Olsen v Wellard Feeds Pty Ltd
[2007] FMCA 1885
•7 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OLSEN v WELLARD FEEDS PTY LTD | [2007] FMCA 1885 |
| PRACTICE AND PROCEDURE – Application for particulars – objects of Act and Rules – informal streamlined judicial process – sufficient particulars of claim in affidavits already filed. |
| Federal Magistrates Act 1999 (Cth) ss.3, 42 and 45(1) Federal Magistrates Court Rules 2001 (Cth), rr.1.03 and 10.01(3)(m) |
| Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 182 ALR 264; [2001] FCA 60 Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Woodroffe & Anor v National Crime Authority & Ors (1999) 168 ALR 585; [1999] FCA 1689 |
| Applicant: | CHELSEA OLSEN |
| Respondent: | WELLARD FEEDS PTY LTD |
| File Number: | PEG 170 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 7 November 2007 |
| Date of Last Submission: | 7 November 2007 |
| Delivered at: | Perth |
| Delivered on: | 7 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hassal |
| Solicitors for the Applicant: | Sparke Helmore |
| Counsel for the Respondent: | Mr B.R. Jackson |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application for particulars is dismissed.
The Respondent shall pay the costs of the Applicant fixed at $1,455.00 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 170 of 2007
| CHELSEA OLSEN |
Applicant
And
| WELLARD FEEDS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Application
This is an application in a case filed on 24 October 2007, by the Respondent to the substantive proceedings. As amended the application seeks further and better particulars of the statement of claim, as follows:
In respect of paragraph 3; provide further and better particulars as to what position was Mr West employed in by the Respondent during the employment.
In respect of paragraph 10; provide further and better particulars as to what is the principal purpose of Mr West’s work that was allegedly covered by the classifications of the award.
Paragraph 3 of the statement of claim pleads that the Respondent employed Ronald West between 27 December 1990 and 5 July 2006 at the Respondent’s Wongan Hills site. Paragraph 10 of the statement of claim pleads that the principal purpose of Mr West’s work, which he undertook for the Respondent, was work covered by the classifications of the award. In that regard it is relevant to note that the Applicant now relies upon paragraph 13 of the statement of claim only, that Mr West’s work for the Respondent was covered by stock feed milling level 7.
The law
The provisions of the Federal Magistrates Act 1999 (Cth)[1] and Federal Magistrates Court Rules 2001 (Cth),[2] in particular ss.3 and 42 and rule 1.03, together with rule 10.01(3)(m), are required to be considered in the exercise of the Court’s discretion as to whether or not to order particulars.
[1] “FM Act”.
[2] “FMC Rules”.
In Goodall v Nationwide News Pty Ltd[3], this Court said as follows:
[3] [2007] FMCA 218 (“Goodall”).
“Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.”[4]
[4] Goodall, at para. 21 per Lucev FM.
It is in that context that the power to order particulars in rule 10.01(3)(m) of the FMC Rules is required to be exercised and considered. Ordinarily, in this Court, proceedings are commenced, as they were here, by application supported by affidavit, and no more, and in that regard the affidavits provide the particulars and the evidence.
In this case a statement of claim and a defence were ordered, but it is nevertheless the case that the matter requires to be considered against the background of the statement of claim and defence and the initiating process and such affidavits as have been filed.
Determining the necessity for particulars by having regard to the totality of the pleadings and the evidence that has already been filed, is a proper course to adopt. It is not inconsistent with modern principles of case management.[5]
[5] See for example, Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 182 ALR 264 at 272 per Heerey, Branson and Merkel JJ; [2001] FCA 60 at para 34 per Heerey, Branson and Merkel JJ: “modern techniques of case management suggest a more pragmatic and flexible approach than the structured, rule-laden regime proposed by the applicants.”; Woodroffe & Anor v National Crime Authority & Ors (1999) 168 ALR 585 at 590-591 per Drummond, Sundberg and Marshall JJ; [1999] FCA 1689 at para 23 per Drummond, Sundberg and Marshall JJ.
There is provision in the rules for particulars, as there is, for example, for discovery and interrogatories. Unlike the latter two, particulars orders do not require the Court to make a declaration that it is in the interest of the administration of justice to do so.[6] Nevertheless, particulars are very rarely ordered and probably more rarely than discovery and interrogatories which require the declaration. It is fair to say that generally it is only in the most complex cases before this Court that particulars are ordered.
[6] FM Act, s.45(1).
This is not a complex case, as Mr Jackson for the Applicant-Respondent properly conceded. It is, as the Court observed in the course of argument, a case which is at the simple end of the simple-complex spectrum of cases which come before this Court. Substantially, the case involves a simple issue as to whether the Applicant was or was not paid unused accrued sick leave.
It is against that general background that the particulars presently sought, and so eagerly pressed, need to be considered.
Particular 1
Particular 1 seeks particulars of what position was occupied by Mr West. In the Court’s view, the position that was occupied by him is not particularly relevant. The question ultimately for the Court will be whether or not the employee fits within the relevant definition in the classifications set out in the relevant award. In that regard the Court notes that clause 17.1.1 of the relevant award, which is attached to Ms Olsen’s affidavit of 21 August 2007, provides a general statement, a list of typical duties and a list of typical qualifications for each of the classifications under the award, including relevant to this case, stock feed milling level 7. In relation to that particular classification those matters are dealt with at clause 17.5.7.
So for these purposes the Court considers that the question of the position, or the title of the position said to be occupied by Mr West, is irrelevant.
In any event, and despite some inconsistencies in the evidence, the position or positions that he occupied during his employment are identified in the affidavit evidence and the Court refers to Mr West’s affidavit at paragraphs 27 and 28. It is open to infer from that evidence that Mr West did not necessarily know the precise title of the position that he occupied and has done his best to identify what he does know for present purposes and the Court sees that there is no particular need, given that background, to press that matter further.
Particular 2
In relation to Particular 2, the principal purpose of work particular that is sought, it is the case that the principal purpose of the work is said in the pleadings to be covered by the classification in the award for stock feed milling level 7. As earlier indicated clause 17.5.7 of the relevant award, does set out the typical tasks or work required to be performed by a person said to fall within that classification and therefore does identify the principal purpose of the work said to be performed by Mr West.
At the end of the day, and in any event, the question of principal purpose is one that the Court will be required to make a determination on, based on all of the evidence which is before the Court, and it is certainly the Court’s view that the positions of each of the parties are sufficiently particularised and sufficiently well-known to each other that Counsel properly instructed:
a)for the Applicant will be able to deal with the issue of the principal purpose of the work being covered by the classification in the award; and
b)for the Respondent will be able to challenge that position and put that the principal purpose of the work was managerial, as the Court understands the present contention, and therefore not covered by the award.
Consideration
In those circumstances there will be no order for particulars, because the Court considers that:
a)sufficient particulars are already contained in the statement of claim or the affidavit evidence read as a whole;
b)in any event, these are matters, generally speaking, which are properly dealt with on the evidence and Counsel properly instructed will be able to deal with them in evidence and subsequently in submissions; and
c)it is not appropriate in this Court in a case of this type, which as indicated, is a simple workplace relations claim, to necessarily order particulars.
The Court notes that the time and effort of the parties, the cost that the parties have clearly incurred, and the Court resources that have been expended in the determination of this issue, are completely disproportionate to any benefit which might be gained by either the parties or the Court. This is a classic but small example – or example on a small scale – of the sort of litigious and procedural one-upmanship which this Court was set up to, and should avoid, and which has been much criticised, particularly in recent times, both judicially and extra-judicially, by various courts and judges.
Orders
The application for particulars will be dismissed and the Respondent is to pay the Applicant’s costs, which the Court, having regard to the relevant schedule, assesses at $1,455.00.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: J. Semler
Date: 12 November 2007
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