Vitale v The Trustee for the Davis Bros Unit Trust

[2021] FCCA 214

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vitale v The Trustee for the Davis Bros Unit Trust [2021] FCCA 214

File number(s):

BRG 56 of 2020

Judgment of:

JUDGE JARRETT

Date of judgment:

9 February 2021

Catchwords:

PRACTICE AND PROCEDURE – Whether statement of claim pleads facts sufficient to disclose a cause of action – where exercise of workplace right to make inquiry alleged.

INDUSTRIAL LAW – Commonwealth – terms and conditions of employment – termination of employment – particular cases.

Legislation:

Fair Work Act 2009 (Cth), ss 340(1)(a), 341(1)(c)(ii), 342, 342(1), items 1(a), (b) and (c), 343, 343(1), 343(1)(a), 343(1)(b), 345(1), 358, 550, 550(2), 550(2)(a), 550(2)(c), 570(2)

Federal Circuit Court Rules 2001 (Cth), rr 1.05(3)(b), Sch 3, Pt 2, Item 11

Federal Court Rules 2011 (Cth), rr 8.05, 16.21(1), 16.21(2), 16.45(2)

Superannuation Guarantee (Administration) Act 1992 (Cth)

Cases cited:

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309

Esso Australia Pty Ltd v Australian Workers’ Union (2014) 263 CLR 551

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Tattsbet Ltd v Morrow (2015) 233 FCR 46

Number of paragraphs:

55

Date of last submission/s:

27 October 2020

Date of hearing:

27 October 2020

Place:

Brisbane

Solicitor for the Applicant:

FWEL Pty Ltd t/a Fair Work Employment Lawyers

Counsel for the Respondents:

Mr Rawlings

Solicitor for the Respondents:

Gall Standfield and Smith

ORDERS

BRG 56 of 2020

BETWEEN:

VINCENZO ROBERT VITALE

Applicant

AND:

THE TRUSTEE FOR THE DAVIS BROS UNIT TRUST

First Respondent

DAVIS BROS. PLUMBING CONTRACTORS PTY LTD

Second Respondent

MYLES WILSON DAVIS

Third Respondent

WAYNE ANDREW DAVIS
Fourth Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	9 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Paragraphs 6(e), 6(f), 7(e), 7(f), 12, 13, 39, 40, 41, 47, 50 of Part G of the Form 2 filed on 30 January, 2020 be struck out.

2.Paragraphs 11, 14, 45, 48 and 49 of Part G of the Form 2 filed on 30 January, 2020 be struck out with leave to replead.

3.The applicant file and serve an amended Form 2 by no later than 4.00pm on 24 February, 2020.

4.The respondents file and serve a defence no later than 4.00pm on 17 March, 2020.

5.The applicant pay the respondent’s costs of and incidental to the application in a case filed on 28 August, 2020 to be agreed between the parties and failing agreement to be fixed by the Court on the next court date.

6.The application is adjourned to 1 April, 2021 at 9:30am for directions.

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. By their application filed on 28 August, 2020 the respondents seek orders that pursuant to rule 16.21(2) of the Federal Court Rules 2011 (Cth) (incorporated into the Federal Circuit Court Rules 2001 (Cth) by virtue of rule 1.05(3)(b) and Schedule 3, Part 2, Item 11 of the FCCR), the following paragraphs of Part G of the applicant’s Form 2 Claim under the Fair Work Act 2009 (Cth), alleging dismissal in contravention of a general protection, filed 30 January, 2020 be struck out without leave to replead:

   (a)6(e), 6(f), 7(e) and 7 (f);

   (b)11-14;

   (c)19;

   (d)34;

   (e)39-41;

   (f)45;

   (g)47;

   (h)48; and

   (i)49 and 50.

2. In the alternative to paragraph 1, the respondents seek orders that pursuant to rule 16.45(2) of the FCR, the applicant provides to the respondents, within fourteen (14) days, the further and better particulars of the Form 2, as requested by the respondents in the letter from Gall Standfield & Smith to Fair Work Employment Lawyers of 24 July, 2020, exhibited at “LTRS” to the Affidavit of Liam Thomas Reynolds, sworn 28 August, 2020. The respondents seek their costs of the application.

3. The application is opposed.

4. The respondents submit that the offending paragraphs of the substantive application do not appropriately, or clearly, particularise the basis for any liability of the third respondent and fourth respondent, nor identify with specificity the workplace right(s) upon which the applicant relies in order to enliven Part 3-1 of the Fair Work Act.

5. The respondents contend that the present application “is governed by the Federal Court Rules 2011” and in particular rule 16.21(1). Whether those rules apply to the present application was not the subject of argument, but it is not a straightforward proposition that those rules and that rule in particular, governs the present application. Whilst there is no argument that the Federal Court Rules identified by the respondents apply in this Court in an appropriate case, the Form 2 filed by the applicant with his initiating application is not a statement of claim for the purposes of the Federal Circuit Court Rules. Nor is it a statement of claim for the purposes of the Federal Court Rules. It might arguably be a pleading and within the extended definition of that word (see schedule 1 and FCR 8.05) and thus subject to the operation of FCR 16.21(1). Because the matter was not the subject of argument and the application of FCR 16.21(1) seemed to be assumed by all parties, I pass from it without further comment.

6. As the respondents point out, a pleading is a means of achieving procedural fairness and efficient use of judicial resources and those of the parties by the identification of what is truly at issue. The purpose of the pleading is to identify with sufficient clarity the case which must be met. The Court should consider a statement which is unintelligible, ambiguous, vague or too general, or a pleading which is capable of various meanings, as an embarrassing pleading. Ultimately, the question for the Court is whether there is sufficient information in the pleading to permit the respondents to know the case against them.

7. At the outset, it should be acknowledged that the “pleading” set out in the applicant’s Form 2 filed on 30 January, 2020 is a difficult document. It sets out a number of irrelevant matters and is organised in a way which makes it difficult to follow. It sets out evidence as well as making allegations of material and immaterial fact.

8. Shorn of the irrelevancies, the applicant’s claim seems to be based upon the following allegations of fact:

   (a)he was employed as a labourer/plumber on a full-time basis by the second respondent or perhaps the first respondent (the pleading is confused and confusing about this);

   (b)he was employed between 4 September, 2009 and 20 September, 2019 when on the latter date his employment was terminated;

   (c)the third and fourth respondents were directors of the second respondent and involved in the day-to-day running of the employer’s business;

   (d)the third respondent directed the applicant “to set up a trust and sign trust deeds holding himself out as a trust rather than an individual”.  

   (e)when doing so the third respondent said to the applicant that if he did not sign the “aforementioned trust deeds”, the respondents would withhold the applicant’s pay and he would not be able to work for the respondents again;

   (f)he was threatened with dismissal by the third respondent if he did not sign the “trust deed paperwork put in front of him”;

   (g)on 1 August, 2019 his partner acting on his behalf, requested by email that the employer pay superannuation to the applicant;

   (h)the respondents (by the third respondent) refused and denied liability to the applicant to make any superannuation payments;

   (i)by letter given to the applicant on 9 September, 2019 the applicant was asked to cease claiming superannuation payments from the employer;

   (j)a meeting occurred on 19 September, 2019 with the third and fourth respondents at which the applicant was asked to accept and agree that the “Respondents were not liable for paying him superannuation otherwise, he would no longer be working for the Respondents in any capacity.”; and

   (k)on 20 September, 2019 the applicant informed the respondents (presumably the third and fourth respondents) that he was maintaining his right to superannuation, at which point his employment was terminated by the “respondents”, (again presumably the third and fourth respondents).

9. On the basis of those facts, the applicant alleges that:

   (a)the inquiry made on 1 August, 2019 about his superannuation was the exercise by him of a workplace right, namely the right to make a complaint or inquiry in relation to his employment pursuant to s.341(1)(c)(ii) of the Fair Work Act;

   (b)his employer took four separate acts of adverse action against him “as a consequence” of him exercising his workplace rights, namely:

   (i)advising him on 9 September, 2019 that he was not entitled to superannuation and it would not be paid to him;

   (ii)on 13 September, 2019 requiring him to agree to cease making claims he was entitled to superannuation;

   (iii)advising him on 19 September, 2019 that he would be dismissed from his employment if he did not agree that he was not owed superannuation; and

   (iv)terminating his employment on 20 September, 2019;

   (c)the adverse action alleged by him as set out above engages s.342(1), items 1(a), (b) and (c) of the Fair Work Act;

   (d)by reason of these matters s.340(1)(a) of the Fair Work Act was breached;

   (e)the third and fourth respondents were knowingly concerned in those breaches for the purposes of s.550(2) of the Fair Work Act;

   (f)the representations that the third and fourth respondent’s made to the applicant about his entitlement to superannuation were false and were made “knowingly or recklessly” by the respondents and thereby contravened s.345(1) of the Fair Work Act;

   (g)“[b]y threatening to terminate the Applicant’s employment on 19 September, 2019 (and subsequently dismissing him) because he refused to sign away his rights to superannuation, the Respondents were attempting to engage the Applicant as an independent contractor who would not make an application for superannuation” and thereby contravened s.358 of the Fair Work Act;

   (h)The respondents contravened s.343 of the Fair Work Act because the actions taken by them in September, 2015 amounted to coercion for the purposes of the Act.

10. The applicant seeks compensation, reinstatement, declarations of contravention and the imposition of a pecuniary penalty upon all respondents.

11. On 20 October, 2020 the applicant gave some further and better particulars of some of the matters alleged in the Form 2.

    CONSIDERATION

12. The paragraphs that the respondents seek to strike out can be conveniently grouped together according to the claim to which they relate.

    COERCION

13. Paragraphs 11 – 14 and 47 – 50 relate to the applicant’s coercion claim. It is as well to set them out together with some adjacent paragraphs that give a flavour of the overall “pleading”:

    Complaints

    9. In or about September 2015 an employee of the Respondents, Mr Josh Kozinzi, made an application to have his superannuation paid out by the Respondents.

    10. Seemingly as a result of Mr Kozinzi’s application, shortly after that occurred, the Third Respondent, in his capacity as an involved person, directed the Applicant in these proceedings to set up a trust and sign trust deeds holding himself out as a trust rather than an individual.

    11. The Applicant was told by the Third Respondent that if he did not sign the aforementioned trust deeds, the Respondents would withhold his pay and he would not be able to work for the Respondents again.

    12. The Applicant is illiterate and partially deaf and was not in a position to fully understand the information put before him by the Third Respondent with respect to the aforementioned trust deeds.

    13 . The Applicant, feeling pressured to sign the paperwork before him, did so to establish trust with the Respondent.

    14. The Applicant was, in an act of coercion, threatened with dismissal by the Third Respondent if he did not sign the trust deed paperwork put in front of him, as pleaded in paragraph 10 herein.

    …

    Coercion

    47. The Applicant, at all material times, had the following workplace right:

    a. the right to remain free of an action that another person organised or took, or threatened to organise and take, with the intent to coerce him into not exercising, a workplace right or exercising a workplace right in a particularly way pursuant to 343(1)(a) and (b) FW Act.

    48. The First and Second Respondents engaged in coercion in September 2015 by advising the Applicant that if he wished to continue working for the Respondents and be paid for work already completed he would need to set up a trust and hold himself out as a trust.

    49. This conduct was done in order to:

    a. to coerce the Applicant into not being able to exercise a workplace right, being entitlements under a statutory instrument; and

    b. being his right to compulsory contributions of superannuation.

    50. The coercion contravenes section 349 of the FW Act, and this is a civil remedy provision.

    51. The Respondents engaged in coercion during the meeting of 19 September 2019 by advising the Applicant that if he pursued his claim for superannuation he would be dismissed from his employment.

    52. This conduct was done in order to:

    a.  to coerce the Applicant into not exercising a workplace right, being his right to enquire about his workplace rights and entitlements under a statutory instrument.

    53. The coercion contravenes section 349 of the FW Act, and this is a civil remedy provision.

14. I have emphasised the paragraphs sought to be struck out. The statutory references in paragraphs 50 and 53 seem to be erroneous because that section does not deal with coercion but rather misrepresentations about a person’s obligations to engage in industrial activity.

15. It will be appreciated that paragraph 9 is seemingly irrelevant and paragraph 10 is bad because of its argumentative and tendentious nature.  But the loose factual allegation – the direction to set up a trust and sign a trust deed – within it sets the groundwork for paragraph 11. Paragraph 11 pleads the threat that the applicant says was made, ill particularised as it is.

16. It is necessary to understand the provision of the Act said to be offended by this conduct:

    343     Coercion

    (1)      A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

    (a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

    (b)exercise, or propose to exercise, a workplace right in a particular way.

17. Thus, in the present context, to prove the cause of action, the applicant will have to show:

    (a)that a person took action against him;

    (b)with intent to coerce him; and

    (c)not to exercise a workplace right.

18. The authorities demonstrate that to establish an intent to coerce, it must be shown that the relevant actor had an intent to negate choice on the part of the target of the relevant conduct and that objectively unlawful means were used to achieve that end. Whilst the former of those requirements stands firm, the latter has now been doubted: Esso Australia Pty Ltd v Australian Workers’ Union (2014) 263 CLR 551 at [61]. It is sufficient to establish an intent to coerce to demonstrate that the person taking or threatening the action intended it to negate the other person’s choice and that the person taking or threatening the action had actual knowledge of circumstances that made his or her conduct coercive: Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 330-331 [26]; Esso at [61].

19. The intent to coerce must be directed to a workplace right. The purpose of the alleged coercive action must be one of the purposes set out in s.343(1)(a) or (b) of the Act.

20. Workplace right is defined in the Act in the following way:

    341 Meaning of workplace right

    Meaning of workplace right

    (1) A person has a workplace right if the person:

    (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

    (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

    (c) is able to make a complaint or inquiry:

    (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

    (ii) if the person is an employee—in relation to his or her employment.

21. Here, the applicant identifies in a less than clear manner, two asserted occasions of coercion each directed to different asserted workplace rights. The first is the occasion in September, 2015 when the applicant alleges he was asked to sign a deed of trust. The second arises from interactions between the applicant and the third and fourth respondents on 19 September, 2019. Those paragraphs relating to 19 September, 2019 are not the subject of criticism on this application.

22. As to the first however, paragraphs 11 and 14 plead the threat that is said to have been made. Paragraph 47 a. of Part G of his Form 2 pleads that the workplace right that was the target of the relevant acts of coercion (insisting on him signing a trust deed) was the right not to be subjected to acts of coercion in contravention of s.343(1) of the Act. But that circular argument is of no assistance. By s.343(1) he is not entitled to be free of any coercion by his employer, but only coercion directed in the way specified in the section – namely to the exercise or to prevent the exercise of a workplace right. Whilst he has the benefit of s.343(1), it will only serve to protect him if he can bring himself within s.343(1)(a) or (b). That requires a workplace right that he can “exercise or not exercise, or propose to exercise or not exercise, or exercise, or propose to exercise … in a particular way”. Even if s.343(1) can be characterised as a workplace right, it is not a right that can be exercised or not exercised or exercised in a particular way by the applicant.

23. Ultimately, I have concluded that paragraph 47 is meaningless and should be struck out.

24. In paragraph 48 the applicant pleads that the coercion consisted of the first and second respondents advising the applicant in September, 2015 that if he wished to continue working for the respondents and be paid for work already completed he would need to set up a trust and hold himself out as a trust. I think this paragraph is to be read consistently with paragraphs 11 and 14 because they appear to make the same allegations although the earlier paragraphs refer to the third respondent and paragraph 48 to the first and second respondents. Plainly the first and second respondents must act through a natural person.

25. Although it is not clear, the combined effect of paragraphs 11, 14 and 48 might be an allegation that the applicant was told that if he did not agree to become a contractor, his employment would be terminated. That is perhaps an implication to be drawn from the paragraphs and the use of the words “hold himself out as a trust”. But these matters should not be left to implication.

26. If the implication of those paragraphs is as I have identified, it is arguable that the applicant can make out a cause of action. The Fair Work Act is a workplace law of which, the applicant has the benefit. In particular he has the benefit of s.358 which provides that an employer must not dismiss, or threaten to dismiss, an individual who is an employee of the employer and performs particular work for the employer, in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services. Arguably, that section gives rise to an entitlement on the part of an employee to be able to elect, in appropriate circumstances, to remain as an employee or to move to another form of engagement. The threat to dismiss in those circumstances might arguably be seen as an action taken by the employer to negate the employee’s choice to remain as an employee. The threat to dismiss in such circumstances might contravene s.358 and thereby be unlawful.

1. But what is pleaded in paragraph 49 of Part G of the Form 2 is inconsistent with that implication. That is because paragraph 49 is a direct plea that the offending conduct was undertaken for a particular purpose, namely to prevent the applicant from exercising his workplace right to superannuation, a right which, if he is in truth an employee, arose both under an industrial instrument that covered his employment and under statute. That too, raises a cause of action, although not very clearly.

2. Paragraphs 12 and 13 of Part G of the Form 2 are meaningless, as is paragraph 50 and all should be excised from the “pleading”.

3. That leaves paragraphs 11, 14, 48 and 49 which if read generously might give rise to a cause of action for coercion. But they are pleaded in such a difficult and obtuse manner that I consider that they too should be struck, but with leave to replead.

   ADVERSE ACTION

4. There are two aspects to this objection concerning the applicant’s adverse action claim. The first relates to paragraph 19 of the “pleading”. It is difficult to understand the objection because it is the allegation of fact upon which the applicant bases his claim that the respondents contravened s.342 of the Act. It is the inquiry by him (or at least on his behalf) about the payment of his superannuation which he alleges constitutes the exercise by him of a workplace right: see paragraphs 27 and 28 of Part G of the Form 2. Paragraphs 20 – 24 then set out the adverse action the applicant alleges was taken by the respondents. That that is so is confirmed, in a convoluted way, by paragraph 31 and 32 of the “pleading”. Paragraph 30 is, I think, a plea that the respondents took the identified action because the applicant exercised his workplace right. The third and fourth respondents are alleged to have perpetrated the acts that he alleges constitutes the adverse action. No objection is taken to these paragraphs.

5. Paragraph 19 ought remain.

6. The second aspect of this complaint relates to paragraphs 39, 40 and 41 of the “pleading” which deal with the applicant’s alternative claim that even if he was an independent contractor, the respondents took adverse action against him because he had the benefit of a workplace law, namely an entitlement to superannuation under the Superannuation Guarantee (Administration) Act 1992 (Cth).

7. The applicant’s claim, however, is answered by what was said by Jessup J (Allsop CJ and White J agreeing) in Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [101] – [104]. Jessup J said:

   [103]   Was the respondent entitled to the benefit of a law of the Commonwealth, in the sense exposed above, that regulated the relationships between employers and employees? Assuming for the moment that the agency agreement answered the description in s 12(3) of the SGA Act, the answer must be no. If the respondent was entitled to anything under the SGA Act that entitlement arose under the provisions of that Act that extended its operation beyond the circumstances of employees strictly so called. Those provisions did not regulate the relationships between employers and employees.

   [104] In the result, I would hold that the respondent, considered as someone who was not an employee in the common law sense, was not entitled to the benefit of so much of the SGA Act as was a “workplace law” within the meaning of s 341(1)(a) of the FW Act. I have two reasons for that conclusion, either of which would be sufficient: first, that it has not been established that the agency agreement was a contract of a kind referred to in s 12(3) of the SGA Act, and secondly, that the provisions of the SGA Act that entitled non‑employees to superannuation were not a “workplace law” within the meaning of Pt 3-1 of the FW Act.

8. This is a complete answer to the applicant’s alternative claim. Paragraphs 39, 40 and 41 ought to be struck out. When those paragraphs are excised, the balance of the alternative claim – paragraphs 35, 36, 37 and 38 have no work to do and they too, should be struck out. To leave those paragraphs in the “pleading” would be likely to cause delay, embarrassment and expense because the respondents would have to answer matters that have no relationship to any cause of action in the pleadings. Leave to replead would be pointless.

   SECTION 358

9. Paragraph 45 of the “pleading” is in the following terms:

   45. By threatening to terminate the Applicant’s employment on 19 September 2019 (and subsequently dismissing him) because he refused to sign away his rights to superannuation, the Respondents were attempting to engage the Applicant as an independent contractor who would not make an application for superannuation.

10. Section 358 of the Act provides:

    358 Dismissing to engage as independent contractor

    An employer must not dismiss, or threaten to dismiss, an individual who:

    (a) is an employee of the employer; and

    (b) performs particular work for the employer;

    in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

    Note:     This section is a civil remedy provision (see Part 4‑1).

11. As the respondents’ argue, this provision has three elements, namely:

    (a)a dismissal, or threat of dismissal, by the employer;

    (b)of an employee, who performs particular work; and

    (c)to engage the employee as an independent contractor to perform the same particular work.

12. The applicant has not pleaded any facts to permit the Court to conclude that the third element is made out.  I suspect that is an oversight. Paragraph 45 should be struck out with leave to replead. However, I will refrain from making such an order because it was not the subject of an application or argument. But no doubt the applicant will deal with the difficulty when the present document is amended.

    ACCESSORIAL LIABILITY

13. This general complaint relates to two groups of paragraphs or subparagraphs of the “pleading”.

14. The first four paragraphs can be dealt with together. The first two – paragraphs 6(e) and 6(f) concern the third respondent and the other two – 7(e) and 7(f) – concern the fourth respondent. In each case the two offending paragraphs are the same in substance. Using 6(e) and 6(f) as an example, and in the context of the whole of paragraph 6, they are (I have emphasised the paragraphs sought to be struck out):

    6.       The Third Respondent:

    a.is a director and the secretary of the Second Respondent;

    b.was, at all material times, a Supervisor:

    i.   within the business of the Respondents;

    ii.  to whom the Applicant was required to report for work matters;

    c.was, at all material times, together with the Fourth Respondent, a primary controlling mind of the First and Second Respondents with respect to employment matters as they related to the Applicant;

    d.is and was a natural person capable of suing and being sued;

    e.either:

    i. aided, abetted, counselled or procured the First and Second Respondents ‘ contraventions of the FW Act; or

    ii.  was directly or indirectly knowingly concerned in, or a party to, those contraventions; and

    f.was accordingly an “involved person” and is taken to have undertaken those contraventions by operation of s 550 of the FW Act.

15. The general nature of these paragraphs fails to identify the particular contraventions to which accessorial liability is said to attach. The inference is that it is all of the contraventions alleged in the “pleading”. But the respondents are entitled to specificity and the applicant should provide precision about the particular contraventions that are said to attract accessorial liability. These paragraphs do not inform the respondents of the case they have to meet. They should be struck out. Leave to replead should be refused, it is difficult to see how such a general plea could ever be adequate to properly plead a case of accessorial liability.

16. The second complaint relates to paragraph 34 of the “pleading”. It is in the following terms:

    34. The Third and Fourth Respondents were separately knowingly concerned in the First and Second Respondent’s adverse action contraventions of the FW Act because they were each involved in one or more of the contraventions within the meaning of s 550(2) of the FW Act.

17. Section 550 of the Act provides:

    550 Involvement in contravention treated in same way as actual contravention

    (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

    Note:     If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

    (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

    (a) has aided, abetted, counselled or procured the contravention; or

    (b) has induced the contravention, whether by threats or promises or otherwise; or

    (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

    (d) has conspired with others to effect the contravention.

18. It will be immediately appreciated that the applicant’s plea in paragraph 34 misunderstands the way in which s.550 establishes accessorial liability. A person who is involved in a contravention of the Act is taken to have contravened that provision. Subsection 550(2) provides that a person will be involved in a contravention in one of four circumstances. Here, the applicant says that the third and fourth respondents were knowingly concerned in the adverse action contraventions. But the pleading puts the relevant matters around the wrong way.

19. The respondents argue that the applicant is required to “disclose the nature of the contravention which the respondents are said to have participated”. His pleading does that in paragraph 34 by referring to the adverse action contraventions. That is a sufficient identification of the contraventions in respect of which the third and fourth respondents are said to be accessorily liable having regard to the balance of the pleading. On any reading of the “pleading” the adverse action contravention allegations are those in paragraphs 19 – 24 and 26 – 33 of Part G of Form 2.

20. The respondents argue that the applicant must establish the nature of the participation by the respondents in the contravention. However, the nature of their participation is disclosed by paragraphs 20 – 24 of the “pleading”. Indeed, it is the actions of each of the third and fourth respondents that are said to constitute the relevant actions of the first and second respondents which constitute the primary contraventions. A reading of those paragraphs demonstrates that each respondent undertook different actions (except for the meeting on 19 September, 2019). That it is their actions that constitute the primary contraventions establishes the necessary link “to the purpose of the perpetrators” that the respondents submit is necessary. The “pleading”, albeit clumsily, identifies the parts played by each of the third and fourth respondents: see paragraphs 11-14 (which are to be repleaded), 20, 22 and 23 as examples.

21. In the more general paragraphs 6 and 7 of the “pleading”, which I will order to be struck out, the applicant alleges that the third and fourth respondent’s accessorial liability arises under ss.550(2)(a) and 550(2)(c) of the Act, namely that the third and fourth respondents aided, abetted, counselled or procured the contraventions or were knowingly concerned in the contraventions. As the respondents point out, the authoritative statement of the position in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 sets out what is required in respect of the first basis for accessorial liability:

    [176]   Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]- [160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …

22. In the present application, the applicant’s “pleading” alleges sufficient facts to give rise to accessorial liability on their part. That is because the relevant acts said to constitute the adverse action contraventions – as set out in paragraphs 11 and 14 of the “pleading” were undertaken by the respondents.

23. I do not consider that the allegations made by the applicant in respect of this aspect of the claim are evasive or ambigious. Nor are they likely to cause prejudice, embarrassment or delay in the proceedings because it is tolerably clear what is intended. I agree however, that the current “pleading” is less than helpful in its construction and text. Nonetheless, no basis is demonstrated for them to be struck out of the “pleading”.

    COSTS

24. The respondents seek an order for the costs of, and incidental to, the present application.

25. I accept the respondents’ submission that the applicant’s conduct was both unreasonable and caused the respondents to incur costs in the filing of the present application. The discretion to make an order for costs conferred by s.570(2) of the Fair Work Act is enlivened in this case.

26. I make that finding because in my view the applicant engaged in a series of unreasonable acts which has led to the present application. In particular, the giving of a request for particulars by the respondents was entirely appropriate. The applicant’s response to it was not. The applicant failed to engage in a meaningful way with the respondents’ complaints about his “pleading” and the request for particularisation. I accept that:

    (a)allowing 14 days to elapse (the requested time for a response) before refusing to provide particulars;

    (b)arguing that:

    (i)the respondents waived any ability to make a request for further particularisation; and

    (ii)the Federal Court Rules 2011 (Cth) should be ignored because the proceeding was in the Federal Circuit Court;

    (c)refusing to engage with the request for further particularisation and requiring the respondents to apply to the Court for relief;

    (d)refusing to concede the need for particulars after the present application was filed until 30 September, 2020 two days prior to the first listing date of the present application; and

    (e)failing to provide further and better particulars by the date agreed for their provision;

    were unreasonable acts and when taken together represent an unreasonable and unsatisfactory approach to the present litigation that led to the respondents bringing and then prosecuting, relatively successfully, the present application.

27. I accept that the applicant caused the respondents to incur the costs of filing the present application, prepare for an appearance on 2 October, 2020, attend an appearance on 2 October, 2020 and subsequently attend at hearing on 27 October, 2020. I accept that both the filing fees, and the professional fees associated with the Application, could have been avoided by the reasonable participation of the applicant in the litigation.

28. It is of no moment in the present application that the applicant’s solicitors has an “access to justice model” which results in sacrifices being made such as the inability to be weeks ahead on a particular file, as deposed to by the applicant’s solicitor. The practitioner’s primary duty is to the Court and to conduct business within the Court efficiently and effectively.

    DISPOSITION

29. There should be orders as set out at the commencement of these reasons.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 9 February, 2021.

Associate:

Dated:       9 February 2021