Phillips v Strasser
[2022] FedCFamC2G 410
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Phillips v Strasser [2022] FedCFamC2G 410
File number: MLG 3375 of 2021 Judgment of: JUDGE FORBES Date of judgment: 27 May 2022 Catchwords: INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 and breaches of contract – adequacy of pleading – whether pleading alleges viable causes of action – requirement to plead material facts of employment and contraventions – application for summary dismissal of proceeding or strike out – effect of limitation periods - statement of claim struck out with right to replead Legislation: Fair Work Act 2009 (Cth) s 45, 293, 535, 539, 544, 545, 550, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.06,
Federal Court Rules 2011 (Cth) r 13.13, 16.21
Judiciary Act 1903 (Cth) s 79
Limitation of Actions Act 1958 (Vic) s 5
Religious and Successory Trusts Act 1958 (Vic) s 27
Cases cited: Abela v Minister for Home Affairs [2021] FCA 96
Bhalla v Wheldon [2022] FedCFamC2G 86
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293
Spencer v Commonwealth (2010) 241 CLR 118
Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117
Wride v Schulze [2004] FCAFC 216
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission: 18 May 2022 Date of hearing: 20 May 2022 Counsel for the Applicant: Mr Jenshel Counsel for the First, Second and Third Respondents: Mr Tracey Solicitor for the Applicant: Mann Lawyers Pty Ltd Solicitor for the Respondents: Perry Maddocks Trollope Lawyers ORDERS
MLG 3375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK FRANCIS PHILLIPS
Applicant
AND: AARON STRASSER
First Respondent
MICHAEL MOSHE FRIEDMAN
Second Respondent
BENYOMIN KLEIN
Third Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
1.The Applicant’s Amended Statement of Claim filed on 21 April 2022 be struck out.
2.The Applicant be granted leave to file and serve a further Amended Statement of Claim by 1 July 2022.
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 FORBES
INTRODUCTION
This decision concerns an application brought on behalf of the three respondents to the original application who seek orders:
(1)That the applicant’s Statement of Claim be struck out in whole or in part pursuant to rule 1.06 and item 14 of Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) and rule 16.21 of the Federal Court Rules 2011 (Cth)
(2)Alternatively, an order pursuant to section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and rule 13.13 of the Rules, that the proceeding be summarily dismissed insofar as:
(a)it fails to make a reasonable claim for relief in the proceeding against any particular respondent;
(b)it alleges or claims contraventions of the Fair Work Act 2009 (Cth) (“the FW Act”) the elements of which are constituted by alleged facts or conduct which predate 23 December 2015 (having regard to the operation of section 544 of the FW Act); and
(c)it alleges breaches of contract which occurred before 23 December 2015.
For the reasons set out below, I have decided that the whole of the Applicant’s Amended Statement of Claim (“the ASOC”) filed on 21 April 2022 should be struck out and that the applicant should be granted leave to replead his claims.
Of the various courses available to me, I consider this the most appropriate because I am not persuaded that the current pleading can be refashioned by amendment or excision. The overarching purpose of civil practice and procedure provisions which apply in this court is to ensure the resolution of disputes according to law and as quickly, inexpensively and efficiently as possible[1]. At the risk of this decision being perceived as sending the applicant back to the proverbial drawing board, I consider it more likely that this case will proceed on an even footing if a new pleading is produced.
[1] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190
BACKGROUND
In this case the applicant, Mr Phillips, seeks various remedies against three respondents, Mr Aaron Strasser, Mr Michael Moshe Friedman and Mr Benyomin Klein (the respondents), in relation to alleged contraventions of the FW Act and in respect of alleged breach of contract. The remedies sought against the respondents in relation to the contraventions of the FW Act include an order for compensation, a declaration as to the quantum of various entitlements owing to the applicant and an order imposing pecuniary penalties for breaches of civil remedy provisions. The applicant also seeks damages from the respondents in relation to breach of contract.
As will be self-evident from the foregoing paragraph, the applicant’s claim arises from an alleged employment relationship. However, it is the pleading of that relationship, the terms of the relationship and the connection between the respondents and the applicant’s employment which gives rise to difficulties in this nascent litigation.
There are some background facts which are not in contest. The applicant, Mr Phillips, has performed work since in or about September 1984 for the Congregation Adass Israel Trust, an unincorporated association. In the course of that work, Mr Phillips has performed and been paid for duties in relation to the ritual slaughter and preparation of animal meat products and certification of those practices in accordance with Jewish dietary laws.
The three respondents are trustees for the time being of the Congregation Adass Israel Trust. There is also a fourth trustee, Mr Benjamin Koppel, who is not named as a respondent. The exclusion of Mr Koppel from the litigation appears to be an oversight on the part of the applicant and, depending on the future course of this litigation, he may be included as a party. That is a matter for the applicant.
There appears to be consensus that Mr Phillips performed work from time to time within the Adass religious community and that he was subject to the oversight and directions of a senior rabbi who had absolute authority in the Adass congregation on questions of Jewish law, including dietary laws. Mr Phillips pleads that the Congregation Adass Israel Trust conducted business activities including administering the Adass religious community and the hiring of slaughterers and inspectors and the performance of certification activities for Kosher butchers under its supervision. Mr Phillips’ work was performed within the context of these various activities.
The Amended Statement of Claim
By his ASOC Mr Phillips alleges that he has since about September 1984 been employed by the respondents (and their predecessor trustees) “in the business” conducted by the Trust, described as “Adass”[2]. On its face this allegation suggests that Mr Phillips has been employed by all the respondents for all or some of the period since 1984.
[2] see Applicant’s Amended Statement of Claim (“ASOC”) [2.1]
Paragraphs 1.2 to 1.6 alleges that at various times since 1984 he was an “employee” covered by or within the meaning of various state and federal legislation including the Industrial Relations Act 1979 (Vic), Employee Relations Act 1992 (Vic), Industrial Relations Act 1988 (Cth), Workplace Relations Act 1996 (Cth) and the FW Act. The allegation at para 1.2 that Mr Phillips has since 1 July 2009 been a national system employer is presumably a typographical error.
By paragraph 2A of the ASOC the applicant alleges that the named respondents (and their predecessor trustees) have been an employer of Mr Phillips within the meaning of section 6 of the Workplace Relations Act 1996 between 25 November 1996 and 30 June 2009 and have been a national system employer of the Applicant, within the meaning of section 14 of the FW Act, since 1 July 2009. By this plea the allegation seems to be that each of the current respondents and each person who has from time to time been a trustee of the Trust has been and continues to be an employer of the Applicant.
The employment contract is pleaded over several paragraphs. At paragraph 5 Mr Phillips contends that he “became employed by Adass” in about September 1984 pursuant to an oral contract made between him and “Joel Friedman (then Vice-President of the Board of Adass) on behalf of the respondent.”[3] The particulars to the pleading do not explain whether Mr Friedman was a trustee or predecessor trustee, but it appears to assert that he was acting at the time on behalf the respondent, singular.
[3] ASOC [5] and particulars.
At paragraph 6 and 7 of the ASOC, Mr Phillips pleads the express and implied terms of the initial employment contract. The express terms include his remuneration, entitlement to payment for overtime, annual wage increases in various forms of leave. The implied terms are alleged to include the requirement to comply with the directions of a senior rabbi and that any overtime worked by him would be paid at the rate of time and a half.
At paragraph 8 of the ASOC, Mr Phillips alleges that the initial employment contract was varied in 1986. Those variations included a change to his duties, an increase in wages and a variation to his hours of work. The particulars to this allegation refers to an exchange of correspondence, including a letter to the applicant from “T Donnenbaum and Y Friedman”. The paragraph is otherwise silent as to whether the current respondents had any involvement in the variation or how the variation invokes any obligations on their part.
Paragraph 9 of the ASOC pleads that from around 1988 “and on numerous occasions since that time” the Applicant was directed to perform additional duties and hours. It is not clear whether the applicant pleads these changes as variations to his employment or simply changes to the way work was to be performed under the contract as previously amended. In any event the particulars are sparse, but the common element to the various changes in Mr Phillips’ work is that they followed directives “by various people, including Rabbi Beck”.
At paragraph 10 of the ASOC, the applicant pleads that from in or about 1998 “the respondent” unilaterally changed the applicant’s remuneration arrangements by paying him reduced wages and by channelling other remuneration into a credit card in respect of which superannuation contributions were not made. It is not clear how this allegation engages with the individual named respondents and in what capacity.
Paragraphs 11 to 15 plead matters related to alleged breaches of the FW Act. At paragraph 11 the applicant alleges that since 1 July 2010 he has been covered by one or more of three federal industrial instruments, namely the Meat Industry Award 2010, the Poultry Processing Award 2010 and/or the Miscellaneous Award 2010.
At paragraph 12, the applicant contends that “the respondent” contravened terms of those awards in a number of respects. It is alleged that “it” has failed to pay the applicant the minimum applicable rates of pay[4], failed to pay the applicant superannuation[5], failed to pay the applicant over time and penalty rates[6] and filed by the applicant applicable allowances[7]. The particulars to these various alleged contraventions refer to failures on the part of “Adass” to meet obligations in relation to those industrial instruments.
[4] Ibid at [12.1]
[5] Ibid at [12.2]
[6] Ibid at [12.3]
[7] Ibid at [12.4]
Paragraph 13 pleads, in the alternative, that “the respondent” has contravened section 293 of the FW Act by not paying applicable national minimum wages. Again, the particulars refer to alleged failures by Adass to discharge this statutory obligation.
At paragraph 14, the applicant alleges that “the respondent” has contravened section 535(1) by failing to make or keep employment records in accordance with the Fair Work Regulations 2009 (Cth). The allegation in paragraph 14 is not particularised as to timeframe, but it does assert that records have not been kept regarding, inter alia, the number of hours for which the applicant “was employed” and the amounts for which “Adass was liable to contribute to superannuation”[8].
[8] Ibid at [14.4]
Again, paragraphs 15 and 16 allege contraventions of the FW Act, in relation to an alleged failure by “the respondent” to provide payslips to the applicant and an allegation that “the respondent” made and kept records that must have been known to be misleading in a material way. The identity of the respondent or respondents who wo made and kept the records and who possessed or were imputed with that knowledge is unclear. In relation to paragraph 15, the applicant alleges that his duties were falsely described and he particularises the allegation by reference to a document entitled “Congregation Adass Israel Duty Statement Rabbi Mark Francas [sic] Phillips”, the author of which is not identified.
Paragraphs 17, 18, 19 and 20 appear to relate to claims for accrued but untaken personal, annual and long service leave. These paragraphs contend that the applicant has since the “commencement of employment” taken some annual leave[9], that he has “during his employment” worked on public holidays[10] and that “during his employment” he did not take any long service leave[11]. These allegations appear to relate to “his employment” which presumably is a reference to the relationship alleged to have commenced in or around 1984, as pleaded in paragraph 1.1.
[9] Ibid at [17]
[10] Ibid at [18]
[11] Ibid at [19]
At paragraph 20, the applicant asserts that “a dispute has arisen as to the quantum of accrued personal, annual and long service leave” but it is not clear as between whom the dispute exists and how that dispute engages with the FW Act and/or any asserted contract of employment. The pleading of “a dispute” is not a cause of action, nor is it a material fact in the absence of some plea that engages some obligation on the part of the respondents.
Paragraph 21 of the ASOC alleges breach of the “initial contract” which presumably is a reference to the oral agreement made in September 1984 pleaded at paragraph 5. It will be recalled that at paragraph 5 the applicant alleges that he “became employed by Adass”.
Pleading against the respondents
It is common ground that a trust cannot employ a person. The applicant accepts that at common law, neither a trust nor an unincorporated association can be an employer because they are not juridical entities[12].
[12] Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 at [47]
The respondents in this proceeding contend that the pleading in its current form is inconsistent with the law and inconsistent with undisputed facts known to the parties.
In substance, counsel for the respondents contends that the ASOC is deficient in failing to properly plead an employment contract, the parties to any alleged employment contract, the legal and factual connection between any employment and each of the named respondents and the conduct of each of the named respondents said to be in contravention of the FW Act civil remedy provisions and their liability for any breach of contract.
Counsel submits that the respondents’ concerns cannot be dismissed as mere technical pleading objections. Rather they are matters of substance which go to the integrity of the proceeding and the ability of his clients to know what case they are called upon to meet.
The respondents submit that on the current pleading there is no allegation of a written or oral contract having been entered into between any respondent and the applicant. They say that if the applicant wishes to assert the existence of such a contract, it must be properly pleaded in the usual way with proper particulars.
They submit further, that if the applicant alleges a contract of employment between the applicant and any one or more of the current respondents, the contract can only have been made on or after 11 October 2016, being the date on which each respondent was appointed as a trustee of the Congregation Adass Israel Trust. As the Trust itself cannot as a matter of law be employer, the applicant can only plead that one or more of the respondents individually (or perhaps jointly) employed the applicant personally or perhaps in some other capacity. The pleading simply does not grapple with this difficulty, leaving the respondents in the dark.
The respondents submit, and I agree, that in a pleading the employer needs to be properly identified and the employment contract properly pleaded as these are foundational material facts which underpin the claims in the proceeding. The FW Act “postulates the existence of employment at common law as a pre-condition to its operation”[13].
[13] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
The consequence of the pleading in its current form is that it fails to plead, as material facts, the specific acts and omissions of any particular respondent which constitutes the alleged contraventions of the FW Act in paragraphs 12, 14, 15 and 16, each of which refer to “the respondent” in the singular. The confusion arising from the use of the singular “the respondent” is obvious, leaving those reading the pleading to query whether it is a reference to “Adass” generally, the Congregation, the Trust or any one of a number of persons named as parties or within the body of the pleading.
Similarly references in the pleading to employment by or conduct or failings by “Adass” results in confusion, in circumstances where it is common ground that the Trust (referred to as Adass in paragraph 2.1 of the ASOC) cannot be a party to an employment contract. The central allegation at paragraph 5 of the ASOC, that in or about September 1984 the applicant “became employed by Adass”, on its face appears legally unsustainable.
In short compass, the respondents submit that they should not be joined as parties to litigation unless there is a proper basis for doing so. They submit, and I agree, that the pleading does not properly allege the material facts by which the applicant claims contraventions of the FW Act or breaches of contract by them jointly or individually.
While it seems to be accepted as common ground that the respondents are for the time being the Trustees of the Adass Congregation Israel Trust and that they commenced as such from on or about 11 October 2016, the pleading fails to join the dots between the alleged “employment” and any cause of action whereby the respondents or any of them are liable for contraventions of the FW Act or breaches of contract.
Again, just by way of example, paragraph 11 of the ASOC fails to allege the necessary material facts which are said to establish how any of the respondents was covered by or had obligations pursuant to any of the three alleged industrial instruments. A cause of action for breach of section 45 of the FW Act attributed to “the respondent” is manifestly inadequate to put the named respondents on notice about the case they are required to meet.
The respondents also contended that other paragraphs of the ASOC exhibit defects because they fail to allege the material facts capable of establishing the alleged contraventions by them of the FW Act. In particular, the respondents’ point to paragraphs 13, 15, 16 and 17 to 19. I accept that the respondents’ submission in this regard and in their current form these paragraphs of the ASOC fail to disclose a reasonable cause of action. Unless corrected those paragraphs are likely to cause prejudice, embarrassment or delay in the proceeding.
The respondents raise a specific complaint in relation to paragraph 3 of the ASOC, which appears to plead accessorial liability on the part of the first named respondent who is the current Chief Executive Officer of the Trust. Paragraph 3 asserts that Mr Strasser was “involved in” the contraventions alleged elsewhere in the ASOC. This paragraph is confusing and insofar as it alleges accessorial liability pursuant to section 550 of the FW Act it is inadequately pleaded.
Insofar as it is alleged that Mr Strasser was involved in contraventions, the paragraph suffers the same difficulties as the pleading generally in that it leaves one to speculate as to the identity of the primary contravenor. Furthermore, and more fundamentally, the plea of accessorial liability underpins a claim for the imposition of civil penalties against an individual, a claim which must be rigorously and exactly pleaded. The necessary elements of a claim of accessorial liability must be set out including as to the respondents’ knowledge and his intentional involvement in specific contraventions. In this respect the respondents drew attention to the observations of Judge Blake in Bhalla v Wheldon [2022] FedCFamC2G 86 at [91]-[95], [100]
In my view the ASOC is beset with shortcomings which cause confusion and uncertainty and in its present form the Respondents should not be required to plead a defence.
In a written outline of submissions filed on 16 May 2022 and again in oral submissions at the hearing of the interlocutory application, Mr Jenshel endeavoured to support the pleading, including by offering proposed amendments. I have read and considered those submissions.
Whilst I am sympathetic to the applicant’s difficulty including what he and his solicitors perceive to be a lack of cooperation from those who might be able to assist in clarifying the employment contract and the identity of his employer or employers over time, I do not accept the submission that the respondents have merely attacked the pleading “by a side wind”[14]. Nor do I accept the submission that the attack on the pleading is unmeritorious or disingenuous[15] or a case of the respondents shielding behind an “Ellis defence”.
[14] Applicant’s submissions [2.1]
[15] Ibid [2.3]
A significant plank of the applicant’s submission is that although the Adass Trust is not a juridical entity and cannot employ, by reason of it being registered under Part II of the Religious and Successory Trusts Act 1958 (Vic), its trustees for the time being are liable to be sued pursuant to section 27 of the Act. It is submitted that as matter of trust law, the trustees must act together and that any liability incurred by them is joint and several.
The applicant’s submission seems to be that the three named respondents are properly named as parties to the litigation because by reason of section 27 of the Religious and Successory Trusts Act they are liable to be sued in relation to the conduct, including contraventions, of Adass relating to the employment of the applicant. However, the difficulty with this submission is that it does not satisfy the requirement to clearly and unambiguously plead the foundational employment contract including the parties to that contract and its terms. The mere fact that legal proceedings concerning property held on trust can be brought against trustees is insufficient in my opinion to engage the three named respondents as employers of the applicant or as liable for contraventions of the FW Act.
In his submissions, the applicant’s solicitor relied on an affidavit that annexed correspondence with solicitors representing the respondents[16]. It was contended that the respondents’ solicitors in the course of correspondence have made admissions or concessions regarding the identity of the applicant’s employer and liability in relation to employment obligations. It is submitted that it would be disingenuous for the respondents to resile from concessions made.
[16] Affidavit of Nadev Aryeh Prawer affirmed on 16 May 2022
This submission does not rectify defects in the pleading. First, the respondents expressly deny that they have made any admission of employment at any material time[17]. Secondly, if the applicant wishes to rely on these admissions as material facts to establish any alleged employment contract, those admissions should be pleaded so the respondents know how the case is put.
[17] Respondents’ submissions in reply at [10]
It may be that the Court as presently constituted has failed to adequately grapple with the way in which the applicant seeks to put his case, but that only serves to reinforce the difficulties with the current pleading. As stated earlier, I am somewhat sympathetic to the conundrum facing the applicant as there would appear to be a relationship in the nature of employment between the applicant and a person or persons or some entity which remunerated him for work performed. The existence of some payslips, correspondence and other documents supports the contention that Mr Phillips was working for someone. The existence of dots is one thing but the pleading must join them.
In my opinion, the ASOC in its current form fails to disclose a reasonable cause of action against the named respondents and is likely to cause prejudice, embarrassment or delay in the proceeding.
Time-barred claims
The jurisdiction of this Court is engaged by reason of the application which identifies the claim is being commenced under the FW Act. The contract claim relies upon the Court’s accrued jurisdiction.
Section 544 of the FW Act states:
A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:
(a)a civil remedy provision;
(b)a safety net contractual entitlement;
(c)an entitlement arising under subsection 542(1).
Furthermore, the power of the Court to make orders in relation to any contravention of the civil remedy provisions is similarly constrained. Pursuant to subsection 545(5), the Court must not make an order in relation to an underpayment that relates to a period that is more than 6 years before the proceeding
sconcerned commenced.On any reading of the pleading, the applicant alleges contraventions of the FW Act and seeks compensation and the imposition of penalties in relation to civil remedy provisions[18]. The applicant also seeks declarations regarding the quantum of personal, annual and long service leave owing to the applicant, which would also require the Court to exercise jurisdiction pursuant to section 545.
[18] see prayer for relief paras A-C, E
Paragraphs 12, 13, 17, 20 and Schedules A, B and C all suggest that the applicant makes claims going back as far as 2010, if not earlier. Those claims include claims in respect of underpayment.
Putting to one side issues relating to the pleading of an employment relationship and the liability of any of the respondents in relation to the asserted employment, the ASOC pleads claims outside the 6 year limitation period prescribed in section 544 of the FW Act. A person may not make an application under section 539 of the FW Act for an order in relation to a contravention of civil remedy provisions which [falls] outside that time limit. The pleading, as currently drawn, purports to do so.
Moreover, by reason of subsection 545(5), the Court does not have power to grant relief in relation to underpayment claims relating to a period before 23 December 2015. Insofar as relief is sought by the applicant for compensation which relates to that earlier, the Court cannot grant it.
For these reasons, claims which predate the 6 year limitation period, to the extent that they are made under the FW Act, have no reasonable prospect of success. If the pleading were otherwise in order, I would be inclined to dismiss those claims on the basis that the applicant has no reasonable prospect of successfully prosecuting them.
Similarly, I accept the respondents’ submission that the applicant’s claims, to the extent they rely upon a breach of contract which is alleged to have occurred before 23 December 2015, also enjoy no reasonable prospect of success. By reason of section 79 of the Judiciary Act 1903 (Cth), section 5 of the Limitation of Actions Act 1958 (Vic) is binding on this Court in the exercise of its federal and accrued jurisdiction and bars the bringing of claims founded on simple contract (including contract implied in law) after the expiration of 6 years from the date on which the cause of action accrued.
I note the submission of the applicant’s solicitor that the applicant may allege that the circumstances surrounding his employment should permit an exception to the limitation period. It is submitted that if the respondents’ plead the limitation period, it is open to the applicant to plead an exception in reply.
There is, with respect, nothing in the pleading which invites such an exception. In my opinion if the applicant contends that the limitation of actions period does not apply to his contract claims, he should plead that from the outset and should plead the basis for the contention. As presently framed, the claim for damages for contractual breaches prior to 23 December 2015 is unsustainable and liable to be dismissed.
Disposition
This Court has power to enter summary judgment or summarily dismiss the whole or part of a proceeding if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting his claims. The Court does not have to be persuaded that a proceeding or part of a proceeding is hopeless or bound to fail in order to be satisfied that it has no reasonable prospect of success[19].
[19] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 143 and rule 13.13 of the FCFCOA Rules 2021
The Court also has a general power to strike out pleadings if it is satisfied that the pleading contains scandalous material, frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice, embarrassment or delay in the proceeding, fails to disclose a reasonable cause of action or as otherwise an abuse of process of the Court. The power of this Court to strike out a pleading is derived from the combined operation of rule 1.06 of the Rules which allows adoption of rule 16.21 of the Federal Court Rules 2011 (Cth).
The relevant principles in relation to summary judgment and striking out of pleadings is helpfully set out at paragraphs 17 to 21 of the respondents’ outline of submissions filed on
10 May 2022. Those principles are well established[20] and from the submissions made to the Court, I did not detect any contest about them.
[20] Abela v Minister for Home Affairs [2021] FCA 96 at [8]-[19]; Spencer v Commonwealth (2010) 241 CLR 118 at [23]-[24], [53]-[60]; Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293 at [17]; Wride v Schulze [2004] FCAFC 216 at [25]
Having carefully considered the submissions advanced by both parties I am of the opinion that the ASOC should be struck out in whole and that the applicant should be granted leave to replead against the respondents or such other persons as he may consider appropriate.
If the pleading were in an acceptable form and properly alleged causes of action, I would have dismissed those parts of the claim which seek relief in relation to alleged contraventions of the FW Act which predate 23 December 2015 and alleged breaches of contract which occurred before that date. In my view, it is very difficult to see how any pleaded contraventions of the civil remedy provisions of the FW Act prior to the commencement of the limitation period could withstand a pleading attack. Similarly, a breach of contract claim which reaches back beyond 23 December 2015 would seem to have almost no prospect of success unless the pleading explains why the limitation period should not apply.
That said, the pleading is not in a form where I can dismiss only a part of it and leave the rest to proceed to trial. I have noted the amendments that have already been made to the statement of claim, and those further amendments that have been proposed by the applicant’s solicitor. I acknowledge those efforts but in my opinion none of those amendments, respectfully, can resuscitate the pleading or correct its underlying deficiencies.
I note the applicant’s submission that the respondents should be required to plead a defence and that any denials or objections by them (for example in relation to the employment relationship or time limitations) can be addressed by the applicant in reply. I do not consider that to be an appropriate or efficient approach. A statement of claim must be capable of standing on its own two feet and must plead all the necessary material facts and particulars to make out a viable cause of action.
This is not a matter where the applicant should be denied an opportunity to reconstruct his claim and an opportunity to join the dots. The proceeding should not be dismissed and the applicant should be afforded an opportunity to replead with the benefit of these reasons.
I will order that the applicants Amended Statement of Claim filed on 21 April 2022 be struck out.
I will further order that the applicant be granted leave to file and serve a further amended statement of claim by 1 July 2022.
Section 570 of the FW Act is engaged by these proceedings and I do not propose to make any order for costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate: Madeleine Lodge
Dated: 27 May 2022
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