FEDERAL COURT OF AUSTRALIA

Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Pleadings) [2020] FCA 303

ORDERS

THE COURT ORDERS THAT:

1.    The Applicants provide proper particulars of paragraphs 27 and 32(a) of the Amended Statement of Claim by 2.15 pm on 10 March 2020.

2.    Paragraphs 40, 41 and 43 of the Amended Statement of Claim be struck out.

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

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant provide proper particulars of paragraphs 50 and 55(a) of the Further Amended Statement of Claim by 2.15 pm on 10 March 2020.

2.    Paragraphs 62, 63 and 65 of the Further Amended Statement of Claim be struck out.

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

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant provide proper particulars of paragraphs 50 and 55(a) of the Further Amended Statement of Claim by 2.15 pm on 10 March 2020.

2.    Paragraphs 63, 64 and 66 of the Further Amended Statement of Claim be struck out.

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

REASONS FOR JUDGMENT

PERRAM J:

1    On the first day of the trial of this matter, which is set down for two weeks, the Respondents, comprising the Construction, Forestry, Maritime, Mining and Energy Union (‘Federal Union’) and the Construction, Forestry, Mining and Energy Union New South Wales Branch (together, ‘the Unions’) and various officers of the Unions, applied to strike out various paragraphs in each of the pleadings in each of the three proceedings.

2    There are three proceedings before the Court. The first is brought by Mr Quirk and Mr Miller against the Unions and is proceeding NSD 1344 of 2017. The second and third are adverse action cases originally commenced in the Federal Circuit Court of Australia a number of years ago and subsequently transferred by order of that Court to this Court, NSD 1027 of 2018 and NSD 1028 of 2018. For the purposes of the issues which it is now necessary to decide, there is no material difference apart from numbering between the three different pleadings. For that reason, I will devote my attention to the proceeding originally filed in the Federal Circuit Court by Mr Quirk against the Unions and known as Mr Quirk’s adverse action claim, NSD 1028 of 2018.

3    The current form of that pleading is a Further Amended Statement of Claim (‘FASOC’) which was filed on 16 May 2019. The process by which the pleading debate has been engendered has been attended by a degree of informality, which is not a criticism. Originally, the Respondents objected in the Federal Circuit Court to various paragraphs of the then existing pleading in that proceeding. These were to be determined by the Federal Circuit Court in the form of preliminary objections, but before that Court could deal with the preliminary objections it decided to transfer the proceeding to this Court. In that sense, the preliminary objections have remained unresolved. There is no formal process in place in relation to the articulation of these pleading allegations in what I will call the rules matter, that is, the matter brought by Mr Quirk and Mr Miller in this Court, being proceeding NSD 1344 of 2017. Nevertheless, written submissions were delivered by the Respondents in relation to that pleading and the points are, in substance, the same.

4    The Applicants’ counsel did not oppose the matter being determined on the basis of there being any procedural obstacle in the way. The paragraphs, therefore, of Mr Quirk’s pleading which are under challenge are those which are identified in the written submissions delivered on the Respondents’ behalf and filed on 21 February 2020. The paragraphs under attack are paras 55(a), 50, 63, 64, 66 and 92.

5    It is convenient to deal first with the complaint about para 55(a). Paragraph 55 of the FASOC is in the following terms (interlineation omitted):

On the 7.30 Report, Mr Quirk made:

  a.    similar allegations as were made in the SMH complaints; and

b.    allegations the CFMMEU was trying to get rid of Mr Quirk and Mr Miller for supporting Mr Fitzpatrick and that they had been mistreated by the CFMMEU

(the 7.30 Report complaints).

6    The expression ‘SMH complaints’ is a defined term in para 53 of the FASOC. It is in these terms (interlineation omitted):

On 16 October 2014, Mr Quirk was quoted in an article on the Sydney Morning Herald entitled “CFMEU’s Brian Parker set to be recalled before union royal commission” (the SMH article) as saying that:

a.    the CFMMEU had “failed to act on malfeasance within the union”, in particular, the failing to address improper links which existed between Mr Alex and certain union officials;

b.    there had been a “catastrophic failure of governance in the CFMMEU from the level of the management committee [in NSW] to the top of the union”;

c.    whistleblowers within the CFMMEU had been forced out of their jobs and as a result had lost their careers; and

d.    officials within the CFMMEU appeared to be “protecting other people to save their own jobs instead of telling the truth”

(the SMH complaints).

7    The complaint is a straightforward one. It is said that telling the Respondents in para 55(a) that ‘similar allegations’ to those in the SMH complaints were made does not actually tell the Respondents what the complaints are. It seems to me to be a valid point. The Respondents are entitled to know what it is alleged was said by Mr Quirk on the 7.30 Report. It is not a difficult matter to resolve and the Respondents ought not to have to deal with the word ‘similar’. I will not strike para 55 out on that basis, however. It is a straightforward matter of the Applicants providing proper particulars of the paragraph. I will return to the timing of that process at the end of these reasons.

8    The second complaint is in relation to para 50 of the FASOC. Here, the complaint is of a similar character. Paragraph 50, with its particulars, is as follows (interlineation omitted):

Mr Quirk made complaints in relation to his employment to various persons within the CFMMEU and CFMEU NSW including about:

a.    the corrupt links between Mr Alex, a known criminal, and the CFMMEU and CFMEU NSW;

b.    the apparent favours being granted to Mr Alex’s businesses by the CFMMEU and CFMEU NSW in spite of evidence that Mr Alex’s businesses were going into liquidation and failing to make payments to their employees of their lawful employment entitlements;

c.    the CFMMEU had victimised Mr Fitzpatrick for raising concerns about these matters;

d.    the CFMME’s leadership failure to address these matters adequately;

e.    their concerns about the CFMEU victimised, bullied and harassed by officials as a result of making earlier complaints about the matters in (a) to (d).

(the internal complaints).

Particulars

2011 – Mr Quirk complained to Peter McClelland

2013 – Mr Quirk complained to Sammy Manna, Brian Miller and Brian Fitzpatrick

8 May 2013 – Mr Quirk complained to Sammy Manna and Claude Pinero

May 2013 – Mr Quirk complained to Rita Mallia and Michael O’Connor

July 2013 – Mr Quirk complained to David Noonan

23 September 2013 – Mr Quirk complained to Michael O’Connor

2 October 2013 – Mr Quirk complained in writing to Michael O’Connor

9 October 2013 – Mr Quirk complained to Michael O’Connor, Frank O’Grady and Dani Redmond

31 October 2013 – Mr Quirk complained to Michael O’Connor

12 November 2013 – Mr Quirk complained to Mr O’Connor by providing a document setting out allegations

28 November 2013 – Mr Quirk complained to Michael O’Connor

12 December 2013 – Mr Quirk complained to Michael O’Connor

12 December 2013 – Mr Quirk complained to Tony Slevin and Tom Roberts

27 April 2014 – Mr Quirk complained in writing to Michael O’Connor

7 May 2014 – Mr Quirk complained to Michael O’Connor

8 May 2014 – Mr Quirk complained to Michael O’Conner by e-mail

16 May 2014 – Mr Quirk complained to Michael O’Connor and Rita Mallia

9 July 2014 – Mr Quirk complained to Michael O’Connor and Tony Maher

9    The enthusiastic reader will observe that the 18 particulars which follow the allegations of material fact in para 50 do not connect themselves with any of the particular allegations of material fact. Thus, looking at 50(a), one knows that the allegation is that there were corrupt links between the identified individual and the Respondents but one is not told which of the 18 particular events set out in the particulars to para 50 is connected to that allegation. Concomitantly, one is unable from the particulars themselves to know which of the allegations of material fact in para 50 they are connected to.

10    A person such as either of the Respondents who is required to plead to para 50 therefore is confronted with a considerable difficulty in knowing exactly what is being put against them. This was the submission of the Respondents and I accept that submission. Again, however, I do not think—even at this late stage—that the appropriate course would be to strike out para 50 on that basis. Rather, subject to the question of timing, to which I will return, the appropriate course is for the Applicants to bring themselves to explain which particular relates to which material fact allegation. It is, it seems to me, not an unreasonable request.

11    The third set of paragraphs under challenge are paras 63, 64 and 66 of the FASOC. These three paragraphs form the central part of the strike out application and most of the time devoted to oral argument yesterday was consumed with a discussion of them. These paragraphs, effectively, allege the existence of the Royal Commission into Trade Union Governance and Corruption (‘the Royal Commission’) and various reports and evidence put before it. The whole section runs in the pleading from paras 56 through to 66 under the heading ‘Royal Commission into Trade Union Governance and Corruption’. Not all of the paragraphs are challenged, but only 63, 64 and 66. Those paragraphs are as follows (interlineation omitted):

63.    In the Interim Report, Commissioner Heydon QC AC, based on evidence before the Royal Commission, made the following findings:

a.    Mr Greenfield made an anonymous and violent call to Mr Fitzpatrick, during which he threatened to kill him;

b.    by so acting, Mr Greenfield may have committed several criminal offences, serious breaches of the CFMMEU’s Code of Conduct and may have engaged in gross misbehaviour under the CFMMEU C&G Rules;

c.    Mr Parker shied away from carrying out a rigorous or comprehensive investigation into the incident, avoided arriving at any properly considered conclusion and generally tried to whitewash the incident rather than take any disciplinary action against Mr Greenfield;

d.    Mr Parker set about marginalising and attempting to remove Mr Fitzpatrick from the CFMMEU after he had complained about the CFMMEU’s handling of Mr Greenfield’s death threat and about the nature and extent of the CFMMEU’s dealings with the companies associated with Mr Alex;

e.    Ms Mallia and Mr Parker ignored and failed to properly investigate and deal with the death threat and instead turned on Mr Fitzpatrick by embarking on a campaign to have him removed from the CFMMEU; and

f.    Mr Parker engaged in “gross neglect of duty” within the meaning of the CFMMEU C&G Rules,

Particulars

Interim Report, pp 1245 – 1246 at [3] and pp 1304 – 1309 at [198] – [223]

64.    In relation to the treatment of Mr Fitzpatrick, Commissioner Heydon QC AC found in the Interim Report that there was “a deeply ingrained attitude within the CFMMEU that the union is to be protected at any cost, and that officials should not speak out against the leadership” which did “not provide a healthy environment within which officials and employees can feel free to voice their concerns about potential misconduct by the leadership and official who are closely aligned with the leadership”.

Particulars

Interim Report p 1288 at [141]

…

66.    Chapter 7.2 of the Final Report deals with the allegations made against Mr Alex and Mr Greenfield in which Commissioner Heydon AC QC, based on evidence before the Royal Commission, found that (pp 561 - 562 at [214] - [219]):

a.    Mr Greenfield, as an agent of the CFMMEU, received cash payments from Mr Alex as an inducement or reward for showing favour to Mr Alex and his businesses in relation to the affairs and businesses of the CFMMEU including facilitating the making of new enterprise agreements and not treating those businesses as aggressively as he would have otherwise would when the businesses owed workers money;

b.    the payments made to Mr Greenfield were corrupt according to generally accepted standards of conduct and he thereby may have committed an offence under the s 249B of the Crimes Act 1900 (NSW) and contravened the CFMMEU Code of Conduct; and

c.    Mr Greenfield should be referred to the NSW Commissioner of Police and the Director of Public Prosecutions of NSW so consideration may be given for his prosecution.

12    The freestanding section of the pleading containing these allegations does not make any legal allegations and, if viewed in isolation, it would be straightforward to say that they were irrelevant. However, the Applicants have in their written and oral submissions contended that the existence of the Royal Commission’s Interim Report, to which most of the allegations relate, and the evidence before the Royal Commission are material to a number of aspects of the way in which they now put their case. I should say that the basic submission made by the Respondents was that the existence of the Royal Commission’s Interim Report, its Final Report (together, ‘the Reports’) or the transcripts of evidence which were before it could not be probative of anything which was relevant in this case. Their principal, but not only, ambition in making that submission was directed to a situation where the Reports and the transcripts were tendered eventually in evidence, not to prove the truth of their contents but to prove the fact of their existence.

13    That debate does not directly arise on the strike out application presently before the Court but informs the essential backdrop to understanding the nature of the debate which pertains between the parties. It is therefore not surprising that the debate which took place in relation to the strike out proceeded upon an assumption accepted by both parties that in using the various Royal Commission documents, no attempt was to be made by the Applicants to prove the truth of what was in those documents. That was the accepted common ground and it reflects the reality of the hearsay nature of the Reports. An attempt to tender the Reports or the transcripts of evidence would, of course, be an attempt to tender hearsay evidence and cannot be received on that basis: Evidence Act 1995 (Cth) s 59.

14    Therefore, all of the arguments which are now to be resolved turn for their efficacy upon the Applicants establishing to the Court’s satisfaction that a non-hearsay use of the Reports can be relevant: s 60. The Applicants effectively made five points about this. First, they said that the existence of the Interim Report and the transcripts of the evidence supporting the relevant findings in that Report were relevant in this proceeding to make good their claim that there had been a breach of procedural fairness. It was said to be relevant to that enterprise because they were entitled to demonstrate the material that Mr Quirk would have put before the Federal Union Divisional Executive if they had been given an opportunity to be heard by the Divisional Executive.

15    That allegation is therefore connected to their procedural fairness case, wherein they allege that the Divisional Executive should not have proceeded to have dealt with the matter on the day when Mr Quirk had provided it with a medical certificate. So the contention, therefore, is that Mr Quirk is entitled to prove what would have happened in the counterfactual world if the Divisional Executive had decided to act upon the medical certificate and had, instead of proceeding to determine the matter, heard what Mr Quirk had to say. He submits that he is entitled to prove what it was he would have said, and what it was he would have said would have included, as I understood the argument, the tender to the Divisional Executive of at least the Interim Report.

16    I do not accept the submission. The architectural structure of the procedural fairness case is that the Federal Union Divisional Executive denied him procedural fairness by not acting on the medical certificate. That contention is either right or wrong. If it is right, then it will follow that the Divisional Executive has denied him procedural fairness and he will be entitled to relief. It is no part of his procedural fairness case, at least, to prove what the Divisional Executive would have done had it not denied him procedural fairness. I therefore do not accept this first contention in support of the relevance of paras 63, 64 and 66.

17    The second basis upon which it was said that the Interim Report and transcripts would be relevant was to make good Mr Quirk’s claim of wrongful dismissal, in that any honest-minded person would have been persuaded by the findings contained within the Interim Report and the transcripts that the allegations against Mr Quirk could not be substantiated.

18    To understand that submission, it is necessary to unpick the pleading somewhat. There is a section commencing at para 100 and running to para 106 which is entitled ‘Breach of procedural fairness in relation to removal’. At para 100, the pleader has relied upon r 11 of the Construction, Forestry, Maritime, Mining and Energy Union, Construction & General (‘CFMMEU C&G’) Division Rules to articulate what the pleader has called the ‘honesty rule’. The honesty rule is an allegation that the Divisional Executive must:

not find an officer guilty of gross misbehaviour where no reasonable person honestly would have found that officer guilty of that gross misbehaviour[,] be biased or show a reasonable apprehension of bias against the officer[.]

19    The allegation is then at para 103. That paragraph is in these terms (interlineation omitted):

The CFMMEU C&G Divisional Executive and the CFMMEU found Mr Quirk guilty of the charges made against him as constituting gross misbehaviour where no reasonable person honestly would have found that officer guilty of the charges.

20    It will be seen that there are two significant elements to para 103. First of all, it contains as an allegation of material fact a contention that the honesty rule has been breached. Secondly, it contains in its particulars the mechanism by which the Applicants will seek to make that point good. There are two limbs to what is put in the particulars: the first is that the Divisional Executive did not have sufficient evidence before it to prove the charges, and the second is that it was aware or ought to have been aware of the relevant findings of the Interim Report and the relevant parts of the evidence. The first limb does not assist the Applicants in the present debate.

21    In order for Mr Quirk to prove that the Divisional Executive did not have sufficient evidence before it, he does not need to rely upon anything which happened in the Royal Commission. It is the second limb about which there has been debate. One may leave to one side for the purposes of argument how Mr Quirk will make good the allegation that the Divisional Executive was aware or ought to have been aware of the relevant findings in the Interim Report. Instead, attention can be focussed upon the complaint, which is as follows. The Respondents submit that there is a want of logic in the way this second limb of the allegation works. The want of logic concerns how, assuming that the Interim Report proves everything which Mr Quirk wishes it to, it follows that the Divisional Executive could do nothing other than accept what was in the Interim Report and, in not acting on the Report, therefore acted in a way in which no reasonable person could honestly act.

22    This problem was the subject of discussion during oral argument. Mr Seck for the Applicants submitted that the reason that this was the case was because one could tell from the nature of the process which the Royal Commission adopted and the identity of the Commissioner that it would be—to use my words, and not Mr Seck’s—an authoritative and reliable source of findings. To flesh that out, the submission was that the Royal Commission having been conducted in a formal fashion using compulsory powers with the representation of parties before an independent Commissioner inherently made the product of the Royal Commission a reliable source of information.

23    Indeed, the submission went further: it was not just reliable; it had the quality such that to see it was to know that one had to accept it and to act upon it. I do not have any particular difficulty with the internal logic of that argument, but the short fact is that is not what para 103 presently says. As para 103 currently stands, the logic of it—if it be a valid pleading—would support a reference to any form of literary work and not just the Interim Report. For example, one can insert an unrelated report into an aviation disaster and the pleading would still appear to be operative on its face. That is an indication that there is something wrong with the pleading.

24    Following the conclusion of argument, I raised this deficiency with Mr Seck, who indicated that, in the event that the Court came to that view, the Applicants would seek to amend to resolve that difficulty with the paragraph. I assume any such amendment application would be in order to add an allegation about the consequences of the authorial provenance of the Reports. As at the moment, however, when I am currently dealing with the strike out application in relation to paras 63, 64, and 66, the fact is that para 103 does not say that and has not been amended. Consequently, as the pleading stands, I do not accept that the allegations about the Interim Report in paras 63, 64 and 66 makes them relevant.

25    I turn then to the third basis upon which Mr Quirk says that the Interim Report and related materials are relevant to the case. This time, the allegation relates not to the procedural fairness part of the case but instead to the adverse action claims under s 340 of the Fair Work Act 2009 (Cth) (‘FW Act’). The adverse action section of the FASOC, unsurprisingly headed ‘Adverse action’, commences at para 81 and goes through to para 96. At paras 81 and 82, Mr Quirk makes a series of allegations about the adverse action which was taken against him. And then, at paras 84 through to 96, he makes a series of allegations about his conduct, which he says was ‘protected conduct’ for which the adverse action identified in paras 81, 82 and 83 could not—contrary to s 340—be taken against him. There are a number of these allegations of ‘protected conduct’. They are as follows:

(1)    complaints;

(2)    industrial activity;

(3)    political opinion; and

(4)    responsibility for a workplace instrument.

26    Complaints allegations are contained at paras 84 and 85. Here it is alleged that Mr Quirk made complaints in relation to his employment within the meaning of s 341(1)(c)(i) of the FW Act by making a number of internal complaints, external complaints, complaints in a newspaper article and complaints on the television. Then, at para 85, it is said that the reason the Unions took adverse action against him was because he had made those complaints. In relation to that allegation, I do not accept Mr Quirk’s submission that the production of the Reports could assist in that regard. The submission actually made by Mr Quirk was that the Interim Report and related materials would assist him in demonstrating the real reasons that the Divisional Executive had for taking the adverse action, but I do not understand how that can be so.

27    Mr Quirk says that the reason he was dismissed was because he made the complaints. Tendering the Interim Report doesn’t prove that the Divisional Executive either did take the action it took against him for that reason or not. The Interim Report and the contentions in paras 84 and 85 pass like ships in the night. Without lingering on the detail, the same problem afflicts each of the other allegations of protected action, that is, industrial activity, political opinion and responsibility under a workplace instrument. In each case, I do not understand how proving the existence of the Interim Report advances or in any way affects trying to prove something about the subjective mental state of the members of the Divisional Executive. Consequently I do not accept Mr Seck’s contention that that argument makes relevant the allegations in paras 63, 64 and 66.

28    The fourth basis upon which the allegations were said to be relevant was because the Interim Report and related materials would assist Mr Quirk in demonstrating that when he made his complaints and when he went on the 7.30 Report he was acting in good faith. Presently, the Respondents do not allege that Mr Quirk, in doing those things, was acting in bad faith so there is not presently an issue about Mr Quirk’s good faith. In that circumstance, this is not sufficient to make paras 63, 64 or 66 relevant. I would accept that if during the course of the trial it was put to Mr Quirk that he was acting in bad faith or that he knew the allegations were not true or something along those lines, then it would be a legitimate line of re-examination to ask him about the Interim Report and as part of that I would accept that one could probably tender the Interim Report to prove that that’s what Mr Quirk had in his mind, and hence to rebut any allegation of or want of good faith. But the fact is that certainly has happened at the level of the pleadings and no such allegation has yet been made. In that circumstance, this argument cannot ground the relevance of paragraph 63, 64, 66.

29    The fifth basis upon which the paragraphs were said to be relevant was for the purposes of a damages case based on the counterfactual that, had the material been put before the Divisional Executive, they would have taken it into account and not removed Mr Quirk from office. But I think here this is probably the wrong counterfactual. It depends on which case it is connected to. If it is the procedural fairness case, then the counterfactual is that the decision that he should be removed would not have been made. I do not see how the existence of the Interim Report assists in proving what is in that counterfactual. If it be on the wrongful dismissal case, again, I do not see how erecting a counterfactual where Mr Quirk was not dismissed requires one to have access to the Royal Commission materials.

30    In effect, the argument at play here is the same as the first argument I rejected, which is an erroneous assumption. In the counterfactual, one proves not what would have happened if Mr Quirk had not been removed from office but instead what would have happened if the hearing before the Divisional Executive had proceeded. That is not the correct counterfactual. In those circumstances, it seems to me that I should accept the Respondents’ contentions that paras 63, 64 and 66 of Mr Quirk’s FASOC should be struck out.

31    The Respondents also submitted that para 92 of the FASOC was defective. Paragraph 92 is in the following terms:

In making the internal complaints, the external complaints, the SMH complaints and/or the 7.30 Report complaints, Mr Quirk held and expressed a “political opinion” within the meaning of s 351(1) of the FW Act about:

a.    the governance of a registered organisation regulated under the FWRO Act with rights and entitlements conferred under the FW Act;

b.    the alleged corrupt and criminal conduct of officers of a registered organisation affiliated with the Australian Labor Party; and

c.    matters the subject of inquiry by the Royal Commission.

32    Essentially, the point here was a rerun of the earlier complaint about the particularisation of paras 50 and 55(a). The problem lies because para 92 picks up those paragraphs. As I have indicated already, the Respondents are entitled to seek properly particularised paras 50 and 52. If that proper particularisation is given, it seems to me that the difficulty with para 92 is no longer there.

33    The orders I will make in NSD 1028 of 2018 are:

(1)    The Applicant provide proper particulars of paragraphs 55(a) and 50 of the Further Amended Statement of Claim by 2.15 pm on 10 March 2020.

(2)    Paragraphs 63, 64 and 66 of the Further Amended Statement of Claim be struck out.

34    I make the following orders in NSD 1027 of 2018:

(1)    The Applicant provide proper particulars of paragraphs 50 and 55(a) of the Further Amended Statement of Claim by 2.15 pm on 10 March 2020.

(2)    Paragraphs 62, 63 and 65 of the Further Amended Statement of Claim be struck out.

35    And I make the following orders in the rules matter, NSD 1344 of 2017:

(1)    The Applicants provide proper particulars of paragraphs 27 and 32(a) of the Amended Statement of Claim by 2.15 pm on 10 March 2020.

(2)    Paragraphs 40, 41 and 43 of the Amended Statement of Claim be struck out.

Associate:

Dated:    13 March 2020

SCHEDULE OF PARTIES