Weddall v Rasier Pacific Pty Ltd

Case [2023] FCA 59

FEDERAL COURT OF AUSTRALIA

Weddall v Rasier Pacific Pty Ltd [2023] FCA 59  

File number: VID 427 of 2021
Judgment of: SNADEN J
Date of judgment: 8 February 2023
Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – alternative orders sought for pleading to be struck out –whether applicants have reasonable prospect of success – pleading alleges unlawful record keeping failures and breaches of general protections in contravention of the Fair Work Act 2009 (Cth) (“FW Act”) – where applicants allege employment by “one or more” entities – whether applicants required to identify contractual employment relationship – whether reasonable prospect of prosecuting claim under s 345(1) of the FW Act – whether representations made as to workplace rights – whether reasonable prospects of prosecuting claim under s 357(1) of the FW Act – whether applicants sufficiently identified representations – whether an “industrial association” has standing in relation to claims made under ss 535 and 536 of the FW Act – whether fifth applicant prohibited from applying for remedial orders under ss 345(1) and 357(1) of the FW Act – whether fifth applicant “entitled to represent industrial interests” of other applicants – where fifth applicant not registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – whether pleading is scandalous or embarrassing – whether amended statement of claim fails to plead material facts – where pleading discursive and in the nature of submission – summary judgment declined – amended statement of claim struck out  
Legislation:

Fair Work Act 2009 (Cth) ss 12, 535, 536, 539, 345, 357, 545, 546, 550, 557A

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules 2011 (Cth) rr 16.02, 16.21, 26.01

Cases cited:

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091

Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd (2022) 398 ALR 404

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Dare v Pulham (1982) 148 CLR 658

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

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

Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263

McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409

Regional Express Holdings Ltd v Australian Federation of Airline Pilots (2017) 262 CLR 456

Retail & Fast Food Workers Union Inc v Tantex Holdings Pty Ltd (2020) 299 IR 56

Sabapathy v Jetstar Airways (2021) 283 FCR 348

Spencer v Commonwealth (2010) 241 CLR 118

Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905

Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201

White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298

ZG Operations Australia Pty Ltd v Jamsek (2022) 398 ALR 603

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 97
Date of last submissions:

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AGLC
Weddall v Rasier Pacific Pty Ltd [2023] FCA 59
Case
[2023] FCA 59
Decision Date

CaseChat Overview and Summary

In Weddall v Rasier Pacific Pty Ltd, the applicants brought proceedings against the respondents alleging unlawful record-keeping failures and breaches of general protections under the Fair Work Act 2009. The applicants sought various remedies, including summary judgment or, in the alternative, an order striking out the applicants' amended statement of claim (ASOC). The respondents opposed the application for summary judgment and also sought to have the ASOC struck out. The court was tasked with determining whether the applicants had a reasonable prospect of successfully prosecuting their claims and whether the ASOC should be struck out for failing to properly plead the necessary facts.

The court considered several legal issues, including whether the applicants had to identify the specific contractual employment relationship, whether they had a reasonable prospect of prosecuting claims under sections 345(1) and 357(1) of the Fair Work Act, whether the applicants had sufficiently identified representations made as to workplace rights, and whether an “industrial association” has standing in relation to claims made under sections 535 and 536 of the Fair Work Act. Additionally, the court examined whether the fifth applicant, who was not registered under the Fair Work (Registered Organisations) Act 2009, was entitled to represent the industrial interests of the other applicants.

After considering the arguments and the evidence presented, the court found that the applicants had not demonstrated a reasonable prospect of success on their claims. The court also determined that the ASOC was inadequate as it was discursive in nature and did not sufficiently plead material facts. The applicants had failed to identify specific employers and had not properly articulated their claims. The court concluded that the applicants’ pleading was scandalous or embarrassing and that the ASOC should be struck out. The court further declined to grant summary judgment and dismissed the respondents’ interlocutory application.

The final orders of the court were that the applicants' amended statement of claim be struck out in its entirety, the respondents' amended interlocutory application otherwise be dismissed, and the parties were to confer and agree on a minute of orders reflecting the court's reasons for judgment. If the parties could not agree, the matter was to be listed for case management.

Orders

Orders of the court

1. The applicants’ amended statement of claim dated 28 October 2021 be struck out in its entirety.

2. The respondents’ amended interlocutory application dated 12 November 2021 otherwise be dismissed.

3. Within 14 days of the date of these orders, the parties are to confer and, if possible, agree upon, a minute of orders that otherwise reflects the court’s reasons for judgment herein.

4. In the event that no such agreement is possible, the parties advise the court accordingly and the matter be listed for case management on a date to be fixed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is convenient to split the analysis that follows into two parts: the first dealing with the respondents’ claims to relief under s 31A(2) of the FCA Act; the second dealing with their quest to have the ASOC (or parts of it) struck out.SUMMARY JUDGMENT Section 31A of the FCA Act relevantly provides as follows:…(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and (b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; (b) bound to fail;for it to have no reasonable prospect of success.(4)This section does not limit any powers that the Court has apart from this section. … Rule 26.01 of the Rules is similarly entitled “Summary judgment”. It relevantly provides that:(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or…(c)no reasonable cause of action is disclosed; or (d)the proceeding is an abuse of the process of the Court; or … The court’s discretion to award summary judgment (in whole or in part) calls for consideration as to whether there exists a “…more than ‘fanciful’ prospect of success”: Spencer v Commonwealth (2010) 241 CLR 118, [25] (French CJ and Gummow J, with whom Heydon, Hayne, Crennan, Kiefel and Bell JJ agreed in the result). The existence of such prospects need not be apparent merely from an applicant’s pleading: White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298, 310 [47] (Lindgren J). At issue is whether there is a reasonable (or not fanciful) prospect that an applicant might succeed in prosecuting a cause of action; not whether he, she or it has properly adumbrated such a cause faithful to the rules that govern pleadings. Presently, the respondents advance four reasons why the applicants have no reasonable prospect of success on the whole or various parts of their claim. It is convenient to address each in turn.1. Employment by “one or more” of the respondents The respondents contend that the applicants have no reasonable prospect of establishing that they are or were employed by “one or more” of the respondents. That is said to be apparent not merely from the applicants’ repeated adherence within the ASOC to that inherently unclear allegation; but also from their admission that they are “…unable to identify one specific [r]espondent as their employer due to the opaqueness of Uber’s corporate structure [which] prevents the [a]pplicants from knowing which of the [r]espondents or other entity/ies of the Uber Group…” employs or employed the first-to-fourth applicants.

Ratio Decidendi

Legal Principle Established

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