Masti v Finohelp Support Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Masti v Finohelp Support Pty Ltd [2025] FedCFamC2G 134

File number(s): SYG 520 of 2023
Judgment of: JUDGE CAMERON
Date of judgment: 7 February 2025
Catchwords:

PRACTICE AND PROCEDURE – Pleading – embarrassing pleading – failure to disclose reasonable cause of action – failure to plead component elements of cause of action  

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – General protections – workplace rights – requirement to identify source of ability to complaint or inquire – requirement to identify nature and source of benefit, role or responsibility imposed by workplace law or instrument
Legislation:

Fair Work Act 2009 (Cth) ss 323, 340, 341, 342, 351, 789FD

Work Health and Safety Act 2011 (NSW) s 19

Corporations Act 2001 (Cth) s 1317AA

Sex Discrimination Act 1984 (Cth) s 14

Work Health and Safety Regulations 2017 (NSW)

Federal Court Rules 2011 (Cth) r 16.21

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 1 item 14

Cases cited:

Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905

Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218

Haire v WorkCo Australia Pty Ltd (No 2) [2024] FCA 1266

Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537

Construction, Forestry, Maritime, Mining and Energy Union v Quirk (2023) 300 FCR 170

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Hansen v Mt Martha Community Learning Centre Inc (2015) 254 IR 1

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923
Division: Fair Work
Number of paragraphs: 49
Date of hearing: 19 December 2023
Place: Sydney
Counsel for the Applicant: Mr I Latham
Solicitor for the Applicant: Connect Legal
Counsel for the First and Second Respondents: Mr D Stewart
Solicitor for the First and Second Respondents: BlackBay Lawyers
Third Respondent: No appearance by or on behalf of the third respondent

ORDERS

SYG 520 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MAYURA MASTI

Applicant
AND:

FINOHELP SUPPORT PTY LTD (ABN: 13 646 185 462)

First Respondent

INTERNATIONAL CAPITAL MARKETS PTY LTD (ABN: 12 123 289 109)

Second Respondent

ANDREW LEON BUDZINSKI

Third Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Amended Statement of Claim be struck out.

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…

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Details
Case
[2025] FedCFamC2G 134
Decision Date

CaseChat Overview and Summary

In the case of Masti v Finohelp Support Pty Ltd, the plaintiff, Ms Masti, sought to bring claims under the Fair Work Act 2009 (Cth), including allegations of adverse actions related to her workplace rights. The defendants, Finohelp Support Pty Ltd and others, challenged the adequacy of Ms Masti's pleadings, arguing that her Amended Statement of Claim (ASOC) was deficient and did not sufficiently disclose a reasonable cause of action. The primary dispute centred on whether the ASOC adequately identified the roles, responsibilities, and sources of benefits or obligations imposed on Ms Masti by her workplace law or instrument, as required by the Fair Work Act.

The court was required to determine whether Ms Masti's ASOC met the necessary standards for pleading under r.16.21 of the Federal Court Rules. Specifically, the court needed to assess whether the ASOC was embarrassing or failed to disclose a reasonable cause of action, which would warrant its striking out. The court also needed to examine whether Ms Masti's ASOC sufficiently identified the nature and source of her workplace roles, responsibilities, benefits, or obligations as mandated by the Fair Work Act.

The court found that the ASOC was indeed deficient and struck it out. The court noted that the pleading failed to identify the specific roles or responsibilities imposed on Ms Masti by workplace law or instrument, which is a critical element of her claims under the Fair Work Act. The court held that the failure to identify these details rendered the pleading embarrassing and insufficient for the purposes of procedural fairness. As a result, the court determined that Ms Masti should not automatically be granted another opportunity to plead her case without first obtaining leave or consent. Consequently, the ASOC was struck out, and Ms Masti's claims were dismissed.

The court's decision underscored the importance of clear and precise pleadings in legal proceedings, particularly in cases involving workplace rights under the Fair Work Act. The ruling emphasised that the plaintiff must identify the specific roles, responsibilities, and sources of benefits or obligations to properly disclose a reasonable cause of action.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

That rule 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).EVIDENCE The Corporate Respondents tendered copies of correspondence between their solicitors and Ms Masti’s concerning the adequacy of the ASOC. They also tendered a copy of Ms Masti’s contract of employment. It relevantly provided:2. Dutiesa) Ms Masti must carry out the duties in Schedule 1 and any of her duties reasonably required by ICM from time to time.b) Ms Masti must perform her duties: i,faithfully and diligently and in a professional and ethical manner;ii.with due care and to the best of her knowledge and expertise; andiii. in accordance with any lawful and reasonable direction given by the Directors and GM of ICM.…SCHEDULE 1 DUTIES AND REMUNERATION1. DutiesAs the HR Manager, Ms Masti will be a vital part in the Human Resources management as well as shaping workplace culture.Ms Masti's duties and responsibilities includes [sic] but not limited to below:• Coordinating recruitment process with hiring managers including advertising, filtering resumes, organizing interviews and performing reference checks.• Coordinating employee performance and pay review program• General HR administration including on-boarding (employment contracts, background check, employee information collection), employee exits and structure changes.• Managing/recording employee attendance• Be the initial point of contact for staff members, coordinators for HR enquiries and escalating as required.• Sound interpretation of relevant legislation, policy and awards.• Providing HR Policies, Employee handbook, Workplace health and Safety policy, and other Enterprise Agreements• Maintaining worker's compensation policies,• Coordinating and tracking staff training, and development as required.• Assisting with overall administrative and operational functions of the Company, including travel/accommodation booking, weekly groceries, organizing Christmas party and other company event• Ad hoc administrative duties…BACKGROUND The Corporate Respondents’ solicitor, Ms Otavski, deposed that following correspondence from her firm asserting deficiencies in the pleading of the original statement of claim, it was replaced by the ASOC. In the respondents’ minds the ASOC is also deficient for being unintelligible, prolix, ambiguous and vague and for failing to identify the material factual allegations put against them. In their letter of 18 July 2023 to Ms Masti’s solicitors, the Corporate Respondents’ solicitors wrote:We are of the view that the best course is for you to consent to have the ASoC struck out and to start with a 'fresh or clean slate'. Put another way, rather than attempting to cure the multitude of problems with your current pleading, we propose that you start again and prepare a fresh pleading that properly identifies any alleged claims.They threatened a strike-out application in default of agreement.

Decision

Reasons for decision

The pleading of the exercise of the Third Workplace Right appears misconceived in its present iteration. It fails to identify what roles or responsibilities were imposed on Ms Masti and by what workplace law or instrument. Pointing to duties common to everyone or imposed on someone else is unlikely to make out the allegation. Again, whether or not they could amount to a failure to plead an essential element of a reasonable cause of action, the failures to identify the nature and source of Ms Masti’s alleged roles and responsibilities are a significant pleading deficiency that should be addressed.CONCLUSION The shortcomings in the ASOC that I have identified are such that that pleading must be struck out. Having now twice pleaded her case unsuccessfully, Ms Masti she should not automatically be entitled to try again. If she wishes to file a further statement of claim she must first obtain leave or consent. The amended statement of claim will be struck out.

Ratio Decidendi

Legal Principle Established

Ms Masti also alleged in paras. 88, 89, 90, 91, 92, 93, 94 and 95 of the ASOC respectively that a substantial or operative reason for the taking of the supposed adverse action on:(a1)14 December 2020; (b1)11 January 2021; (c1)1, 3 and 9 February 2021; (d1)6 September 2021; (e1)18 January 2022; (f1)10 February 2022; (g1)14 February 2022; (h1)16 February 2022; and (i1)7 November 2022,had been because, respectively, she had made the:(a2)14 December 2020 complaint/inquiry [sic];(b2)14 December 2020 complaint/inquiry [sic] and the 11 January 2021 complaint/inquiry [sic];(c2)14 December 2020 complaint/inquiry [sic] and the 11 January 2021 complaint/inquiry [sic];(d2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; and the September 2021 complaint/inquiry [sic];(e2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic] and the January 2022 complaint/inquiry [sic];(f2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; and the 10 February 2022 complaint and inquiry [sic];(g2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; the 10 February 2022 complaint and inquiry [sic]; and the February 2022 inquiry [sic];(h2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; and the 10 February 2022 complaint and inquiry [sic];(i2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; the 10 February 2022 complaint and inquiry [sic]; and the 26 October 2022 complaint,and because she had engaged in:(c3)the First Fair Work responsibility conduct; (d3) the First Fair Work responsibility conduct; (e3)the First Fair Work responsibility conduct; (f3)the First Fair Work responsibility conduct; (g3)the First Fair Work responsibility conduct; (h3)the First Fair Work responsibility conduct; and (i3)the Fair Work Responsibility Conduct,as particularised in annexure B to the ASOC. CONSIDERATIONIntroduction Relevantly, a pleading, or part of it, may be struck out under r.16.21 of the Federal Court Rules if it is embarrassing or fails to disclose a reasonable cause of action. It was said by Mason CJ and Gaudron J in Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 that:The function of pleadings is to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. (reference omitted)An embarrassing pleading does not satisfy those requirements. A pleading will be embarrassing if it does not enable the respondent to know, with sufficient clarity, the case which it is required to meet: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]. In Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218 at [34], speaking of the Federal Court Rules applicable in this case, Markovic J said:The concept of embarrassment in r 16.21(1)(d) can include a pleading that is susceptible to various meanings, contains inconsistent allegations, contains alternatives which are confusingly intermixed, contains irrelevant allegations which will tend to increase expense, is unintelligible or vague see: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263 at 269, [18].