WULTSCH v BAE Systems Australia Defence Pty Ltd
[2015] FCCA 3054
•25 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WULTSCH v BAE SYSTEMS AUSTRALIA DEFENCE PTY LTD | [2015] FCCA 3054 |
| Catchwords: INDUSTRIAL LAW – Ruling on various interlocutory applications. |
| Legislation: Fair Work Act 2009, ss.336, 340, 346, 347, 545. |
| Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Lion-Dairy & Drinks Limited v Jacobs Group (Australia) Pty Ltd (No 4) [2014] FCA 896 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; [1999] FCA 1101 Wotton v State of Queensland [2015] FCA 910 |
| Applicant: | SAARA WULTSCH |
| Respondent: | BAE SYSTEMS AUSTRALIA DEFENCE PTY LTD |
| File Number: | MLG 2206 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 26 August 2015 |
| Date of Last Submission: | 26 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Mr Felman |
| Solicitors for the Respondent: | Seyfarth Shaw Australia |
ORDERS
The application to further amend the statement of claim is dismissed.
The application to amend the defence is granted.
The strike out applications brought by the parties are dismissed.
The applicant’s application for separate determination of issues is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2206 of 2014
| SAARA WULTSCH |
Applicant
And
| BAE SYSTEMS AUSTRALIA DEFENCE PTY LTD |
Respondent
REASONS FOR JUDGMENT
This matter is, in essence, an application alleging adverse action in contravention of various provisions of the Fair Work Act 2009 (“the Act”). A claim for false imprisonment is also included as part of the Court’s accrued jurisdiction. The Applicant is self-represented and the proceeding is already showing alarming signs of elephantiasis.
When one bears in mind that the Applicant was employed by the Respondent from 12 November 2012 until 8 September 2014, and one also bears in mind the terms of s.42 of the Federal Circuit Court of Australia Act 1999, it is important that some measure of restraint be imposed upon the parties.
That restraint will also find expression in these reasons for judgment in respect of a number of interlocutory disputes raised by the parties in a number of applications in a case.
Stripped of inessentials, the matters the Court is required to determine are:
a)whether there should be leave to the Applicant to amend her statement of claim filed 14 January 2015;
b)whether the Defendant should be permitted to file an amended notice of defence;
c)a strike out application brought by the Respondent seeking to dismiss paragraphs 16 and 20 of the Applicant’s amended application filed 14 January 2015 as frivolous, vexatious and/or having no reasonable prospects of being successfully prosecuted;
d)a more wide ranging strike out application brought by the Applicant in rather broader and more wide ranging terms in respect of various aspects of the Respondent’s defence; and
e)whether there should be a separate trial of the number of issues sought to be agitated on a discrete basis by the Applicant.
The application to amend the statement of claim
The original application filed on 3 November 2014 contained 26 paragraphs alleging various contraventions of the Act and also the tort of false imprisonment.
On 14 January 2015, the Applicant filed an amended claim, repleading some matters and abandoning reliance upon s.336 of the Act.
The Applicant also filed on 14 January 2015, a statement of claim which in large part is a very detailed factual narrative of the events of which the applicant complains and in part consists of legal submissions. The prayer for relief seeks a declaration that the Respondent engaged in conduct contrary to s.340 of the Act, and an order requiring the respondent to pay the Applicant damages by way of compensation pursuant to s.545 of the Act. The prayer for relief also seeks damages for false imprisonment, damages arising out of her dismissal, exemplary and aggravated damages and interest, together with a pecuniary penalty.
There is an express separate prayer for relief in respect of damages for false imprisonment.
It should be noted that the statement of claim runs to 113 paragraphs of factual and legal assertions. It is a comprehensive assertion of the Applicant’s case.
The statement of claim was accompanied by an affidavit of the Applicant which, once again, contains a detailed factual narrative and appends, it would appear, the documents upon which the Applicant primarily relies to support her case.
The Respondent has filed a notice of defence on 30 January 2015 and very extensive affidavit material, as previously ordered by Registrar Allaway, based upon the application and statement of claim as it stands.
It is not necessary or appropriate, as I have earlier indicated, to descend into the minutiae of all the various applications in a case before the Court. The bottom line is that the Applicant for these purposes now seeks leave to delete the statement of claim as it presently stands in its entirety and replace it with annexure 1 to her affidavit filed 31 July 2015. The proposed amended statement of claim runs to some 37 pages. The first 28 pages appear to be a repleading of the adverse action components of the claim. The remainder deals with the tort of false imprisonment.
Even that document is not the end of the matter. The applicant filed in Court on 17 August 2015, a further application to amend to add references to ss.346 and 347 of the Act at various points in the proposed amended pleading.
In the ultimate, counsel for the Respondent did not oppose the application to insert reference to ss.346 and 347 of the Act and did not press the application to strike out paragraphs 16 and 20 in the amended application.
What was opposed was the addition of what was said to be a number of new legal causes of action and factual allegations. These are addressed in paragraph 27 of the Respondent’s written submissions.
The gravamen of the objections, which are supported by affidavit material, is that these new matters will not only involve substantial further time spent by the Respondent in preparing the necessary responding affidavits, with associated significant cost, but that there is no explanation as to why these matters have not been alleged before. It should be noted that two of the witnesses who would need to give further instructions and swear further affidavits live presently overseas. It was submitted that the applicant has always known about these matters and they should have been included in the statement of claim as drawn. Had this been done, the Respondent could have addressed these issues in the first place.
By way of contrast, the Applicant said that these matters now sought to be agitated were in her original claim (by which I think she meant her statement of claim) at paragraph 90 and in the exhibits and evidence she had filed.
Counsel for the respondent referred the court to the judgment of Mortimer J in Wotton v State of Queensland [2015] FCA 910 at [55]-[59]. I pay careful regard to the matters there set out. I note that as her Honour commented, in my respectful view correctly, at [56]: “Nevertheless, the focus of the overarching purpose is on the just resolution of disputes.”
At [57], her Honour extracted a passage from Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 at [111] - [112] as follows:
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendments should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend…
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
In considering any pleadings argument, in my respectful view it is always appropriate to bear in mind the authoritative guidance contained in the judgment of Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; [1999] FCA 1101 where his Honour comprehensively reviewed the authorities in relation to what might be described as the modern rules about pleading. At [21] his Honour 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 (authorities omitted).
His Honour also dealt in considerable detail with a distinction between material facts and particulars. The difficulty that arises in this case, however, is that the Applicant is self-represented and these sort of distinctions are clearly going to be beyond her.
In my view, the objections taken by the Respondent are valid. The matters the Applicant now seeks to agitate and which were not in the statement of claim as originally drawn were known to her at the time. If they had been included at that time, the Respondent could have responded to them. To do so now, according to the affidavit of Justine Elise Giuliani filed 11 August 2015, which is patently correct, will necessarily give rise to not insignificant cost. This being a Fair Work Act matter, costs are not normally available and all the less likely to be ordered against a self-represented litigant.
In my view, the Applicant’s statement of claim is already quite big enough. It gives the Respondent a sufficiently clear understanding of the case they have to meet. I think it is inappropriate in all the circumstances to permit further amendment. The factual narrative has already been set out in considerable detail and it is, in my opinion, sufficiently clear, despite some deficiencies, for the Applicant to be held to.
For all the intensity of the parties’ engagement, looked at objectively, this is a dispute within a relatively narrow factual and legal compass. It does not require further refinement and pleadings arguments. What it needs is what it is going to get at the first available date (albeit that that is still some time away) namely a hearing. It should be noted that I have had regard to the fact that the hearing date is quite some time away. There is no suggestion that it would be beyond the Respondent’s capacity to respond both by way of further pleading and/or evidence to the amended statement of claim. Nonetheless, those factors have to be balanced against the other matters to which I have already referred. In the circumstances of the case, in my view, the interests of justice are best served by the applicant being held to the statement of claim and amended application she has already filed.
I note that the respondent did not object to the applicant relying upon ss.346 and 347 of the Act. Given that concession, which is recorded in this judgment, it is not necessary for the applicant formally to amend to incorporate them.
The amended defence
It is sufficient for these purposes to say that having studied the amended defence I accept the written submission made at paragraph 56 of the respondent’s written submissions that:
The amendments to the defence arise out of the evidence that will now be adduced by BAE Systems at the trial of this proceeding. The amendments are relatively minor and do not cause any prejudice to Ms Wultsch.
It is sufficient to say that despite the applicant’s objections, those propositions are manifestly sound. The applicant has all the time she may need to prepare herself to anything which she regards as requiring a reply should she be minded to file one.
The strike-out application brought by the respondent
As I understand it, this matter is no longer pressed.
The strike-out application brought by the applicant
It is sufficient to say that, in my view, the applicant’s application to strike out aspects of the respondent’s defence are totally misconceived. The respondent’s written submissions at paragraphs 36 to 40 are plainly correct.
A separate trial
The applicant seeks that the court make a separate preliminary decision on two factual questions, namely, whether her employment was permanent and not temporary, and, second, whether the team leader role performed by the applicant was a higher duties role or otherwise a permanent position.
The respondent opposes this application.
I refer to the relatively recent decision of Griffiths J in Lion-Dairy & Drinks Limited v Jacobs Group (Australia) Pty Ltd (No 4) [2014] FCA 896 where his Honour said at [26]:
The leading authority remains Branson Js decision in Reading. It is convenient to set out [6]-[9] of her Honour’s reasons for judgment:
O29 r2 gives to the court wide powers to regulate the procedures to be adopted for the hearing and determination of a proceeding. Ordinarily, all issues of fact and law in a proceeding will be determined at one time by the Court following a trial (O 32). However, the authorities show that o29 r2 has been relied on to support the making of orders that have modified this general rule in the following ways:
(a)by requiring that certain questions, formulated by the order, be decided separately from (and presumably, before) any other questions in the proceeding on the basis of a special case stated in accordance with o50 r1;
(b)by requiring the determination of a preliminary issue of law in circumstances in which it was unnecessary for any facts to be stated or evidence to be adduced;
(c)by requiring the determination of certain preliminary questions of law as to the competence of the case of the applicant on the basis of certain agreed facts;
(d)by requiring the separate trial “as a preliminary issue” of certain of the claims made by the applicant;
(e)by requiring that the question of the respondents' liability be tried separately, and that any question as to the quantum of damages to be paid by the respondents, or any of them, to the applicants, or as to the taking account of the respondents' profits, be tried separately and at a dated to be fixed after the determination of liability (authorities omitted).
The quotation set out by Griffiths J continues on for some length, and I have regard to the reservations expressed therein. Paraphrasing rather broadly, the relevant principles referred to by Branson J and quoted with approval by Griffiths J emphasise the need for precise questions to be formulated to produce a conclusive or final decision on concrete or established or agreed facts to resolve or quell a controversy between the parties. There are further considerations including whether the separation of the determination of the question will save time and costs by narrowing substantially the issues for trial.
In the circumstances of this case, it is immediately obvious that there ought not be a separate trial of the two issues that the applicant seeks to be so determined. This case springs from what the applicant says is a single course of conduct engaged in by the respondent and its employees. It is not going to be practicable to readily isolate the evidence related to the two issues the applicant seeks be determined separately. This process would inevitably involve strenuously contested factual disputes, and lead to findings of credit. Those findings of credit would then involve a disqualification, in all probability, for the judge who determines those issues.
In these circumstances, in my view, it is wholly inappropriate to order a separate trial of issues.
Conclusion
I believe I have dealt, albeit in a deliberately broad-brush way, with all the extant controversies that have obtained. I will discuss with the parties the listing of the matter for trial.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 25 November 2015
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