WANG v Odyssey Travel Pty Ltd (No.2)
[2020] FCCA 3218
•27 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v ODYSSEY TRAVEL PTY LTD (No.2) | [2020] FCCA 3218 |
| Catchwords: INDUSTRIAL LAW – Ruling on competing interlocutory applications – substantive proceeding not progressing owing to pleading and other interlocutory disputes – some matters raised by both parties irrelevant to substantive justiciable claims – court endeavouring to bring some order into the chaos. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 45, 342, 550 |
| Cases cited: Australian Building and Construction Commissioner v O'Halloran [2020] FCA 1291 |
| Applicant: | JIMEI WANG |
| Respondent: | ODYSSEY TRAVEL PTY LTD |
| File Number: | MLG 2554 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 28 October 2020 |
| Date of Last Submission: | 11 November 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 27 November 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 applicants amended statement of claim filed 14 May 2020 be struck out
Leave be granted to the applicant to file and serve a further amended statement of claim on or before 11 December 2020.
The matter be the subject of further directions before Judge Burchardt on 15 December 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLG 2554 of 2019
| JIMEI WANG |
Applicant
And
| ODYSSEY TRAVEL PTY LTD |
Respondent
REASONS FOR JUDGMENT
The substantive application in this case is essentially a claim for underpayment of wages and other employment-related entitlements in a series of contractual arrangements between the applicant and the respondent from 2013 onwards, although the applicant accepts that some of those claims are now barred by the time limit. It has been in the court since August 2019 and has made really very little progress towards final disposition.
This is, of course, partly to do with the court’s pressure of work, but the main reason for delay is that the parties are enmeshed in, and it is not inaccurate to say thrashing about in, interminable interlocutory disputation. These reasons for judgment do the best I can to try and bring some sort order to the scattergun way in which both sides have approached the present tranche of disputation.
It should be noted at the outset that the applicant is seeking the imposition of civil penalties. Neither party addresses the question of the privilege against self-exposure to a civil penalty (“the penalty privilege”), and in my view, this is a significant omission. It should be noted that as I understand the current state of the authorities, this court can compel a respondent to an application for civil penalties to provide a defence but cannot otherwise compel the respondents to prove the case against themselves.
It is open to the respondents not to call any evidence and to elect to wait until the close of the applicant’s case before deciding whether to do so. I refer in this regard respectfully to the comprehensive review of these matters in the recent decision of Collier J in Australian Building and Construction Commissioner v O'Halloran [2020] FCA 1291.
Some Few Agreed Matters
From the pleadings thus far advanced (and there are attempts underway to further amend by the applicant), it is apparent that the respondent accepts that it employed the applicant as a travel consultant from 5 August to 2013 to 12 February 2017 and accepts that the General Retail Industry Award 2010 applied to the applicant’s employment for this period.
The applicant claims very substantial amounts going back to 2013 in respect of unpaid overtime and penalties and annual leave (see appendixes 1 and 2 to the amended statement of claim filed 14 May 2020). There are numerous other claims, however.
The applicant has filed an application in a case dated 22 October 2020.
The Orders Sought
The applicant seeks leave to join Christine Zhang as a second respondent to the proceedings.
The applicant seeks leave to file and serve a further amended statement of claim in a form next to the affidavit of the applicant’s solicitor sworn 22 October 2020 and further pleadings thereafter. The applicant seeks an order for discovery.
The Respondents’ Application in a Case
The respondent seeks orders for the production of a personal diary stored in WeChat in Mandarin with English translations.
The respondent seeks that the court make an order to enable the respondent to interrogate the applicant about the spreadsheets.
The respondent seeks orders dismissing all such parts of the statement of claim (or by implication in the amendments thereof) which are to the effect that a police informant laid theft charges against the applicant corruptly at the urging of the respondent and is pursuing those in concert with the respondent which has bribed him.
The respondent also sees orders striking out numerous aspects of the pleadings that the respondent seeks be dismissed inter alia as inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative.
The Proposed Amended Statement of Claim
Although the application in the case by the applicant seeks to amend the pleadings in accordance with the draft annexed to Mr Esser’s affidavit, the court has been provided with a draft further amended statement of claim which I take it the applicant seeks leave to file. The first question is the joinder as second respondent of Christine Zhang.
Plainly, the court has power to add any party to the proceedings. No one has suggested otherwise.
In his affidavit sworn 22 October 2020, Mr Esser has deposed on a hearsay basis to the fact that the respondent was a business wholly controlled by Ms Zhang, who therefore had personal and detailed knowledge of all the matters of which complaint is now sought to be made. In these circumstances, it is plain that it is possible, should the applicant make good her case, that Ms Zhang was involved with the asserted contraventions of both the Fair Work Act2009 (Cth) (“ Act”)and the award that the applicant is seeking to prove.
Even now, in December 2020, the six-year limitation period takes us back to December 2014, a time at which it is conceded in the defence that the applicant was an employee. There is, in my view, no good reason why Ms Zhang ought not be joined as a respondent to the proceeding. The written submissions complain that the pleading in the draft amended statement of claim is embarrassing, and this is a matter it would be necessary to return to. The written submissions of the respondent go on to say at paragraph 6:
The proposed Second Respondent will also be prejudiced as there was no certificate issued or opportunity to enter into mediation with the Applicant in the Fair Work Commission, and leave to join should be not granted as the DSOC is deficient, and the proposed Second Respondent will be forced to incur costs in participating in a proceeding in which the applicant is not conducting in a proper manner.
These submissions are wholly unpersuasive. If ever there was a case that would not resolve at mediation, it is apparent that this it. The claim is still within time, and while of course there is always prejudice to a party responding to a claim, that is simply part of the nature of litigation. The application to join Ms Zhang should be granted.
The next question is the question of the further amended statement of claim. I note that the court has been provided with a draft further amended statement of claim which is, in fact, slightly more extensive even than that annexed to Mr Esser’s affidavit. Given that it is plainly intended that this be dealt with, I propose to deal with that now.
The amended statement of claim firstly seeks to join the second respondent, Ms Zhang. The consequential amendments are obviously of themselves not problematic. The claim pleads the applicability of the award. This is easy enough to understand. It also pleads the applicability of the Fair Work Act given the employment, this likewise not being problematic. The applicant pleads at paragraph 6 an entitlement to wages, overtime and penalties and superannuation, and pleads the parts of the award in which these entitlements are said to repose. The award is not before me, but for present purposes I am prepared to infer that the award is highly likely to have such provisions within it.
The claim goes on to plead that the applicant was not paid the wages, overtime and penalties and superannuation to which she was entitled. At paragraph 8, it is pleaded that the wages and overtime not paid amount to $175,886 (as set out in appendix 1).
Appendix 1 is not in fact annexed to the draft statement of claim, but I presume it is intended to refer to the appendices to the amended statement of claim dated 13 May 2020.
The amended statement of claim goes on to assert that the applicant, (under the heading General Protections and Adverse Actions Under the Act), lodged a complaint with the Fair Work ombudsman on 17 February 2019 about the breaches of the award and alleged bullying by the first respondent in front of colleagues.
It is then pleaded that on 2 April 2019, the first respondent wrongfully took adverse action against the applicant by dismissing her.
The pleading then goes on to assert (paragraphs 15-16) adverse action in the form of:
…knowingly making a false complaint to the Victoria Police complaining the Applicant was guilty of theft and that the First Respondent was the victim of the theft”.
In truth and in fact there is no evidence – and the First Respondent at all material times knew that there was no evidence – that the Applicant was guilty of theft and/or that the First Respondent was the victim of the theft.
The statement of claim then goes on to plead underpayment of annual leave in the sum of $21,362 as set out in appendix 2, which once again is a reference, I take it, to the earlier appendix 2 to which I have referred.
At paragraph 22, the applicant claims $12,000 in damages. The nature of this claim is wholly particularised. If it is to be pressed it will require amendment to clarify the time nature of the claim.
The pleading then goes on to plead that the failure to pay the wages, overtime, entitlements and superannuation was conduct amounting to contraventions of a civil remedy provision.
The statement of claim then goes on to make claims under section 550 of the Act. It is sufficient to say that while somewhat over-wordy, the claims are, in my view, sufficiently intelligible.
The relief sought are the particular sums to which I have already referred, and it is said that what is sought is:
E)An order under s. 44 of the Act;
F)An order under s. 45 of the Act;
H)Pecuniary penalty orders.
I would say that the reference to section 44 and section 45 appears to me to be completely misconceived. I would infer that what is sought are declarations.
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.
It should be noted that a number of other matters to which the respondent takes exception are, in my view, now of no relevance, because if the amended statement of claim will be what it is the court is dealing with, any proposed ancillary or other claims of an objectionable nature are taken by me to have been abandoned.
The final matter raised by the applicant is the request for discovery. It is well-established, in my view, that the court cannot order discovery in the face of any objection as a result of the penalty privilege. I would be disinclined to do so, in any event. I note that the respondents’ written submissions have not addressed the issue, but I will give the respondents an opportunity to consider their position in this regard.
The Respondents’ Application
The first matters sought relate to the personal diary stored in WeChat in Mandarin kept by the applicant. This diary has been deposed to by the applicant. In her affidavit sworn 20 September 2020, the applicant said that she kept an electronic work diary and describes how she did so. The diary contained what are said to have been spreadsheets which are said to be attached to the affidavit. The schedules would appear to suggest at least dates and hours of work allegedly performed. They also contain a large number of additional assertions, many of which might be the subject of objection.
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 quantum issues into proper perspective.
It is apparent that the provision of the original documents is likely to give rise, given the way 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, if 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.
It should be noted that Ms Zhang has sworn an affidavit on 10 December 2019 in which she has asserted that she is the director of the respondent, and I take it from that that the assertions made by the applicant as to her role may well be true.
In the annexed part of the respondents’ application in a case is an application to interrogate. As I have earlier indicated, this issue has the capacity to foment massive sideways litigation in itself. It is all about the alleged work records. This is not the time to embark upon such an exercise, if ever there is going to be one.
The next matter to be dealt with is the allegations of adverse action in the form of a knowingly corrupt and improper police report.
This whole question of the report to the police is problematic. Section 342 of the Fair Work Act describes the circumstances in which a person takes adverse action against another person. Relevantly, an employer takes adverse action if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
There must be a real question as to whether making a report to the police, whether justified or otherwise, comes within the scope of this definition. Adverse action is taken by the employer against the employee by altering the position of the employee to the employee’s prejudice. It might be thought that the adverse action must relate to the actual employment itself, in which case making a report to the police would not come within the definition. Furthermore, reporting someone to the police is not something of its nature which is discriminatory, save to the extent that of course the other employees are not themselves reported. The matter would be susceptible to argument both ways.
The real difficulty with this matter, which has occupied substantial scandalous and contentious affidavit material by both sides, is that it turns upon issues that are essentially extraneous to the matters the court is being asked to determine.
I note that it is strongly asserted by the applicant that the police officer investigating the possibility of theft is acting in concert with the respondent, and corruptly and improperly so. The police officer, self-evidently, is not a party. I have no intention of joining him, even if it might be thought proper otherwise to do so. If it is the applicant’s case that the respondent and the relevant police officer concerned are, in some fashion, acting corruptly to interfere with the proper administration of justice, then the applicant may have remedies arising out of the tortious conduct that that would constitute.
It is, however, an entirely ancillary issue, and in my view, it is inappropriate to have it tried in this proceeding. Indeed, I would go so far as to say that the disadvantages of allowing this trial to be distorted by assertions that on the one side, the police and the respondents are acting corruptly in concert, and on the other side, that Mr Esser has misconducted himself, are plainly matters that it is inappropriate to bring into what is, after all, when boiled down, a claim for underpayment of wages and the like.
The applicant’s claim to have suffered adverse action in the form of dismissal is a matter that forms part of the inter partes disputation and is plainly appropriate to be heard and determined. All the matters to do with the police, in my view, should be dismissed. They could only be brought within the court’s accrued jurisdiction if the court was not, of course, satisfied that they constituted adverse action in any event.
A number of the other pleading points taken in the respondents’ application in the case are, in my view, no longer now relevant because the relevant paragraphs are abandoned.
Conclusion
This is the second interlocutory ruling I have had to give. Everything appears to suggest that this matter is going to be litigated to the last degree by both of these parties. In my opinion, both parties would do much better from now on to concentrate their minds on refining and progressing the undoubted underlying justiciable dispute that exists between them. The most efficient and cost-effective way to progress the matter is to strike out the applicant’s extant amended statement of claim i.e. that filed 14 May 2020, and grant leave to re-plead, consistently with this judgment within on or before 11 December 2020.
I will bring the matter back for further directions before any further steps are ordered.
I am not going to contemplate cost orders on this application, as both sides have had some measure of success. The relatively benign approach I have taken thus far to costs need not be assumed to be one that will continue if the parties continue to expend so much energy on aspects of the dispute that are as unhelpful as those ventilated here.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 November 2020
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