Moratelli v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

[2022] NSWSC 1501

Supreme Court

New South Wales

Medium Neutral Citation:

Moratelli v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWSC 1501

Hearing dates:

31 October 2022

Date of orders:

4 November 2022

Decision date:

04 November 2022

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Notice of Motion Dismissed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial organisations — Rules — whether organisation’s rules were properly complied with — whether Court should exercise its discretion and order performance of organisation’s rules — Industrial Relations Act 1996 (NSW), s 248 — plaintiff granted leave to withdraw proceedings

CIVIL PROCEDURE — Pleadings — Striking out — where plaintiff seeks to have defendant’s defence struck out — whether aspects of defence are irrelevant and have a tendency to cause prejudice or embarrassment — where defence is relevant to issues lying between parties — meaning of “embarrassment” and “prejudice” — Uniform Civil Procedure Rules 2005 (NSW), r 14.28 — motion unsuccessful

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Industrial Relations Act1996 (NSW), ss 237, 248

Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.14, 14.28

Cases Cited:

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; (1990) HCA 11

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

McGuirk v University of New South Wales [2009] NSWSC 1424

Category:

Principal judgment

Parties:

Mr John Moratelli (Plaintiff)
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Defendant)

Representation:

Counsel:
Mr T Dixon (Defendant)

Solicitors:
McNally Jones Staff Pty Ltd (Defendant)

Mr J Moratelli (Self-Represented)

File Number(s):

2021/313188

JUDGMENT

1. Mr Moratelli, a member of the Association, sought orders under s 248 of the Industrial Relations Act1996 (NSW) about a decision made by its Council to suspend the membership of a former President of the Association, directing the Association to perform or observe its Rules.

2. The Association is an organisation of employees registered under that Act. There was no issue about Mr Moratelli’s standing to bring the proceedings, but the Association resisted his claims, contending that its Council’s decision had been properly made under its Rules. The former President, who was the subject of the disputed decision, was not a party to the proceedings and was not to be called to give evidence by either party.

3. By their written submissions the parties had addressed the issues raised by their pleadings and the evidence they had served. Those issues concerned the proper construction and operation of the Rules; whether all available steps under the Rules to have the dispute resolved had been pursued; and whether in all of the circumstances, the Court should exercise its discretions under s 248 of the Industrial Relations Act.

4. By motion filed only on the morning of the hearing, Mr Moratelli sought to have the Association’s defence struck out. That application was supported by an affidavit he had sworn, in which he deposed that he had come to consider identified aspects of the defence to be irrelevant to the matters in issue and that he believed that they could cause prejudice, by restricting the former President’s ability to protect her reputation.

5. Mr Moratelli’s case was that what lay in issue could be resolved on a consideration of the Rules themselves, that not being dependent on the particulars of the charge which had been considered by the Council.

6. The orders sought were opposed, the Association contending that it was entitled to pursue its pleaded defence and that what had been objected to was relevant to a consideration of the proper operation of its Rules in the circumstances with which the Council had to deal and to the exercise of the Court’s discretions in relation to the orders sought.

7. Having heard the parties I concluded that the defence could not be struck out, indicating that I was not persuaded that it was irrelevant to what lay in issue and that while what had been pleaded might be personally embarrassing, I was satisfied that it could not be struck out under the Rules which regulated the application. I also indicated that I would give reasons for those conclusions when I later gave judgment in the matter.

8. After the morning tea adjournment, however, Mr Moratelli sought and was granted leave, unopposed, to withdraw the proceedings.

9. What was in issue on the motion having been decided as it was, the reasons for the conclusion that the orders sought by the motion could not be made, must still be given.

10. In short, they are as follows.

11. There was no question that the Court has power under the Uniform Civil Procedure Rules 2005 (NSW) to strike out a defence, or parts of it, r 14.28 providing that a pleading that discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; has a tendency to cause prejudice, embarrassment or delay in the proceedings; or is otherwise an abuse of process, may be struck out.

12. But those Rules also require a defence to plead a summary of the material facts on which the defendant relies and which, if not pleaded, might take the plaintiff by surprise: rr 14.7 and 14.14. Such facts provide the basis upon which evidence may be ruled admissible or inadmissible at trial on the ground of relevance, the issues being defined by the pleadings: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 at 286, 296, 302-3 and Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at 664.

13. These requirements are intended to help ensure that the real issues in the proceedings are litigated in a proper, timely and efficient manner. This is consistent with the requirements of s 56 of the Civil Procedure Act2005 (NSW), which specifies that the overriding purpose of the legislative scheme to be the just, quick and cheap resolution of the real issues in the proceedings: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243 at [161]. The Court is required to seek to give effect to that overriding purpose when it exercises any power it is given by the Rules: s 56(2).

14. What was objected to in the defence were particulars which disclosed the allegations which had led to an investigation which had resulted in the laying of the charge and the making of the disputed decision.

15. Mr Moratelli contended that the circumstances in which the Council’s decision came to be made were irrelevant to the questions raised by his pleadings about the proper construction of the Association’s Rules. This was disputed by the Association, which also contended that they were also relevant to the exercise of the Court’s discretions, in relation to the application which he advanced, given the statutory scheme.

16. I was not persuaded that the disputed aspects of the defence were irrelevant, given the construction questions which arose to be considered, concerning as they did whether the charge advanced should have been considered under a Rule concerning membership of the Council, rather than the Rule which dealt with membership of the Association; the orders which Mr Moratelli sought; and the statutory discretion which the Court would be asked to exercise by the Association, in the event that his construction of the Rules was accepted.

17. I considered that all the issues lying between the parties required an understanding of how it was that the disputed decision came to be made, given the charge which the Council had to deal with. It had emerged that the parties had proposed to address this by evidence which they had each served, albeit Mr Moratelli’s position had altered, he no longer intending to lead evidence about some matters, given his recent concerns and the motion he had filed as a result.

18. Mr Moratelli’s realisation that the former President might be personally embarrassed by the proceedings which he had brought, given the decision about her membership of the Association which he challenged, had to be accepted as having a foundation. But such matters are not what r 14.28 is concerned with.

19. It is rather concerned with pleadings which may cause prejudice or embarrassment in the proceedings. That may be established, for example, when pleadings are unintelligible, ambiguous or imprecise in their identification of material facts, so as to deprive the opposing party of the substance of the claim or defence, or where inconsistent, confusing or irrelevant facts are pleaded, as Johnson J explained in McGuirk v University of New South Wales [2009] NSWSC 1424, by reference to various other authorities at [30]-[35].

20. But that the pleadings could cause prejudice in the proceedings was also not Mr Moratelli’s concern. It was rather that the disputed pleadings might prejudice the former President’s ability to pursue any defamation. But even that was not readily apparent from what had been agreed about the factual circumstances out of which the charge and eventually, these proceedings arose. In fact, while some of the disputed aspects of the defence had been denied by the former President, it was common ground that she had admitted other aspects and still Mr Moratelli contended that the defence should be struck out.

21. In all the circumstances, given what was in issue, which on Mr Moratelli’s case as he explained in his submissions, concerned the Association having wrongly used its Rules relating to membership to achieve the impermissible result that the former President was deprived of her then office as a member of Council, contrary to the requirements of s 237 of the Industrial Relations Act, I was satisfied that the Association could not be justly refused the opportunity to advance its pleaded defence.

22. The result was that the disputed pleadings could not be struck out and so the motion was dismissed.

Decision last updated: 04 November 2022