WANG v Odyssey Trading Pty Ltd (No.3)
[2020] FCCA 3505
•15 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v ODYSSEY TRADING PTY LTD (No.3) | [2020] FCCA 3505 |
| Catchwords: INDUSTRIAL LAW – Ruling on pleading objections. |
| Cases cited: Queensland v Pioneer Concrete (QLD) Pty Ltd [1999] FCA 499 Beach Petroleum Nl & Anor v Johnson [1993] FCA 392 McKellar v Container Terminal Management Services Limited (1999) FCA 1101 |
| Applicant: | JIMEI WANG |
| Respondent: | ODYSSEY TRADING PTY LTD |
| File Number: | MLG 2554 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 15 December 2020 |
| Date of Last Submission: | 15 December 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 15 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Esser |
| Solicitors for the Applicant: | Esser Legal |
| Counsel for the Respondent: | Mr Levine |
| Solicitors for the Respondent: | Maciel Pizzorno & Co Lawyers And Consultants |
ORDERS
The Respondent shall file and serve a defence on or before 8 February 2021.
The Applicant shall file and serve any affidavits on or before 18 March 2021.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
The Application is listed for hearing as fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLG 2554 of 2019
| JIMEI WANG |
Applicant
And
| ODYSSEY TRADING PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This latest tranche of interlocutory disputation follows from a judgment I gave on 27 November 2020. At paragraph 18 I noted that the application to join Ms Shang shall be granted.
At paragraph 32-33 I said and I read:
It is sufficient, in my view, to say that with the exception of the matters relating to the theft charge (and the claim for $12,000 damages) the issues are delineated with sufficient clarity for the respondent to know the case it has to meet, save that the particularisation of the alleged underpayments is plainly insufficient.
Otherwise, I would, in principle, be minded to grant the application for leave to amend.
At paragraphs 37-38 I have said:
I have already referred to the fact that the applicant’s statement of claim does not particularise the underpayments in a satisfactory way. Nonetheless, the gravamen of the claim is relatively straightforward. I am going to order the applicant to prepare prior to trial a detailed schedule showing each day that the applicant said that she worked and the hours that she says that she worked. That will put the quantum issues into proper perspective.
It is apparent that the provision of the original documents is likely to give rise, given the way the parties are conducting this litigation, to enormous ancillary disputation. The provision or otherwise of these documents at this stage is not as vital as the respondents assert. It only comes into play after all of their primary arguments fail. This is at least the case for all matters on or after February 2017. I will review the question once the pleadings are formally closed and once the affidavit material that the applicant wishes to rely upon is complete.
I went on to order a repleading of the statement of claim and ordered that the matter return today for further review.
On 14 December 2020 the respondent’s special counsel, Mr Angelatos, emailed my associate relevantly asserting that the respondents would be applying for an order to strike out the amended statement of claim because the claims were wholly unparticularised and seeking that the matter be dismissed with costs.
The gravamen of the complaint made in the email is as follows:
The FASOC does not even attempt to deal with the deficiencies that were identified in the Odyssey judgment by attempting to provide proper particulars and instead ignores the basis of the Odyssey judgment by stating full particulars will be provided.
The respondent is not able to properly respond to the FASOC or participate in the proceeding without proper particulars.
The submissions of the parties can be paraphrased in very short form. The respondent submits that it cannot properly proceed in the matter and, indeed, the trial itself cannot properly proceed unless the quantum of the claim is known and particularisation is granted.
The applicant by way of contrast says that they can and seeks orders to progress the matter. The respondent in oral submissions also referred to and repeated earlier written submissions which I should make clear I have re-read and have regard to. It should be noted that those earlier written submissions took a large number of extremely detailed pleading points.
Authorities relating to pleadings are, of course, multifarious. Many might point to the judgment of Justice Drummond in Queensland v Pioneer Concrete (QLD) Pty Ltd [1999] FCA 499 and at [12] - [14] his Honour said as follows (by and large I omit the citation of authorities)
The primary function of pleadings and particulars is to ensure a fair trial by putting the opposite party on notice of the case to be met and by defining the issues for a decision so that the preparation of the case and the trial itself can be controlled. Pleadings and particulars, between which the rules of pleading draw a distinction, contribute to this end in different ways. Under these rules a pleading must contain only a statement in summary form of the material facts but not the evidence by which those facts are to be proved, while the primary function of particulars is to ensure that effect is given to “the overriding principle that litigation between the parties and particularly the trial should be conducted fairly, openly and without surprises and incidentally to reduce costs.”
Authority acknowledges the blurring in recent times of the distinction between pleadings and particulars. See Beach Petroleum Nl & Anor v Johnson (1991 105 ALR 456 at 466 where Von Doussa J referred to the tendency now “toward narrative pleading as there is a growing concern that pleadings according to traditional rules do not adequately make known to the court and to the parties the nature of the opposing cases in complex matters.” His Honour also commented that “[t]echnical objections raised to pleadings on the ground alleged want and form will be received with less enthusiasm today than in times past.”
Notwithstanding O 11 r 2(a), a respondent does not have an absolute right in every case to insist upon the applicant pleading in the statement of claim every material fact necessary to show the existence of a complete cause of action.
His Honour’s remarks were adopted and supported in a decision of Weinberg J in McKellar v Container Terminal Management Services Limited [1999] FCA 1101. Indeed, there are many would say this is the sensible starting point for examination of what might be described as the modern law of pleadings and I, without embarrassment, say that I am one of that number.
At [21] to [22] Weinberg J said:
The purpose of pleadings is to define the issues and, thereby, to inform the parties in advance of the case they have to meet so as to enable them to take the steps necessary to deal with it: Dare v Pullham [1982] HCA 70; (1982) 148 CLE 658 at 664.
In Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; (1997) ATPR 41-591 Goldberg J observed at 44,151ff:
“Pleadings occupied an important role in present day litigation notwithstanding the flexibility of case management principles. They are not to be treated as pleasantry or mere formalism.”
The function of pleadings is to state the sufficient clarity of the case that must be met:… In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.
It has been established for many years that the most fundamental rule of pleading is the rule found in O 11 r 2. It is also important to recognise and accept that there is a clear distinction between pleadings and particulars. In Bruce v Odham’s Press Ltd [[1936] 1 KB 697] Scott J in the Court of Appeal said at 711-713: during the Court of Appeal said:
…but it is beyond question that there is a radical distinction (between a statement of material facts and particulars) and nonetheless so that in cases near the dividing line there is a penumbra where the two may and often do overlap just between night and day there is a zone which we call dusk.
Later on in the same paragraph his Honour Weinberg J in quoting from the earlier decision said:
These principles were restated more recently by Burchett J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd.
The primary function of a statement of claim is to tell the defending party what the claim is that he has to meet.
I bear all of those matters well in mind. I turn now to the amended statement of claim. I do not propose to traverse it seriatim. In my view, it meets the earlier criticisms advanced both in writing and orally made by the respondents apart obviously from a failure to address the six year limit on claims which is a matter the respondent may raise should it be so advised.
In my view, the claims made are now clear but the quantum of the claim is not. In my view, it is appropriate to order the respondent to file and serve a defence. There clearly may be aspects of the statement of claim which will be either denied or not admitted but, in my view, there are sufficient matters that are unquestionably within the respondent’s knowledge for a defence at this stage to have some utility.
By way of example, and I emphasis by way of a single example only, it is asserted that there has been a failure to pay appropriate overtime rates on weekends. The respondent must know whether it thinks it did or did not even if it does not know which of any particular day within the relevant timeframe might have been paid. I am going to, therefore, order a defence to be filed. I will hear from counsel as to how much time would be required given the time of year.
I am also going to order the applicant to serve any affidavits upon which she will rely. That will bring the matter of the proof of the claim into sharper relief. I will expect the affidavit material one way or the other, or any other material that may be forwarded, to specify the dates upon which the applicant says she worked, the rates she says, at least as best she is able, that she was paid and the like so that the respondent at that point can be properly informed of exactly how much they had been asked to pay, but I repeat what I had said in my earlier ruling.
It is one thing to say that you do not know the quantum. It is another thing to say you do not understand the claim and, in my view, the alleged deficiencies are simply not made out. These have all the appearances of spectacularly arid pleading points and I refer to Von Doussa Js remarks about how those might now be seen. All the more so since 20 or more years has gone by since that earlier authority was handed down.
I am going to set this matter down for trial which is what it obviously needs. It is going to be listed for four days which in light of my experience and the apparent scope of this dispute should be ample. The listing date will be 29 November 2021. I am going to grant liberty to apply. It will be a matter, of course, for the respondent as to whether it wishes to go on affidavits prior to the closure of the applicant’s case. It is not required to given that this a civil penalty’s application.
I do not propose to make any costs of today’s proceeding. I was always going to bring this matter back on this date and it was the consequence of the inadequate earlier pleadings and an application in a case by the respondent was not necessary, albeit, that, in substance, that it had been unsuccessful.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 21 December 2020
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