Oliver v Doral Mineral Sands Pty Ltd
[2023] FedCFamC2G 911
•3 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Oliver v Doral Mineral Sands Pty Ltd [2023] FedCFamC2G 911
File number(s): PEG 150 of 2022 Judgment of: JUDGE STREET Date of judgment: 3 August 2023 Catchwords: FAIR WORK – PLEADING DEFICIENCIES – refusal of leave to join proposed fourth respondent Legislation: Fair Work Act 2009 (Cth) Cases cited: Spencer v Commonwealth of Australia [2010] HCA 28 Division: Division 2 General Federal Law Number of paragraphs: 12 Date of hearing: 3 August 2023 Place: Perth Solicitor for the Applicant: Your Local Lawyer Solicitor for the First Respondent: DLA Piper Australia Solicitor for the Second Respondent: DLA Piper Australia Solicitor for the Third Respondent: DLA Piper Australia Solicitor for the Fourth Respondent: Hall & Wilcox ORDERS
PEG 150 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROBERT JOHN GEORGE OLIVER
Applicant
AND: DORAL MINERAL SANDS PTY LTD
First Respondent
ANDREW TEMPLEMAN
Second Respondent
FRANSCIENA DRAPER (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 AUGUST 2023
THE COURT ORDERS THAT:
1.The matter is fixed for final hearing at 10:00am AWST/1:00pm AEDT on 18, 19 and 20 December 2023 by video and/or audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The application for leave to join the prospective fourth respondent is dismissed.
3.The Court declines to grant any opportunity to advance a further proposed amended Statement of Claim against the fourth respondent.
4.The Statement of Claim filed on 28 June 2023 is struck out.
5.The Court grants leave to the applicant to file an amended Statement of Claim, complying with the requirements of Order 2 made on 7 June 2023, deleting the words “as well as in the pleading underlining the proposed causes of action against the proposed Fourth Respondent”, on or before 31 August 2023.
6.The Court directs the first to third respondents file and serve a defence on or before 21 September 2023.
7.The Court directs the applicant file and serve his affidavit evidence-in-chief on or before 12 October 2023.
8.The Court directs the respondents file and serve their affidavit evidence on or before 9 November 2023.
9.The Court directs the applicant file and serve any affidavit in reply on or before 16 November 2023.
10.The Court directs the applicant file and serve a chronology, list of objections and outline of submissions on or before 16 November 2023.
11.The Court directs the respondents file and serve a chronology, list of objections and outline of submissions on or before 23 November 2023.
12.The parties file and serve an agreed statement of facts and issues on or before 30 November 2023.
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).
EX TEMPORE REASONS FOR JUDGMENT 3 AUGUST 2023
JUDGE STREET
The Court made orders on 7 June 2023 for the filing of a Statement of Claim identifying the need to plead only the material facts. That means assertions of evidence should not appear in the pleading. The pleading filed on 26 June 2023 fails to articulate, other than the introductory paragraphs, any proper material fact in support of the adverse action claim, but rather, is a narrative commentary, including assertions of evidence. The Statement of Claim itself was required to be properly particularised under the orders that were identified, and the pleading clearly was deficient. The orders made on 7 June 2023 included content referring to the fourth respondent.
The Court has dismissed the applications for leave to join the fourth respondent because the content filed clearly identifies no arguable case of adverse action in terms of any proper facts to support such an allegation, and on the face of the pleading the Court is satisfied that there is no arguable case, and there would be no utility in giving a further opportunity to plead a further case against the proposed fourth respondent.
The Statement of Claim filed identifies that the applicant who was employed by the first respondent seeks to advance a case relating to a workplace right in respect of a compensation claim and that he had symptoms as a result of tick-borne disease and became unfit for work. The pleading fails to identify the material facts referrable to the alleged workplace right and the provisions of the Act the subject of alleged contravention. There are rolled up allegations at the end of the pleading and a series of allegations about weekly payments and medical certificates and alleged settlement, the content of which referrable to material facts is unable to be gleaned.
There is a heading ‘Particulars’, but it appears that the pleader has just continued with the allegations in respect of facts, and there are no proper particulars to allege contraventions or allege adverse action or in relation to the topics squarely identified in the order made by the Court. There are irrelevant allegations that appear to be made relating to a workers compensation claim that are not material facts in respect of a contravention of the Fair Work Act 2009 (Cth). There are assertions of pretence that are on their face vexatious as they have nothing to do with the elements of the cause of action. There is a chronology of events that, again, fails to identify material facts. There are assertions of irrelevant considerations of disadvantage and what might have been, none of which identify relevant material facts.
It is not necessary for the Court in this judgment to analyse in any further detail the alleged pleadings in 15 to 19 that were not underlined that appear to relate to the proposed fourth respondent as leave to join the same has been refused. The allegations in relation to the second respondent make serious allegations without identifying the material facts in respect of section 343 of the Fair Work Act 2009 (Cth) or properly pleading a workplace right and properly pleading the alleged adverse action. It is not for this Court to set out in full the way in which the material facts for an adverse action in case must be pleaded. Suffice to say, this pleading falls well short of an identifiable case that the respondents can properly join issue with, and the same arises in respect of the allegations of involvement in the contraventions under section 550.
There is a want of material facts and particulars in relation to the section 550 contentions that does not permit the second to third respondents to meaningfully understand the basis upon which it is alleged that they were involved in the contraventions. There is no proper material facts pleaded in relation to section 362. There are, again, embarrassing allegations as to something being deliberately sabotaged, which on its face, is vexatious and does not reflect any material fact referrable to a statutory cause of action under the Fair Work Act 2009 (Cth). There are assertions of losses unparticularised and unlinked through material fact to the relevant statutory power in respect of the statutory cause of action.
The want of specificity in the pleadings becomes even more manifest when turning to the orders sought that are at a high bare level and include provisions not the subject of any pleaded material facts in respect of the alleged generalised contraventions. The prayers for relief do not reflect the statutory provisions in any meaningful way. Whether there has been a contravention and whether any penalty hearing should take place is a matter that can, in fact, be determined after the determination of the allegations of contravention and, if contravention, the quantum thereof. The Court is not critical of the identification of a desire to seek penalties, as that is not a matter that needs further specificity, but the nature of the pleading in its present form is clearly embarrassing and does not properly identify the causes of action in a way that the parties or the Court can properly identify the facts in issue and the issues of law that may arise from the pleading.
The Court has been told that the applicant proposes to get counsel to draw the pleading. It is apparent that there are on the Statement of Claim, assertions that are capable of being put as against the first to third respondents into a form properly particularised that could identify causes of action and that the best course in the present case is to fix the matter for hearing with a timetable for a further proper pleading on the assumption that the Court’s orders will be complied with, for the parties.
The application for leave to join the fourth respondent is dismissed. The Court declines to grant any further opportunity to further advance a proposed amended Statement of Claim against the fourth respondent. These proceedings were commenced on 28 July 2022, and an application was filed on 17 May 2023, seeking to join a fourth respondent. This court made orders postponing the determination of the joinder until today and granting leave to the applicant to file a statement of claim identifying properly the material facts in support of each of the allegations, and relevantly, that included as against the fourth respondent and properly particularising the same.
There is no properly articulated claim identified against the fourth respondent. The assertions of an adverse action claim are not supported by any material facts that identify an arguable case. The court has taken into account the principles of caution and clarity in Spencer v Commonwealth of Australia [2010] HCA 28 in considering whether or not the leave should be refused. The court is clearly satisfied that there is no arguable case of contravention of the Fair Work Act 2009 (Cth) against the fourth respondent on any reading of the proposed statement of claim that was filed on 28 June 2023.
It is apparent that there were submissions put on dealing with other issues in terms of other agitation by the applicant against the fourth respondent. That is not the basis upon which the Court is dismissing the application. Rather, it is dismissing it for want of identified material facts capable of supporting any real case under the Fair Work Act 2009 (Cth) for adverse action against the fourth respondent. On the material before the Court, the applicant has no reasonable prospect of success against the proposed fourth respondent. The Court is satisfied that there is no reasonably arguable case against the proposed fourth respondent. The Court is satisfied that there is no utility in any further leave to amend as against the proposed fourth respondent because the applicant has no reasonably arguable case. The Court can see from the material no utility in granting leave to further amend in relation to the proposed joinder of a fourth respondent. It is for that reason this Court has made the orders pronounced.
Whilst verging on the unreasonable, it was not unfair to give the applicant an opportunity to formulate the proposed case against the fourth respondent. The applicant has been unable to identify any proper case with a reasonable prospect of the success. Accordingly, the court makes no order under section 570 against the applicant in relation to the proposed fourth respondent.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 26 October 2023
SCHEDULE OF PARTIES
PEG 150 of 2022 Respondents
Fourth Respondent:
ALLIANZ AUSTRALIA INSURANCE LIMITED
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