FEDERAL COURT OF AUSTRALIA

Schröder-Turk v Murdoch University (No 2) [2019] FCA 1434

ORDERS

THE COURT ORDERS THAT:

1.    There is no order as to the costs of the applicant's interlocutory application dated 14 June 2019.

2.    The applicant file and serve an amended statement of claim on or before 13 September 2019.

3.    The respondent file and serve its defence and any cross-claim on or before 27 September 2019.

4.    The applicant file and serve any reply and any defence to any cross-claim on or before 18 October 2019.

5.    The respondent file any reply to any defence to any cross-claim on or before 25 October 2019.

6.    The matter is listed for a case management hearing for a date to be fixed after the mediation that is currently listed on 31 October 2019.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    These reasons deal with two issues. The first concerns the costs of the previous interlocutory application which was the subject of Schröder-Turk v Murdoch University [2019] FCA 1152. The second issue arises because the respondent, Murdoch University, now seeks an order for particulars of allegations made in certain paragraphs of the statement of claim.

Costs

2    The previous interlocutory application concerned the claims made in these proceedings by the applicant, Associate Professor Schröder-Turk, under the Public Interest Disclosure Act 2003 (WA) (PID Act). The applicant has also made claims under the Fair Work Act 2009 (Cth). The applicant was largely unsuccessful in his interlocutory application. The University seeks the costs of the application. The applicant resists this on the basis that the proceedings are proceedings in relation to a matter arising out of the Fair Work Act.

3    The applicant contends that s 570 of the Fair Work Act relevantly provides that the applicant may be ordered to pay the costs of the University only in accordance with s 570(2), and that is so even though the proceedings include claims under the PID Act and the interlocutory application related to those claims.

4    That contention is correct. The restriction on costs orders in s 570(1) applies to the proceedings as a whole, even though they involve a number of separate claims. In those circumstances, s 570(1) precludes the court from ordering a party to pay any costs incurred in prosecuting his claims unless the other party can satisfy the court that one of the exceptions applies: Stanley v Service to Youth Council Inc (No 3) [2014] FCA 716; (2014) 225 FCR 357 at [16]-[33] (White J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at [155]-[158] (Tracey, Gilmour, Jagot and Beach JJ).

5    While the University did not concede that point, it did not make any submissions to the contrary. Instead, it relied on the exception in s 570(2)(b) of the Fair Work Act, which permits the court to order a party to pay costs if the court is satisfied that the party's unreasonable act or omission caused the other party to incur costs. The University points to correspondence between the party's solicitors in the lead up to the making of the interlocutory application and says that despite an invitation to confer, the applicant's solicitors failed to give any notice of the order they sought which was in issue at the hearing of the application on 17 July 2019, and failed to confer about the order. This, it is said, was unreasonable.

6    The applicant disputes this characterisation of events, but it is not necessary to decide who is correct. That is because, even if the applicant did fail to confer and even if that was an 'unreasonable act or omission' for the purposes of s 570(2)(b) (which I doubt), there is no evidence before the court on which it could be satisfied that the act or omission caused the University to incur costs. Nowhere does the University suggest that if the applicant had conferred in relation to the order that it pressed at the hearing of the interlocutory application, the University would have agreed to that order, or that any other compromise averting the need for the hearing would have ensued.

7    The subsequent course of events suggests the contrary. After receiving the interlocutory application, the University's solicitors wrote to the applicant's solicitors, saying that the order sought was well outside the scope of what was required to balance the competing obligations and imperatives. The University resisted the order on the basis that it was a blanket permission in advance to disclose information that was arguably prohibited from disclosure by the PID Act. That is not said by way of criticism. The court substantially agreed with the University when it ruled on that application. But there is nothing that suggests that a prior compromise on the issue was likely. There was ample time between the filing of the application on 14 June 2019 and the hearing on 17 July 2019 for the University to negotiate about the order if it was minded to do so. There is no evidence of any attempt to negotiate during that time.

8    Again, that is not said by way of criticism. But the fact is that the University has not established the necessary causal link between the applicant's allegedly unreasonable act or omission and the incurring of any costs. There will be no order as to the costs of the interlocutory application dated 14 June 2019.

Particulars

9    The University seeks particulars of allegations made in certain paragraphs of the statement of claim. Relevant background appears in the affidavit of Robin Humphreys dated 8 July 2019, which was read into evidence. Initially, the University sought particulars of a number of paragraphs of the statement of claim. The applicant responded to the request for particulars and for the most part the University did not press further. However, four paragraphs remained where the applicant refused to provide particulars and the University applied for orders compelling him to do so. Shortly before the hearing of the matter, after discussions between the parties, the University indicated that it no longer pressed for particulars in relation to two of the paragraphs. These reasons deal with the remaining two, where particulars are still sought. The University says that those particulars should be ordered before it is required to file any defence.

10    Both of the paragraphs of which particulars are sought are in the part of the pleading that concerns the claim under the PID Act. I described that claim very briefly in the previous reasons. Save to the extent that it is necessary to refer to the paragraphs of which particulars are sought, there is no need to go into the claim much further here. But it is necessary to give a little more background on the Fair Work Act claim, to the extent that it is also relevant to the PID Act claim. Both claims are based in part on a story that the Australian Broadcasting Corporation aired on its Four Corners program on 6 May 2019. The applicant appeared on the program and made statements which, in broad terms, raised concerns about how Murdoch University, or Australian universities in general, dealt with international students. He claims that in doing so he was exercising a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act. He alleges that in breach of s 340 of the Fair Work Act, the University took certain adverse action against him because of that exercise of a workplace right. He also relies on other alleged occasions on which he exercised workplace rights.

Rules of court

11    The following provisions of the Federal Court Rules 2011 (Cth) are relevant:

16.02    Content of pleadings - general

(1)    A pleading must:

(a)    be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b)    be as brief as the nature of the case permits; and

(c)    identify the issues that the party wants the Court to resolve; and

(d)    state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e)    state the provisions of any statute relied on; and

(f)    state the specific relief sought or claimed.

…

16.41    General

(1)    A party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party.

Note:    See rule 16.45.

(2)    Nothing in rules 16.42 to 16.45 is intended to limit subrule (1).

Note 1:    The object of particulars is to limit the generality of the pleadings by:

(a)    informing an opposing party of the nature of the case the party has to meet; and

(b)    preventing an opposing party being taken by surprise at the trial; and

(c)    enabling the opposing party to collect whatever evidence is necessary and available.

Note 2:    The function of particulars is not to fill a gap in a pleading by providing the material facts that the pleading must contain.

Note 3:    A party does not plead to the opposite party's particulars.

Note 4:    Particulars should, if they are necessary, be contained in the pleading but they may be separately stated if sought by the opposite party or ordered by the Court.

16.43    Conditions of mind

(1)    A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.

(2)    If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.

(3)    In this rule:

condition of mind, for a party, means:

(a)    knowledge; and

(b)    any disorder or disability of the party's mind; and

(c)    any fraudulent intention of the party.

16.45    Application for order for particulars

(1)    If a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party's case, the party may apply to the Court for an order that the party who filed the pleading serve on the party:

(a)    particulars of the claim, defence or other matter stated in the pleading; or

(b)    a statement of the nature of the case relied on; or

(c)    if there is a claim for damages - particulars of the damages claimed.

(2)    An application under subrule (1) may be made only if:

(a)    the particulars in the pleading are inadequate; and

(b)    the party seeking the order could not conduct the party's case without further particulars.

(3)    A respondent who applies to the Court for an order under subrule (1) before filing the respondent's defence must satisfy the Court that an order is necessary or desirable to enable the respondent to plead.

Note:    The intent of the pleading rules is that a party should include all material facts in its pleadings as initially filed so that there is no unfairness to another party by any lack of particularity. If the party has not done so, the Court may at trial refuse to allow the party to present a case that is outside the terms of their pleading.

Paragraph 37 - grounds for believing the alleged public interest disclosure to be true

12    As indicated in the previous reasons, the applicant claims that he made an appropriate disclosure of public interest information so as to attract the operation of relevant provisions of the PID Act. Paragraph 37 of the statement of claim is as follows:

  In making the Public Interest Disclosure, Associate Professor Schröder-Turk:

  (a)    believed on reasonable grounds that the information was true;

(b)    alternatively, had no reasonable grounds on which to form a belief about the truth of the information but believed on reasonable grounds that the information may be true.

Particulars

Associate Professor Schröder-Turk's reasonable grounds were based on discussions with Murdoch University staff.

13    The interlocutory application proceeded on the basis that this paragraph goes to the elements of the applicant's PID Act claim as required by s 5(2) of that Act, which provides that:

A person makes an appropriate disclosure of public interest information if, and only if, the person who makes the disclosure -

(a)    believes on reasonable grounds that the information is true; or

(b)    has no reasonable grounds on which to form a belief about the truth of the information but believes on reasonable grounds that the information may be true.

14    In relation to its complaint about the adequacy of the particulars which are provided in paragraph 37, the University relies on r 16.43 of the Federal Court Rules, which I have set out above. I accept that rule applies here. Paragraph 37 gives certain particulars of the facts on which the applicant relies in order to say he had a condition of mind, namely a belief. He relies on discussions. The University seeks particulars of the discussions. It is therefore seeking (further) particulars of the facts on which the applicant relies to plead that he had a certain condition of mind.

15    In form, the applicant's plea is both as to the fact of his belief - the state of mind - and that the belief was based on reasonable grounds. But I do not consider that r 16.43(1) should be read with an eye astute to such fine distinctions. It should be read in the context of the purpose of this part of the rules being to ensure that the party receives fair notice of the case to be made against it at trial, but not the evidence, so that the party is not prejudiced in the conduct of the party's case: see in particular r 16.02(1)(d) and r 16.45(1).

16    Rule 16.43(3) defines a condition of mind, apparently exhaustively, to mean knowledge, or any disorder or disability of the party's mind, or any fraudulent intention of the party. Only the first of these is presently relevant. Whether a belief is the same thing as knowledge may be open to argument in some contexts but I do not consider that matters here. To say that the belief was on reasonable grounds and that the grounds were based on discussions with University staff is equivalent to saying that the applicant had knowledge of the contents of the belief. The applicant did not contend to the contrary.

17    The applicant does not claim he was under no obligation to provide particulars of the reasonable grounds on which he says he held the belief; rather, he submits that he has given the particulars. He has said that the belief is based on discussions with Murdoch University staff. He says that to ask about who those staff are, and the nature of the discussions, is to seek evidence.

18    I disagree. To refer in a general way to unspecified conversations with unidentified persons is not to give particulars. It is established practice that where a party pleads a conversation, the party should give particulars of who took part in it, where and when it occurred, and the substance of what was said. It is true that in form paragraph 37 does not plead the conversations as material facts, but that does not change the application of the principle in substance.

19    If the applicant relies on conversations he had with people, the University is entitled to prepare its case by approaching those people, and asking them whether they did have the conversation, and whether what was alleged to have been said was indeed said. The details that permit the University to do that are not evidence. Evidence would be the resulting accounts given by each individual who took part in the conversation of what that individual remembers about what was said. The line between particulars and evidence is a fine one: Conway v Mercedes-Benz Australia / Pacific Pty Ltd ACN 004 411 410 [2010] FCA 72 at [7] (Katzmann J). But it is well recognised that details of the kind that the University seeks here fall on the right side of the line.

20    I do, however, think that the precise form of the orders that the University seeks in relation to particulars of this paragraph reflects an unnecessary degree of formalism. It seeks orders for particulars of each of paragraphs 37(a) and 37(b) and in relation to each, seeks particulars of material facts the applicant will rely upon to demonstrate the reasonable grounds on which the applicant believed the information pleaded was true, including but not limited to the particulars of the discussions with Murdoch University staff. But it is clear that the discussions referred to under the heading 'Particulars' in paragraph 37 relate to the reasonable grounds referred to in both paragraphs 37(a) and 37(b). The applicant has confirmed as much in correspondence. There is no reason to suppose that the applicant relies on any other matters. If the applicant does seek to rely on anything else at trial without giving fair notice, he may be precluded from doing so.

21    Counsel for the University submitted that the lack of the particulars his client seeks gave rise to both what he called a 'pleading prejudice' and a 'forensic prejudice'. The pleading prejudice was said to include the consequence that if the substance of the conversations is not identified, then the reasonable grounds on which the applicant said he held the belief, that is, the nature and content of the reasonable grounds, are also not identified. Even though the reasonableness or otherwise of the grounds might be within the knowledge of the University, and could be pleaded to independently of the existence of the conversations, if the University is not told exactly what those grounds are, then it is forced to speculate and cannot plead to the allegation properly.

22    Counsel for the University also referred to the forensic prejudice which the University faced which (he said in effect) was a result of the University's present inability to do what I outlined earlier, namely, approach the people said to have had the conversations and obtain such evidence from them as it may be possible to obtain.

23    In large part, those submissions were directed to the question of whether, despite r 16.45(3) of the Federal Court Rules, the applicant should be ordered to provide those particulars now, before the University has filed its defence. However, helpful submissions and concessions made on the part of counsel for both parties during the course of the argument of this interlocutory application mean that, in view of the course I propose to take, that issue has fallen away. The applicant indicated that he intends to file an amended statement of claim and should be in a position to do so within a week. Counsel for the applicant also indicated that if I order his client to provide particulars of the conversations referred to in paragraph 37, it would be possible to include those particulars in the amended statement of claim.

24    Counsel for the applicant submitted that this was, in substance, the provision of particulars before the defence. While that may be so, and while the policy behind r 16.45(3) to discourage delay in close of pleadings and the joinder of issues is an important one, in the present circumstances I do not consider that there is any offence against that policy if I require the particulars to be provided in an amended statement of claim. The applicant is going to file that document soon anyway. He gave no reason why the document cannot include such further particulars as are required.

25    Whether or not that contravenes the letter of r 16.45(3), it is consistent with the intent of this part of the rules, for example, r 16.41(1), which I have quoted above. It is also consistent with the note to r 16.45 itself, the first sentence of which says, 'The intent of the pleading rules is that a party should include all material facts in its pleadings as initially filed so that there is no unfairness to another party by any lack of particularity.'

26    I will hear from the parties as to the precise wording of the order, but it may include a direction that when the applicant files his amended statement of claim, that statement of claim includes particulars in relation to each discussion with Murdoch University staff referred to in paragraph 37. That means particulars of the time and place at which the discussion occurred, the staff member or staff members with whom it occurred, and the substance of the discussion, including the reasonable grounds for the alleged belief which are said to have followed from the discussion.

Paragraph 41 - disclosure of the 'substantially the same information'

27    The University also seeks particulars of paragraph 41 of the statement of claim, which reads:

In making the statements referred to in paragraph 9 above, Associate Professor Schröder-Turk disclosed substantially the same information that was the subject of the Public Interest Disclosure.

28    Paragraph 9 sets out a number of things that the applicant is alleged to have said in the Four Corners story, and the 'Public Interest Disclosure' is the allegedly appropriate public interest disclosure which is said to have been made in an email from the applicant to an officer of the University on 10 June 2018.

29    Once again, in the course of oral submissions at the hearing the issues in dispute here were substantially narrowed, and effectively resolved. Counsel for the University did not press what appeared to be the complaint raised in paragraph 1.5(a) of his client's interlocutory application, namely that the applicant should provide particulars as to how the statements pleaded at paragraph 9 of the statement of claim were substantially the same as the disclosure made in the 10 June email. Counsel accepted that this was merely a matter of comparing the pleaded statements with the content of the email.

30    Counsel for the University did, however, press for particulars of the identity of the journalists to whom the statements referred to in paragraph 9 were made, and the dates on which those statements were made. Counsel explained that those details were necessary because his understanding of the point of paragraph 41 was to invoke s 7A of the PID Act, which, broadly speaking, permits appropriate disclosures of public interest information to journalists. It is not necessary to go into detail in relation to that section; suffice to say that it seemed to have been accepted by both parties that the journalists to whom the relevant disclosure was made should be identified, and to the extent that the applicant is relying on s 7A(2)(b), at least, the dates of the disclosure to the journalists should also be identified. That is because paragraph 41 is part of a case that the disclosure to the journalists was appropriate, and protected by the PID Act, because the proper authority to whom the allegedly appropriate public interest disclosure was previously made had not completed an investigation of a matter raised by the disclosure within the period ending six months after the disclosure was made. So the timing of the disclosure to journalists is material.

31    The differences between the parties on this issue, at least in substance if not in form, narrowed to vanishing point. Counsel for the applicant submitted that to the extent that the University was now seeking particulars of the identity of the journalists to whom the information was disclosed, and the dates of the disclosure, that went beyond the particulars that had been sought of paragraph 41. I have sympathy with that position because if that was the intent behind the request for particulars, it was, with respect, obscured by emphasis in the interlocutory application and the University's written submissions on the question of substantial similarity. Nevertheless, in substance, the interlocutory application and the request for particulars which led to it did seek particulars of when, how and to whom the applicant disclosed the information that was substantially the same as the information in the email of 10 June 2018, which the applicant says was broadcast in the Four Corners story.

32    Counsel for the applicant accepted that it would be appropriate to provide particulars of the identities of the journalists, and the dates on which the matters set out in paragraph 9 of the statement of claim were disclosed to the journalists. Once again, it seems to me that the fact that the applicant intends very soon to file an amended statement of claim means that those particulars should be provided in that document.

33    I will hear the parties as to the wording of the orders that follow from these reasons.

Associate:

Dated:    3 September 2019