Panagiotidis v IProsper Financial Planning Pty Ltd
[2024] FedCFamC2G 253
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Panagiotidis v IProsper Financial Planning Pty Ltd [2024] FedCFamC2G 253
File numbers: MLG 4068 of 2020
MLG 2439 of 2021Judgment of: JUDGE SYMONS Date of judgment: 19 March 2024 Catchwords: PRACTICE AND PROCEDURE— application in a proceeding seeking to strike out pleadings in their entirety – where respondents identify a large number of objections to applicants’ statements of claim – where applicants invite Court to reconcile deficiencies in pleadings by having regard to affidavits filed in the proceeding – where objections upheld – where due to extent of objections the only practical course is to strike pleadings out in their entirety with leave to the applicants to replead Legislation: Fair Work Act 2009 (Cth), ss 117, 340, 342, 345, 357, 359, 544, 550, 557A, 557B
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.04, 1.06, 1.07
Federal Court Rules 2011 (Cth), r 16.21
Occupational Health and Safety Act 2004 (Vic), s 21
Cases cited: Australian Building and Construction Commissioner v Hall (2017) 269 IR 28; [2017] FCA 274.
Australian Securities and Investment Commission v Antonios Tzouvelis & Ors [2023] FCA 431
Baird v Queensland (2006) 156 FCR 451; [2006] FCAFC 162
Chandrasekeran v Commonwealth of Australia (No 3) [2020] FCA 1629
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1
JC Decaux Australia Pty Ltd v Adshel Street Furniture Pty Ltd (2000) 178 ALR 339; [2000] FCA 1118
Kitoko v University of Technology Sydney [2021] FCA 360
Panagiotidis v Iprosper Financial Planning Pty Ltd [2022] FCA 1508
Richens v Commonwealth of Australia (No 2) [2019] FCA 1224
Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25
Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120
Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 20
Wotton v Queensland (No 5)(2016) 352 ALR 146; [2016] FCA 1457
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of last submissions: 18 May 2023 Date of hearing: 18 May 2023 Place: Melbourne Counsel for the Applicants: Mr R Manuel Solicitor for the Applicants: Zeitz Workplace Lawyers Counsel for the Respondents: Mr J Tierney Solicitor for the Respondents: Davies Lawyers ORDERS
MLG 2439 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VINCE PANAGIOTIDIS
ApplicantAND: IPROSPER FINANCIAL PLANNING PTY LTD (ACN 609 115 415)
First RespondentCASSANDRA MURPHY
Second RespondentANTONIOS TZOUVELIS
Third Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.The further amended statement of claim be struck out.
2.The applicant has leave to file a further statement of claim by 24 April 2024.
3.The matter be listed for directions before Judge Symons at 9.30 am on 13 May 2024.
4.The costs of the respondents’ strike out application and the costs that will be thrown away by reason of order 2, are reserved.
ORDERS
MLG 4068 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VINCE PANAGIOTIDIS
First ApplicantBRIAN SAYERS
Second ApplicantAND: GOLDEN FINANCIAL GROUP PTY LTD (ACN 128 837 285
First RespondentIPROSPER FINANCIAL PLANNING PTY LTD (ACN 609 115 415) as trustee for the IPROSPER UNIT TRUST
Second RespondentCASSANDRA MURPHY
Third RespondentANTONIOS TZOUVELIS
Fourth Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.The amended statement of claim be struck out.
2.The applicants have leave to file a further statement of claim by 24 April 2024.
3.The matter be listed for directions before Judge Symons at 9.30 am on 13 May 2024.
4.The costs of the respondents’ strike out application and that the costs that will be thrown away by reason of order 2, are reserved.
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 FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
Before the Court are two interlocutory applications in related proceedings. Both applications seek essentially the same outcome; namely, that the latest iteration of the statement of claim filed by the applicants be struck out in whole (or in substantial part).
For the reasons which follow I have decided to allow both applications and to strike out both pleadings in their entirety but with the applicants given leave to re-plead.
BACKGROUND
On 23 November 2020, Mr Panagiotidis and Mr Sayers commenced proceedings in the (then) Federal Circuit Court alleging contraventions by Golden Financial Group Pty Ltd (Golden), IProsper Financial Planning Pty Ltd (IProsper), Ms Murphy and Mr Tzouvelis of the Fair Work Act 2009 (Cth) (the FW Act). They seek compensation and unpaid entitlements. This proceeding was assigned matter number MLG4068/2020 and is referred to by the parties as the original claim. The respondents to this proceeding filed a defence on 30 March 2021.
On 27 September 2021, Mr Panagiotidis filed an F4 application in this Court alleging contraventions by IProsper, Ms Murphy and Mr Tzouvelis of various general protections recognised by the FW Act. This proceeding was assigned matter number MLG2439/2021 and is referred to by the parties as the general protections claim. The respondents to this proceeding filed a defence on 31 January 2022.
On 5 May 2022 this Court made orders transferring both proceedings to the Federal Court as well as orders that the two proceedings be heard together. In this judgment, although recognising that the parties in the two proceedings are not identical, future references will not distinguish between them. Instead, they will be referred to in all cases as “the applicants” and “the respondents”.
On 7 July 2022 the parties appeared at a directions hearing before Justice Hespe of the Federal Court. On this date, her Honour made orders requiring the applicants to file an amended pleading. This resulted in an amended statement of claim being filed in the original claim on 31 August 2022 (the ASOC) and a further amended statement of claim being filed in the general protections claim on 15 September 2022 (the FASOC).
On 14 December 2022, the Federal Court published a decision by which it declined to confirm the transfer previously made to it.[1] The two proceedings were returned to this Court and orders made on 7 February 2023 that documents filed in the related Federal Court proceedings be considered filed in their counterpart proceeding in this Court. Those documents included, apart from the ASOC and the FASOC, the respondents’ interlocutory applications that are the subject of this decision, both of which were filed in the Federal Court on 8 November 2022.
[1] Panagiotidis v Iprosper Financial Planning Pty Ltd [2022] FCA 1508
On 22 February 2023, the respondents filed consolidated written submissions addressing both strike out applications.
On 1 March 2023 the applicants filed consolidated written submissions responding to both strike out applications.
On 11 April 2023 the respondents filed reply submissions.
On 18 May 2023 the applications were listed for hearing before me. On this date the respondents were represented by Mr Tierney of counsel and the applicants were represented by Mr Manuel of counsel.
In addition to their written submissions, the parties rely on (for the respondents) the affidavit of Antonia Sakkas affirmed 7 November 2022. The Court also had before it a court book containing the various pleadings. The applicants invited the Court to have regard to further, extraneous, material to which the respondents objected. This material will, to the extent relevant, be discussed later in these reasons.
Overview of the applicants’ claims
While the arguable lack of clarity in the applicants’ claims underscores the applications made by the respondents, they can, in broad terms, be understood to involve the following allegations.
In the original claim, Mr Panagiotidis and Mr Sayers, both of whom are financial advisors, allege that they were employed first by a now de-registered company, National Sterling Financial Management Pty Ltd (NSFM) and then by the corporate respondents; firstly, by Golden and then, by reason of business transfer, by IProsper. They make allegations that operate over a period of roughly 21 years (from 1999 to 2020) and claim monetary relief arising from an alleged failure to pay them in accordance with the Banking, Finance and Insurance Award 2010 as well as compensation for various alleged breaches of the FW Act (these include claims of sham contracting, misrepresentation and failure to make termination payments). They seek declarations that the individual respondents, Ms Murphy and Mr Tzouvelis, were involved in the corporate respondents’ contraventions within the meaning of s 550 of the FW Act and they seek pecuniary penalties arising from each of the alleged breaches of the FW Act.
In the general protections claim, Mr Panagiotidis alleges that he experienced different forms of adverse action taken against him by IProsper because he exercised a workplace right to enquire about how his signing of a contract of employment would affect his ability to access a commission based Lump Sum Payment and subsequently, by requesting that the Lump Sum Payment be made.
Mr Panagiotidis seeks the following relief in the general protections claim:
(a)declarations that IProsper has breached s 340 of the FW Act;
(b)declarations that the second and third respondents were involved in the first
respondent’s contraventions within the meaning of s 550 of the FW Act; and
(c)orders for compensation (pursuant to s 545 of the FW Act) and pecuniary penalties (pursuant to s 546 of the FW Act) arising from (a) and (b).
THE RESPONDENTS’ APPLICATIONS
Submissions common to both pleadings
While a strike out application necessarily directs attention to the particular impugned pleading, the respondents made a number of submissions that operated, without distinction, on the two documents.
The first was that, thematically, the ASOC and the FASOC, suffered from the same catalogue of defects, namely, that they:
(i)Were confusing, vague, ambiguous, conclusory, prolix and labyrinthine;
(ii)Contained rolled-up allegations;
(iii)Were discursive and pleaded inessential facts that were irrelevant or peripheral to the cause of action;
(iv)Contained a “Summary of Claim” that was labyrinthine, susceptible to various meanings and contained inconsistent and confusing allegations;
(v)Failed to plead a material fact and therefore failed to plead a complete cause of action in respect to a number of allegations;
(vi)Contained irrelevant allegations.
The second was that in both proceedings, the applicants made allegations that the respondents had breached several civil remedy provisions of the FW Act. It was also alleged that the individual respondents were “knowingly concerned” in the contraventions pursuant to s 550 of the FW Act. The respondents described these allegations as “inherently serious”, reflecting the character of contraventions of the FW Act as “quasi-criminal”. They submitted that this had consequences for the standard to which the applicants should be held in articulating their case through the pleadings.
The third was that given the number and nature of the deficiencies identified by the respondents in both sets of pleadings, if the Court was to strikeout all or a substantial number of the impugned paragraphs, the net result would be a pleading that was incomplete and confusing. The respondents invited the Court to instead strike out the entire pleading and to give the applicants, in each proceeding, an opportunity to clarify the causes of action on which they rely, and the material facts relied on to support their claims by the filing of a new document.
THE SPECIFIC OBJECTIONS IDENTIFIED BY THE RESPONDENTS TO THE ASOC
The ASOC runs to 127 paragraphs and 60 pages. In schedule 2 to their written submissions, the respondents identified 104 paragraphs or sub-paragraphs of the ASOC that they contend should be struck out for reasons that are identified within the body of the schedule.
In their written submissions, the respondents approached their objections to the ASOC by assigning them to one of six broad categories. At hearing, counsel for the respondents adopted the same taxonomy and identified from within each category a number of examples which he submitted exemplified the inadequacy of the pleading. I will identify these examples in these reasons. However, in determining this application I have considered each of the individual objections made by the respondents.
The pleading is embarrassing
The respondents submit that the ASOC is beleaguered by the same litany of defects identified by Wigney J in Chandrasekeran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [105]-[106] as follows:
A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.
A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to. A party cannot be expected to respond to mere context, commentary, history, narrative material or material of a general evidentiary nature.
The respondents submit that the ASOC, as a whole – including because of its length - offends against the requirement that pleadings be as brief as the nature of the case permits. However, at a more granular level, the respondents identify 48 paragraphs or sub-paragraphs of the ASOC that they contend contain multiple allegations in a single sentence and/or contain sentences that are conclusory or lacking in material facts or particulars.[2]
[2] The respondents identify paragraphs 4.1, 5, 7.2, 8, 9-11, 13, 17, 27.4.3, 28, 29, 31, 334, 35, 38, 40.2, 41, 42, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 57, 59, 60, 61, 65, 66, 67, 70, 72, 78, 81, 83, 84, 102, 107, 108, 118, 120, 122 as suffering from these deficiencies
Illustrative but not exhaustive of this problem, the respondents’ counsel took the Court to sub-paragraphs 5.1, 5.2 and 5.3 of the ASOC. These sub-paragraphs provide:
5. Neither Sayers nor Panagiotidis were advised that their engagement by Golden was terminated on 31 July 2017.
5.1At the time of termination, Panagiotidis and Sayers had completed at least 5 years’ service and their service ended, they were entitled to ongoing payment of trail commission asset (a form of commission) (Trail commission asset) and, if they exercised the option to do so, payment of a sum calculated on the basis of three times the annual trail commission asset sum (Lump Sum Payment). Once a Lump Sum Payment was made, the obligation to make payments of trail commission asset ended. Trail commission asset was an amount of trail commission paid by various entities on retail financial and other related products sold to consumers by financial advisers.
5.2In breach s. 184 of the Corporations Act 2001 (Cth) Tzouvelis failed or refused to exercise his powers as a director for a proper purpose by failing to advise either of Panagiotids or Sayers that their entitlement to be paid the Lump Sum Payment had vested with the termination of their engagement by Golden and that until there was an exercise by them of an election to be paid the Lump Sum Payment they were entitled to ongoing payment of their trail commission asset referred to in paragraph 5.1 above.
5.3Further, by his conduct, Tzouvelis represented to Panagiotids and Sayers that they were and continued to be engaged as independent contractors by Golden when they were at all relevant times employees of Golden until 31 July 2017 and thereafter by IProsper, until January 2019. In the alternative, Tzouvelis engaged in the tort of deceit. In reliance on that Tzouvelis’ conduct, neither Sayers nor Panagiotidis knew that their entitlement to the Lump Sum Payment had vested with the termination of their engagement by Golden and neither took action to obtain or secure their entitlement or pursue the Lump Sum Payment because of the misrepresentation.
The respondents submit that these sub-paragraphs speak for themselves in terms of exposing an erroneous approach to the pleadings exercise. They contain multiple allegations, including allegations that concern both Mr Panagiotidis and Mr Sayers and insofar as [5.2] alleges a breach of s 184 of the Corporations Act 2001 (Cth), it does not identify the specific elements of that provision. Further, [5.3] contains an allegation that Mr Tzouvelis engaged in the tort of deceit where this allegation is not pleaded elsewhere in the ASOC and is not referred to in the prayer for relief.
Two further examples of allegedly deficient pleadings that I have selected randomly from those identified by the respondents are [42] and [65] which, respectively, provide:
42. The transfers of Panagiotidis and Sayers to Golden set out in paragraphs 34 and 41 herein respectively were unwritten and without notice or advice to either of them and in breach of s. 117 of the Act. By its conduct, Golden commenced to employ or engage each of Sayers and Panagiotidis from on or about 1 August 2013 until 31 July 2017. In breach of s. 345(1)(a) of the Act, Murphy and Tzouvelis misrepresented to each of Panagiotidis and Sayers that they continued to be engaged or employed by NSFM unti on or about 31 July 2017
65.The representations and conduct of Golden, Murphy and Tzouvelis referred to in paragraphs 55-56 and 62-64 herein were for a purpose or a purposes that included altering the respective positions of Sayers and Panagiotidis to their prejudice (s. 342(1) Item 3(c)) or in the alternative s. 342(1) Item 1(c)) in that neither of them was advised of their right to payment of trail commission asset until or unless the Lump Sum Payment was made on or prior to 31 July 2017 when Golden ceased to operate as a AFSL holder. Further, or in the alternative, the representations were knowingly or recklessly false or misleading about the applicant’s workplace rights in breach of s 345(1) of the Act (the “Misrepresentation Claim”).
The ASOC contains multiple rolled-up allegations
The respondents submit that the ASOC is replete with rolled-up allegations, where the “Respondents” or “Tzouvelis and Murphy” engage in conduct collectively against the “Applicants”. The conduct of each respondent is not specified or distinguished. The ASOC does not distinguish between the applicants.
Illustrative but not exhaustive of this problem, the respondents’ counsel took the Court to paragraph 50 of the ASOC, which provides:
50. In breach of s. 345(1) of the Act by their joint and several conduct and for the period from 24 January 2011 to 2 March 2020, each of Golden, IProsper, Murphy and Tzouvelis represented to Panagiotidis and Sayers that their clients registered to each of them as the Authorised Representative were held by NSFM and/or Golden including that their respective Representative Agreement applied to each of them and they were each entitled to the Lump Sum Payment on termination of cessation of the commission arrangements in accordance with the Commission Remuneration Calculations Policy revised at 8 July 2020 (“2010 Policy”).
The respondents’ counsel described this paragraph as containing “rolled-up allegation on rolled-up allegation” given that it involved each of the respondents – individual and corporate – engaging in the alleged conduct against both applicants. The paragraph also alleges that the conduct of the respondents was “joint and several” without identifying the legal basis for this assertion.
The respondents’ counsel also identified paragraph 100 as an especially egregious example of the rolled-up approach to pleading. This paragraph, which the respondents described as “foundational” to the case sought to be run against them reads:
100. In breach of s. 357(1) of the Act Golden, Murphy and Tzouvelis represented to each of Panagiotidis and Sayers that they would perform work as independent contractors and not as employees.
The respondents identify 27 further paragraphs which they contend suffer from the same problem.[3]
[3] The respondents identify paragraphs 8, 13, 14.2, 16, 17, 21, 35, 38, 40, 42, 48, 52, 65, 82, 84, 93, 95, 101, 102, 108, 109, 110, 113, 114, 115, 116, 117.3.
They submit that all examples are an affront to the observations made by a Full Court of the Federal Court in Sabapathy v Jetstar Airways [2021] FCAFC 25 at [23] to the effect that the pleading of rolled-up allegations, especially against natural respondents, is “indefensible”.
The Summary of Claim
The respondents submit that the entire first 18 paragraphs of the ASOC, which is described in the pleading as “Overview Summary of Claim” should be struck out for the reason that it is unclear whether the section is intended to convey operative allegations (in which case there are numerous defects in the way in which they are put) or it is not intended to have this effect, which means that it is essentially redundant but apt to confuse.
The applicants’ counsel informed the Court at the hearing that his clients no longer sought to rely on this part of the ASOC.
The pleading of the applicants’ contracts
The respondents submit that in circumstances where much of the applicants’ claim rests on whether they were engaged by the corporate respondents as independent contractors or as employees, the primary answer to this question will be found in the terms of the written contract (referring to Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, [59]).
The respondents note that in the ASOC the applicants:
(i)Plead a series of different periods of employment; for example, at paragraph 80 they allege that they were employed by IProsper from 1 August 2017; alternatively, from 16 November 2018; alternatively, from 16 January 2019 (Panagiotidis) and 17 January 2019 (Sayers);
(ii)Plead alternative employment contracts; for example, at paragraph 32 they rely on a letter of appointment dated 24 October 2013, at paragraph 34 they rely on “previous contractual arrangements”, at paragraph 75 they rely on a Representative Agreement dated 20 July 2008, at paragraph 26 they rely on a Representative Agreement dated 24 January 2011 and at paragraph 85, they identify remuneration terms derived from a Commission Remuneration Calculations Policy dated 1 August 2003 (including revisions) and an employment agreement dated 16 January 2019 (Panagiotidis) and 17 January 2019 (Sayers).
(iii)Seek to rely, in the alternative, on breaches of contract arising from their engagement as independent contractors;[4]
(iv)Plead further alternative claims, based on the contention that their alleged employment was “terminated” at various times throughout the course of their engagement by the corporate respondents and they were “re-employed” pursuant to new and different contracts of employment.
[4] See paragraphs 31, 35. 46, 53-54, 57 and 59 of the ASOC.
The respondents acknowledge that the applicants are entitled to plead alternative or inconsistent allegations of material facts, as long as they do so separately and distinctly, so as to show on what specific facts each alternative cause of action is based (referring to JC Decaux Australia Pty Ltd v Adshel Street Furniture Pty Ltd [2000] FCA 118, [19]).
However, they contend that on the current ASOC they face an “insuperable difficulty” in pleading to the alleged contracts because the applicants do not at any stage specify the precise terms of each employment contract, they do not distinguish the terms of each of their alleged employment contracts, and they do not distinguish the terms of their employment contract from the terms they rely on if they were engaged as independent contractors.
Causes of action not properly pleaded
The respondents submit that the applicants plead a litany of allegations and causes of action in the ASOC that are so lacking in material facts or particulars that they fail to plead a complete cause of action. The ASOC is also problematic because it contains allegations and causes of action that don’t form part of the prayer for relief as well as cause of action that are outside the limitation period in the FW Act.
In their written submissions, the respondents identify 13 causes of action and/or allegations that are said to suffer from one or more of the problems described above. Having regard to the concession made by the applicants’ counsel that the applicants no longer relied on the Summary of Claim, two of these objections fall away.[5]
[5] In their written submissions, the respondents took issue with the Corporations Act allegation pleaded in paragraph 5.2 of the ASOC and the tort of deceit allegation, pleaded in paragraph 5.3 of the ASOC.
At hearing, the applicants’ counsel also informed the Court that its claim made by reference to s 31 of the Australian Consumer Law had been abandoned.
The remaining objections are as follows:
Misrepresentation allegations
The respondents submit that the allegations made by the applicants by reference to s 357 and alternatively, s 359 of the FW Act, rely on alleged representations made by the respondents that are pleaded at paragraphs 28 to 32 and 36 to 38 of the ASOC. These representations were said to have been made in 2002, 2008, October 2013, January 2011 and June 2011. The respondents submit that because the alleged representations were made more than six years before the applicants commenced this proceeding, by reason of s 544 of the FW Act (time limit on application) they are time-barred from applying for orders in relation to these contraventions with the consequence that they have no reasonable prospect of success and fail to plead a reasonable cause of action for the purpose of r 16.21(1)(e) of the Federal Court Rules 2011 (Cth) (the FCARules).
Failure to make payment in lieu of notice allegations
The respondents observe that in paragraph 42 of the ASOC, the applicants allege that the respondents failed to give them notice of the “termination” of their employment with NSFM on 31 July 2013 and that as a result, the respondents breached s 117 of the FW Act. The ASOC also contains an allegation that Golden breached s 117 of the FW Act by failing to provide notice of “termination” of the applicants’ employment on 31 July 2017 (refer paragraph 34). However, the applicants do not seek orders or relief in respect of the alleged contravention of s 117 of the FW Act. The relevant paragraphs should be struck out.
Further misrepresentation allegations
The respondents observe that in paragraph 65 of the ASOC, the applicants allege that representations made in paragraph 55-56 and 62-64 constituted conduct “engaged in for a purpose or purposes that included altering the respective positions of Sayers and Panagiotidis to their prejudice (s. 342(1) Item 3(c)) or in the alternative s. 342(1) Item 1(c))”. However, the applicants do not otherwise allege that the respondents engaged in adverse action and seek no relief to that effect in this proceeding. The relevant paragraphs should be stuck out.
The respondents further observe that in paragraph 65 of the ASOC the applicants make the further or alternative allegation that representations made by Murphy and Tzouvelis in paragraphs 55-56 and 62-62 were misrepresentations that were “knowingly or recklessly false” representations made about the applicants’ workplace rights, in contravention of s 345 of the FW Act. However, the respondents submit that the applicants fail to plead the necessary material facts or particulars to establish the individual respondents’ state of knowledge. The respondents submit that the applicants’ allegations of misrepresentations in paragraphs 71 and 92 are deficient for the same reason.
Ongoing trail commission entitlement allegation
The respondents observe that in paragraph 69 of the ASOC, the applicants allege that “Premium continued to receive payments for commission generated from business written by Panagiotidis and Sayers and continues to do so”. The applicants estimate trail commission payments totalling approximately $2 million arising from “business written by successive financial advisers of Golden including Panagiotidis and Sayers”. In seeking damages for breach of contract, the applicants claim around $2 million per annum each arising from the alleged failure to pay commission due and owing to them (refer paragraph 127.4 of the ASOC).
The respondents submit however that the allegation is entirely unclear including because it is lacking in particulars, the time period over which the $2 million is alleged to have accrued is unspecified and the respondents do not know which of the multiple contracts (or terms within the contract) they are said have breached. The pleadings do not enable the respondents to understand how much of the $2 million per annum in business was written by the applicants, or by the other “successive financial advisers”.
Sham contracting allegations
The respondents observe that in paragraphs 100 and 101 of the ASOC it is alleged that the respondents engaged in sham contracting in breach of s 357 of the FW Act. The applicants base that conclusion on paragraphs 97 and 98 of the ASOC, in which it is alleged that Golden made representations to the applicants that they were engaged as contractors. However, each of these representations, aside from what the respondents describe as the “vague assertion” in paragraph 97 that the representation was “ongoing”, took place more than six years before the commencement of the proceeding; in January 2011 and in 2002. As a result, the applicants have no cause of action in respect of these alleged representations.
Accessorial liability allegations
The respondents observe that the assertion throughout the ASOC and in the prayer for relief (at paragraphs 125.5, 125.6, 126.4 and 126.3) is that Ms Murphy and Mr Tzouvelis are liable as accessories for the contravening conduct of the corporate respondents. The applicants seek orders (and penalties) against both individuals.
However, the respondents submit that an allegation that a person was “knowingly involved” in a FW Act contravention and thus liable as an accessory under s 550 of the FW Act must be pleaded very carefully. In this regard they rely on the following observations made by Thawley J in Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201 at [29]:
A pleading that a person is “knowingly concerned” in a contravention is a serious one, akin to a pleading of dishonesty…It should plead the material facts said to establish that the person was knowingly concerned in the contravention. This includes an express identification of the elements of the contravention and an express pleading that the person had knowledge of each of the essential elements constituting the contravention. It should identify the material facts said to establish knowledge or from which such knowledge is to be inferred. The pleading should generally also identify the material facts said to constitute the relevant acts or omissions of the person which are relied upon as establishing any practical connection with or link to the contraventions which are contended to establish the person was “knowingly concerned” within the meaning of s 550(2)(c).
The respondents submit that the applicants have failed to plead any of the material facts necessary to establish Ms Murphy and Mr Tzouvelis’ liability as an accessory for any and all of the alleged FW Act contraventions. For example, in relation to the sham contracting allegation, the applicants would need to plead (but have not) that the individual respondents knew that specific representations had been made, that they knew that the contract was, in fact, a contract of employment, the material facts that established that they had this knowledge, and any acts or omissions which could establish that they were knowingly concerned in the contravention.
The respondents submit that nowhere in the ASOC can the elements of accessorial liability be found, yet the respondents seej declarations that both individual respondents were involved in each of the primary contraventions alleged and the imposition of pecuniary penalties.
Serious contravention allegation
The respondents observe that at sub-paragraph 125.8, the applicants allege that the “conduct of Golden; the conduct of IProsper [and] the conduct of Tzouvelis’ constituted serious contraventions of the FW Act within the meaning of s 557B of the FW Act”. However, the applicants fail to plead any of the necessary material facts or particulars that could establish a serious contravention within the meaning of ss 557A and 557B which provisions stipulate that a contravention of a civil remedy provision by a person is a serious contravention if: (a) the person knowingly contravened the provision; and (b) the person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.
The “client ownership” allegation
The respondents observe that at paragraph 120 of the ASOC, the applicants assert that their contracts with Golden included a term that the applicants “owned the client relationships recorded to their respective AFSNAR and were able to sell their businesses without consultation with Golden”. The applicants allege that this term was breached by Golden in paragraph 122 of the ASOC. However, according to the respondents, there is no basis put for the allegation that this was a term of Panagiotidis’ contract with Golden. The applicants make no allegation that this was an express oral or written, or implied term of the contract.
The” writing business” allegation
The respondents observe that at sub-paragraph 127.5.3 of the ASOC, the applicants seek damages for breach of contract arising from the “writing of business by IProsper and/or Tzouvelis in the name of Panagiotidis without his knowledge or authority in breach of applicable financial licence obligations”. However, the applicants do not plead any material facts or particulars to establish: the conduct alleged; that the conduct breached applicable financial licence obligations; that the conduct constituted a breach of contract; or that the applicants suffered loss or damage as a consequence of the alleged conduct.
The “personal liability of Tzouvelis for common law damages” allegation
The respondents observe that at sub-paragraph 127.5.4 of the ASOC, the applicants seek an order that “Tzouvelis be personally liable and pay all damages awarded pursuant to paragraph 116”. Paragraph 116 asserts that it was a term of each applicant’s contract that they would be paid commission on the sale of policies and financial products. However, the applicants do not plead any material facts or legal basis to explain why or how Mr Tzouvelis can be held personally liable for the alleged breach of a contract to which he was not a party.
Irrelevant allegations
The respondents submit that the following allegations in the ASOC are not material or relevant to a cause of action:
(a)The allegation in sub-paragraphs 27.3 and 27.4 that Mr Tzouvelis was a “shadow director”;
(b)The references in paragraphs 35 and 36.2 to training methods that incorporated principles of Scientology;
(c)The reference in paragraphs 51 and 12 to a letter to the State Revenue Office dated 31 October 2011 in circumstances where the reference is not a material fact in any pleaded cause of action.
THE SPECIFIC OBJECTIONS IDENTIFIED BY THE RESPONDENTS TO THE FASOC
The FASOC runs to 87 paragraphs and 54 pages. In schedule 1 to their written submissions, the respondents identified 53 paragraphs or sub-paragraphs of the FASOC that they contend should be struck out for reasons that are identified within the body of the schedule.
In their written submissions, the respondents approached their objections to the FASOC by assigning them to one of three broad categories. At hearing, counsel for the respondents adopted the same taxonomy and identified from within each category a number of examples which he submitted exemplified the inadequacy of the pleading. I will identify these examples in these reasons. However, in determining this application I have considered each of the individual objections made by the respondents to the FASOC.
The pleading is embarrassing
The respondents object to the “Summary of Claim” which is contained in paragraphs 2 to 13 of the FASOC. However, given the concession made by the applicants’ counsel (which I understood to extend to the FASOC) this objection has fallen away.
The respondents submit that the FASOC is drafted in a manner that is prolix, vague and conclusory. They identify paragraph 18 as representative of this approach. This paragraph reads:
18. The applicant, in asking about his rights to the Lump Sum Payment if he signed the employment agreement and then requested the Lump Sum Payment to be made, exercised a workplace right by making an inquiry or complaint in relation to his employment (s. 341(1)(c)(ii)). In making the workplace inquiry or complaint the respondents or each of them engaged in adverse action in contravention of s. 340(1) of the Act for a reason or reasons that included a prohibited reason being the applicant had a workplace right or had exercised a workplace right in that he made inquiries and/or complaints about the making of the Lump Sum Payment (“the First Complaint or Inquiry”) as set out in paragraphs 16.b.i.4-10, 16.b.i.12-13 and 17.b hereof.
The respondents identify eight further paragraphs which they contend suffer from the same problem.[6]
[6] The respondents identify paragraphs 20, 23, 24, 29(d), 62, 64, 66, 74.
The respondents submit that the FASOC contains “particulars” that are long, discursive, irrelevant and appear to plead separate material facts relied upon by the applicant. By way of example, the particulars to paragraph 16 are ten pages long and numbered in such a way that it is unclear whether the respondents are expected to plead to them. The respondents identify six further examples of errant particulars.[7]
[7] The respondents identify the particulars to paragraphs 16, 17, 22, 29, 32 and 73.
The respondents also submit that the FASOC includes a number of paragraphs that contain a series of rolled-up allegations.[8]
[8] The respondents identify paragraphs 18, 35(e), 38, 40, 43, 44-5 and 73.
The pleading of accessorial liability
The respondents submit that the pleading of accessorial liability against the two individual respondents for the corporate respondents’ contravention of s 340 of the FW Act is inadequate and productive of prejudice. The respondents submit that paragraphs 83 and 85 in particular, are vague, ambiguous and contain a multitude of overlapping and rolled-up allegations. They are organised in sub-paragraphs, sub-sub-paragraphs, sub-sub-sub-paragraphs and sub-sub-sub-sub-paragraphs, making them almost incomprehensible. For example, sub-paragraph 83(a)(iii)(1)(a) reads:
In respect of each or any of the contraventions set out in paragraph 82 a-d:
a. The Second Respondent:
…
iii. The Second Respondent was knowingly concerned in each of the contraventions set out in paragraphs 82 a-d inclusive for a reason or reasons that included a prohibited reason being:
1. The Second Respondent was engaged in the actions and conduct being the Denial of Access and the Direction to Return Property that occurred for a reason or reasons that included:
a. the First Complaint or Inquiry of which the Second Respondent had actual knowledge and about which she refused to respond on 2 April 2020; and/or
…
The respondents referred in this context to the decision of Sabapathy and the observations made by the Full Court at [29] that actual knowledge of the “essential matters” which go to make up an event is an essential element of a cause of action based on s 550 and a material fact that must be pleaded. In the case of a cause of action based on s 340 of the FW Act this would require a pleading that the individual respondent had actual knowledge that the employer terminated the applicant’s employment for the reason alleged.
The respondents submit that the FASOC does not plead, in a comprehensible form, the individual respondents’ actual knowledge that the alleged adverse action was taken for a prohibited reason, or the basis for this knowledge.
Causes of action not properly pleaded
The respondents submit that the FASOC contains a number of allegations that are lacking material facts or particulars, or for which orders are not sought.
In their written submissions, the respondents identify five causes of action and/or allegation that are said to suffer from one or more of the problems described above. Having regard to the concession made by the applicants’ counsel that the applicant no longer pressed his Australian Consumer Law claims, one of these objections falls away.
The remaining objections are as follows:
Misrepresentation claim
The respondents note that in various parts of the FASOC, the applicant pleads an allegation that the respondents breached s 345 of the FW Act. However, the applicant fails to plead the material facts necessary to establish this allegation and does not seek any orders in respect of an alleged breach of s 345.
Breach of contract claim
The respondents observe that in paragraphs 21 and 25 of the FASOC the applicant alleges a breach of contract by the two individual respondents. However, the applicant fails to establish how either of Ms Murphy or Mr Tzouvelis could have breached the contract of employment between the applicant and Golden.
Conversion claim
The respondents note that at sub-paragraph 44(c) of the FASOC the applicant alleges that Mr Tzouvelis engaged in conduct towards the applicant as a response to the applicant’s second complaint or inquiry that “constituted conversion”. However, the applicant fails to plead the material facts necessary to establish this allegation and does not seek any orders in respect of the allegation.
Breach of the OHS Act
The respondents observe that at paragraph 73 of the FASOC, the applicant alleges that the first and second respondents took adverse action against him by breaching s 21(1) of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act), by failing or refusing to provide him with a safe working environment.
The applicant further alleges that the respondents breached the OHS Act because the applicant was subjected to bullying and harassment by the third respondent (Mr Tzouvelis) for several years.
The respondents identify four difficulties with this cause of action.
First, the applicant does not seek any orders in relation to the alleged breach of the OHS Act.
Second, it is simply not relevant for the purposes of this proceeding whether there was a breach of the OHS Act; the question will be whether the alleged conduct constituted adverse action.
Third, the alleged bullying conduct took place over several years. Therefore, much of the alleged conduct took place prior to the applicant exercising his workplace right. The adverse action could not have been taken because of the applicant exercising his workplace right.
Fourth, the alleged bullying conduct comprises ten particulars to paragraph 73. Much of this is itself not particularised and the respondents cannot plead to it.
THE APPLICANTS’ RESPONSE TO THE STRIKE OUT APPLICATIONS
While the applicants are largely in agreement with the respondents as to the test to apply in determining a strike out application, they join issue with the respondents’ efforts to restrict argument and scrutiny to the face of the pleadings. Instead, they submit that the Court should have regard primarily to extraneous material in the form of nine affidavits filed at different stages of the original proceeding (by both the applicants and the respondents)[9]and the respondents’ proposed trial plan and email to the Court sent on 8 April 2022 ahead of the hearing that was originally scheduled to occur on 30 May 2022. The applicants included this material in a proposed Part 2 to the Court Book when the respondents opposed its inclusion in the original Court Book prepared for the strike out application. The applicants’ further material runs to 173 pages.
[9] Affidavit of Mr Panagiotidis dated 9 July 2021; affidavit of Mr Sayers dated 10 July 2021; affidavit of Chrystal Evans dated 11 July 2021; affidavit of Ms Murphy dated 1 November 2021; affidavit of Mr Tzouvelis dated 1 November 2021; reply affidavit of Mr Panagiotidis dated 11 November 2021; reply affidavit of Mr Sayers dated 25 November 2021; affidavit of Ari Papapavlou dated 25 November 2021 and affidavit of Susan Jane Zeitz with Exhibit SZJ-3 attachment.
The applicants submit that their approach is consistent with rule 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) which identifies the overarching purpose of the Rules as being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The applicants also call in aid r 1.07 of the Rules which permits the Court where it is in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules.
I am not persuaded however as to the appropriateness or utility of determining these applications having recourse to affidavits filed in the original proceeding. The applicants submit that the Court can plug gaps or redress deficiencies identified in the pleadings by reference to the affidavits but, in addition to the fact that the applicants have not identified how, and by reference to which affidavits/parts of affidavits, such gaps and deficiencies might be filled and/or resolved, this approach is antithetical to the settled authority on the approach to pleadings disputes. That approach directs attention to whether the relevant pleading identifies the issues that the party wants the Court to resolve and states the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against it at trial.[10]
[10] Kitoko v University of Technology Sydney [2021] FCA 360 at [62].
The cases relied upon by the applicants as authorising a broader inquiry need to be approached with some caution. In their written submissions, the applicants refer to the decisions of Richens v Commonwealth of Australia (No 2) [2019] FCA 1224 and Baird v Queensland [2006] FCAFC 162.
As far as Baird is concerned, the applicants rely on the observation of (then) Allsop J at [17], that:
The pleading is to be understood in its context. It is not to be read divorced from counsel’s opening and how the case was otherwise litigated. This is not to say that the pleadings are other than central to understanding what was fought below and thus what can be raised on appeal. But to the extent that context may cure or ameliorate ambiguity or lack of clarity, it is not to be ignored.
However, as this passage makes clear, the pleadings, even in the environment of an appeal, are fundamental to understanding the case raised by a party. Recourse to contextual information is not a substitute for the pleading but rather is an aid to understanding how, in the trial environment, the case articulated came to life.
A similar sentiment was expressed by (then) Mortimer J in Richens where, at paragraphs 207 to 208 her Honour referred to Baird and then at paragraph 209 adopted what she had said at [64] of Wotton v Queensland (No 5) [2016] FCA 1457, being:
Although, especially in a large and wide-ranging proceeding such as this, it is important to hold a party to the party’s ‘case’ (including, as a cornerstone, the pleadings), in order to do justice between the parties, the Court must strive to ascertain, as Allsop J put it, what is “thrown up for debate and consideration” by the case as it has been framed.
I do not consider that either decision authorises an approach that subjugates the role of the pleading and gives preference to extrinsic material.
At hearing, Mr Manuel who appeared for the applicants told the Court that his clients relied on the decision of Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120 at [69], [80], [87], [95], [111] and [112] as authorising the approach to the construction of pleadings for which they contended. In Tulett, Judge Brown considered and ultimately acceded to an application made by the respondents that the case sought to be prosecuted by Mr Tulett, who was self-represented, should be summarily dismissed. His Honour was not satisfied that Mr Tulett had provided material facts in support of his assertion to have been subject to adverse action in circumstances where he had been given several opportunities to articulate his case, including through the provision of a statement of claim.
Judge Brown made the following observations (at [13]-[14]) that have some application to this case:
…It is to be emphasized, that it is not the Court’s responsibility, nor that of the respondents, to subject Mr Tulett’s material to some degree of intense forensic scrutiny in order to enable it (and them) to identify some cause of action for Mr Tulett to pursue. It is Mr Tulett's obligation to delineate the ground or grounds on which he asserts he has a cause of action against youtown and specify the material facts which support such grounds.
This obligation encompasses, in my view, an obligation to delineate his case in a coherent and rational manner, which is comprehensible to those who must respond to it – both the Court and respondent. Neither the Court nor youtown is required to attempt to decipher massive amounts of documentation and put them into order.
…
The applicants submit that because, at an earlier stage of the proceedings, the respondents prepared a proposed trial plan, they must be taken to have understood the case against them so that an argument about the intelligibility of the pleadings advanced now should be treated with suspicion. However, the difficulty with this contention is that the proposed trial plan was provided at a time prior to the consolidation of the original claim and the general protection claim (although it made provision for them to be heard together) and before the filing of the pleadings which are the subject of these strike out applications. The latest iterations of the pleadings are significantly longer than the earlier versions and appear to greatly expand the scope of the claims sought to be prosecuted by the applicants.
While the applicants made some limited concessions during the hearing about the current pleadings (they no longer rely on the Summary of Claim or claims made under the Australian Consumer Law)[11] they otherwise rely on the ASOC and the FASOC. It is these pleadings, and not some earlier iteration, that requires the Court’s determination.
[11] The applicants also no longer rely on references to the Scientology organisation.
It is fair to say that the applicants’ efforts to bring to the Court’s attention contextual matters and material has been at the expense of a focused response to the concerns identified by the respondents to their pleadings. In their written submissions, the applicants’ response to these concerns was expressed in generalities.
For example, at paragraph 11, the applicants state that their pleadings contain significant detail to enable the various causes of action to be properly identified and to give the respondents an appropriate opportunity to respond.
At paragraph 16, the applicants characterise the respondents’ argument as, at its highest, that the pleadings are too comprehensive and provide too many material facts.
In a document put before the Court by the parties and which I have treated as an aide memoire, the parties recorded and exchanged their views on each of the pleading objections identified by the respondents. The responses provided by the applicants in this document are again noteworthy for their failure to confront the criticisms identified by the respondents and the adherence to the view, promulgated through the hearing, that deficiencies can be cured by reference to contextual material, including affidavits.
Again, some examples illustrate the point.
Paragraph 38 of the ASOC reads:
38. Golden, Murphy and Tzouvelis represented to Panagiotidis that it was a term of his engagement that it was a requirement of working for Golden that he obtain his own ABN. Panagiotidis was told by Murphy and then by Tzouvelis that it was a term of his engagement that he had to ‘get his own car and an ABN’ or he would not be able to work for them.
The respondents complain about this paragraph on the basis that it is embarrassing in that it is confusing and contains rolled- up allegations.
The applicants’ response to this criticism is that “there is no reason for confusion. It involves a question of fact and law. It does not stop it being pleaded. Insofar as the respondents disagree with the matter, they can plead their case”.
Paragraph 40 of the ASOC reads:
40. By their conduct as set out in paragraphs 28-32 and 36-38 herein, each of Golden, Murphy and Tzouvelis:
40.1. In breach of s.357 of the Act, represented to each of Sayers and Panagiotidis that the contract of employment under which they would be employed was a contract for services under which they each would perform work as an independent contractor.
40.2. Further, or in the alternative to paragraph 38a. above, in breach of s.359 of the Act, Tzouvelis and/or Murphy made statements to Sayers and Panagiotidis that they each or jointly knew to be false in order to influence Sayers (by Tzouvelis) and Panagiotidis (by Murphy and Tzouvelis) to enter into a contract for services under which they would each perform as an independent contractor, work as a financial adviser for NSFM.
The respondents complain about this paragraph on the basis that it is embarrassing in that it is confusing and contains inconsistent and rolled-up allegations. It also fails to plead a reasonable cause of action in that the representations alleged in paragraphs 28, 29, 30, 31, 32, 36, 37 and 38 were made more than six years before the applicant commenced proceedings.
The applicants’ response to this criticism is that this paragraph “can be clearly understood in that it specifies the breaches against each respondent. It is conceded that the paragraph 40.2 could be more elegantly drafted, but it is not the point of needing to be struck out.
Paragraph 61 of the ASOC reads:
61. Golden and Tzouvelis represented to Sayers that he was building an asset that would be due and payable by Golden when he ceased working for Golden. Tzouvelis regularly and repeatedly made statements to Sayers to the effect that by pushing up and building his trail that would be his superannuation when he left.
Particulars
The statements were made by Tzouvelis in individual conversations with Sayers and in meetings with other Financial Advisers. They were made regularly as an encouragement to continue to grow his clients and work.
The respondents complain about this paragraph on the basis that it is embarrassing in that it is confusing and contains inconsistent allegations. It also fails to plead a reasonable cause of action in that the applicants now rely on the Representative Agreement.
The applicants’ response to this criticism is that it involves a generic complaint without any particulars to support it and an attempt to isolate provisions without having regard to the pleadings as a whole and the affidavit material.
Sub-paragraphs 74.1.4 and 74.1.5 of the ASOC state:
74.1.4. The Deed of Settlement for the Tzouvelis Family Discretionary Trust is dated 30 June 1995 and endorsed as a true copy by Panagopoulos on 9 July 2012. Golden was the trustee. On a date unspecified, Belgian Court Pty Ltd (ACN 007 207 838) was appointed the trustee by the sole director of that company, Tzouvelis. The primary beneficiaries are Tzouvelis and his parents, one of whom is deceased. The secondary beneficiaries are spouses, parents, grandparents, brother, sister, child, stepchild, grandchild, niece or nephew of a primary beneficiary and the spouses of those persons. Tzouvelis is the only primary beneficiary aged 18 years or older.
Particulars
Deed of settlement for Tzouvelis Family Discretionary Trust endorsed on 9 July 2012.
74.1.5. Belgian Court Pty Ltd (ACN 007 207 838) was incorporated on 2 May 1989.
Its sole director and secretary is Tzouvelis. There are two ordinary shares and
both are held beneficially by Tzouvelis.
The respondents are critical of these two sub-paragraphs for the reason that they fail to plead a reasonable cause of action in that they are not relevant to any fact in issue in the proceeding.
The applicants’ response to this criticism is that the provisions clearly plead the history of company interactions that impact upon the applicants which is critical in determining liability and the inappropriate conduct of the respondents in their dealings with the establishment of various companies and trusts to avoid their liabilities. The applicants invite the respondents (and by implication, the Court) to refer to the “non-contentious facts recorded by the Federal Court of Australia in Australian Securities and Investment Commission v Antonios Tzouvelis & Ors [2023] FCA 431. At hearing, Mr Manuel went further and suggested that the ASOC could be read “subject to” this decision. I decline to do so, having regard, to the operation of s 91 of the Evidence Act 1995 (Cth).[12]
[12] Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [47].
The applicants made the submission that there were a number of options available to the Court should it find that the pleadings were in some manner deficient. The first was that some of these provisions could be struck out and the opportunity given to the applicant to replead those aspects of the claim. The second option, which the respondents strenuously opposed, was that both proceedings could go forward on affidavit material.
CONCLUSION
The parties went to some length in their submissions to stress the care and reticence which a court should exercise when considering whether to strike out pleadings. I have maintained these principles in the forefront of my mind when approaching these applications.
I have considered each of the 157 objections identified by the respondents to the ASOC and to the FASOC. I find that each one of them is soundly based, transcends trivialities, and engages one or more of the circumstances identified in r 16.21(1) of the FCA Rules, which apply to this Court by reason of r 1.06(3) of the Rules.
It is clear from even a rudimentary application of pen to paper that if all contentious aspects of the pleadings, including a great number of essential paragraphs, were to be struck out, the remaining provisions would be unintelligible. This is a case that demands that the entire of the pleadings be struck out. The respondents accept that the applicants should be given a further opportunity to refine their cases and I will make orders that allow this to occur in both proceedings. It should be clear however that this is likely to be the final occasion on which this opportunity will be extended.
In saying this, I reject the submission made by the applicants that the matters might proceed on affidavit material instead. The latitude given to this Court to dispense with formalities (such as pleadings) should not be applied in this case given the nature and the extent of the allegations sought to be raised and the quasi-criminal quality that they possess. It is imperative that the respondents know precisely the case raised against them.
Any further statement of claim must have the appearance of a fresh, re-numbered document, rather than a document that retains parts of the earlier iterations. This is an opportunity for the applicants to consolidate the approach taken to the pleadings of their cases and to reflect on the matters raised by the respondents through their objections.
The matter will return before me for a directions hearing on 13 May 2024 on which occasion a timetable for matters including the filing of a defence and the hearing of any extant applications can be discussed.
I will reserve the question of the costs of the strike out applications and of the costs that will be thrown away by my granting leave to the applicants in both proceedings to file a further statement of claim.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 19 March 2024
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