FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2001] FCA 508

PRACTICE AND PROCEDURE - industrial law – interlocutory judgment – motion to refuse amendments to statement of claim – whether amendments are badly pleaded - whether amendments constitute embarrassing pleadings - whether proposed amendments constitute new causes of action

Workplace Relations Act 1996 (Cth) ss 170VK, 170WC

Murex Diagnostics Australia Pty Limited v Chiron Corporation and Anor (1994) 55 FCR 194 referred to

Park Oh Ho and Ors v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274 referred to

Philip John Pollack v Retravision (NSW) Ltd [1996] 1124 FCA 1, (unreported, Federal Court of Australia, Moore J, 23 December 1996) referred to

Shields v Australian and New Zealand Banking Group (unreported, Federal Court of Australia, Lockhart J, 15 August 1995) referred to

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION, COLLIN ROSS AND ORS v G & K O’CONNOR PTY LTD

V833 OF 2000

MARSHALL J

MELBOURNE

3 MAY 2001

THE COURT ORDERS THAT:

The respondent’s Notice of Motion of 30 March 2001 be dismissed, save that those parts of paragraphs 98 to 106 of the applicants’ proposed Third Further Amended Statement of Claim which allege a new cause of action be disallowed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR INTERLOCUTORY JUDGMENT

1                     By notice of motion dated 30 March 2001 the respondent sought that the following orders be made by the Court:

“1.       Leave to amend the Applicants’ Amended Statement of Claim dated 12 January 2001 by the addition of paragraphs 41A-41E, 98-106 and 106-116 contained in the Third Further Amended Statement of Claim dated 15 March 2001 and filed in this proceeding be refused.

2.                  Pursuant to Order 11 rule 16, the paragraphs of the Applicants’ Third Further Amended Statement of Claim dated 15 March 2001 specified in the Schedule to this Notice of Motion be struck out...”

2                     The schedule to the Notice of Motion referred to the following paragraphs of the proposed Third Further Amended Statement of Claim (“Amended Statement of Claim”):

·        Paragraph 31

·        Paragraph 32

·        Paragraphs 41A to 41E inclusive

·        Paragraphs 98 to 106 inclusive

·        Paragraphs 107 to 116 inclusive

3                     The respondent submitted that, apart from paragraphs 98 to 106, the paragraphs identified in the schedule were badly pleaded and constituted embarrassing pleadings that should be struck out.

4                     The respondent contended that paragraph 31 contains an allegation of repudiation which has nothing to do with any issue in the proceeding. The applicants submitted that paragraph 31 was not merely an allegation of repudiation, but was descriptive of the quality of the breach of contract alleged in that part of the pleading. I accept the applicants’ characterisation of this part of their pleading and do not consider that paragraph 31 should be struck out as embarrassing.

5                     Paragraph 32 of the Amended Statement of Claim, as revised by the applicants on 4 April 2001 at the hearing of the motion, commences with the following words:

“By engaging in the conduct referred to in paragraphs 23 and/or 23A, 28 and 31, 29 and 33 the respondent acted inconsistently with section 170WC(4) of the Act.”

The Amended Statement of Claim then gives particulars of this allegation, which is pleaded by the applicants as a further reason why the conduct referred to was alleged to be illegitimate conduct.

6                     It is not plainly obvious to me that the pleading in paragraph 32 is embarrassing. Obviously there is room for disagreement between the parties about the proper construction of s170WC(4) of the Workplace Relations Act 1996 (Cth) (“the Act”) and the meaning of the words “continuity of employment” in that context. The applicants’ position on this issue is by no means unarguable; see Murex Diagnostics Australia Pty Limited v Chiron Corporation and Anor (1994) 55 FCR 194 at 203 per Burchett J. I do not propose to disallow the paragraph.

7                     The respondent’s essential complaint about the proposed paragraphs 41A to 41E inclusive is that it is difficult to discern whether the pleading discloses a cause of action. Those paragraphs at 41A, 41C and 41E allege a breach of s170VK of the Act. In written submissions filed after the hearing on the 4 April 2001, the applicants said:

“To the extent necessary the Applicants make clear that the references to a contravention of s170VK in paragraphs 41A - 41E and is intended to be a reference to a contravention of s170VK(2).”

Section 170VK(2) of the Act provides that:

“Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of sub-section (1).”

I see no reason to disallow the pleading provided that the references to “s170VK” are amended so as to refer to s170VK(2) of the Act.

8                     The next challenge by the respondent on the basis of “embarrassing pleadings” is directed to paragraphs 107 to 116 inclusive of the Amended Statement of Claim. That section of the proposed pleading is headed “Placement of agents provocateurs”. By letter dated 20 April 2001 the applicants’ solicitors have further revised parts of proposed paragraphs 107 and 108. Paragraph 107 was objected to on the basis that it contained an allegation of instruction only. Its opening words are as follows:

“Since about January 2000 the Company by its officer Peter Allen has instructed persons employed by the Company to, inter alia: …”

In their written submissions the applicants conceded that a typographical error had been made in omitting the words “caused and” before “instructed”. With that amendment, and with paragraph 108 and following being read in context, I do not consider the section headed “Placement of agents provocateurs” to be so badly pleaded as to be unarguable.

9                     The respondent submitted that paragraphs 98 to 106 which fall under the heading “Creation of Small Boning Room” and the paragraphs 107 to 116 are all proposed amendments which constitute new causes of action which had not arisen at the time the proceeding was filed. Therefore, it was submitted that the amendment was impermissible having regard to judgments of this Court in cases such as Park Oh Ho and Ors v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274 at 277, per Burchett J; Philip John Pollack v Retravision (NSW) Ltd [1996] 1124 FCA 1, (unreported, Moore J, 23 December 1996); and Shields v Australian and New Zealand Banking Group (unreported, Lockhart J, 15 August 1995).

10                  In response, the applicants contended that the allegations relating to the “small boning room” and “agents provocateurs” were not pleaded solely as giving rise to causes of action on their own, but as additional material facts relied on to support the inference that other conduct engaged in by the respondent over the same period had a particular character or purpose. The applicants submitted at paragraph 21 of their written submissions that “[t]he evidence is relied on in support of the allegations which have always been in the proceeding” as well as being relied on “quite distinctively, as giving rise to new causes of action which the Applicants concede arose since commencement”.

11                  The allegations about the placement of agents provocateurs refer to conduct which commenced prior to the filing of the proceeding. The proceeding was filed in October 2000. The relevant paragraphs span a period which commenced in January 2000. I do not consider that the new causes of action referred to in those paragraphs truly arose prior to the commencement of the proceeding. I am prepared to allow paragraphs 107 to 116 to stand in the Amended Statement of Claim providing that the changes to paragraphs 107 and 108 identified in the annexure to the letter of the applicants’ solicitor of 20 April 2001 are made.

12                  The conduct alleged against the respondent with respect to the small boning room is conduct adjunct to other conduct already the subject of the statement of claim, as is clear from proposed paragraph 101. It is also conduct that is independently relied upon to establish new causes of action concerning events which had not arisen at the time of the commencement of the proceeding. In so far as paragraphs 98 to 106 seek to independently support additional new allegations they should be the subject of a separate proceeding. An application could be made to consolidate such a proceeding with the current proceeding.

13                  I will order that the respondent’s Notice of Motion of 30 March 2001 be dismissed, save that those parts of paragraphs 98 to 106 of the applicants’ proposed Third Further Amended Statement of Claim which allege a new cause of action be disallowed. It may be that the applicants would prefer not to dissect their current pleading, and invite the Court to delete paragraphs 98 to 106 in their entirety and revive them in a new proceeding which then may form the basis of an application for consolidation.

14                  Tomorrow the Court will deal with any issues that remain to be dealt with in the part heard motions that were filed by the parties in late January 2001 and early February 2001.

15                  The only outstanding part of the applicants’ Notice of Motion of 25 January 2001 is paragraph 5, which concerns an application for specific discovery of certain classes of documents. The only outstanding part of the respondent’s amended Notice of Motion filed on 1 February 2001 is paragraph 2, which seeks that this proceeding be stayed pending the determination of a related proceeding, V723 of 2000.

16                  Tomorrow the Court will also deal, if time permits, with a Notice of Motion filed by the applicants on 1 May 2001.

Associate:

Dated:              3 May 2001