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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- Case
- [2025] FedCFamC2G 134
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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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].