SABAPATHY v Jetstar Airways and Ors

[2020] FCCA 1433

FEDERAL CIRCUIT COURT OF AUSTRALIA

SABAPATHY v JETSTAR AIRWAYS & ORS [2020] FCCA 1433

Catchwords:
INDUSTRIAL LAW – PRACTICE & PROCEDURE – Application in a case to strike out amended statement of claim – whether the amended statement of claim properly identifies the causes of action – whether the amended statement of claim properly pleads material facts and not evidence – second and fourth to tenth respondents removed as parties to the proceedings – amended statement of claim struck out.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 351, 550, 566

Racial Discrimination Act 1975 (Cth)

Applicant: RAJESH SABAPATHY

First Respondent: JETSTAR AIRWAYS ABN 33 069 720 243

Second Respondent: CAPTAIN PETER TERRILL

Third Respondent: CAPTAIN DAVID MCCUTCHEON

Fourth Respondent: CAPTAIN BRETT FOXELY CONOLLY

Fifth Respondent: CAPTAIN PHILLIP SCHWARTZ

Sixth Respondent: CAPTAIN SEAN WALLACE

Seventh Respondent: CAPTAIN HAROLD BOYD

Eighth Respondent: CAPTAIN JEREMY SCHMIDT

Ninth Respondent: CAPTAIN MARK WHEELER

Tenth Respondent: CAPTAIN MICHAEL KRAUSSE

File Number: SYG 2349 of 2019

Judgment of: Judge Street

Hearing date: 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Sydney

Delivered on: 15 May 2020

REPRESENTATION

Counsel for the Applicant: Ms K Edwards and Mr S McIntosh

Solicitors for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondents: Mr A Pollock

Solicitors for the Respondents: Herbert Smith Freehills

ORDERS

1. The amended statement of claim filed 7 February 2020 is struck out.

2. The second and fourth to tenth respondents are removed as parties to the proceedings.

3. Leave is granted to the applicant to file and serve a further amended statement of claim as against the first respondent, and the third respondent if the applicant sees fit to do so, on or before 26 June 2020.

4. Leave is granted to the applicant, if the applicant sees fit, to discontinue proceedings against the third respondent without any adverse costs consequences, up to and including the time of the filing of the further amended statement of claim.

5. The respondent(s) file and serve a defence to the further amended statement of claim on or before 31 July 2020.

6. The applicant file and serve any reply on or before 14 August 2020.

7. The matter is fixed for hearing commencing at 10:00am on 25 November 2020, and will continue on 26 November 2020 insofar as is necessary, by video link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

8. The applicant file and serve any affidavits on which he intends to rely on or before 28 August 2020.

9. The applicant cooperate with and attend upon one medical expert if so requested by the respondent(s).

10. The respondent(s) file and serve its evidence in answer on or before 25 September 2020.

11. The applicant file and serve any affidavit evidence in reply on or before 16 October 2020.

12. The applicant file and serve an outline of submissions, chronology and list of objections on or before 12 November 2020.

13. The respondent(s) file and serve an outline of submissions, chronology and list of objections on or before 19 November 2020.

14. Cross examination is limited to half an hour without further leave.

15. Oral submissions are limited to half an hour without further leave.

16. Liberty to apply on 2 days’ notice.

THE COURT NOTES THAT:

1. No costs order is sought in respect of the parties who have been removed from the proceedings or in respect of the interlocutory application.

Date of order: 15 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2349 of 2019

RAJESH SABAPATHY

Applicant

And

JETSTAR AIRWAYS ABN 33 069 720 243

First Respondent

CAPTAIN PETER TERRILL

Second Respondent

CAPTAIN DAVID MCCUTCHEON

Third Respondent

CAPTAIN BRETT FOXELY CONOLLY

Fourth Respondent

CAPTAIN PHILLIP SCHWARTZ

Fifth Respondent

CAPTAIN SEAN WALLACE

Sixth Respondent

CAPTAIN HAROLD BOYD

Seventh Respondent

CAPTAIN JEREMY SCHMIDT

Eighth Respondent

CAPTAIN MARK WHEELER

Ninth Respondent

CAPTAIN MICHAEL KRAUSSE

Tenth Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 4 March 2020 seeking to have struck out an amended statement of claim filed on 7 February 2020 (“the pleading”). The proceedings were commenced on 5 September 2019 seeking relief under the Fair Work Act2009 (Cth) (“the Act”) within the Court’s jurisdiction under s 566 of the Act.

2. The pleading advances two causes of action under the Act, which are a contravention of ss 340 and 351 of the Act.

3. The pleading, however, does not plead material facts but pleads evidence. It is well known that evidence is not something which should be pleaded in a statement of claim. This is a case where there was an order by a Judge of the Court to file an amended statement of claim. That meant a properly-pleaded statement of claim identifying the causes of action in a way that could be comprehended and understood and the subject of a fair trial and determination. To plead evidence does not assist the Court and, indeed, creates confusion.

4. The pleading in the present case is embarrassing for a number of reasons. First, the pleading concerns the alleged termination of the applicant who contends he was a proficient pilot. Whether he was a proficient pilot or not has nothing to do with the relief that he is entitled to seek from this Court. This Court does not make determinations as to who is or who is not fit to be a pilot.

5. Furthermore, what was done by the Fair Work Commission is irrelevant to this Court as to whether this is a proper pleading.

6. It appears from the facts pleaded that there was a termination of the applicant that occurred on 12 June 2019 by the first respondent.

7. The third respondent, it appears, was the author of the letter terminating the applicant. Whether that means it could be said that the third respondent was knowingly involved in any contravention depends upon the pleading that might be advanced. The current pleading does not clearly articulate a case advanced in respect of knowing involvement in respect of that termination by the first respondent.

8. It is apparent that the other respondents to this pleading, which are the second and fourth to tenth respondents, are not the subject of any allegation that identifies some decision-making role in the termination of the applicant that occurred as pleaded on 12 June 2019.

9. The case advanced against those respondents is of a similar formula in relation to each of them. There is an allegation that they are liable under s 550 of the Act for actions of the first respondent, as pleaded in this statement of claim. The generalisation of that allegation is obvious. It is embarrassing. It does not properly plead a cause of action under s 550 of the Act.

10. The Court is not satisfied that the applicant has any proper case it can advance against the parties other than the first respondent and the third respondent on the allegations that have been identified in this pleading and having taken into account the submissions that were advanced by Ms Edwards of counsel on behalf of the applicant.

11. The pleading is further embarrassing because it advances evidentiary issues of fact in relation to the position of persons at a particular point of time and/or whether they were a pilot. On their face, these are not material facts.

12. The pleading refers to who was a friend of whom. Again, these are not material facts.

13. The pleading makes allegations in relation to the applicant’s birth and history, all of which, on their face, are not material facts.

14. The pleading refers to issues relating to the work history of the applicant. Again, these are not material facts.

15. The pleading refers to the applicant’s belief as to whether or not he was the first person of Indian origin to join the first respondent. Again, this is not a material fact.

16. The pleading refers to an allegation that the applicant has a right not to suffer racial discrimination under the Racial Discrimination Act 1975 (Cth). That is embarrassing because there is no cause of action pleaded under the Racial Discrimination Act 1975 (Cth) and there have been no steps taken, as required, in relation to the bringing forward of such a human rights claim. The pleading in that regard is embarrassing.

17. The pleading at paragraph 20 in relation to inquiries and/or complaints made by the applicant about his employment and/or by reference to his workplace rights is of broad and sweeping generalisation that then seeks to particularise evidence about alleged incidents, which is not an appropriate matter to be included in any pleading.

18. The complaints and inquiries that are the subject of the rolling allegation in paragraph 20 of the pleading are, on their face, embarrassing for breadth and content of meaning and do not identify how they are something that could be said to be a material fact referrable to a cause of action.

19. It was advanced that they are put forward on the basis of differential conduct. It is a simple thing to plead, as a matter of fact, differential treatment. These allegations in paragraph 20 of the pleading fail to do so and plead evidence that is embarrassing.

20. For the reasons the Court has already given, the Court does not accept that the allegations against other than the third respondent in respect of termination give rise to any identified cause of action on the pleading, which has been filed against the second and the fourth to tenth respondents.

21. The embarrassing nature of the pleading continues in relation to the generalisation identified in paragraph 23A of the pleading referring to the adverse conduct culminating in the applicant’s termination. Again, the meaning of that paragraph and what it is intended to convey, and what it picks up, is of such breadth to give rise to it being embarrassing.

22. The incorporated pleading in paragraph 24 of the pleading back to particular paragraphs in respect of the s 340 of the Act conduct is also embarrassing.

23. The pleading in paragraph 24A, which refers to the second to tenth respondents’ involvement in the contravention pleaded in paragraph 24 of the pleading is of such breadth and ambiguity as to again be embarrassing. The reference back to the particulars at the end of paragraph 24A of the pleading is equally embarrassing.

24. Paragraph 25 of the pleading asserts proficiency in relation to the applicant’s colleagues. This Court is not a Court to determine whether pilots are proficient or safe for the purpose of their workplace. That does not mean that there cannot be advanced a case, in appropriate circumstances, where there is an issue about the conduct of particular individuals.

25. If the applicant has a real case against the first respondent, it is difficult to comprehend why the applicant would be advancing a claim against all the other respondents. The first respondent is clearly solvent and capable of meeting any contravention if able to be made out. The joinder of individuals gives rise to a number of consequences in terms of the way in which proceedings can be conducted. Parties should not be lightly joined to proceedings unless there is a real reason for them to be joined. There needs to be a proper basis for the joiner of individuals able to be identified on the pleading.

26. The Court does not accept that the applicant is able to identify on the pleading a proper basis to join the second or the fourth to tenth respondents as being knowingly involved in the conduct of the contravention alleged by the first respondent in respect of s 340 of the Act.

27. The pleading relating to s 351 of the Act is equally embarrassing. The applicant again contends proficiency in paragraph 25 of the pleading compared to his colleagues that are at the same or similar level of training. That allegation is not an allegation identifying differential treatment. That is an assertion in respect of the applicant’s competence that, on its face, is embarrassing and lacks identification of a material fact that could be pleaded under s 351 of the Act.

28. The reference in the pleading to matters of fact in relation to assertions advanced, such as under paragraph 25(vii), again, is embarrassing and pleading of evidence which should not occur.

29. The assertion in paragraph 26 of the pleading is of such breadth and ambiguity as again to be unintelligible and embarrassing.

30. The reference at paragraph 27 of the pleading to the adverse conduct amounting to refusal or failure to offer or afford the applicant the same terms of employment and conditions or work, again, is a rolled-up pleading not referrable to particular material facts and, on its face, is embarrassing. If there is a particular allegation that could be made, it should have been articulated with sufficient clarity.

31. The pleading in relation to paragraph 28, which refers collectively to the adverse conduct, is again of such breadth to be embarrassing and does not properly identify a material fact referrable to s 351 of the Act.

32. Paragraph 28A of the pleading is capable of being amended to be intelligible if it is referring to the conduct of the first respondent. Its current generalised allegation though is, again, embarrassing.

33. Paragraph 29 of the pleading pleads evidence and is scandalous on its face in advancing evidence which is irrelevant. It does not plead material facts referrable to the case.

34. In relation to paragraph 30 of the pleading, the breadth of the allegations that have been made in relation to the applicant’s alleged less favourable treatment means that this allegation is also, on its face, embarrassing as against the second to tenth respondents.

35. Paragraph 31 advances an assertion referrable to the Racial Discrimination Act 1975 (Cth). There is no cause of action that has been identified under the Racial Discrimination Act 1975 (Cth). It is embarrassing to introduce an irrelevant pleading of statutory provisions. Those provisions should not have been pleaded. This is not a case where there is an alleged answer to unlawful conduct under s 351 of the Act. In these circumstances, paragraph 31 of the pleading is embarrassing.

36. Paragraph 31A of the pleading is, again, a rolled-up allegation of involvement of the second to tenth respondents and does not identify any material fact referrable to those respondents in respect of the alleged contravention of ss 351 or 340 of the Act. It, again, consists of broad and sweeping allegations of a kind that does not assist the Court or permit the respondents to properly identify the case being advanced referrable to the alleged contraventions.

37. The Court does not accept that paragraph 31A of the pleading properly pleads any material fact to support a contravention of the provisions referred to. The content of repetition in sub-paragraph (f) is again an example of the embarrassing nature of the pleading and does not plead concisely or sufficiently the material facts so as to fairly permit the Court and the respondents to understand the case being advanced.

38. Paragraph 32 of the pleading is a rolled-up allegation of treatment pleaded above. It is not referrable to any contravention and it is not a proper pleading of any material fact.

39. Paragraph 33 of the pleading, in relation to where the applicant has been living, is not a material fact and appears to be evidence.

40. Paragraph 34 of the pleading does not allege a contravention referrable to the suffering of particular loss and, on its face, is embarrassing and should be struck out. Paragraph 35 of the pleading suffers the same deficiency. It alleges suffering of future economic loss not referrable to any contravention. Paragraph 36 suffers from the same defect. Paragraph 37 of the pleading suffers from the same defect. The Court is entitled, as well as the respondents, to have a proper pleading that clearly identifies the case to be advanced.

41. The Court is satisfied that this is an appropriate case in which the Court should strike out the amended statement of claim filed on 7 February 2020.

42. The Court is further of the view that this is a case in respect of which two opportunities have already been given to properly plead the applicant’s case against the second and fourth to tenth respondents.

43. The Court accepts that there may be an arguable case that might be advanced against the third respondent. Whether or not it would be appropriate to do so and whether it can be properly pleaded is a matter upon which the Court has no final view on. It is appropriate that the applicant have leave to properly plead its case against the first respondent and, if it seeks to do so, against the third respondent.

44. The Court does not accept that, given the two chances to properly plead a case and the failure to do so, the applicant has any knowning involvement case under s 550 of the Act against the second or the fourth to tenth respondents. The Court does not, in these circumstances, propose to grant leave to the applicant to further pursue a further amended statement of claim against the second and fourth to tenth respondents.

45. In these circumstances, the Court is satisfied that the appropriate order to make is to remove those persons as parties to the proceedings.

I certify that the preceding forty-five (45) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 19 June 2020