Manivannan v Tata Consultancy Services Limited (No 2)
[2024] FedCFamC2G 614
•15 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manivannan v Tata Consultancy Services Limited (No 2) [2024] FedCFamC2G 614
File number(s): SYG 1205 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 15 April 2024 Catchwords: PRACTICE AND PROCEDURE – Application for strike out misconceived. Legislation: Fair Work Act 2009 (Cth)
Federal Court Rules 2011 (Cth) rr 16.21, 16.41
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 1 item 14
Cases cited: Manivannan v Tata Consultancy Services Limited [2023] FedCFamC2G 904 Division: Fair Work Number of paragraphs: 15 Date of hearing: 15 April 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person by videoconference Counsel for the Respondent: Ms S. 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
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
15 APRIL 2024
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 26 February 2024 be dismissed.
NOTING THAT THE RESPONDENT HAS SOUGHT ITS COSTS OF THE APPLICATION IN A PROCEEDING FILED ON 26 FEBRUARY 2024, THE COURT FURTHER ORDERS THAT:
2.The respondent file and serve written submissions on costs on or before 29 April 2024.
3.The applicant file and serve written submissions on costs on or before 13 May 2024.
4.The matter be listed for hearing on the question of costs on 14 May 2024.
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
This is a proceeding under the Fair Work Act 2009 (Cth) (FW Act) which was commenced on 10 August 2022. The applicant, Mr Manivannan, proceeds under the second version of a statement of claim. An earlier version was essentially abandoned and replaced with the new pleading. Last year, portions of that further statement of claim were struck out in response to an application in a proceeding brought by the respondents. Further details of the earlier part of the proceeding are set out in the decision of the Court on the strikeout application: Manivannan v Tata Consultancy Services Limited [2023] FedCFamC2G 904.
Once that application in a proceeding was determined, the respondent filed its defence, doing so on 22 January 2024. On 26 February 2024, Mr Manivannan filed a further application in a proceeding, seeking orders pursuant to r.16.21 of the Federal Court Rules 2011 (Cth) (FCA Rules) that the following paragraphs of the defence be struck out: 1 to 10, 12 to 26, 28(d), 28(i), 29 to 45. These reasons concern that application.
LEGISLATION AND RULES
Rule 16.21 of the FCA Rules, which is applied in this Court by virtue of item 14 of sch.1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (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.
…
Mr Manivannan also relied on r.16.41 of the FCA Rules which states:
16.41 General
(1) A party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party.
(2) Nothing in rules 16.42 to 16.45is intended to limit subrule (1).
CONSIDERATION
For the following reasons, the application in a proceeding will be dismissed.
I have listened with some care to the submissions made by Mr Manivannan today but, with due respect to him, I believe that much of his concern in relation to the defence arises out of an unfamiliarity with the rules of pleading and the requirements of particularisation. So much is suggested by the following passages in his written outline of submissions:
46. The SoC’s deficiencies are critical since the identification of a cause of action and adverse actions are fundamental to pursuing general protections claim under the Fair Work Act 2009. Despite these identified shortcomings, and without a clear path to sensibly admit or contest the claims, the Respondent has elected not to strike out but to prepare a defence. This approach seems to sidestep the main dispute concerning the applicability of employment agreements to the Applicant, which are traditionally intended for employees with TCS-sponsored visas.
47. This situation leads to the Applicant facing the defence on issues not raised in the SoC, potentially resulting in an unnecessary prolongation of proceedings and unwarranted expenses for all parties.
The arguments advanced by Mr Manivannan appear not to understand the distinction between admissions and traverses in a defence, which do not need to be particularised, and positive allegations, which may need to be. A respondent may simply traverse an arguable allegation without saying more but, if a defence makes a positive allegation, then there may be material facts and circumstances lying behind such an allegation needing clarification.
It is worth noting that the defence in this case is made up largely of admissions and traverses and that there are comparatively few positive allegations.
In the outline of written submissions to which he spoke today, Mr Manivannan said that the defence failed to state material facts but, with respect, I do not agree that there is any apparent want of particularisation. As I have said, most of the defence is made up of traverses and admissions and, to the extent that further and better particulars were sought, my preliminary view is that the respondent's replies were not unreasonable. Certainly, Mr Manivannan did not get substantive responses to some requests for particulars, but that seems to have arisen out of the nature of the request that was made, rather than the nature of the allegation being interrogated.
Mr Manivannan has also approached the defence on the basis that because there are deficiencies in his own statement of claim, any defence is otiose and wasteful of costs. This appears to be founded on a misconception that those paragraphs of the statement of claim which were not challenged in the earlier application in a proceeding need not be traversed or addressed in a defence because they are somehow deficient, untested or lacking in substance on that account. The argument also fails to have regard to the fact that the respondent was ordered by the Court to file a defence, which necessarily required it to plead to the allegations in the statement of claim that had not been struck out.
Another point which Mr Manivannan made in his submissions was that it would be difficult for the respondent to defend parts of the case, presumably because the defence pleads to paragraphs of the statement of claim which Mr Manivannan has not clearly outlined. As he says in paragraph 12 of the submissions at page 36 of his affidavit of 24 February 2024:
…the Respondent cannot file a defence when the applicant's Statement of Claim does not clearly state the issues for the court to resolve ... [the] claim should be considered closed to prevent unnecessary waste of the court’s time and resources.
The responses to those submissions are, first, that the respondent has filed a defence which is responsive to the allegations which remain pursued in the statement of claim and, secondly, the suggestion that the applicant's claim should be considered “closed” is at the very least an unusual one. In that regard, Mr Manivannan has made allegations in the statement of claim that the respondent breached the FW Act and failed to observe its general protection obligations towards him. I refer in this regard, to paragraphs 13, 14, 20, 22, 26 and 28 of the statement of claim.
One of the matters which Mr Manivannan raised in submissions annexed to his affidavit of 24 February 2024, concerned denial of procedural fairness to him by reason of the way the matter was pleaded by the respondent. I failed to understand the logic of that argument. Mr Manivannan also referred to complaints or concerns expressed by the respondent prior to the judgment on the earlier interlocutory application but those concerns have to be seen in the light of subsequent events, and most particularly the provision of further and better particulars and the striking out of objectionable paragraphs of the statement of claim.
Overall, I agree with the submissions of the respondent that the complaints raised by Mr Manivannan regarding the defence are misconceived and cannot be accepted.
One final thing that I should note is the respondent’s submission that it has identified no authority which holds that a pleading is deficient because it pleads to a deficient pleading. That is hardly surprising.
CONCLUSION
For these reasons, the application in a proceeding must be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 11 July 2024
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