FEDERAL COURT OF AUSTRALIA

McIlwain v Ramsey Food Packaging Pty Ltd

[2005] FCA 1445

PRACTICE AND PROCEDURE – Application for leave to deliver a Reply – effect upon the trial – approach to the construction of s.298K(1) of the Workplace Relations Act 1996 – requirement to formulate further ground by delivering a Further Amended Statement of Claim - further consideration of the effect upon the trial once further amended pleading delivered.

Workplace Relations Act 1996, ss.298K(1)(a), (b), (c), (d) and (e), s.298L(1)

BHP Iron Ore Pty Ltd v. Australian Workers’ Union 102 FCR 97

National Union of Workers v Qenos Pty Ltd 108 FCR 90

MCILWAIN v RAMSEY FOOD PACKAGING PTY LTD & ORS

QUD66 of 2003

GREENWOOD J

12 OCTOBER 2005

BRISBANE

THE COURT ORDERS THAT:

1.             Leave given to deliver a Reply in the form of the amended document handed by Counsel for the Applicant to the Court reflecting the additional changes to paragraph 6 of the Reply marked A to the Notice of Motion.

2.             Leave given to amend the Further Amended Application in accordance with the document marked “B” attached to the Notice of Motion. 

3.             The Applicant to deliver a Further Amended Statement of Claim by 4.00pm, Thursday, 13 October 2005.

4.             Commencement of the trial of the action adjourned to 10.15am on Monday, 17 October.

REASONS FOR JUDGMENT

1                     I have before me an application by the Applicant in the proceedings for leave to deliver a Reply to the Amended Defence to the Further Amended Statement of Claim delivered on 16 March 2005 and filed in the proceedings on 22 March 2005.  The Further Amended Statement of Claim was filed on 29 October 2004. 

2                     The proposed Reply seeks to do two things.  First, it responds to paragraph 130 of the Amended Defence which pleads particular facts in relation to the re-employment or otherwise of 12 individuals.  Secondly, the Reply seeks to introduce a third ground of alleged contravention of section 298K(1) of the Workplace Relations Act 1996 on the part of the four respondents in the action.

3                     The application is made on what would have been the third day of the trial which was to start on Monday, 10 October.  The commencement of the trial was adjourned until this morning to enable the Applicant to make this application for leave to deliver a Reply and to facilitate the provision of particulars of the compensation claim in respect of the 12 individuals which had not previously been provided.  In addition, the commencement of the trial was stood over until today, to enable objections to the affidavit material to be considered.  In relation to the failure to provide particulars of the compensation claim for each individual, the applicant had proceeded on the assumption that the compensation claim would not be heard and determined at the trial of the action and as a result, no particulars prior to trial had been provided. 

4                     This notion of bi-focating the action arose at a directions hearing in approximately one week before the commencement of the trial and was not supported in any of the case management steps.  Accordingly, I refused the late request to have a separate hearing on the issue of whether a contravention might be established and the issue of compensation on behalf of the 12 individuals.  The application for separate hearings was resisted by the respondents. 

5                     The Application for Leave to deliver a Reply is opposed and in order to deal with the Application, it is important to understand aspects of the history of the matter and the way in which the action has been framed. 

6                     The proceedings are brought by the Employment Advocate under the Workplace Relations Act 1996 (“the Act”).  The Further Amended Statement of Claim formulates two grounds upon which each of the four respondents are said to have contravened s.298K(1) of the Act.  The first is that during late 2002 (August and September) each of the 12 individuals identified in the pleading suffered a dismissal from employment (in contravention of s.298K(1)(a)) for a reason prohibited by s.298L(1).  Secondly, each of the four respondents are said to have contravened s.298K(1)(d) by refusing to employ any of the 12 nominated individuals once a re-engagement process began. 

7                     By the Amended Defence the respondents deny that any of the 12 individuals were dismissed from employment for a prohibited reason and further deny the allegations of a refusal to re-employ for a prohibited reason.  Moreover, by paragraph 130, the respondents say that as to the individual, Blackadder, his employment continued notwithstanding the alleged termination conduct and that as to Brooks, Campbell, Delaforce, Forest, M R McKenzie, P F McKenzie, Moss, J K Young and S J Young, those individuals were offered re-employment, in fact.  Some accepted employment and subsequently resigned and others elected not to take up the offer of employment.  As to Hambly and Swain, those individuals were advised that they would not be offered employment.

8                     The proposed Reply seeks to be responsive to the allegations in paragraph 130 in effect by contending that the offers of employment were not genuine and were constrained and limited in the respects indicated in the proposed Reply.  In the case of each individual, the Reply contends that each of the respondents refused to employ any of the individuals. 

9                     The Reply goes further and in respect of each individual contends that there is a further contravention of s.298K(1) by the respondents on the ground that the respondents have altered the position of each employee to the prejudice of that employee (s.298K(1)(c)).  The applicant, seeks to amend the application by introducing this further third ground of contravention. 

10                  The Further Amended Statement of Claim filed on 29 October pleads at paragraph 12 that in or about August and September 2002 all persons employed at the South Grafton Abattoir were given notice that their employment at the abattoir had been terminated due to a stock shortage.  Criticism was made of the application for leave to deliver a Reply raising this additional ground of contravention in that it fails to appreciate the jurisprudence surrounding the appropriate construction to be given to s.298K(1).  In BHP Iron Ore Pty Ltd v. Australian Workers’ Union 102 FCR 97, the Full Court of the Federal Court (Black CJ, Beaumont and Ryan JJ) observed that:

“It has to be borne in mind, in construing s.298K, that it proscribes conduct by ‘an employer’ directed to ‘an employee’ or ‘other person’. [emphasis added]. 

That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee.  … the prescription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.”

11                  In National Union of Workers v Qenos Pty Ltd 108 FCR 90, Justice Weinberg was considering aspects of whether the implementation by an employer of a “spill and fill” program involved, in the circumstances of that case, contraventions of provisions of the Act including s.298K(1).  At para. 118, Weinberg J observing that the decision in BHP Iron Ore Pty Ltd was binding upon him said:

            “The reach of s.298K is limited in that it proscribes conduct which is directed to an individual employee or prospective employee and not conduct to a broad class of employees.”

12                  The respondents observe that by para. 12 of the Further Amended Statement of Claim, the applicant pleads that all persons employed at the South Grafton Abattoir were given notice that their employment at South Grafton Abattoir had been terminated due to a stock shortage and that the conduct of dismissal and limited re-employment was conduct directed to at least a broad class of employees namely all employees and not conduct directed to an individual employee. 

13                  That construction of the pleading might, one would have thought, have produced at some point in the extensive case management of the matter which is now at trial an application to strike out the Statement of Claim on the basis that it failed to disclose facts which, if accepted, would give rise to a contravention.  No such application has been made.  The Further Amended Statement of Claim seems to proceed on the footing that there was a dismissal from employment of all persons employed at the South Grafton Abattoir upon the alleged contention that the dismissal was referable to a stock shortage whereas in the case of at least 12 individuals, the motivation was to bring about their dismissal from employment for a prohibited reason.  The suggestion seems to be that the dismissal of all employees on the ground of stock shortage was a contrivance to bring about the dismissal of 12 identified individuals for the range of reasons on the facts pleaded which are said to give rise to the legal conclusion that a contravention of s.298K(1) has occurred. 

14                  The respondents have pleaded to the allegations concerning all 12 identified individuals denying the principal allegations.  They have descended into particular responses examining the circumstances of each individual employee in the context of the conduct alleged.  The respondents have joined issue on all of the allegations in the way framed by the applicant. 

15                  The Reply pleads facts going to the scope and circumstances of the employment offers and other conduct pleaded at para. 130 of the Amended Defence.  It seems to me that the respondents have come to trial ready and prepared to answer the criticism that the failure to employ any one of the 12 individuals involved a contravention of the Act and moreover seek to answer the case made against them based upon a failure to re-employ by demonstrating the continuity of employment in the case of Blackadder and the offers of employment in respect of the other individuals but for Hambly and Swain.  It seems to me that on the facts, the respondents could not be taken by surprise.  Having regard to the formulation of the case, it seems to me that the question of whether the facts pleaded demonstrate a contravention of the Act is a matter to be determined on the evidence at trial.  If the evidence demonstrates that there has been no conduct directed to an employee within the scope of the section, as that section is to be understood, the applicants’ action will fail.  That seems to me to be the very matter to be determined. 

16                  It also seems to me that the question of whether the conduct also bears the character of an alteration of the position of an employee to the employee’s prejudice, in contravention of s.298K(1)(c) ought to be allowed.  In doing so, I approach the matter on the basis that if such a conclusion is open as a matter of law based on the evidence relevant to the issues pleaded including the matters pleaded at para. 130 of the Amended Defence and the matters pleaded in response, the respondents ought not to be taken by surprise or prejudiced in the conduct of the trial.  I approach the matter on the basis that the third ground raised by the Reply is a conclusionary matter arising out of the existing evidence to be canvassed at the trial. 

17                  However, in giving leave as contemplated in para. 19, it is not sufficient to raise these matters by way of reply.  An Amended Statement of Claim should be prepared, filed and served as soon as possible.  If the Further Amended Statement of Claim pleads facts which go beyond the factual issues presently framed in the action, I would be prepared to hear the respondents again in the context of the Further Amended Statement of Claim. 

18                  It seems to me that conduct in contravention of subparagraphs (a), (b), (c) and (d) operate independently of whether the conduct might also amount to discrimination. 

19                  I propose to give leave to deliver the Reply in the form of the amended document described as a Reply handed to me by Mr Martin SC reflecting the additional changes to para. 6 of the Reply marked “A” to the Notice of Motion.  I give leave to the applicant to amend the Further Amended Application in accordance with the document marked “B” attached to the Notice of Motion.  I propose to discuss with Counsel the Directions Orders for the delivery of a Further Amended Statement of Claim.

I certify that the preceding 19 nineteen

numbered paragraphs are a true copy of the

Reasons for Judgment herein of the

Honourable Justice Greenwood.

Associate:

Dated:              12 October 2005