that Mr Manivannan has not identified the source of his claimed entitlement to payment of the Notice Recovery Amount such that its non-payment to him provided a cause of action against TCS.
Mr Manivannan also referred to the “Adverse Action (01-06)” as the source of pressure and compulsion to agree to the deduction of the “Notice Recovery Amount” without identifying how those apparently unrelated events might have had that effect.
When asked to particularise facts which might engage s.344(c) of the FW Act, which concerns agreeing to or terminating an individual flexibility arrangement (IFA), Mr Manivannan relevantly referred to changes to rostering arrangements but not to an agreement that would satisfy the FW Act’s requirements for an IFA found in ss.144 and 203 of the that Act. Nor did he suggest that s.145 or 204 of the FW Act might apply in his case. Mr Manivannan has not identified an IFA which would support a claim based on s.344(c) of the FW Act.
When asked to particularise facts that might engage s.344(e) of the FW Act, which concerns agreeing to deductions from salary due, Mr Manivannan referred to amounts he claimed additional to ordinary time salary, not to salary deductions. The subsection is not concerned with such matters.
As pleaded and particularised, para.28(f) of the SOC does not disclose a reasonable cause of action, is likely to cause prejudice, embarrassment or delay in the proceeding and for those reasons will be struck out.
Paragraph 28(g) – breach of ss.355(a), (c) and (d)
Section 355 of the FW Act provides:
355 Coercion—allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
The allegation that Mr Manivannan makes is that TCS’s failure to allocate him certain duties and responsibilities was an act of coercion. The allegation fails to engage the criteria prescribed by s.355 of the FW Act and further and better particulars cannot remedy that deficiency. The allegation does not disclose a reasonable cause of action and will be struck out.
GENERALLY
The reasons for judgment of Reeves J in Krajniw v Newman (No 2) [2015] FCA 673 at [22]–[24] are of particular relevance to this case:
22In Manolakis v Carter [2008] FCAFC 183 (Manolakis), the Full Court of this Court described the obligation of a self-represented litigant to properly state his or her claim in the following terms (at [12]):
An aggrieved self-represented applicant must, like any other litigant, address:
•his or her standing to make claims against other persons;
•the jurisdiction of the court in which he or she wishes to make those claims;
•the precise identity of the parties against whom the claims are to be made;
•the relief that is to be sought; and
•the facts which are said to found an entitlement to that relief.
23In du Boulay v Worrell [2009] QCA 63 (du Boulay), Muir JA provided a summary of the conduct of a self-represented litigant in that case. His Honour said:
[68]The appellant appears to have succumbed to the phenomenon which inflicts many self-represented litigants of becoming so fixated on real or perceived wrongs that he has lost any semblance of objectivity and the power of discrimination. It does not appear to have occurred to him that by heaping allegation on allegation he has put it beyond his ability to plead, let alone conduct and finance his case. Nor does it appear to have occurred to him that the myriad of allegations has a tendency to destroy whatever credibility may have attached to a case involving fewer allegations more obviously supported by clearly identified material facts.
[69]It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance: Bhagat v Global Custodians Ltd [2002] FCA 223. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court’s duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.
24.When one examines Mr Krajniw’s statement of claim in this proceeding, it becomes obvious that he has spurned the obligations described by the Full Court in Manolakis and instead produced a document which suffers most of the vices described by Muir JA in du Boulay above …
So it is in this case. Mr Manivannan has now had two opportunities to plead his case and two opportunities to provide further and better particulars that give substance to those allegations but important aspects of the claims he makes are still ambiguous, confusing, vague, unintelligible and incapable of being sensibly admitted or traversed by TCS. It is for that reason that I have accepted TCS’s submission that leave to replead the passages that have been struck from the more recent iteration of the SOC ought not be granted as a matter of course. Also, I have not summarily dismissed the contested allegations as, although the present pleading is deficient as described, I am not presently persuaded that it would be impossible for Mr Manivannan to craft a pleading that would not fall found of r.13.13 of the Rules.
CONCLUSION
For the above reasons, paras.11, 27 and 28(a), (b), (e), (f) and (g) of the statement of claim filed on 20 September 2022 will be struck out and Mr Manivannan will be directed to provide to TCS copies of all documents referred to in the remainder of the statement of claim.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 12 October 2023
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