Meredith v Chad Group Australia Pty Ltd

[2021] FCCA 415

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEREDITH v CHAD GROUP AUSTRALIA PTY LTD [2021] FCCA 415

Catchwords:
INDUSTRIAL LAW – Ruling on pleading objections to applicant’s third proposed statement of claim.

Legislation:

Accident Compensation Act 1985 (Vic), s. 134AB(1)

Fair Work Act 2009 (Cth), ss. 341, 725, 732

Occupational Health and Safety Act 2004 (Vic)

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss. 326, 327

Cases cited:

Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33

Fencott v Muller (1983) 152 CLR 570

Maurice Blackburn Cashman v Brown [2011] HCA 12

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457.

Valceski v Valceski [2007] NSWSC 440

Applicant: PAUL  MEREDITH

Respondent: CHAD GROUP AUSTRALIA PTY LTD

File Number: MLG 348 of 2020

Judgment of: Judge Burchardt

Hearing date: 17 February 2021

Date of Last Submission: 25 February 2021

Delivered at: Melbourne

Delivered on: 11 March 2021

REPRESENTATION

Counsel for the Applicant: Dr McConvill

Solicitors for the Applicant: James McConvill & Associates

Counsel for the Respondent: Ms Zhou and Mr Nguyen

Solicitors for the Respondent: Hutchinson Legal

ORDERS

1. Parts E, F, G and H of the applicant’s further statement of claim be struck out.

2. The proceedings shall be the subject of mediation to be held on a date to be fixed with the mediation to be conducted by a Registrar of the Court as mediator appointed by the Registrar of the Court.

3. The matter be listed for directions after mediation on a date to be fixed.

4. Costs reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 348 of 2020

PAUL MEREDITH

Applicant

And

CHAD GROUP AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is the latest pleading dispute in what is becoming a regrettably long - drawn out affair.  The applicant filed his originating application on 23 December 2019.  In that application, he sought unpaid wages in the sum of $6,840, payment in lieu of notice, $3,956, and other relatively small ancillary payments.  Both the claim and the accompanying statement of claim referred to failure to pay money in lieu of notice, underpayments arising out of failure to permit meal breaks and payments sought for time worked but not paid.  The statement of claim went on to plead negligence and a breach of duty of care alleged against the respondents (the second, third and fourth respondents have since been struck out as respondents by court order).

2. There have been two amended statements of claim filed since the first one.  Relevantly for these purposes, on 10 October 2020 I ordered (for the second time) an amended statement of claim and a statement of claim was ultimately filed on 27 November 2020.  This statement of claim, as I understand it, was settled by counsel and limits the claim to claims for underpayment of wages and non-payment of wages for time worked, giving rise to a total indebtedness of $5,656 in respect of wages and $22,437 in respect of meal breaks.

3. On 17 December 2020, the matter was heard by telephone and, as indicated, the claim was struck out against the second, third and fourth respondents and the applicant was ordered to provide any proposed further amended statement of claim. 

4. It is that further amended proposed statement of claim that has given rise to the current arguments.  The respondents still seek to dismiss large proportions of this statement of claim which, in essence, are what is described as the expectational claim and common law injury claim that were earlier apparently excised by counsel but which the applicant now seeks to reinstate.

The Submissions Made at Court

1. The applicant filed written submissions seeking orders to progress the matter to mediation following the close of pleadings.  Perhaps the matter is best illustrated by paragraph 1 where the applicant asserts:

   The applicant respectfully seeks leave to file a further statement of claim so that the court may be updated in relation to the serious injury claim.

2. The submissions go on to refer to medical reports supporting the proposition that the applicant has suffered a serious injury as a result of his work and refer inter alia to an affidavit earlier filed by Dr Mary-Ellen O’Hare in this regard.  The written submissions note that on 14 December 2020 the applicant had filed a worker’s injury claim form which has been accepted by the insurer, CGU.  The written submissions go on to traverse the question as to whether the applicant has suffered a serious injury and notes that (paragraph 17) given the quantum of damages, this matter would be assessed in the County Court of Victoria, rather than the Magistrates’ Court.

3. The submissions go on to assert at paragraphs 18 and 19:

   The Federal Circuit Court of Australia and the County Court of Victoria are recognised as equivalent courts.  As such, the Federal Circuit Court has jurisdiction to hear matters that might usually be heard in the County Court.

   As other elements of the Applicant’s injury will be reviewed and assessed in the Federal Circuit Court of Australia, it is respectfully submitted the Federal Circuit Court should utilise its accrued jurisdiction to assess the serious injury claim, so as to:

   a) Avoid multiple court proceedings; and

   b) Avoid undue cost to the applicant.

4. The submissions then go on to traverse the court’s accrued jurisdiction referring to such well-known decisions as Fencott v Muller (1983) 152 CLR 570 and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. I note that at paragraph 32 it is submitted that Brereton J in Valceski v Valceski [2007] NSWSC 440 observed:

   Whilst there may be a discretion to decline to exercise accrued jurisdiction, it will be an exceptional case in which that discretion can properly be exercised so that the whole of a justiciable controversy is not solved in one court.

5. In oral submissions before the court, counsel referred to the proposed further amended statement of claim.  It included the serious injury component.  Counsel referred to the affidavit of Olivia Jane Pepper – affirmed 16 February 2021 – which relevantly appends a letter from CGU insurance in which CGU advises that they are not in a position to advise whether the applicant has suffered from a serious injury and go on to say:

   Your firm will need to lodge a serious injury/common law application to the magistrates’ Court.  There are two components of a serious injury application, pecuniary loss and pain and suffering. 

   Once the magistrates’ Court complaint has been recorded, Work Safe will then appoint a panel law firm to represent CGU worker’s compensation and the employer aligned.

6. Counsel sought the matter move to mediation and complained of the amount of time that had gone by since the original application was filed.

7. The submissions on the part of the respondent were divided between counsel. Ms Zhou first dealt with the pleaded asserted contraventions of the general protections provisions set out at paragraph 24 of the statement of claim. It was noted that the various assertions were placed within a time continuum of between in or about early 2017 and in or about September 2019. Counsel pointed out that this was so vague bearing in mind the particular instances of conduct alleged, that the respondent would not be able to reply. Furthermore, it was submitted that paragraph 25 of the statement of claim asserted that the conduct itemised in paragraph 24 constituted adverse action by the employer. However, from the statement of claim – paragraphs 29, 30 and 31 – it was apparent that the applicant was asserting that he exercised his rights to make a complaint within the meaning of section 341 of the Fair Work Act2009 (Cth) (“Act”) on 17 April 2019.  It was submitted that, given that the conduct extended to September 2019, the exercise of rights could not arise out of post-dated alleged assertions of unlawful conduct. 

8. Counsel then went on to submit that in paragraphs 35 and 36 is it asserted that the applicant has suffered a workplace injury. It was noted that the applicant was asserted to have suffered work-related mental stress and depression on or about the night of 11 September 2019. However, the applicant was dismissed on that date. It was submitted that section 725 to 732 inclusive of the Act had the net effect that the applicant was precluded from bringing a general protections claim because he had already pursued an unfair dismissal claim. It is clear, of course, from the materials annexed to Mr Veeth’s second affidavit that the applicant has indeed conducted, and it would appear successfully, an unfair dismissal claim.

9. Counsel then addressed part E of the proposed statement of claim, which it was submitted was clearly a claim for reasonable notice.  Paragraph 13 of the statement of claim pleads an employment agreement but there is no particularisation of the agreement as to how it was constituted. 

10. It should be noted that in the original application filed on 23 December 2019 and the attached statement of claim, it was asserted that the applicant was employed as a casual driver/store person on 14 July 2015 and that the contract comprised an offer of employment.  A further full-time employment engagement on 3 November 2016 was said to be constituted by a document entitled Salary Review. 

11. Counsel’s complaint, to which I shall return, seems to me to have force.

12. Insofar as part F of the statement of claim sought remuneration in lieu of notice of termination pursuant to the Act, counsel submitted that the unfair dismissal claim precluded such an application. 

13. Finally, counsel acknowledged the existence of the accrued jurisdiction but submitted, putting the matter broadly, that this matter did not arise out the same factual controversy. 

14. Mr Nguyen, who dealt with the application for common law injury, submitted the matter was governed by state law. The applicant is on weekly payments and requires a serious injury if he is to proceed with a work-related injury. This arose by virtue of section 134AB(1) of the Accident Compensation Act1985 (Vic) and together with the relevant Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) sections 326 and 327. This requires an assessment of 30 per cent or more disability. It would be necessary to seek a ruling from Victoria’s WorkCover authority which can give a certificate; alternatively, the court could grant leave (this would be the County Court or Magistrates’ Court). The applicant had not gone through these statutory gateways. Counsel referred to Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33 (“Barwon Spinners”) at [5], in which the Court of Appeal made it plain that this was the effect of the statutory scheme and Counsel also referred to Maurice Blackburn Cashman v Brown [2011] HCA 12 at [17] to [22] to similar effect.

15. In response to a question from the court, Ms Zhou indicated that mediation would have some prospects of success if the objected parts of the statement of claim were struck out but would not otherwise.

Consideration

1. Parts A, B, C and D of the statement of claim are not the subject of objection.  They give rise to relatively modest monetary claims.  The further amended statement of claim does not repeat the schedules annexed to the earlier unobjected version drafted by counsel but I will assume that that is at least roughly what the applicant is seeking.

2. Part E expectation loss suffers, it is immediately apparent, from the deficiency that the employment agreement upon which the reasonable notice claim is based is simply not pleaded properly.  In circumstances where the applicant was engaged as a casual from 2015 to 2016 and as a permanent full-time driver/store person from 3 November 2016 to 11 September 2019, the notion that his period of reasonable notice would have been six months seems, frankly, extremely farfetched. 

3. I have not been given the final orders made by the Fair Work Commission which would inform me of what damages and/or remedy the commission ordered but it would seem very probable that were a term of reasonable notice to be implied, it may well have been satisfied in any event.

4. The same stands true of the claim pursuant to the statute in part F of the statement of claim.  It seems to me that bearing in mind what I have been told by counsel (counsel submitted that the applicant had in fact already been paid under this heading although I was not told the details) it seems to me very improbable that there will be any work for that claim to do either.

5. The applicant’s claims in respect of general protections provisions suffer from a number of internal pleading difficulties, as identified by Ms Zhou.  Given the relevant period being between early 2017 and September 2019, it is impossible for the respondent fairly to be asked to respond.  Furthermore, a number of the matters of which the applicant complains in the proposed paragraph 24 would strike me as being barely tenable as being capable of constituting adverse action within the meaning of section 342 of the Act in any event. As if this were not enough, the fact is that the applicant has pursued his claim for unfair dismissal and is thus precluded by the terms of the Fair Work Act from now bringing an alternate claim for adverse action by virtue of section 725 to 732 of the Act.  I repeat, this part of the statement of claim is clearly not one to which the respondent can be asked to respond.

6. Finally, the applicant’s claim for damages for psychological and physical harm is, in my view, completely misconceived.  The applicant pleads, amongst other things, the Occupational Health and Safety Act 2004 (Vic) as grounding his cause of action. It is plain indeed that he may have a claim pursuant to the Victorian work accident compensation legislation. It is, however, wholly inappropriate that that claim be litigated in this court.

7. First of all, there is a statutory scheme, as explained by the Victorian Court of Appeal in Barwon Spinners, that simply cannot be evaded.  It is true, of course, that this court has an accrued jurisdiction which enables it, as a matter of discretion, to entertain claims that form part of the single federal justiciable controversy.  Contrary to the submissions of the applicant, however, the WorkCover claim does not form part of a single justiciable controversy.  In substance, it forms a completely discrete and totally differentiable claim to straightforward underpayment of wages claims upon which the parts of the statement of claim that are not objected to stands. 

8. It is a matter of which I take judicial knowledge that there are courts in Victoria which deal routinely with accident compensation claims of the sort that the applicant apparently desires to bring.  There are associated medical panels and medical referees designed to cope with such claims.  This court has no expertise in what is well-known to be an extremely complex area of the law.  In substance, what the applicant seeks to do is to circumvent the Victorian legislative requirements and, it appears, to bring a common law claim untrammelled by the statutory constraints applicable under Victorian legislation. 

9. In my view, even assuming it were practicable, which I doubt bearing in mind the whole question of serious injury certificates, medical panels (to which this Court has no access),and the like, it is immediately apparent that were it necessary for it to be so this would be one of the unusual exceptions referred to by Brereton J.  This is a case in which I would resolutely decline to exercise my discretion to entertain a claim of this sort in the court’s accrued jurisdiction.  This court is a completely inappropriate forum for such claims.  The Victorian courts are the entirely appropriate place for these claims.  Claims of this sort ought not be brought in this court and I hope that this judgment will inform any other party contemplating bringing any such an application in the future.

Conclusion

1. In my view, all parts of the applicant’s statement of claim, save parts A to D, should be struck out.  While it would be possible to give the applicant a chance to overcome the pleading difficulties so correctly pointed out by the respondent, I think the preferable course is to refer the matter to mediation since there appear to be some prospects of success.  I do not propose to give the applicant a chance to replead at this stage for what I think would now be the fourth time.  The respondent should not be put to the further costs of responding to matters so poorly pleaded and, indeed, it is regrettable that the applicant has seen fit through his advisors to endeavour to re-insert those aspects of the original pleadings that counsel, in my respectful view, so sensibly abandoned in the draft apparently prepared by counsel. 

2. Finally, I should say that I propose to reserve the costs of these interim applications.  They may be revisited, no doubt, if necessary, should mediation prove unsuccessful.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 11 March 2021