Pigozzo v Mineral Resources Ltd - [2022] FCA 1166

FEDERAL COURT OF AUSTRALIA
Pigozzo v Mineral Resources Ltd [2022] FCA 1166

File number:

WAD 103 of 2022

Judgment of:

FEUTRILL J

Date of judgment:

29 September 2022

Catchwords:

PRACTICE AND PROCEDURE - application to restrict inspection of documents - application to strike out - application for injunction and non-publication of documents - pleadings dispute - strike-out principles - confidential information - legal professional privilege - principles of inferred waiver of privilege - privilege not waived - paragraphs struck out of statement of claim - statement of claim not to be published

Legislation:

Corporations Act 2001 (Cth) ss 180, 181, 182, 1317AA, 1317AC, 1317AD, 1317AAC, 1317AAC(1)

Evidence Act 1995 (Cth) ss 117, 118, 119, 120, 121, 122, 122(2), 123, 124, 125, 125(1), 126, 131(1), 131(2)

Fair Work Act 2009 (Cth) ss 340, 340(1), 341, 341(1), 342, 343, 360, 361, 539, 546, 550

Federal Court of Australia Act 1976 (Cth) ss 17(1), 23, 31A, 31A(2), 37AE, 37AF(1), 37AF(2), 37AG, 37AH, 37AI, 37AJ, 37M

Federal Court Rules 2011 (Cth) rr 1.32, 1.34, 1.35, 1.36, 2.32(2), 2.32(3), 2.32(4), 2.28, 2.29, 6.01, 16.02, 16.02(1), 16.02(2), 16.21, 16.21(1), 16.42, 16.43, 16.43(1), 26.01

Cases cited:

AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464
Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Aquatic Air Pty Limited v Siewert (No 3) [2018] NSWSC 624
Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited [2020] FCA 1496
Ashbury v Reid [1961] WAR 49
Attorney-General v Wentworth (1988) 14 NSWLR 481
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; (2015) 235 FCR 181
Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267; (2005) 53 ACSR 305
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 41-434
Batistatos v Roads Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 25
Berry v CCL Secure Pty Ltd [2017] FCA 1546
Blake v Albion Life Assurance Society (1876) 45 LJCP 663
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500
Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115
Cashin v Cradock (1876) 3 Ch D 376
Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629
Christie v Christie (1873) LR 8 Ch App 499
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46
Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87
Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728
Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Davy v Garratt [1877] 7 Ch D 473
Day v Brownrigg (1878) 10 Ch D 294
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512
DC Payments Pty Ltd v Next Payments Pty Ltd [2016] VSC 315; (2016) 51 VR 151
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151
Elston v Commonwealth of Australia [2013] FCA 108
Emwest Productions Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 61; (2002) 117 FCR 588
Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 245 FCR 39
Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67; (1999) 201 CLR 49
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803
Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833
Flageul v WeDrive Pty Ltd [2020] FCA 1666
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Gallo v Attorney-General(Vic) (unreported, Supreme Court of Victoria, Full Court, Starke, Crockett and Beach JJ, 4 September 1984)
General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646
Gould v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490
Grant v Downs (1976) 135 CLR 674
H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181
Hodson v Pare [1899] 1 QB 455
Hongkong Xinhe International Investment Co Ltd v Bullseye Mining Ltd (No 3) [2021] WASC 260
J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581
JC Techforce Pty Ltd & Steinhardt v Pearce, Neville & Oke Industrial Pty Ltd (1996) 138 ALR 522
Kang v Kwan [2001] NSWSC 698
Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563
KTC v David [2022] FCAFC 60
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228
Lord Ashburton v Pape [1913] 2 Ch 469
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Manolakis v Carter [2008] FCA 505
Manolakis v Carter [2008] FCAFC 183
Mathews v State of Queensland [2015] FCA 1488
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409
Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160
Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307
Mutual Life & Citizens’ Assurance Co Ltd v Evatt [1970] UKPCHCA 2; (1970) 122 CLR 628
Niven v Grant (1903) 29 VLR 102
Oceanbulk Shipping SA v TMT Asia Ltd [2011] 1 AC 662
Oldfield v Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Pereira v Director Of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1
Peruvian Guano Co Ltd v Bockwoldt (1883) 23 Ch D 225
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225
PihigaPty Ltd v Roche [2011] FCA 240
PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293
Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325
Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86
Rafferty v Madgwicks [2012] FCAFC 37; (2012) 203 FCR 1
Re Turf Enterprises Pty Ltd [1975] Qd R 266
Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; (2011) 193 FCR 507
Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd [1994] FCA 488; (1994) 123 ALR 681
Rodgers v Rodgers (1964) 114 CLR 608
Rushv Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280
Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202; (2017) 123 ACSR 223
Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275
Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18]; (2004) 51 ACSR 278
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291
Sullivan v Sclanders [2000] SASC 273; (2000) 77 SASR 419
Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47
T v Tannous (1987) 10 NSWLR 303
Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21; (1997) 144 ALR 677
Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305
Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164
Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436
Van Der Lee v New South Wales [2002] NSWCA 268
Von Reisner v Commonwealth of Australia [2009] FCAFC 97; (2009) 177 FCR 531
Walker v Wilsher (1889) 23 QBD 335
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285
White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298
White Industries (Qld) Pty Ltd v Flower and Hart (a Firm) [1998] FCA 806; (1998) 156 ALR 169
Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510
Young v Holloway [1895] P 87
Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537
Young Investments Group Pty Ltd v Stripe Capital Pty Ltd [2010] FCA 996
Young Investments Group Pty Ltd v Stripe Capital Pty Ltd [2011] FCA 1147
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

Division:

Fair Work Division

Registry:

Western Australia

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

215

Date of hearing:

13 June 2022

Counsel for the Applicant:

Ms S Omeri

Solicitor for the Applicant:

Harmers Workplace Lawyers

Counsel for the First and Second Respondents:

Mr S Penglis SC

Solicitor for the First and Second Respondents:

Bennett + Co

Counsel for Interested Party (Hampton Transport Services Pty Ltd):

Ms EK Hensler

Counsel for Interested Party (The West Australian):

Mr AV McCarthy

Counsel for Interested Party (Fairfax Media Publications Pty Ltd):

Mr S White

ORDERS

WAD 103 of 2022

BETWEEN:
STEVEN PIGOZZO

Applicant

AND:
MINERAL RESOURCES LTD (ACN 118 549 910)

First Respondent

CHRIS ELLISON

Second Respondent

BENNETT + CO (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

FEUTRILL J

DATE OF ORDER:

29 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The orders of the Court made on 1 June 2022 and varied on 13 June 2022 are continued such that until further order, a person who is not a party is not permitted to inspect the statement of claim filed on 1 June 2022 in the proper Registry, but may make an application in accordance with r 2.32(2) and (4) of the Federal Court Rules 2011 (Cth) for leave to inspect that document and, otherwise, the first, second and third respondents’ interlocutory application of 1 June 2022 for orders to restrict inspection and publication of the statement of claim is dismissed.
2.Paragraphs 24-36, 55-60, 102, 103 (the word ‘falsely’), 104(a)-(c), 105-109, 111-113, 116, 127, 130(e), 131(a)-(d), 132(k), 133(i)-(ii), 135(a)-(b), 137(iv)-(v), 143, 144, 146-152, 153(b)-(c) 153(e), 153(l)-(m), 155(a), 155(c)-(d) of the statement of claim are struck-out and, otherwise the first and second respondents’ interlocutory application of 7 June 2022 for orders striking out the statement of claim is dismissed.
3.The first and second respondents’ interlocutory application of 8 June 2022 for an interim injunction and non-publication orders is listed for hearing as to the final orders at 9.15 am on 13 October 2022 (AWST).
4.The costs of the applications to strike-out, to restrict inspection and for an interim injunction and non-publication orders and the hearing of 13 June 2022 are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
FEUTRILL J:
INTRODUCTION

On 1 June 2022, the applicant (Mr Pigozzo) commenced proceedings by originating application and filed a statement of claim. Mr Pigozzo asserts causes of action and requests relief against the first respondent (MRL), second respondent (Mr Ellison), third respondent (Bennett & Co) and fourth respondent (Mr Gavranich). The asserted causes of action are for alleged contraventions of the Fair Work Act 2009 (Cth), Corporations Act 2001 (Cth) and Australian Consumer Law and breach of employment contracts.
Shortly after the proceedings were commenced, Mr Pigozzo issued a media release. The media release contained details of many of the allegations in the statement of claim. Copies of the statement of claim were also provided to the publishers of The West Australian and the Australian Financial Review newspapers.
Within a matter of hours after the proceedings were commenced, MRL, Mr Ellison and Bennett & Co made an interlocutory application for orders to restrict inspection and publication of the statement of claim and to keep it confidential on the grounds that it contains allegations of communications that are confidential and privileged. That application was heard urgently inter-partes on 1 June 2022. Interim orders were made to restrict inspection of the statement of claim and directions were made for the respondents to apply for orders to strike out the statement of claim and to hear that application and the application to restrict inspection.
On 7 June 2022, MRL and Mr Ellison made an interlocutory application to strike out the statement of claim in whole or alternatively in part. The application went beyond an application to strike out the paragraphs containing allegations MRL and Mr Ellison contend are confidential and privileged. Objection is taken to numerous paragraphs of the statement of claim on many grounds. A summary of the objections, grounds, response and ruling on the objections is set out in the Schedule to these reasons.
On 8 June 2022, MRL and Mr Ellison made an interlocutory application for an interim injunction and non-publication orders to restrain disclosure and publication of the statement of claim. The grounds of that application are that Mr Pigozzo provided copies of the statement of claim to, at least, the publishers of The West and the AFR before the orders restricting inspection of the pleading were made on 1 June 2022. The application was heard urgently inter-partes on 8 June 2022. Interim orders were made restraining Mr Pigozzo from disclosing the substance, purport or contents of the communications pleaded in paragraphs 35 and 102 of the statement of claim. Otherwise, the application was adjourned to be heard with the applications to restrict inspection and to strike out.
On 13 June 2022, the applications to strike out, to restrict inspection and for an interim injunction and non-publication orders were heard. At that hearing, orders were made varying the orders made to restrict inspection and to restrain Mr Pigozzo and a further interim suppression and non-publication order was made with respect to the substance, purport or contents of the communications pleaded in paragraphs 28, 35 and 102 of the statement of claim.
On 13 June 2022, Bennett & Co made an interlocutory application for summary judgment alternatively a permanent stay of the proceedings against Bennett &Co. That application was not heard on 13 June 2022 and is yet to be heard.
These reasons address the interlocutory orders made on each of the applications to strike out, application to restrict inspection and application for an interim injunction and non-publication orders. For the reasons set out below, parts of the statement of claim will be struck out. Mr Pigozzo may apply to amend the statement of claim and to re-plead the allegations that have been struck out. The interim orders made on the application to restrict inspection will be continued and made an interlocutory order. The interim orders made on the application for an interim injunction and non-publication orders will be dissolved and replaced with an interlocutory order for non-publication of paragraphs 26 – 31, 35 and 102 of the statement of claim.
EVIDENCE
A number of affidavits were filed, served and read on the applications. Certain parts of some of the affidavits were struck out. These were dealt with in orders made on 13 June 2022. Reasons were then given for striking out the applicable parts of the affidavits. The affidavits in evidence on the applications were as follows.
An affidavit of Mr Nicholas Parkinson affirmed on 1 June 2022 was filed and read on behalf of MRL, Mr Ellison and Bennett & Co on the application to restrict inspection (Parkinson affidavit).
An affidavit of Mr Thomas Coltrona sworn 7 June 2022 was filed and read in support of the application to strike out (Coltrona affidavit).
Affidavits of Mr Coltrona sworn 8 June 2022 (second Coltrona affidavit) and sworn 9 June 2022 (third Coltrona affidavit) were filed and read in support of the application for an interim injunction and non-publication orders.
An affidavit of Mr Michael Harmer affirmed on 10 June 2022 was filed and read in opposition to the applications to restrict inspection and for an interim injunction and non-publication orders (Harmer affidavit). Parts of the Harmer affidavit were struck out and removed from the Court file and replaced with a redacted affidavit.
An affidavit of Mr Coltrona sworn on 12 June 2022 was filed and read in support of objections to certain parts of the Harmer affidavit (fourth Coltrona affidavit). Parts of the fourth Coltrona affidavit were struck out or not read and removed from the Court file and replaced with a redacted affidavit.
Where relevant to one or more of the applications, the affidavit evidence is addressed in the reasons below.
STRIKE-OUT: APPLICABLE PRINCIPLES
The principles applicable to applications to strike-out pleadings under r 16.21(1) of the Federal Court Rules 2011 (Cth) are well established. Those that are relevant to the strike out application are as follows.
Basic function of pleadings
Pleadings and particulars perform the important function of ensuring a basic requirement of procedural fairness. To meet that requirement pleadings must state the case with sufficient clarity to allow the other party a fair opportunity to meet it: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287; Gould v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 at 517. Pleadings define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial. Apart from cases where the parties choose to disregard the pleadings and fight the case on different issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664.
Rule 16.02 of the Rules specifies the general requirements for the content of a pleading. Rule 16.21(1) provides that a party may apply to the Court for an order that all or part of a pleading be struck out, in effect, on the grounds that it does not conform to one or more of the requirements specified in rr 16.02(1) or 16.02(2).
Case management context
In the context of contemporary case management techniques, the Court should not take an unduly technical or restrictive approach to pleadings: Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13]. The Rules, relevantly here r 16.21(1), must be interpreted and applied and the powers conferred under them exercised in a way that best promotes the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth): Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202; (2017) 123 ACSR 223 at [15] – [21]; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409 at [20] – [32].

The Court should take a robust and non-pedantic approach to the determination of objections to pleadings and ‘provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, … and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment’: Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 at [6] – [8], cited with apparent approval in Thomson at [13].
The power to strike out a pleading under r 16.21(1) is discretionary and the Court may refuse to exercise that power, provided that the pleading fulfils its basic functions, even if it is deficient in some respects: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44]; Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510 at [5].
Taking the above matters into consideration and, in particular the overarching purpose identified in s 37M of the FCA Act, where voluminous objections of a technical, pedantic or pettifogging nature are taken to a pleading and the consideration and determination of each and every one of them would involve time and expense that is disproportionate to the benefit to be derived from that process in terms of identification of the true issues that have to be met in the case, it may be appropriate to dismiss all objections of that character in limine. That is so, even if buried within the bulk of numerous objections there may be some criticism that is valid and should be seriously entertained. Put another way, the question of whether the Court should consider and determine objections or dismiss them at the threshold may be answered by asking whether ‘any lawyer looking at that pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, would have [any] difficulty in ascertaining those matters’: Barclay Mowlem at [9] – [10]. If so, the objections should be determined, if not, the objections may be dismissed without proceeding to a specific determination of each and every one of them.
A non-technical, robust and non-pedantic approach to the resolution of pleadings disputes does not remove the need for a statement of claim to disclose a reasonable cause of action and fulfil its basic function of stating the case with sufficient clarity to allow the other party a fair opportunity to meet it. Further, what is necessary to meet the basic requirements of a pleading will depend, to some degree, on the nature of the allegations and the case to be met. Where fraud is pleaded, or something analogous, a rigorous approach to pleadings remains appropriate for the pleading to perform is basic function: KTC v David [2022] FCAFC 60 at [418(3)].
It has long been accepted that allegations of fraud, unlawfulness, illegality, criminality, professional misconduct or other serious impropriety must be clearly and completely pleaded and particularised: Davy v Garratt [1877] 7 Ch D 473 at 489; Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 at 573; Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291 at [605] – [606]; Oldfield v Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 at [35] – [38]; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at [26]. Making allegations of impropriety, in the absence of complete material facts supporting the allegations, is a basis for striking out a pleading as scandalous: Manolakis v Carter [2008] FCA 505 at [12] upheld on appeal in Manolakis v Carter [2008] FCAFC 183 at [28]; Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9].
General principles
A number of the general principles relevant to the strike out application were recently summarised in KTC at [113] – [132] per Wigney J), [329] (per Anastassiou J, in dissent on the outcome, but not on the general principles), [418] (per Jackson J). These principles, together with some additional relevant principles, are as follows.
(1)Rules 16.02 and 16.21 must be interpreted and applied in light of the overarching purpose of the civil practice and procedure provisions identified in s 37M of the FCA Act; namely, to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: KTC at [118].
(2)As to r 16.02(1)(d) and the requirement that the pleading state the ‘material facts’ relied on, the material facts must be pleaded with a degree of specificity which is sufficient to convey to the opposite party the case that it has to meet and that a ‘bare conclusion’ is ordinarily not a proper allegation. A pleading that simply pleads a conclusion is embarrassing and should not be permitted to stand: KTC at [114] citing Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226 at 235; Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 at [7]; (2012) 293 ALR 537. See, also, H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186-187. The same may be said of a failure to state the provisions of any statute relied on, as required by r 16.02(1)(e), where it results in a failure to give adequate notice of the case to be met.
(3)Rules 16.42 and 16.43 are also relevant. Rule 16.42 provides that a party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence, must state in the pleading particulars of the facts on which the party relies: KTC at [115]. As noted earlier in these reasons, it is ‘fundamental, and long established, that if a case of fraud is to be mounted, it should be pleaded specifically and with particularity’: Forrest at [26]; KTC at [116]. Similarly, r 16.43(1) provides that a party who pleads a condition of mind must state in the pleading particulars of the facts at which the party relies.
(4)As to r 16.21(1)(a) (scandalous material), a mere allegation of scandalous fact does not render the pleading liable to be struck out for containing scandalous material. The scandalous material will not be struck out unless it is also irrelevant: Christie v Christie (1873) LR 8 Ch App 499 at 503; Blake v Albion Life Assurance Society (1876) 45 LJCP 663 at 666. Material is ‘scandalous’ if, as well as being irrelevant, it is indecent or offensive or consists of allegations made for the purpose of abusing or (possibly) prejudicing the opposite party: Cashin v Craddock [1876] 3 Ch D 376 at 378-379. It has also been said that scandal consists in the allegation of ‘anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary (not relevant to the subject) allegation bearing cruelly upon the moral character of an individual': Hongkong Xinhe International Investment Co Ltd v Bullseye Mining Ltd (No 3) [2021] WASC 260 at [61] citing Legal Practice Board v Said (unreported, WASC, Library No 940003, 12 January 1994) at 3.
(5)As to r 16.21(1)(b) (frivolous or vexatious material), the word ‘vexatious’ in the context of rules such as r 16.21 is an ‘omnibus expression’ that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing, or the inclusion of which is otherwise an abuse of the processes of the Court: Gallo v Attorney-General (Vic) (unreported, Supreme Court of Victoria, Full Court, Starke J, with whom Crockett and Beach JJ agreed at 12, 4 September 1984), referred to with approval in Mathews v State of Queensland [2015] FCA 1488 at [87]; KTC at [119].
(6)Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are ‘obviously untenable or manifestly groundless’: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491; see also Von Reisner v Commonwealth (2009) 177 FCR 531; [2009] FCAFC 97 at [27]; KTC at [119].
(7)A proceeding is not frivolous if there is a triable issue; it is frivolous if it is obviously not sustainable: Young v Holloway [1895] P 87 at 90-91. An obviously unsustainable claim may also be characterised as vexatious: Peruvian Guano Co Ltd v Bockwoldt (1883) 23 Ch D 225 at 230. Proceedings that are foredoomed to fail (i.e., frivolous and (or) vexatious) may also be characterised as an abuse of the process of the Court: Walton v Gardiner (1993) 177 CLR 378 at 392-393. However, the concept of abuse of process is not confined to proceedings that are untenable.
(8)As to r 16.21(1)(d) (prejudice, embarrass or delay), a pleading is likely to cause prejudice or embarrassment 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: Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 41-434 at 40,889; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [18]; Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [18]; KTC at [120]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c): KTC at [120].
(9)A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd & Steinhardt v Pearce, Neville & Oke Industrial Pty Ltd (1996) 138 ALR 522 at 531; KTC at [122]. Such a pleading may also be struck out under r 16.21(1)(b) (frivolous or vexations) or 16.21(1)(f) (abuse of the process) on the ground that the allegations are foredoomed to fail if they are not able to be proved: PihigaPty Ltd v Roche [2011] FCA 240 at [71], [76] – [79] see, also, DC Payments Pty Ltd v Next Payments Pty Ltd [2016] VSC 315; (2016) 51 VR 151 at [82] – [85].
(10)While a point of law may be raised in accordance with r 16.02(3), it is not necessary to plead assertions or conclusion of law. Further, there is authority for the proposition that conclusion of law should not be pleaded, except by way of clarification of a case already pleaded by reference to material facts: Allstate at 235. Nonetheless, it is common to plead assertions or conclusions of law as a means of identifying the cause(s) of action alleged to support the relief claimed or defence. In other words, it may be necessary in complicated or complex cases to plead conclusions of law fairly to inform the other party of the case to be met. However, epithets such as ‘wrongfully’, ‘unlawfully’ and ‘improperly’ add nothing to a pleading. Any legal conclusion of wrongfulness, unlawfulness or impropriety is to be derived from the pleaded material facts alone. In the absence of such material facts, the pleading is bad and liable to be struck out for pleading unsupported conclusions: Day v Brownrigg (1878) 10 Ch D 294 at 302.
(11)As to r 16.21(1)(e) (failure to disclose a reasonable cause of action), a ‘reasonable cause of action’ is a cause of action that has some chance of success having regard to the allegations pleaded. A cause of action cannot be struck out merely on the basis that it appears to be weak: KTC at [123], citing Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42]-[43]; Allstate at 236.
(12)A pleading may be struck out for disclosing no reasonable cause of action if, accepting all material facts pleaded as true and that on all other points (except points of law) the pleading is unassailable, it would not be open to the party upon the pleading to prove facts at trial that would constitute a cause of action or defence: Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 414; Mutual Life & Citizens’ Assurance Co Ltd v Evatt [1970] UKPCHCA 2; (1970) 122 CLR 628 at 631.
(13)Inevitably, there is overlap between applications to strike out a pleading on the ground that it fails to disclose a reasonable cause of action under r 16.21(1)(e) and the grounds in r 16.21(1)(c) and r 16.21(1)(d) where pleadings omit material facts and (or) plead conclusions that are not supported by material facts. Depending on the nature and degree of the omission such deficiencies may be characterised as one or more of a failure to disclose a cause of action or defence, evasive or ambiguous or likely to prejudice, embarrass or delay the proceedings.
(14)As to r 16.21(f) (abuse of process), the High Court has said that what amounts to an abuse of the process of the Court is ‘insusceptible of a formulation comprising closed categories’ and ‘the possible varieties of abuse of process are only limited by human ingenuity’: Batistatos v Roads Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [9]; Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279. There are many other authorities to the same or similar effect.
(15)In general, abuse of process will exhibit at least one of three characteristics: PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612 at [3]:
(a)the court’s process is invoked for an illegitimate or collateral purpose;
(b)use of the court’s procedures would be unjustifiably oppressive to a party; or
(c)use of the court’s procedures would bring the administration of justice into disrepute.
The concept extends ‘to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness’: Walton at 392-393.
(16)Although evidence may be, and often is, adduced in support of an application to strike out a pleading or proceeding on the ground of abuse of process, it is not necessary for an abuse of process to be proven by admissible evidence. An abuse of process may be manifest on the face of a pleading or other document filed in the Court. A document that ‘contains matter that is scandalous, vexatious or oppressive’ may be struck out of the document: r 6.01(b) of the Rules. Likewise, a pleading that ‘contains’ scandalous, frivolous or vexatious material or that is ‘otherwise’ an abuse of the process of the Court may be struck out in whole or in part: rr 16.21(1)(a) – (b), (f) of the Rules. Thus, the Court may strike out a pleading or proceeding as an abuse of process without evidence of abuse: e.g., Manolakis at [3] - [6] and [28] (insufficient information to support allegations of fraud or criminal conduct); Hodson v Pare [1899] 1 QB 455 (alleged defamation pleaded in circumstances of absolute privilege).
(17)An applicant that has commenced proceedings founded on information obtained or used in breach of a duty of confidence may be restrained from continuing with or utilising the information in the proceedings: Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 at [6]; Lord Ashburton v Pape [1913] 2 Ch 469 at 472-477; Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 437-438; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50; Pihiga at [76], [77], [97], [109] – [111]; Sullivan v Sclanders [2000] SASC 273; (2000) 77 SASR 419 at [1], [3], [31], [71]; AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 at [129] – [163], [168], [169], [214], [215], [222], [223] (as to the form of orders made, see AG Australia Holdings Ltd v Burton [2002] NSWSC 454 at [59]). A third party whose conscience is relevantly affected may also be restrained: Johns v Australian Securities Commission (1993) 178 CLR 408. That may include, in appropriate circumstances, restraining a party’s legal advisors from acting in proceedings where the legal advisors have received confidential information: Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160. The duty of confidence may arise from agreement (express or implied) or equity: AG Australia at [73].
(18)In keeping with the overarching purpose identified in s 37M of the FCA Act, it is not necessary to commence separate proceedings or make an interlocutory application for injunctive relief if alternative orders that sufficiently protect and maintain the confidentiality of the information can be made: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at [56] – [63], [69].
(19)A pleading founded on misuse of confidential information may be struck out on the ground that the order should be made to deny the wrongdoer the benefit of using the confidential information and to ensure that no advantage is obtained in the litigation arising from the breach of confidence: DC Payments at [74] – [81], [85]; Sullivan at [1], [3], [31], [71]. An order striking out a pleading on the ground that it was drawn in breach of a duty of confidence may also be justified on the ground that to permit such a pleading to stand would involve an abuse of the process of the Court.
(20)A person may also be restrained from relying upon or using confidential without prejudice communications in legal proceedings in breach of the express or implied agreement to maintain the confidentiality of and not adduce evidence of the communications: Pihiga at [71], [76], [77], [97], [109] – [111].
(21)If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the ‘residue would be confusing’: Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323: KTC at [124].
(22)Where summary dismissal of the whole or part of a proceeding would result, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency. The power is discretionary and should be employed sparingly and only in a clear case lest a party is deprived of a case which in justice it ought to be able to bring: KTC at [125], citing Allstate at 236; Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175.
As Mr Pigozzo placed considerable reliance and emphasis on the last general principle referred to above and submitted, in effect, that the Court should not strike out any part of the statement of claim unless satisfied that there was no real question to be tried and that any defect could not be cured by reasonable amendment, it is necessary to identify an important qualification to that principle where, as here, the power to strike out a pleading will not have the effect of summarily dismissing a cause of action or defence of a party. The statement of principle in KTC (and the many other authorities to the same or similar effect) is to be understood in the context that the order under appeal in KTC was the dismissal of an application for leave to amend a statement of claim to re-plead a cause of action that had been struck out as the result of a previous order of the Court. Therefore, the effect of the decision to refuse leave to amend was to ‘to strike out’ and ‘summarily dismiss’ the cause of action in the proposed amended statement of claim. Other authorities in which the same or a similar statement of principle has been made were also concerned with striking out pleadings coupled with summary dismissal of all or part of the proceedings.

Subsection 31A(2) of the FCA Act relevantly provides that the Court may give judgment for a party if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01 of the Rules, which also deals with summary judgment, provides that a party may apply to the Court for an order that judgment be given against another party on grounds that essentially mirror the grounds for striking out a pleading in r 16.21(1) of the Rules: KTC at [127].
The relevant principles in relation to summary judgment or dismissal under s 31A of the FCA Act were considered by the High Court in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118; and have been discussed in numerous judgments in this Court. In KTC they were summarised as follows (at [128] – [132]).
(1)Section 31A of the FCA Act authorises summary disposition of proceedings ‘on a variety of bases under its general rubric’, including, but not limited to: where the pleading discloses no reasonable cause of action and the deficiency in that regard is ‘incurable’; where ‘there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment’; and the ‘longstanding category of cases which are “frivolous or vexatious or an abuse of process”’: Spencer at [22] (French CJ and Gummow J).
(2)The power to summarily dismiss a proceeding is to be distinguished, in its application to deficient pleadings, from rules such as r 16.21 of the Rules: Spencer at [23] (French CJ and Gummow J). Where the evidence shows that a person may have a reasonable cause of action or reasonable prospects of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [47], referred to in Spencer at [23]. That said, a ‘failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success’: White Industries at [47].
(3)An applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is hopeless or bound to fail: Spencer at [17] (French CJ and Gummow J). The inquiry required under s 31A is ‘not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail’: Spencer at [52] (Hayne, Crennan, Kiefel and Bell JJ).
(4)The ‘exercise of powers to summarily terminate proceedings must always be attended with caution’, whatever may be the basis upon which that disposition is sought: Spencer at [24] (French CJ and Gummow J). It is not a power ‘to be exercised lightly’: Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ). There must be a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’: Batistatos at [46], referred to in Spencer at [24] (French CJ and Gummow J).
As striking out a pleading for failing to disclose a cause of action under r 16.21(1)(e) involves a different question to that concerned in an application under s 31A of the FCA Act and (or) r 26.01 of the Rules, a pleading may be struck out under r 16.21(1)(e) even though the defect may be cured by reasonable amendment or there may be a real question to be tried. In Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 (at [102]) Wigney J said:
The grounds upon which a pleading can be struck out under r 16.21 of the Rules correspond, to a large extent, with the grounds upon which a proceeding may be summarily dismissed under s 31A of the FCA Act and r 26.01 of the Rules. The Court will proceed to strike out under r 16.21, rather than summarily dismiss the proceeding under r 26.01 of the Rules, where although there are deficiencies in the pleading, a reasonable case may still exist. The granting of leave to replead in those circumstances may allow the applicant to remedy the deficiencies.
On an application for summary dismissal of a proceeding under s 31A or r 26.01 of the Rules, evidence may be admitted to demonstrate that there is, or is not, a reasonable cause of action or defence: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 109; Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677 at 681-682. However, on an application to strike out on the ground that a pleading fails to disclose a reasonable cause of action (or defence), except for documents referred to in or that from part of the pleading, no evidence is admissible: Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 at 639. Otherwise, all facts alleged in the statement of claim must be accepted as true and on all other points (except points of law) the pleading as unassailable: Niven v Grant (1903) 29 VLR 102 at 106.
It follows that the general principles on an application to strike out for failing to disclose a reasonable cause of action, as expressed in KTC (at [125]), in Allstate at 235-236 and Polar Aviation at [42] – [43], are to be read and understood in the context that those decisions involved striking out pleadings and summary dismissal of the proceedings (or equivalent). These authorities demonstrate that a pleading may be struck out on the ground that it fails to disclose a reasonable cause of action or defence with the Court also being satisfied that there is no real question to be tried or no reasonable amendment could cure the defect resulting in summary dismissal of the proceedings.
A pleading may also be struck out for failing to disclose a reasonable cause of action or defence, but the party may be given leave to re-plead if the Court is satisfied that the party may be able to plead a viable cause of action or defence with ‘reasonable amendment’: e.g., Elston v Commonwealth of Australia [2013] FCA 108 at [31] – [32], [47] – [48]. Nonetheless, a ‘failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospect of success’: White Industries at [47]. In such a case, leave to re-plead may be refused and (or) the proceedings summarily dismissed: see, e.g., Young Investments Group Pty Ltd v Stripe Capital Pty Ltd [2010] FCA 996 at [37], [45], [54], [60], [62]; Young Investments Group Pty Ltd v Stripe Capital Pty Ltd [2011] FCA 1147 at [49]; Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537 at [2], [61], [62]; Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [124] – [125]; Polar Aviation at [85] – [89], [93]; see, also, J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [18].
MRL and Mr Ellison have not applied or submitted that Mr Pigozzo’s causes of action against them should be struck out and summarily dismissed. Therefore, the question for the Court is whether, accepting the pleaded facts as true, it is plain and obvious that the statement of claim should be struck out for failing to disclose a reasonable cause of action or on some other ground in r 16.21(1).
ADVERSE ACTION
Overview
MRL and Mr Ellison object to paras 24 – 36, 55 – 60 and 104 – 118 of the statement of claim on a number of grounds. These paragraphs contain allegations to the effect that MRL and Mr Ellison contravened s 340(1) of the FW Act.
MRL and Mr Ellison object to paras 28 and 35 of the statement of claim on the grounds that these paragraphs are founded on allegations of communications which, if accepted as true, are prima facie confidential and subject to legal professional privilege. It is submitted that insufficient material facts and particulars have been pleaded to disclose a reasonable argument that the communications are not protected by legal professional privilege. It is submitted that the paragraphs should be struck out as scandalous, vexatious and an abuse of process.
Mr Pigozzo submits that MRL and Mr Ellison have an onus of proving that the communications in question were subject to privilege and they have not done so. Further, the privilege does not attach to the communications because they fall within an ‘exception’ to the privilege under s 125 of the Evidence Act 1995 (Cth). And, in any event, MRL and Mr Ellison have waived that privilege.
MRL and Mr Ellison object to paras 24 – 36, 55 – 60, 104(a) – (c), 105(a) – (d), 107, 108, 109, 131(a) – (d), 133(i) – (ii), 135(a) – (b), 137(iv) – (v), 138(i), 143(c), 143(i) – (iii) and (iv) on the grounds that these paragraphs contain allegations of serious impropriety or misconduct which have not been pleaded with the completeness, clarity and particularity with which allegations of that character must be pleaded. It is submitted that the paragraphs should be struck out as scandalous, vexatious, ambiguous and an abuse of process. Although the strike out application also asserts these paragraphs fail to disclose a reasonable cause of action, that ground was not addressed in the written or to any significant extent in oral submissions.
Mr Pigozzo submits that the pleading meets its function of apprising MRL and Mr Ellison of the case that they have to meet. Otherwise, it is submitted, in effect, that the objections are technical and invite the Court to take the deprecated ‘pedantic approach’.
Fair Work Act: section 340(1)
Sections 340 of the FW Act is in the following terms (notes omitted):
340     Protection
(1)       A person must not take adverse action against another person:
(a)       because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
An employee has a ‘workplace right’, relevantly, if the employee is able to make a complaint or inquiry in relation to his or her employment: s 341(1)(c)(ii) of the FW Act.
An employer takes 'adverse action' against an employee, relevantly, if the employer injures the employee in his or her employment or alters the position of the employee to the employee's prejudice: s 342, item 1(b), (c) of the FW Act.
As to the meaning of ‘complaint’ in s 341(1)(c)(ii), in Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 the Court said (at [59] – [60]):
59In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
60The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.
As to the meaning of ‘inquiry’ in s 341(1)(c)(ii) of the FW Act, an inquiry involves an investigation or an examination made for the purposes of acquiring knowledge or information: Flageul v WeDrive Pty Ltd [2020] FCA 1666 at [248]. It includes a request for information or the posing of a question by an employee in relation to his or her employment: PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 at [136] – [138]. It need not be an inquiry made of the employer and may include an inquiry made of a third party such as the employee’s lawyer: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 at [143].
As to the meaning of the expression ‘is able to make a complaint or inquiry … in relation to his or her employment’ (emphasis added), differences of views have been expressed in the authorities that have considered that expression. However, it is now settled that the unanimous decision in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46 is to be followed despite evident differences between the reasoning in Whelan with that of the majority (Rangiah and Charlesworth JJ) in PIA Mortgage Services: Alam at [97]; Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 at [74] – [78].
In Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285 (at [33] – [34]) Collier J identified the meaning of ‘complaint or inquiry … in relation to his or her employment’ and the principles to be applied as follows:
33Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [at] [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
34As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.
On appeal, in Whelan (at [28]), the Full Court (Greenwood, Logan and Derrington JJ) said that the statement of principle set out above was ‘unremarkable and correct’ and held that the pleaded complaint or inquiry concerning a bonus was, for the reasons given by Collier J, the exercise of a workplace right for the purposes of the FW Act.
Sections 360 and 361 of the FW Act are also of relevance and importance to a cause of action for contravention of s 340(1). These sections are in the following terms.
360     Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361     Reason for action to be presumed unless proved otherwise
(1)      If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)      Subsection (1) does not apply in relation to orders for an interim injunction.
The effect of these sections is that if an employee establishes as an objective fact the exercise of a workplace right and of the employer taking adverse action, the employer has an evidential onus of proving that the adverse action was not taken because of the exercise of the workplace right: General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617; Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [1], [119], [140]. In practical terms that has the effect, if the employer disputes causation, that the employer must call a witness to give evidence of the reason(s) for the employer taking the adverse action: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500 at [44] – [45].
Leaving to one side the necessity to plead allegations of fraud or other serious impropriety clearly, fully and with particularity, allegations of contraventions of s 340(1) of the FW Act are also serious allegations. A person who contravenes s 340(1) may be liable to civil penalties: s 539, item 11 of the FW Act. Such allegations should also be pleaded clearly, fully and with particularity: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987 at [15].
Hamptons proceedings
Mr Pigozzo alleges that MRL and Mr Ellison contravened s 340(1) of the FW Act by taking adverse action against Mr Pigozzo because he exercised a workplace right. Mr Pigozzo alleges that adverse action was taken in a number of respects, many of which arise from alleged meetings and conversations involving MRL’s in-house lawyer (Mr Rushton) and MRL’s external lawyer (Mr Bennett) during June 2016. The most controversial allegations relate to legal proceedings Hamptons had brought against CSI (a subsidiary of MRL) (Hamptons proceedings).
To understand the cause of action asserted for contravention of s 340(1) of the FW Act it is helpful to start with paras 104 – 106 of the statement of claim. These paragraphs plead conclusions of fact, law, or mixed fact and law founded on facts pleaded in other parts of the statement of claim. The relevant parts of these paragraphs (amended to remove references to the communications pleaded in paras 26 - 29) are as follows.
104.In the premises, contrary to s.340(1) of the FWA, the First and Second Respondents took adverse action against the Applicant. Pursuant to s.341(1)(c)(ii) of the FWA, the Applicant had a workplace right to make a complaint or inquiry in relation to his employment. The Applicant exercised this right on the following occasions:
(a)in or about June 2016, at a meeting with Mr Rushton concerning the Hamptons Discovery, pleaded at [28] above;
(b)in or about June 2016, at a meeting with the Second Respondent and Mr Rushton concerning the Hamptons Discovery, pleaded at [29] above;
(c)in or about June 2016 at a meeting with Martin Bennett of the Third Respondent concerning the Hamptons Discovery, pleaded at [35] above;
…
105.Because the Applicant exercised his workplace right on one or more of the occasions pleaded at [104] above, or for reasons that included the Applicant having exercised his workplace right on one or more of those occasions, the Respondents took the following action, including by omitting to act:
(a)Mr Rushton failing to commend the Applicant’s honesty and integrity in raising [certain matters] with him and encouraging him to [take certain action in connection with the Hampton proceedings];
(b)Mr Rushton failing to support the Applicant when the Applicant raised [certain matters] with the Second Respondent, instead running from the meeting with his fingers in his ears, knowingly leaving the Applicant to be directed by the Second Respondent to act unlawfully in breach of a court order and of his contractual obligation to act honestly, in good faith and in the best interests of the First Respondent and its shareholders set out in the First Respondent’s Code of Conduct incorporated into the First Employment Contract (by clause 19);
(c)the Second Respondent directing the Applicant to act unlawfully in breach of a court order and in breach of his contractual obligation to act honestly, in good faith and in the best interests of the First Respondent and its shareholders set out in the First Respondent’s Code of Conduct incorporated into the First Employment Contract (by clause 19) by excluding [certain matters] from the material provided to the Third Respondent for the purposes of discovery;
(d)the Second Respondent checking that the Applicant had excluded [certain matters] from the material provided to the Third Respondent for the purposes of discovery, in defiance of a court order and in breach of his contractual obligation to act honestly, in good faith and in the best interests of the First Respondent and its shareholders set out in the First Respondent’s Code of Conduct incorporated into the First Employment Contract (by clause 19);
…
106The conduct pleaded at [105] above was adverse action within the meaning of s.342 of the FWA because it:
(a)injured the Applicant in his employment;
(b)altered the position of the Applicant to his prejudice; and
Particulars of [106](a) and (b)
(i)It induced, compelled or otherwise caused the Applicant to act unlawfully or to assist the First Respondent to act unlawfully and/or in defiance of a court order;
(ii)It induced, compelled or otherwise caused the Applicant to act in breach of the First Employment Contract, including the Code of Conduct;
…
(v)It induced, compelled or otherwise caused the Applicant to act in breach of the Second Employment Contract.

The conclusions pleaded in paras 104, 105 and 106 depend upon the material facts and particulars pleaded in other parts of the statement of claim, in particular, the matters pleaded in paras 24 - 36.
Paragraphs 24 – 36
In para 24 of the statement of claim Mr Pigozzo alleges that ‘[b]etween February and July 2016, [Mr Ellison] and [MRL’s] in-house counsel, Simon Rushton, instructed [Mr Pigozzo] to perform work in relation to [the Hamptons proceedings]’. Paragraph 25 pleads Mr Pigozzo’s understanding of the nature of the Hamptons proceedings. Paragraph 26 pleads the substance of Mr Rushton’s instructions to Mr Pigozzo. Paragraph 27 pleads Mr Pigozzo’s understanding of information of which he became aware while performing Mr Rushton’s instructions. Paragraph 28 pleads the substance (and effect of words) of a conversation between Mr Pigozzo and Mr Rushton about the information.
Paragraph 29 pleads a subsequent meeting at which Mr Ellison, Mr Rushton and Mr Pigozzo were present and pleads the substance (and effect of words) of a conversation alleged to have taken place at that meeting. Paragraph 30 pleads the effect of words Mr Ellison is alleged to have said at that meeting. Paragraph 31 pleads the effect of Mr Rushton is alleged to have said at that meeting and pleads the fact of his physical actions.
Paragraphs 32 to 34 of the statement of claim are then in the following terms:
32.[Mr Ellison] then said, firmly, words to the effect: “Steve, clean it up now!” [Mr Pigozzo] understood [Mr Ellison] to be directing him to omit the damaging emails from the discovery materials he provided to [Bennett & Co].
33.As instructed by [Mr Ellison], [Mr Pigozzo] omitted the damaging emails from the material he sent to [Bennett & Co].
34.Approximately one week later, [Mr Ellison] said to [Mr Pigozzo] words to the effect: “Is the problem sorted?” [Mr Pigozzo] understood this to be an inquiry as to whether he had omitted the damaging emails from the material provided to [Bennett & Co]. Accordingly, [Mr Pigozzo] replied “Yes.”
Particulars
(i)Note of [Mr Ellison's] instruction made contemporaneously in [Mr Pigozzo's] electronic diary, saved to, or contained in, [MRL's] computer system.
(ii)Further particulars to be provided following discovery.
Paragraph 35 pleads that, after the events pleaded in paras 24 to 34, in or around June 2016, Mr Pigozzo met with Mr Bennett, of Bennett & Co, in MRL’s boardroom to discuss a matter relating to the Hamptons proceeding. The paragraph pleads the substance (and effect of words) of what is alleged to have been said in a conversation at that meeting.
Paragraph 36 of the statement of claim then pleads the following:
To the best of the Applicant’s knowledge, the damaging emails were not subsequently added to the discovery bundle by either the Second Respondent or the Third Respondent before the documents were sent to lawyers acting for Hamptons.
Taking into account that for the purposes of s 341(1)(c)(ii) Mr Pigozzo has a workplace right if he ‘is able to make a complaint or inquiry … in relation to his … employment’ and the nature of such a complaint or inquiry is not at large, but must be founded on a source of entitlement, it is difficult to understand on what basis the allegations in paras 28, 29 and 35 could meet the description of the exercise of a workplace right as pleaded in paras 104(a), 104(b) and 104(c) of the statement of claim. None of the alleged statements of Mr Pigozzo pleaded in paras 28, 29 and 35 appears to be an expression of discontent in which Mr Pigozzo sought consideration, redress or relief from a matter about which he was aggrieved. Likewise, none of the alleged statements of Mr Pigozzo pleaded in those paragraphs appears to disclose an inquiry or investigation on the part of Mr Pigozzo made for the purpose of obtaining information. Moreover, none of the paragraphs concern a matter that relates to Mr Pigozzo’s employment. The alleged communications, as pleaded, do not appear to have been directed to any source of entitlement of Mr Pigozzo in connection with his employment. However, as these were not matters that were the subject of argument on the application to strike out, I have not relied on them or taken them into account when considering if paras 24 – 36, 104(a) – (c) and 105(a) – (d) disclose a reasonable cause of action or a cause of action with sufficient clarity and particularity.
The adverse action Mr Pigozzo alleges was taken against him involved or resulted in Mr Pigozzo being induced, compelled or otherwise caused to act unlawfully (and in breach of his contract of employment) or to assist MRL to act unlawfully and (or) in defiance of a court order: para 106(i) – (ii). That is, actual unlawfulness, defiance of a court order and breach of his contract of employment are alleged to be elements of the adverse action pleaded in para 106.
Therefore, paras 24 – 36 of the statement of claim, when read with paras 104(a) – (c), 105(a) – (d) and 106(i) – (ii) (and paragraph 116), contain allegations of serious impropriety or misconduct in a professional respect as these relate to Mr Rushton and Mr Bennett. Also, the allegations taken as a whole appear to allege interference in the administration of justice and (or) contempt of court on the part of MRL and the participation of Mr Pigozzo, Mr Ellison, Mr Rushton and Mr Bennett in that conduct.
The particulars of the conclusion pleaded in para 106 to the effect that the conclusion pleaded in para 105 was 'adverse action' are given in paras 106(i) and 106(ii). The particulars are to the effect that Mr Pigozzo was injured in his employment and (or) his position was altered to his prejudice in that the conduct of the respondents pleaded in para 105: (i) ‘induced, compelled or otherwise caused [Mr Pigozzo] to act unlawfully or to assist [MRL] to act unlawfully and/or in defiance of a court order’; and (ii) ‘induced, compelled or otherwise caused [Mr Pigozzo] to act in breach of [his contract of employment]’. The conduct pleaded in para 105 is not identified with any precision, but it may be inferred from the particulars given in paras 106(i) and 106(ii) to be the conduct pleaded in paras 105(a) – (d).
No or insufficient material facts are pleaded to disclose a reasonable cause of action founded on non-compliance or defiance of a court order.
(a)There is no plea that any court made any order for discovery, the terms of that order or upon whom that order was binding.
(b)There is no plea that any person bound by any order for discovery, in fact, failed to comply with that order and, if so, the manner in which there was a failure to comply.
Accordingly, there are no or insufficient material facts pleaded to support the conclusions pleaded in paras 106(i) – (ii) to the effect that Mr Pigozzo was induced, compelled or caused to act unlawfully or to assist MRL to act unlawfully and (or) in defiance of a court order.
There is also a lack of clarity and ambiguity in the allegations pleaded in paras 30 – 32, 34 and 36 of the statement of claim. These are the paragraphs that are the foundation for the conclusion about inducement, compulsion and causation of unlawful action and defiance of a court order.
In para 32 it is pleaded that ‘[Mr Pigozzo] understood [Mr Ellison] to be directing him to omit …the damaging emails from … discovery materials … provided to [Bennett & Co].’ Mr Pigozzo’s subjective understanding is not relevant except to the extent that it accorded with the objective meaning and effect of the words Mr Ellison is alleged to have said to Mr Pigozzo and explains Mr Pigozzo’s alleged actions. The relevant fact is the ‘instruction’, if any, Mr Ellison gave to Mr Pigozzo. In para 33 it is pleaded that ‘As instructed by [Mr Ellison], [Mr Pigozzo] omitted the damaging emails from the materials he sent to [Bennett & Co].’
The phrase ‘As instructed by [Mr Ellison]’ is a conclusion of fact. Taking a non-pedantic approach to the pleading, it is evident that Mr Pigozzo alleges that Mr Ellison gave him an instruction to the effect pleaded in para 33, words were spoken to Mr Pigozzo that he understood to convey that instruction to him, and Mr Pigozzo carried out that instruction. It is also evident that the ‘particulars’ of the alleged instruction or the ‘material facts’ through which it is alleged that the instruction was conveyed to Mr Pigozzo are the facts pleaded in paras 29 – 31 and the first sentence of para 32.
Paragraphs 29 – 32 plead the words it is alleged were said (i.e., evidence) and not the purport, substance or effect of what it is alleged was said. The difficulty that arises from these paragraphs is not so much that they plead evidence, but that the meaning of the words it is alleged were spoken, as pleaded, is equivocal and ambiguous. These words are not expressly to the effect of the instruction pleaded in para 33. Nor are these words, without more, capable of excluding other meanings that are, on the facts pleaded, at least as likely if not more likely than the meaning Mr Pigozzo attributes to them.
Paragraph 30 pleads words Mr Ellison is alleged to have said. The words pleaded, taken with the words Mr Pigozzo is alleged to have said as pleaded in para 29, are not clearly or obviously an instruction of the kind alleged in para 33.
Paragraph 31 pleads the words Mr Rushton is alleged to have said and his actions. The pleaded words do not express Mr Rushton’s understanding of the meaning of what it is alleged Mr Ellison said in para 30. There is an implication that Mr Rushton’s understanding was consistent with the understanding of Mr Pigozzo pleaded in para 32. However, Mr Rushton’s subjective state of mind is also not relevant and it is not alleged that he expressed his understanding of Mr Ellison's instructions during the alleged conversation, such that Mr Ellison's silence or response may infer his concurrence with that meaning. Otherwise, the relevance and significance of the facts pleaded in para 31 to the allegation of ‘instruction’ is not obvious and is not identified in the pleading. In short, the alleged words and actions of Mr Rushton pleaded in para 31 are ambiguous in meaning and significance.
Paragraph 32 pleads words Mr Ellison is alleged to have said and Mr Pigozzo’s alleged understanding of those words. Again, there is no express instruction of the kind pleaded in para 33. Nor is there any allegation that Mr Pigozzo conveyed his understanding of what Mr Ellison had said to him to Mr Ellison and (or) that Mr Ellison confirmed with Mr Pigozzo that was the intended meaning of his alleged statement.
The words Mr Ellison is alleged to have said, as pleaded in paras 30 and 32, in the context of what Mr Pigozzo is alleged to have said in para 29, without more, do not convey an instruction of the kind pleaded in para 33. It is open on the pleaded facts and at least equally, if not more likely on those facts, that the words it is alleged that Mr Ellison said were in response to Mr Pigozzo’s views about the manner in which the Hamptons proceedings should be resolved. Further, Mr Pigozzo was able to carry out the instruction to ‘get rid of the problem’ or ‘[c]lear it up’ or ‘clean it up’ it ways that would not involve engaging in unlawful or improper conduct. In short, on the pleaded facts, it is not open to Mr Pigozzo to adduce evidence at trial that, if accepted, would exclude other equally or more likely meanings of the words Mr Ellison is alleged to have said as pleaded in paras 30 and 32. In short, the pleaded words are equivocal and ambiguous and do not convey the 'instruction' pleaded in para 33.
The allegations in para 34 take the matter no further. In the absence of an express or evidently implicit instruction of the kind pleaded in para 33, the words Mr Ellison and Mr Pigozzo are alleged to have said to each other pleaded in para 34 are not confirmatory of the instruction pleaded in para 33. The alleged words are equally consistent with an instruction requiring Mr Pigozzo to take lawful and proper steps to have ‘the problem sorted’. Again, Mr Pigozzo’s understanding of the words it is alleged Mr Ellison said is not relevant except to the extent that it explains his actions.
Paragraph 33 pleads, in effect, that Mr Pigozzo omitted emails from ‘material he sent to Bennett & Co’. Paragraph 36 pleads that ‘[t]o the best of [Mr Pigozzo’s] knowledge, the damaging emails were not subsequently added to the discovery bundle by either [Mr Ellison] or [Bennett & Co] before the documents were sent to lawyers acting for Hamptons’. These pleas are evasive and ambiguous.
It is not alleged that the relevant emails were not provided to Bennett & Co, at all. It is not alleged that the relevant emails were not included in the discovery in the Hamptons proceedings. For example, it is not alleged that it is to be inferred from the facts pleaded in paras 33 and 36 that the relevant emails were not discovered in the Hamptons proceedings. Also, to the extent his knowledge is relevant, the ‘particulars’ of Mr Pigozzo’s knowledge are not pleaded or identified contrary to r 16.43 of the Rules.
It follows that Mr Pigozzo has not clearly and unambiguously pleaded facts and particulars in the statement of claim to the effect that:
(a)MRL or Mr Ellison gave Mr Pigozzo an instruction or direction not to include certain documents in discovery materials provided to Bennett & Co; or
(b)certain documents were not included in the discovery documents provided to the lawyers for Hamptons.
There is also a lack of clarity and ambiguity in paras 105(b), 105(c) and 105(d) of the statement of claim. Each of these paras includes an allegation to the effect that Mr Pigozzo was directed to breach a term of the First Employment Contract (a term defined elsewhere in the statement of claim) to act honestly, in good faith and in the best interests of MRL and its shareholders set out in the Code of Conduct. However, nowhere are the following matters pleaded:
(a)there was an express or implied term of the First Employment Contract to the effect pleaded in paras 105(b) – (d);
(b)the material terms, if any, of the Code of Conduct;
(c)the manner in which Mr Pigozzo was directed to breach a term of the First Employment Contract or the Code of Conduct; or
(d)the manner in which Mr Pigozzo breached a term of the First Employment Contract or the Code of Conduct pleaded.
The paragraphs of the statement of claim containing allegations concerning the Hamptons proceedings are evasive or ambiguous and, otherwise, are likely to prejudice, embarrass or delay the proceedings. The allegations of defiance of court orders, unlawfulness and breach of the employment contract are made a too high a level of generality for the pleading to meet its basic function of informing MRL and Mr Ellison of the case to be met. Paragraphs 24 – 36, 104(a)-(c) and 105(a)-(d) should be struck-out on these grounds.
The extent to which para 35 should nonetheless not be struck out because it may support the allegation in para 116 (accessorial liability) is considered later in these reasons. Likewise, the extent to which paras 28, 29, 35 and 36 should not be struck-out because they may support the allegations pleaded in paras 131- 141 (whistleblower claims) are considered later in these reasons. Otherwise, subject to an application to amend and re-plead the Hampton proceedings allegations referred to below, paras 24-27, 30-34 and 104(a)-(c) and 105(a)-(d) will be struck out.
COVID equipment
Mr Pigozzo also alleges that MRL and Mr Ellison contravened s 340(1) of the FW Act by taking adverse action against Mr Pigozzo because he exercised a workplace right in connection with alleged instructions given to Mr Pigozzo concerning the importation of certain COVID-19 testing equipment and re-agents into Australia during 2020. It is alleged that importation of that equipment was not lawful. As a consequence of that alleged instruction and associated conduct, it is alleged that MRL and Mr Ellison contravened s 340 of the FW Act and s 1317AC of the Corporations Act.
As with the Hamptons proceedings allegations, it is useful to start the consideration of these paragraphs with the pleaded conclusions of fact, law and mixed fact and law. These are pleaded in paragraphs 105 – 109 of the statement of claim.
In paragraph 105(l) of the statement of claim, Mr Pigozzo alleges that because he exercised his workplace right on one or more of the occasions pleaded at para 104, or for reasons that included that Mr Pigozzo having exercised his workplace right on one or more of those occasions, Mr Ellison directed Mr Pigozzo to act in breach of clause 5 of the Second Employment Contract (a term defined elsewhere in the statement of claim) requiring Mr Pigozzo to comply with MRL’s Code of Conduct in arranging for the unlawful importation of COVID-19 testing equipment. Paragraph 106(v) pleads that the conduct was adverse action within the meaning of s 342 of the FW Act because it injured Mr Pigozzo in his employment and (or) altered his position to his prejudice in that it induced, compelled or otherwise caused him to act in breach of the Second Employment Contract.
Paragraph 107 pleads that Mr Pigozzo again exercised his right to make a complaint or inquiry in relation to his employment in or around March 2021 when Mr Pigozzo informed Mr Ellison that the importation of COVID-19 testing equipment into Australia was unlawful as pleaded at para 56. Paragraph 108 pleads that because Mr Pigozzo exercised his workplace right as pleaded in para 107, or for reasons that included Mr Pigozzo having exercised that right on that occasion, MRL, Mr Ellison and Mr Gavranich took action including by omitting to act in relation to Mr Ellison directing Mr Pigozzo to proceed with the unlawful importation of the COVID-19 equipment, including by devising an elaborate plan to deceive Australian customs agents.
Paragraph 109 pleads that the conduct pleaded at para 108 was adverse action within the meaning of s 342 of the FW Act because it injured Mr Pigozzo in his employment and (or) altered his position to his prejudice in that:
(a)it induced, compelled or otherwise caused Mr Pigozzo to act unlawfully or to assist MRL and Mr Ellison to act unlawfully and exposed Mr Pigozzo to the prospect of criminal prosecution; and
(b)it induced, compelled or otherwise caused Mr Pigozzo to act in breach of the Second Employment Contract, including the Code of Conduct.
The conclusions by which contraventions of s 340(1) of the FW Act are alleged in paragraphs 105(l), 106(v) and 105 – 109 are founded on the allegations pleaded in paras 55 – 60 of the statement of claim.
Paragraphs 55 – 60
Paragraph 55 alleges that, in or around March 2020, Mr Ellison and Mr Gavranich instructed Mr Pigozzo to arrange the unlawful importation of certain COVID-19 testing equipment. Paragraph 56 pleads that at the material time importation of the COVID-19 testing equipment in Australia was prohibited and Mr Pigozzo informed Mr Ellison of that prohibition. Paragraph 57 pleads, in effect, that Mr Ellison instructed Mr Pigozzo to arrange for the importation of the COVID-19 testing equipment. Paragraphs 58 and 59 plead, in effect, that Mr Pigozzo arranged for the importation of the COVID-19 testing equipment. Paragraph 60 pleads, in effect, that Mr Pigozzo kept Mr Ellison informed and that Mr Ellison continued to urge Mr Pigozzo to import the COVID-19 testing equipment.
While para 55 identifies the COVID-19 testing equipment alleged to have been imported and para 56 pleads that importation was prohibited ‘at the material time’, the following matters are not pleaded.
(a)The statute law pursuant to which it is alleged that importation was prohibited.
(b)The ‘material time’ during which it is alleged that importation was prohibited.
(c)That COVID-19 testing equipment was imported at the time it is alleged that importation was prohibited.
Accordingly, no or insufficient material facts are pleaded to support the conclusions of unlawful conduct pleaded in paras 106(v) and 109. Further, the provisions of the statute relied upon to support the allegation that importation was prohibited have not been pleaded as is required under r 16.02(1)(e) of the Rules.

The potential to do great harm to a party before a word of evidence has been offered and submitted to the scrutiny of cross-examination through dissemination of the allegations of impropriety in the community and public media is pertinent. Here, there is evidence that Mr Pigozzo published a media statement and provided a copy of the statement of claim to journalists at the AFR and The West and, thereby, armed the public media with the ability to disseminate general, unclear and ambiguous allegations of serious impropriety on the part of MRL, Mr Ellison, Bennett & Co and other non-parties mentioned in the pleading. The public attention Mr Pigozzo deliberately courted has rendered the risk of reputational harm from untested allegations real; not theoretical. The contemporary propensity of some parties to utilise social and public media as part of ‘litigation strategy’ is all the more reason to require them to plead allegations of serious misconduct clearly, completely and with particularity. Otherwise, the public nature of pleadings in this Court may undermine the proper administration of justice and become instruments of injustice, unfairness and oppression.
In these circumstances and taking into account the primary objective of the administration of justice is to safeguard the public interest in the open justice, I am satisfied that it is necessary to prevent prejudice to the proper administration of justice to make a non-publication order in respect of paras 26 – 29, 35 and 102 of the statement of claim and references to prima facie confidential communication in other parts of the statement of claim. Those include paras 105(a), 105(b), 116 and 132(i). I am not satisfied that it is necessary with respect to the other parts of the statement of claim that will be struck out. I am also not satisfied that a suppression order is necessary as there is no evidence before the Court of any actual or threated disclosure of information that is confidential and privileged. That is, there is no evidence from which a finding could be made that the communications of the nature and in the circumstances of those pleaded in the statement of claim took place. I also take into account that there has already been a degree of disclosure and publication of the contents of these paragraphs of the statement of claim. A non-publication order will prevent or contain wider or further publication and dissemination of the allegations.
An order will be made directing Mr Pigozzo to file a redacted version of the statement of claim in which paras 26 – 29, 35, 102, 105(a), 105(b), 116 and 133(i) are removed from the pleading. A person who is not a party will be able to inspect the redacted statement of claim, after it has been filed, under r 2.32(2). The statement of claim as it was filed (unredacted) will continue, until further order, to be treated as a document a non-party is not entitled to inspect under r 2.32(2), but a non-party may apply to inspect it under r 2.32(4). That is, there will be a continuation and no dissolution or variation of paras 1 and 2 of the orders of 1 June 2022 as varied by paras 1 and 2 of the orders of 13 June 2022. Otherwise, an interlocutory non-publication order will be made (until further order and subject to dissolution or variation upon application and notice) under s 37AI of the FCA Act, on the ground set out in s 37AG(1)(a) (to prevent prejudice to the proper administration of justice), to the effect that the contents of paras 26 – 29, 35 and 102 of the statement of claim is not to be published other than to the Court, the parties and their legal representatives.
OTHER OBJECTIONS
Directors duties
In paras 143, 144, 153(l), 153(m), 155(c) and 155(d) of the statement of claim it is alleged that Mr Ellison and Mr Gavranich contravened the directors’ duties provisions of ss 180 – 182 of the Corporations Act. Mr Pigozzo accepted that these allegations failed to disclose any reasonable cause of action. As a consequence, these paragraphs will be struck-out. Mr Pigozzo will not be permitted to amend the statement of claim to re-plead those allegations.
Balance of objections
Numerous other objections were taken to the statement of claim. A summary of the paragraphs to which objection is taken, the ground of the objection, the response to the ground of objection and my ruling on the objection is set out in the Schedule to these reasons. In the consideration and determination of those objections I have applied the principles referred to earlier in these reasons. For the reasons set out in summary form in the Schedule, paras 105, 106, 111-113, 116, 127, 146-152, 153(b), 153(c), 155(a), will also be struck out, but Mr Pigozzo may apply to amend and re-plead the allegations in those paragraphs.
CONCLUSION
Paragraphs 24-36, 55-60, 102, 103 (the word ‘falsely’), 104(a)-(c), 105-109, 111-113, 116, 127, 130(e), 131(a)-(d), 132(k), 133(i)-(ii), 135(a)-(b), 137(iv)-(v), 143, 144, 146-152, 153(b)-(c) 153(e), 153(l)-(m), 155(a), 155(c)-(d) of the statement of claim will be struck-out.
I will hear the parties on the form of any order by which Mr Pigozzo may apply to amend and re-plead those parts of the statement of claim that have been struck out.
Orders will also be made to maintain the confidentiality and non-publication of paras 26-29, 35 and 102 of the statement of claim.

I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.

Associate:
Dated: 29 September 2022
SCHEDULE OF PARTIES

WAD 103 of 2022

Respondents

Fourth Respondent:

ROBERT "BOB" GAVRANICH

SCHEDULE TO REASONS

Paragraphs of SOC objected to

Item no. in strike-out application

Ground of objection

Response to ground of objection

Ruling

HAMPTON PROCEEDINGS

24 – 36, 104(a)–(c), 105(a)–(d), 116, 131(a)–(c), 133(i), 135(a), 137(iv) and 138(i)

2.3

The paragraphs contain allegations of serious professional impropriety or misconduct which have not been pleaded with completeness, clarity and particularly required of such allegations. The paragraphs ought be struck out as scandalous, vexatious and an abuse of process: r 16.21(1)(a) – (f)

MRL and Mr Ellison have adopted a pedantic approach to the statement of claim and can easily discern the case against them.

Paragraphs 24 – 36, 104(a)-(c) and 105(a)-(d) will be struck out. See paras [76], [115]-[116] of the Reasons.

COVID-19 EQUIPMENT

55 – 60, 104 – 109

2.5

The allegations concerning the primary facts are evasive or ambiguous or likely to cause prejudice, embarrassment or delay proceedings: r 16.21(1)(a) – (c), (e), (f)

MRL and Mr Ellison’s objection encourage the Court to construe the statement of claim narrowly and adopt a pedantic approach.

Paragraphs 55 – 60, 104(a)-(c), 105(a)-(e), 106(i), (ii), (v) and 107 – 109 will be struck out. See paras [86], [87], [97] of the Reasons.

WHISTLEBLOWER CLAIMS

131(a) – (d), 131(i) – (ii), 135(a) – (b), 135(d)(xi), 135(e)(i), 137(iv) – (v), 138(i)

2.2 – 2.5

The allegations pleaded do not support or amount to communications in furtherance of a criminal or fraudulent purpose and are therefore, amongst other things, scandalous, evasive, vexatious and constitute an abuse of process: r 16.21(a) – (f).

It is clear on the face of the pleadings the nature of the disclosures and to whom they were made. Any defects can be rectified by minor amendments.

Paragraphs 131(a)–(d), 132(k), 133(i)-133(ii), 135(a)-(b), 137(iv) and 137(v) will be struck out. See para [97] of the Reasons.

ACCESSORIAL LIABILITY

35, 116

2.2, 2.3, 2.17

Mr Pigozzo has failed to identify material facts and the causal nexus required to establish accessorial liability under s 340(1) of the FW Act.

Any ambiguity can be resolved with an amendment.

Paragraphs 35, 116 and 153(e) will be struck. See paras [114]-[116] of the Reasons.

COCERION (‘MEDIATION THREAT’)

102, 103 and 130(e)

2.4, 2.11

No material facts have been provided that establish a nexus between the alleged ‘Mediation Threat’ and the assertion that the behaviour intended to coerce Mr Pigozzo not to exercise his workplace right or initiate proceedings under s 343 of the FW Act: r 16.21(1)(a),(b),(d),(f).

The objections are overly pedantic regarding the characterisation of the behaviour giving rise to the Mediation Threat.

The reference to the word ‘falsely’ in para 103 would only amount to a detriment if allegations were found to be false.

Paragraphs 102, 103 to the extent that it includes the word ‘falsely’ and 130(e) are struck out with leave to re-plead. See paras [128]-[129] of the Reasons.

CONFIDENTIALITY, PRIVILEGE AND NON-PUBLICATION

26 – 29, 35, 102

2.2, 2.3, 2.4

The paragraphs plead matters which, if true, is prima facie the subject of legal professional privilege. No exception to, or waiver of privilege has been established. The paragraphs should be struck out, and (or) suppressed, on the basis that the allegations scandalous, frivolous or vexatious or as an abuse of process: s 16.21(a) – (f).

By engaging with the media, MRL and Mr Ellison impliedly waived legal professional privilege and without prejudice privilege.

The assertion of legal privilege is being utilised by MRL and Mr Ellison as a ‘cloak for inequity’.

Paragraphs 28 – 35 and 102 are struck out with leave to re-plead. See paras [78], [97], [128], [132] of the Reasons.

DIRECTORS DUTIES

143, 144, 153(l), 153(m), 155(c) and 155(d)

2.1

No reasonable cause of action is pleaded that establishes standing on the part of Mr Pigozzo with respect to alleged contraventions of ss 180 – 182 of the Corporations Act. To allege that a breach occurred is scandalous, vexatious and otherwise an abuse of process: r 16.21(a), (b), (e), (f).

Mr Pigozzo accepted that the allegations failed to disclose any reasonable cause of action.

Paragraphs 143, 144, 153(l), 153(m), 155(c) and 155(d) will be struck-out. Mr Pigozzo will not permitted to re-plead these allegations. See, Reasons at [210].

OTHER OBJECTIONS

The words which precede ‘from 2017’ in para 54

2.6

The contents of para 54 are vague and lacking in specificity. The attempt to link the applicant’s first employment contract is intended to suggest a pattern of conduct and to cause embarrassment and should be separately pleaded: r 16.21(1)(c), (d).

Paragraph 54 is intended to provide a nexus with paras 17 - 23 which sets out the context of Mr Pigozzo’s employment.

While the words may not be necessary, they do not render the plea unintelligible, ambiguous, vague or too general or otherwise prevent it from fulfilling its basic function. The words will not be struck-out.

The words ‘for reasons unknown to the Applicant in para 61

The words ‘to the best of the Applicant’s memory’ in para 63

2.7

The words ‘for reasons unknown to the Applicant’ in para 61 and ‘to the best of the Applicant’s memory’ in para 63 are irrelevant. Mr Pigozzo’s knowledge of material facts is irrelevant where knowledge is not the cause of action: r 16.21(1)(c), (d).

Paragraphs 61 and 63 should be read as a whole.

While the words may not be necessary, they do not render the plea unintelligible, ambiguous, vague or too general or otherwise prevent it from fulfilling its basic function. The words will not be struck-out.

66

2.8

The particulars are improperly pleaded as they contain references to evidence that may result in an improper evidentiary platform to be relied upon at trial. The particulars are likely to cause prejudice, embarrassment and delay and fail to disclose a reasonable causation of action: r 16.21(1)(d), (f).

The particulars provide further of the material facts.

While the particulars may include references to evidence and may not be adequate particulars of the material facts pleaded, the particulars do not render the paragraph otherwise unintelligible, ambiguous, vague or too general or deprive the pleading of its basic function. Moreover, if and to the extent the respondents consider the particulars to be inadequate, any defect may be cured by request for further and better particulars. The particulars will not be struck-out.

72

2.9

The contents of para 72 is not relevant to any cause of action and would be inadmissible at trial: r 16.21(1)(a), (d)-(f).

Paragraph 72 should be read in the context of the statement of claim as a whole. It forms an integral part of the Mr Pigozzo’s adverse action claim and would be admissible at trial as evidence of damage.

It is not evident that the fact pleaded is not relevant to any cause of action pleaded in the statement of claim. Further, and in any event, to the extent it may not be relevant the plea does not result in the paragraph or statement of claim being unintelligible, ambiguous, vague or too general or otherwise deprive it of performing its basic function as a pleading. The paragraph will not be struck-out.

74

2.10

The particulars are improperly pleaded as they contain references to evidence that may result in an improper evidentiary platform to be relied upon at trial. The particulars are likely to cause prejudice, embarrassment and delay and fail to disclose a reasonable causation of action: r 16.21(1)(d), (f).

The particulars provide further of the material facts.

While the particulars may include references to evidence and may not be adequate particulars of the material facts pleaded, the particulars do not render the paragraph otherwise unintelligible, ambiguous, vague or too general or deprive the pleading of its basic function. Moreover, if and to the extent the respondents consider the particulars to be inadequate, any defect may be cured by request for further and better particulars. The particulars will not be struck-out.

104 – 118, 153(b), (c) and 155(a) in so far as they plead ‘primary liability’ against Mr Ellison and Mr Gavranich

2.12

There is no legal basis for a claim under ss 340 and 342 of the FW Act. The allegations raised are scandalous, frivolous or vexatious, cause prejudice, embarrassment or delay and fail to disclose a reasonable cause of action: r 16.21(1)(a), (b), (d) and (e).

The paragraphs can be amended to clarify the liability of respondents.

Insofar as the objection relates to paras 104-118, para 116 will be struck out on the grounds set out in paras [114] – [116] of the Reasons. Insofar as the objection relates to paras 153(b) and 153(c) and 'primary liability' against Mr Ellison and Mr Gavranich, there is no legal basis for the claim under ss 340 and 342 of the FW Act. These paragraphs will be struck out. Insofar as para 155(a) is concerned, the reference to 'the respondents'' is embarrassing insofar as it suggests that there is primary liability of Mr Ellison and Mr Gavranich for an alleged contravention of s 340 of the FW Act. Paragraph 155(a) will be struck out.

105

2.13

A ‘rolled-up’ plea that raises issues not pleaded elsewhere. The result is that the paragraph lacks specificity and results in absurdity: r 16.21(1)(a) – (d).

The allegations and appropriateness of the pleading can only be resolved at trial.

Parts of para 105 will be struck out for the reasons given at para [76] of the Reasons. Further, given the necessity to demonstrate a causal connection between the alleged adverse action and the alleged workplace right and that the onus of demonstrating that the adverse action was not 'because of' the alleged exercise of a 'work place right' it is necessary to plead the allegations of the asserted work place right, the asserted adverse action and the connection between those events with a degree of specificity. It is not appropriate that such allegations be pleaded in a 'rolled up' manner. The pleading does not, to that extent, sufficiently fulfil the basic function of a pleading and adequately inform the respondents of the case to met at trial. Paragraph 105 will be struck out on that ground.

106

2.14

A ‘rolled-up plea’ that raises multiple allegations which should be separately pleaded: r 16.21(1)(d)

Paragraph 106 is pleaded in a manner that clearly conveys Mr Pigozzo’s case.

Parts of para 106 will be struck out for the reasons given at [87] of the Reasons. Further, given the necessity to demonstrate a causal connection between the alleged adverse action and the alleged workplace right and that the onus of demonstrating that the adverse action was not 'because of' the alleged exercise of a 'work place right' it is necessary to plead the allegations of the asserted work place right, the asserted adverse action and the connection between those events with a degree of specificity. It is not appropriate that such allegations be pleaded in a 'rolled up' manner. The pleading does not, to that extent, sufficiently fulfil the basic function of a pleading and adequately inform the respondents of the case to met at trial. Paragraph 106 will also be struck out on that ground.

107 – 109

2.15

The conduct complained about in para 108 in response to Mr Pigozzo’s complaint in para 107 does not amount to action taken in response to the exercise of a workplace right within the meaning of s 340 of the FW Act and is likely to cause prejudice, delay or embarrassment and fails to disclose a reasonable cause of action: r 16.21(1)(d), (e).

The Court should not be invited to pass judgment on the substance and merits of the statement of claim. Such issues should be reserved for trial.

The manner in which it is contended that the conduct pleaded in para 108 does not amount to action taken in response to the exercise of a work place right within the meaning of s 340 of the FW Act was not fully argued. Further, and in any event, for the purposes of determining an application to strike out for a failure to disclose a reasonable cause of action, it is not sufficiently obvious that the facts, if proved, would not support a contravention of s 340 of the FW Act. Paragraphs 107-109 will not be struck out on that ground.

111 – 113

2.16

A ‘rolled-up’ plea that raises issues not pleaded elsewhere. The result is that the paragraph lacks specificity and results in absurdity: r 16.21(1)(a) – (d), (f).

The allegations and appropriateness of the pleading can only be resolved at trial.

There are elements of paras 111-113 that may be described as a 'rolled up' pleas. Given the necessity to demonstrate a causal connection between the alleged adverse action and the alleged workplace right and that the onus of demonstrating that the adverse action was not 'because of' the alleged exercise of a 'work place right' it is necessary to plead the allegations of the asserted work place right, the asserted adverse action and the connection between those events with a degree of specificity. It is not appropriate that such allegations be pleaded in a 'rolled up' manner. The pleading does not, to that extent, sufficiently fulfil the basic function of a pleading and adequately inform the respondents of the case to be met at trial. Paragraphs 111-113 will be struck out on that ground.

119 – 123

2.18

The facts pleaded do not reveal a cause of action in the nature of a contravention of s 351 of the FW Act. The paragraphs are likely to cause prejudice, embarrassment or delay and fail to disclose a reasonable cause of action: r 16.21(d), (e).

The facts pleaded fall within the ambit of s 351 of the FW Act. Any ambiguity in relation to the nature of the claim can be resolved by an amendment.

The manner in which it is contended that the conduct pleaded in paras 119-123 does not amount to action taken in response to the exercise of a work place right within the meaning of s 351 of the FW Act was not fully argued. Further, and in any event, for the purposes of determining an application to strike out for a failure to disclose a reasonable cause of action, it is not sufficiently obvious that the facts, if proved, would not support a contravention of s 351 of the FW Act. Paras 119-123 will not be struck out on that ground.

124 (in so far as it concerns MRL and Mr Ellison)

2.19

No reasonable cause of action for a contravention of s 345 of the FW Act is pleaded with respect of MRL and Mr Ellison: r 16.21(1)(a),(b), (d), (e).

The statement of claim can be amended to include reference to MRL and Mr Ellison.

Subject to the ruling below concerning para 127, para 124 will not be struck out as it fulfils the function of identifying a 'misleading representation' for the purposes of s 345 of the FW Act. To that extent, it discloses a reasonable cause of action and is not otherwise liable to be struck out.

127

2.20

No material facts or particulars have been provided. Given the serious nature of the allegations raised these are matters which must be pleaded. The paragraph ought to be struck out on the basis that it is scandalous, frivolous or vexatious, and fails to disclose a reasonable cause of action: r 16.21(1)(a), (b), (d).

Material facts are pleaded in support of the pleading of knowledge of falsity and recklessness in paras 51, 52 and 126 of the statement of claim.

Paragraph 153(g) seeks a declaration to the effect that MRL and Mr Gavranich knowingly or recklessly made false or misleading statements about one or more work place rights of Mr Pizozzo contrary to s 345 of the FW Act. There is no evident relief sought against Mr Ellison in respect of that alleged contravention of the FW Act. Paragraph 127 purports to plead a contravention of s 345 of the FW Act against MRL. An element of that cause of action is not only that a 'misleading representation' is made but that it is made 'knowingly or recklessly'. No, or insufficient, material facts are pleaded as to the element of knowledge or recklessness of the first respondent. Paragraph 127 will be struck out on that ground.

130(f)

2.21

The material facts pleaded do not establish a cause of action: r 16.21(1)(a), (b), (d) – (f).

When read in context, the material facts reveal a cause of action.

Although there is some degree of ambiguity about the factual foundation for the allegation, for the purposes of a strike out application, I am not satisfied that there is a failure to disclose a reasonable cause of action of the kind pleaded. Paragraph 130(f) will not be struck out.

132

2.22

A ‘rolled-up’ plea that fails to identify the nature of the whistleblower disclosure vis-à-vis the individuals identified: r 16.21(1)(d).

It is clear from the statement of claim as a whole the contents of each pleaded whistleblower disclosure and to whom it was made. Any ambiguities can be resolved by an amendment.

Although the allegations are made in compendious manner, the allegations are sufficiently clear to inform the respondents of the case to be met at trial. The paragraph will not be struck out.

135 – 139

2.23

A ‘rolled-up’ plea that collates and fails to identify with clarity the conduct of the MRL, Mr Ellison and Mr Gavranich. The alleged conduct needs to be separately pleaded: r 16.21(1)(c) – (e)

The criticism encourages the Court to take a pedantic approach.

Although the allegations are made in compendious manner, the allegations are sufficiently clear to inform the respondents of the case to be met at trial. The paragraphs will not be struck out.

145

2.24

A ‘rolled-up’ plea of representation and breach. The representations are not pleaded with clarity: r 16.21(1)(c), (d)

The criticism is pedantic as para 45 clearly sets out the representation and alleged breach.

Although the allegations are made in compendious manner, the allegations are sufficiently clear to inform the respondents of the case to be met at trial. The paragraph will not be struck out.

146 to 152

2.25

The material facts giving rise to the alleged breach are not pleaded: r 16.21(1)(c) – (e).

The material facts have been pleaded, albeit not in great detail. Any defects can be cured by an amendment.

These paragraphs do not fulfil the basic functions of a pleading. These paragraphs do not inform the respondents of the case to be met at trial. None of the effect of the first employment contract or second employment contract (proper construction of the contracts) is pleaded, the manner in which the alleged terms of the contracts was breached is pleaded. Paragraphs 146-152 will be struck out with leave to re-plead.

File number:	WAD 103 of 2022
Judgment of:	FEUTRILL J
Date of judgment:	29 September 2022
Catchwords:	PRACTICE AND PROCEDURE - application to restrict inspection of documents - application to strike out - application for injunction and non-publication of documents - pleadings dispute - strike-out principles - confidential information - legal professional privilege - principles of inferred waiver of privilege - privilege not waived - paragraphs struck out of statement of claim - statement of claim not to be published
Legislation:	Corporations Act 2001 (Cth) ss 180, 181, 182, 1317AA, 1317AC, 1317AD, 1317AAC, 1317AAC(1) Evidence Act 1995 (Cth) ss 117, 118, 119, 120, 121, 122, 122(2), 123, 124, 125, 125(1), 126, 131(1), 131(2) Fair Work Act 2009 (Cth) ss 340, 340(1), 341, 341(1), 342, 343, 360, 361, 539, 546, 550 Federal Court of Australia Act 1976 (Cth) ss 17(1), 23, 31A, 31A(2), 37AE, 37AF(1), 37AF(2), 37AG, 37AH, 37AI, 37AJ, 37M Federal Court Rules 2011 (Cth) rr 1.32, 1.34, 1.35, 1.36, 2.32(2), 2.32(3), 2.32(4), 2.28, 2.29, 6.01, 16.02, 16.02(1), 16.02(2), 16.21, 16.21(1), 16.42, 16.43, 16.43(1), 26.01
Cases cited:	AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Aquatic Air Pty Limited v Siewert (No 3) [2018] NSWSC 624 Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited [2020] FCA 1496 Ashbury v Reid [1961] WAR 49 Attorney-General v Wentworth (1988) 14 NSWLR 481 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; (2015) 235 FCR 181 Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267; (2005) 53 ACSR 305 AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 41-434 Batistatos v Roads Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 25 Berry v CCL Secure Pty Ltd [2017] FCA 1546 Blake v Albion Life Assurance Society (1876) 45 LJCP 663 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500 Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115 Cashin v Cradock (1876) 3 Ch D 376 Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 Christie v Christie (1873) LR 8 Ch App 499 Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46 Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87 Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Davy v Garratt [1877] 7 Ch D 473 Day v Brownrigg (1878) 10 Ch D 294 Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512 DC Payments Pty Ltd v Next Payments Pty Ltd [2016] VSC 315; (2016) 51 VR 151 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 Elston v Commonwealth of Australia [2013] FCA 108 Emwest Productions Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 61; (2002) 117 FCR 588 Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 245 FCR 39 Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67; (1999) 201 CLR 49 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 Flageul v WeDrive Pty Ltd [2020] FCA 1666 Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 Gallo v Attorney-General(Vic) (unreported, Supreme Court of Victoria, Full Court, Starke, Crockett and Beach JJ, 4 September 1984) General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 Gould v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 Grant v Downs (1976) 135 CLR 674 H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 Hodson v Pare [1899] 1 QB 455 Hongkong Xinhe International Investment Co Ltd v Bullseye Mining Ltd (No 3) [2021] WASC 260 J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 JC Techforce Pty Ltd & Steinhardt v Pearce, Neville & Oke Industrial Pty Ltd (1996) 138 ALR 522 Kang v Kwan [2001] NSWSC 698 Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 KTC v David [2022] FCAFC 60 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228 Lord Ashburton v Pape [1913] 2 Ch 469 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Manolakis v Carter [2008] FCA 505 Manolakis v Carter [2008] FCAFC 183 Mathews v State of Queensland [2015] FCA 1488 McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409 Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160 Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228 Minister for Immigration and Border Protection v Egan [2018] FCA 1320 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 Mutual Life & Citizens’ Assurance Co Ltd v Evatt [1970] UKPCHCA 2; (1970) 122 CLR 628 Niven v Grant (1903) 29 VLR 102 Oceanbulk Shipping SA v TMT Asia Ltd [2011] 1 AC 662 Oldfield v Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 Pereira v Director Of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1 Peruvian Guano Co Ltd v Bockwoldt (1883) 23 Ch D 225 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 PihigaPty Ltd v Roche [2011] FCA 240 PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86 Rafferty v Madgwicks [2012] FCAFC 37; (2012) 203 FCR 1 Re Turf Enterprises Pty Ltd [1975] Qd R 266 Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; (2011) 193 FCR 507 Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd [1994] FCA 488; (1994) 123 ALR 681 Rodgers v Rodgers (1964) 114 CLR 608 Rushv Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473 Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202; (2017) 123 ACSR 223 Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18]; (2004) 51 ACSR 278 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291 Sullivan v Sclanders [2000] SASC 273; (2000) 77 SASR 419 Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 T v Tannous (1987) 10 NSWLR 303 Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21; (1997) 144 ALR 677 Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436 Van Der Lee v New South Wales [2002] NSWCA 268 Von Reisner v Commonwealth of Australia [2009] FCAFC 97; (2009) 177 FCR 531 Walker v Wilsher (1889) 23 QBD 335 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285 White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 White Industries (Qld) Pty Ltd v Flower and Hart (a Firm) [1998] FCA 806; (1998) 156 ALR 169 Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510 Young v Holloway [1895] P 87 Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537 Young Investments Group Pty Ltd v Stripe Capital Pty Ltd [2010] FCA 996 Young Investments Group Pty Ltd v Stripe Capital Pty Ltd [2011] FCA 1147 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Division:	Fair Work Division
Registry:	Western Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	215
Date of hearing:	13 June 2022
Counsel for the Applicant:	Ms S Omeri
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the First and Second Respondents:	Mr S Penglis SC
Solicitor for the First and Second Respondents:	Bennett + Co
Counsel for Interested Party (Hampton Transport Services Pty Ltd):	Ms EK Hensler
Counsel for Interested Party (The West Australian):	Mr AV McCarthy
Counsel for Interested Party (Fairfax Media Publications Pty Ltd):	Mr S White

ORDER MADE BY:	FEUTRILL J
DATE OF ORDER:	29 SEPTEMBER 2022

WAD 103 of 2022
Respondents
Fourth Respondent:	ROBERT "BOB" GAVRANICH

Paragraphs of SOC objected to	Item no. in strike-out application	Ground of objection	Response to ground of objection	Ruling
HAMPTON PROCEEDINGS
24 – 36, 104(a)–(c), 105(a)–(d), 116, 131(a)–(c), 133(i), 135(a), 137(iv) and 138(i)	2.3	The paragraphs contain allegations of serious professional impropriety or misconduct which have not been pleaded with completeness, clarity and particularly required of such allegations. The paragraphs ought be struck out as scandalous, vexatious and an abuse of process: r 16.21(1)(a) – (f)	MRL and Mr Ellison have adopted a pedantic approach to the statement of claim and can easily discern the case against them.	Paragraphs 24 – 36, 104(a)-(c) and 105(a)-(d) will be struck out. See paras [76], [115]-[116] of the Reasons.
COVID-19 EQUIPMENT
55 – 60, 104 – 109	2.5	The allegations concerning the primary facts are evasive or ambiguous or likely to cause prejudice, embarrassment or delay proceedings: r 16.21(1)(a) – (c), (e), (f)	MRL and Mr Ellison’s objection encourage the Court to construe the statement of claim narrowly and adopt a pedantic approach.	Paragraphs 55 – 60, 104(a)-(c), 105(a)-(e), 106(i), (ii), (v) and 107 – 109 will be struck out. See paras [86], [87], [97] of the Reasons.
WHISTLEBLOWER CLAIMS
131(a) – (d), 131(i) – (ii), 135(a) – (b), 135(d)(xi), 135(e)(i), 137(iv) – (v), 138(i)	2.2 – 2.5	The allegations pleaded do not support or amount to communications in furtherance of a criminal or fraudulent purpose and are therefore, amongst other things, scandalous, evasive, vexatious and constitute an abuse of process: r 16.21(a) – (f).	It is clear on the face of the pleadings the nature of the disclosures and to whom they were made. Any defects can be rectified by minor amendments.	Paragraphs 131(a)–(d), 132(k), 133(i)-133(ii), 135(a)-(b), 137(iv) and 137(v) will be struck out. See para [97] of the Reasons.
ACCESSORIAL LIABILITY
35, 116	2.2, 2.3, 2.17	Mr Pigozzo has failed to identify material facts and the causal nexus required to establish accessorial liability under s 340(1) of the FW Act.	Any ambiguity can be resolved with an amendment.	Paragraphs 35, 116 and 153(e) will be struck. See paras [114]-[116] of the Reasons.
COCERION (‘MEDIATION THREAT’)
102, 103 and 130(e)	2.4, 2.11	No material facts have been provided that establish a nexus between the alleged ‘Mediation Threat’ and the assertion that the behaviour intended to coerce Mr Pigozzo not to exercise his workplace right or initiate proceedings under s 343 of the FW Act: r 16.21(1)(a),(b),(d),(f).	The objections are overly pedantic regarding the characterisation of the behaviour giving rise to the Mediation Threat. The reference to the word ‘falsely’ in para 103 would only amount to a detriment if allegations were found to be false.	Paragraphs 102, 103 to the extent that it includes the word ‘falsely’ and 130(e) are struck out with leave to re-plead. See paras [128]-[129] of the Reasons.
CONFIDENTIALITY, PRIVILEGE AND NON-PUBLICATION
26 – 29, 35, 102	2.2, 2.3, 2.4	The paragraphs plead matters which, if true, is prima facie the subject of legal professional privilege. No exception to, or waiver of privilege has been established. The paragraphs should be struck out, and (or) suppressed, on the basis that the allegations scandalous, frivolous or vexatious or as an abuse of process: s 16.21(a) – (f).	By engaging with the media, MRL and Mr Ellison impliedly waived legal professional privilege and without prejudice privilege. The assertion of legal privilege is being utilised by MRL and Mr Ellison as a ‘cloak for inequity’.	Paragraphs 28 – 35 and 102 are struck out with leave to re-plead. See paras [78], [97], [128], [132] of the Reasons.
DIRECTORS DUTIES
143, 144, 153(l), 153(m), 155(c) and 155(d)	2.1	No reasonable cause of action is pleaded that establishes standing on the part of Mr Pigozzo with respect to alleged contraventions of ss 180 – 182 of the Corporations Act. To allege that a breach occurred is scandalous, vexatious and otherwise an abuse of process: r 16.21(a), (b), (e), (f).	Mr Pigozzo accepted that the allegations failed to disclose any reasonable cause of action.	Paragraphs 143, 144, 153(l), 153(m), 155(c) and 155(d) will be struck-out. Mr Pigozzo will not permitted to re-plead these allegations. See, Reasons at [210].
OTHER OBJECTIONS
The words which precede ‘from 2017’ in para 54	2.6	The contents of para 54 are vague and lacking in specificity. The attempt to link the applicant’s first employment contract is intended to suggest a pattern of conduct and to cause embarrassment and should be separately pleaded: r 16.21(1)(c), (d).	Paragraph 54 is intended to provide a nexus with paras 17 - 23 which sets out the context of Mr Pigozzo’s employment.	While the words may not be necessary, they do not render the plea unintelligible, ambiguous, vague or too general or otherwise prevent it from fulfilling its basic function. The words will not be struck-out.
The words ‘for reasons unknown to the Applicant in para 61 The words ‘to the best of the Applicant’s memory’ in para 63	2.7	The words ‘for reasons unknown to the Applicant’ in para 61 and ‘to the best of the Applicant’s memory’ in para 63 are irrelevant. Mr Pigozzo’s knowledge of material facts is irrelevant where knowledge is not the cause of action: r 16.21(1)(c), (d).	Paragraphs 61 and 63 should be read as a whole.	While the words may not be necessary, they do not render the plea unintelligible, ambiguous, vague or too general or otherwise prevent it from fulfilling its basic function. The words will not be struck-out.
66	2.8	The particulars are improperly pleaded as they contain references to evidence that may result in an improper evidentiary platform to be relied upon at trial. The particulars are likely to cause prejudice, embarrassment and delay and fail to disclose a reasonable causation of action: r 16.21(1)(d), (f).	The particulars provide further of the material facts.	While the particulars may include references to evidence and may not be adequate particulars of the material facts pleaded, the particulars do not render the paragraph otherwise unintelligible, ambiguous, vague or too general or deprive the pleading of its basic function. Moreover, if and to the extent the respondents consider the particulars to be inadequate, any defect may be cured by request for further and better particulars. The particulars will not be struck-out.
72	2.9	The contents of para 72 is not relevant to any cause of action and would be inadmissible at trial: r 16.21(1)(a), (d)-(f).	Paragraph 72 should be read in the context of the statement of claim as a whole. It forms an integral part of the Mr Pigozzo’s adverse action claim and would be admissible at trial as evidence of damage.	It is not evident that the fact pleaded is not relevant to any cause of action pleaded in the statement of claim. Further, and in any event, to the extent it may not be relevant the plea does not result in the paragraph or statement of claim being unintelligible, ambiguous, vague or too general or otherwise deprive it of performing its basic function as a pleading. The paragraph will not be struck-out.
74	2.10	The particulars are improperly pleaded as they contain references to evidence that may result in an improper evidentiary platform to be relied upon at trial. The particulars are likely to cause prejudice, embarrassment and delay and fail to disclose a reasonable causation of action: r 16.21(1)(d), (f).	The particulars provide further of the material facts.	While the particulars may include references to evidence and may not be adequate particulars of the material facts pleaded, the particulars do not render the paragraph otherwise unintelligible, ambiguous, vague or too general or deprive the pleading of its basic function. Moreover, if and to the extent the respondents consider the particulars to be inadequate, any defect may be cured by request for further and better particulars. The particulars will not be struck-out.
104 – 118, 153(b), (c) and 155(a) in so far as they plead ‘primary liability’ against Mr Ellison and Mr Gavranich	2.12	There is no legal basis for a claim under ss 340 and 342 of the FW Act. The allegations raised are scandalous, frivolous or vexatious, cause prejudice, embarrassment or delay and fail to disclose a reasonable cause of action: r 16.21(1)(a), (b), (d) and (e).	The paragraphs can be amended to clarify the liability of respondents.	Insofar as the objection relates to paras 104-118, para 116 will be struck out on the grounds set out in paras [114] – [116] of the Reasons. Insofar as the objection relates to paras 153(b) and 153(c) and 'primary liability' against Mr Ellison and Mr Gavranich, there is no legal basis for the claim under ss 340 and 342 of the FW Act. These paragraphs will be struck out. Insofar as para 155(a) is concerned, the reference to 'the respondents'' is embarrassing insofar as it suggests that there is primary liability of Mr Ellison and Mr Gavranich for an alleged contravention of s 340 of the FW Act. Paragraph 155(a) will be struck out.
105	2.13	A ‘rolled-up’ plea that raises issues not pleaded elsewhere. The result is that the paragraph lacks specificity and results in absurdity: r 16.21(1)(a) – (d).	The allegations and appropriateness of the pleading can only be resolved at trial.	Parts of para 105 will be struck out for the reasons given at para [76] of the Reasons. Further, given the necessity to demonstrate a causal connection between the alleged adverse action and the alleged workplace right and that the onus of demonstrating that the adverse action was not 'because of' the alleged exercise of a 'work place right' it is necessary to plead the allegations of the asserted work place right, the asserted adverse action and the connection between those events with a degree of specificity. It is not appropriate that such allegations be pleaded in a 'rolled up' manner. The pleading does not, to that extent, sufficiently fulfil the basic function of a pleading and adequately inform the respondents of the case to met at trial. Paragraph 105 will be struck out on that ground.
106	2.14	A ‘rolled-up plea’ that raises multiple allegations which should be separately pleaded: r 16.21(1)(d)	Paragraph 106 is pleaded in a manner that clearly conveys Mr Pigozzo’s case.	Parts of para 106 will be struck out for the reasons given at [87] of the Reasons. Further, given the necessity to demonstrate a causal connection between the alleged adverse action and the alleged workplace right and that the onus of demonstrating that the adverse action was not 'because of' the alleged exercise of a 'work place right' it is necessary to plead the allegations of the asserted work place right, the asserted adverse action and the connection between those events with a degree of specificity. It is not appropriate that such allegations be pleaded in a 'rolled up' manner. The pleading does not, to that extent, sufficiently fulfil the basic function of a pleading and adequately inform the respondents of the case to met at trial. Paragraph 106 will also be struck out on that ground.
107 – 109	2.15	The conduct complained about in para 108 in response to Mr Pigozzo’s complaint in para 107 does not amount to action taken in response to the exercise of a workplace right within the meaning of s 340 of the FW Act and is likely to cause prejudice, delay or embarrassment and fails to disclose a reasonable cause of action: r 16.21(1)(d), (e).	The Court should not be invited to pass judgment on the substance and merits of the statement of claim. Such issues should be reserved for trial.	The manner in which it is contended that the conduct pleaded in para 108 does not amount to action taken in response to the exercise of a work place right within the meaning of s 340 of the FW Act was not fully argued. Further, and in any event, for the purposes of determining an application to strike out for a failure to disclose a reasonable cause of action, it is not sufficiently obvious that the facts, if proved, would not support a contravention of s 340 of the FW Act. Paragraphs 107-109 will not be struck out on that ground.
111 – 113	2.16	A ‘rolled-up’ plea that raises issues not pleaded elsewhere. The result is that the paragraph lacks specificity and results in absurdity: r 16.21(1)(a) – (d), (f).	The allegations and appropriateness of the pleading can only be resolved at trial.	There are elements of paras 111-113 that may be described as a 'rolled up' pleas. Given the necessity to demonstrate a causal connection between the alleged adverse action and the alleged workplace right and that the onus of demonstrating that the adverse action was not 'because of' the alleged exercise of a 'work place right' it is necessary to plead the allegations of the asserted work place right, the asserted adverse action and the connection between those events with a degree of specificity. It is not appropriate that such allegations be pleaded in a 'rolled up' manner. The pleading does not, to that extent, sufficiently fulfil the basic function of a pleading and adequately inform the respondents of the case to be met at trial. Paragraphs 111-113 will be struck out on that ground.
119 – 123	2.18	The facts pleaded do not reveal a cause of action in the nature of a contravention of s 351 of the FW Act. The paragraphs are likely to cause prejudice, embarrassment or delay and fail to disclose a reasonable cause of action: r 16.21(d), (e).	The facts pleaded fall within the ambit of s 351 of the FW Act. Any ambiguity in relation to the nature of the claim can be resolved by an amendment.	The manner in which it is contended that the conduct pleaded in paras 119-123 does not amount to action taken in response to the exercise of a work place right within the meaning of s 351 of the FW Act was not fully argued. Further, and in any event, for the purposes of determining an application to strike out for a failure to disclose a reasonable cause of action, it is not sufficiently obvious that the facts, if proved, would not support a contravention of s 351 of the FW Act. Paras 119-123 will not be struck out on that ground.
124 (in so far as it concerns MRL and Mr Ellison)	2.19	No reasonable cause of action for a contravention of s 345 of the FW Act is pleaded with respect of MRL and Mr Ellison: r 16.21(1)(a),(b), (d), (e).	The statement of claim can be amended to include reference to MRL and Mr Ellison.	Subject to the ruling below concerning para 127, para 124 will not be struck out as it fulfils the function of identifying a 'misleading representation' for the purposes of s 345 of the FW Act. To that extent, it discloses a reasonable cause of action and is not otherwise liable to be struck out.
127	2.20	No material facts or particulars have been provided. Given the serious nature of the allegations raised these are matters which must be pleaded. The paragraph ought to be struck out on the basis that it is scandalous, frivolous or vexatious, and fails to disclose a reasonable cause of action: r 16.21(1)(a), (b), (d).	Material facts are pleaded in support of the pleading of knowledge of falsity and recklessness in paras 51, 52 and 126 of the statement of claim.	Paragraph 153(g) seeks a declaration to the effect that MRL and Mr Gavranich knowingly or recklessly made false or misleading statements about one or more work place rights of Mr Pizozzo contrary to s 345 of the FW Act. There is no evident relief sought against Mr Ellison in respect of that alleged contravention of the FW Act. Paragraph 127 purports to plead a contravention of s 345 of the FW Act against MRL. An element of that cause of action is not only that a 'misleading representation' is made but that it is made 'knowingly or recklessly'. No, or insufficient, material facts are pleaded as to the element of knowledge or recklessness of the first respondent. Paragraph 127 will be struck out on that ground.
130(f)	2.21	The material facts pleaded do not establish a cause of action: r 16.21(1)(a), (b), (d) – (f).	When read in context, the material facts reveal a cause of action.	Although there is some degree of ambiguity about the factual foundation for the allegation, for the purposes of a strike out application, I am not satisfied that there is a failure to disclose a reasonable cause of action of the kind pleaded. Paragraph 130(f) will not be struck out.
132	2.22	A ‘rolled-up’ plea that fails to identify the nature of the whistleblower disclosure vis-à-vis the individuals identified: r 16.21(1)(d).	It is clear from the statement of claim as a whole the contents of each pleaded whistleblower disclosure and to whom it was made. Any ambiguities can be resolved by an amendment.	Although the allegations are made in compendious manner, the allegations are sufficiently clear to inform the respondents of the case to be met at trial. The paragraph will not be struck out.
135 – 139	2.23	A ‘rolled-up’ plea that collates and fails to identify with clarity the conduct of the MRL, Mr Ellison and Mr Gavranich. The alleged conduct needs to be separately pleaded: r 16.21(1)(c) – (e)	The criticism encourages the Court to take a pedantic approach.	Although the allegations are made in compendious manner, the allegations are sufficiently clear to inform the respondents of the case to be met at trial. The paragraphs will not be struck out.
145	2.24	A ‘rolled-up’ plea of representation and breach. The representations are not pleaded with clarity: r 16.21(1)(c), (d)	The criticism is pedantic as para 45 clearly sets out the representation and alleged breach.	Although the allegations are made in compendious manner, the allegations are sufficiently clear to inform the respondents of the case to be met at trial. The paragraph will not be struck out.
146 to 152	2.25	The material facts giving rise to the alleged breach are not pleaded: r 16.21(1)(c) – (e).	The material facts have been pleaded, albeit not in great detail. Any defects can be cured by an amendment.	These paragraphs do not fulfil the basic functions of a pleading. These paragraphs do not inform the respondents of the case to be met at trial. None of the effect of the first employment contract or second employment contract (proper construction of the contracts) is pleaded, the manner in which the alleged terms of the contracts was breached is pleaded. Paragraphs 146-152 will be struck out with leave to re-plead.