Federal Court of Australia

Delpachitra v University of Technology Sydney [2022] FCA 22

ORDERS

THE COURT ORDERS THAT:

1.    The further amended Statement of claim dated 19 March 2021 be struck out.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an Interlocutory application by the respondent in a proceeding in the Court (the respondent’s Interlocutory application). The respondent’s Interlocutory application is brought under r 16.21 of the Federal Court Rules 2011 (Cth) (the Rules) and the respondent seeks an order that the applicant’s further amended Statement of claim dated 19 March 2021 (the FASOC) be struck out or in the alternative an order that certain paragraphs of the FASOC be struck out. The respondent also seeks an order that the applicant is not to file any further amended statement of claim except with leave of the Court.

2    There is also an application before the Court by which the applicant seeks leave to amend the FASOC (the applicant’s application) in terms of two schedules of proposed amendments provided to the Court on 27 May 2021 and 2 June 2021. The respondent has filed a written submission in response to the proposed amendments indicating the extent to which the orders sought on the respondent’s Interlocutory application are pursued in the event that the amendments are allowed.

The Parties to the Proceeding

3    In the proceeding, the applicant brings claims against the respondent under the Racial Discrimination Act 1975 (Cth) (the RD Act) and the Age Discrimination Act 2004 (Cth) (the AD Act). A complaint made by the applicant to the Australian Human Rights Commission (the AHRC) against the respondent was terminated pursuant to s 49PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) on 1 July 2020.

4    The applicant is an Australia citizen of Sri Lankan descent, born on 18 February 1955. The respondent is a university established by s 4 of the University of Technology Sydney Act 1989 (NSW) and a body corporate under the name of the University of Technology Sydney pursuant to s 5 of that Act. The proceeding concerns the respondent’s employment of the applicant and, in particular, discussions the applicant had with the respondent surrounding the expiration of the term of his employment and a further second contract of employment.

The Respondent’s Interlocutory application

5    The respondent relies on r 16.21(1) of the Rules, which is in the following terms:

Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     is otherwise an abuse of the process of the Court.

6    The applicable principles on an application under r 16.21 of the Rules are well settled and a short summary will suffice.

7    The power to strike out pleadings or portions of pleadings is discretionary and it should be employed sparingly and only in a clear case (Radisich v McDonald [2010] FCA 762; (2010) 198 IR 244 at [20] per Gilmour J). A pleading may be struck out, in whole or in part, on the basis of any one or any number of the grounds listed in r 16.21(1). Ultimately, whether a pleading is struck out depends upon whether, in the particular circumstances, it is necessary to do so in the interests of justice (John Holland Pty Ltd v Maritime Union of Australia [2009] FCA 437 at [60]–[61] per Graham J).

8    It is necessary to say something about s 46PR of the AHRC Act because the applicant placed considerable reliance on it in resisting the respondent’s Interlocutory application. That section is in the following terms:

In proceedings under this Division, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

9    In both his written submissions and his oral submissions, the applicant contended that the significance of s 46PR is that the Court should endeavour to avoid a legalistic approach and should instead focus on the substance of the case (Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576 at [89] per Bromberg J). The applicant submitted that the respondent was advocating the opposite approach. Counsel for the applicant in oral submissions accepted that there were some matters that could have been pleaded more explicitly and I understood him to be referring to the matters with respect to which the applicant proposed to amend the FASOC on the applicant’s application. The respondent submitted that the Rules apply and the relevance of s 46PR of the AHRC Act must be approached in the context of the Rules. The respondent referred to authorities in which questions of strikeout had been countenanced in this statutory context.

10    In my view, the position is as described by Robertson J in Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 (at [8]):

In my opinion, s 46PR does not prevent the appropriate application of the relevant rules concerning pleadings in Pt 16 of the Federal Court Rules which, in part anyway, provide procedural fairness to other parties — here, the respondents — in terms of being faced with a clear statement of the material facts which are said to found the claims against them. …

11    In support of its Interlocutory application, the respondent relies on an affidavit of Mr Tim McDonald sworn on 30 March 2021. Mr McDonald was at that time the solicitor for the respondent in this proceeding. Mr McDonald deposes to the fact that on 5 November 2020 and after the applicant filed his Statement of claim on 23 October 2020, he wrote to the solicitors for the applicant requesting the provision of further and better particulars, which he refers to as “the usual particulars”, of various allegations in the Statement of claim. Mr McDonald deposes to the fact that on 27 November 2020, he received a letter from the applicant’s solicitors responding to his letter dated 5 November 2020.

12    On 14 December 2020, the Court ordered that the applicant file and serve an amended statement of claim by 22 December 2020. The applicant filed an Amended Statement of claim on 22 December 2020.

13    Mr McDonald deposes to the fact that on 15 February 2021, he wrote to the solicitors for the applicant requesting again the provision of further and better particulars of various allegations in the Amended Statement of claim. Mr McDonald deposes to the fact that on 26 February 2021, he wrote to the solicitors for the applicant stating that nothing had been clarified by the Amended Statement of claim. He deposes to the fact that on 3 March 2021, he received a letter from the applicant’s solicitors enclosing an amended response to the respondent’s request for the provision further and better particulars made on 5 November 2020.

14    On 9 March 2021, the Court ordered that the applicant file and serve a further amended statement of claim by 19 March 2021 and that was done on 19 March 2021.

15    Mr McDonald deposes to the fact that on 22 March 2021, he received a letter from the solicitors for the applicant responding to the respondent’s request for further and better particulars made on 15 February 2021.

16    The significance of Mr McDonald’s affidavit is that the respondent’s Interlocutory application and the applicant’s application are to be determined by reference to the pleadings and that that is to be done in a context in which the applicant has already had three opportunities to address the appropriate pleading of his case. The respondent in its written submission in response to the schedules of proposed amendments noted that with the addition of those two schedules, the applicant has now had five opportunities to address the appropriate pleading of his case.

The Case against the Respondent

17    The applicant seeks compensation for loss calculated at approximately $808,000, the sum of $100,000 for non-economic loss and exemplary damages against the respondent. The applicant says the respondent’s breaches of s 9(1) and (1A) of the RD Act and ss 14 and 18(1), (2)(a) and (d) of the AD Act were so egregious as to entitle him to exemplary damages.

18    It will be necessary to consider separately the contraventions of the RD Act and of the AD Act alleged in the FASOC.

The Alleged Contraventions of the RD Act

19    The applicant relies principally on ss 9 and 15 of the RD Act, which are relevantly in the following terms:

9 Racial discrimination to be unlawful

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)    Where:

(a)    a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)    the other person does not or cannot comply with the term, condition or requirement; and

(c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

…

15 Employment

(1)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

(a)    to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

(b)    to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

(c)    to dismiss a second person from his or her employment;

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

(2)    It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.

20    The following are allegations taken from the FASOC.

21    On 25 March 2016, the respondent offered and the applicant accepted a three-year fixed-term contract for the purpose of employing the applicant to work in Shanghai and manage the UTS Business School. This is referred to as the “First UTS Contract”. The term of the First UTS Contract commenced on 1 May 2016 but no later than 30 May 2016 for a period of three years from the commencement date. The applicant was employed in the position of Director and Professor, UTS Business School Programs (Shanghai) contained within the Shanghai University – UTS Business School. The position was based at Shanghai University, Shanghai, China.

22    To give effect to the First UTS Contract, the applicant was directed by the respondent to enter a mirror contract of employment with Shanghai University. This is referred to as the “First Mirror Shanghai University Contract”. The term of the First Mirror Shanghai University Contract was effective from 1 June 2016 to 31 May 2019.

23    The First UTS Contract and the First Mirror Shanghai University Contract were interrelated in that the salary paid by Shanghai University represented 100% of the applicant’s base salary under the First UTS Contract and the respondent and Shanghai University were participants in a joint venture agreement which provided inter alia that 100% of the applicant’s salary paid by Shanghai University would be reimbursed by the respondent to Shanghai University.

24    On 14 January 2019, the applicant met with the Deputy Vice Chancellor of Shanghai University, during which the applicant noted that his employment contracts were due to expire on 31 May 2019 and he made enquiries as to what would happen to his position after that date. The Deputy Vice Chancellor said words to the effect that she had been surprised to hear that the Director of UTS International had expressed his wishes to replace the applicant.

25    On 31 January 2019, the applicant met with the UTS Dean of the Business School in Sydney. During this meeting, the applicant made it clear that he wished to continue in his position as Director of UTS Business School in Shanghai for two more years to which the Dean of the Business School replied with words to the effect of “Do you really want to work in Shanghai? I would like to employ a Chinese person for that position. I will be happy to recommend that you work in Shanghai for one more year, but no more – I would like to move a Chinese person to the role as soon as possible”.

26    On 1 February 2019, the applicant met with the UTS Provost and the UTS Deputy Vice Chancellor International during which it was indicated that they were satisfied with the work the applicant had undertaken in Shanghai and that they would take steps to ensure that the applicant would be recontracted for another term in Shanghai. On 14 February 2019, the applicant received an email from the UTS Deputy Dean to the effect that it had been recommended to Shanghai University that the applicant’s contract be extended to February 2020.

27    On 3 March 2019, the applicant received a new contract from Shanghai University. This is referred to as the “Second Mirror Shanghai University Contract”. The term of the Second Mirror Shanghai University Contract was from 1 June 2019 until 19 February 2020 and it was executed by the applicant and the respondent on 3 March 2019.

28    On 31 May 2019, the applicant was informed by the UTS Provost that as at 31 May 2019, he no longer had an employment contract with the respondent and his employment would cease immediately thereafter.

29    After 31 May 2019, the role of Director and Professor, UTS Business School Programs (Shanghai) was filled by the respondent with the role being jointly performed by persons of Chinese/Malaysian and Chinese ethnicity.

30    I turn now to the important allegations that the respondent contravened ss 9 and 15 of the RD Act.

31    The critical paragraphs are paras 30 to 35 and they are in the following terms:

30.    In breach of section 9(1) of the Racial Discrimination Act 1975 (Cth) the Respondent:

30.1.    Acted unlawfully,

30.2.    Exercised an exclusion based on the Applicant’s race, national or ethnic origin, or

30.3.    In the alternative to paragraph 30.2 exercised a preference for another person based on raced [sic], or national or ethnic origin.’

30.4.    The Respondent’s acts as alleged in paragraphs 30.2 or 30.3 had the purpose or effect of impairing the Applicant’s right to exercise on an equal footing his right to work.

30.5    The Respondent’s acts as alleged in paragraphs 30.2 or 30.3 had the purpose or effect of nullifying the Applicant’s right to exercise on an equal footing his right to work.

31.    In breach of section 9(1A) of the Racial Discrimination Act 1975 (Cth) the Respondent:

31.1.    Required the Applicant to comply with a requirement that was not reasonable in the circumstances of the case.

31.2.    The Applicant could not comply with that requirement.

31.3.    The Respondent’s acts as alleged in paragraphs 31.1 or 31.2 had the purpose or effect of impairing the Applicant’s right to exercise on an equal footing his right to work.

31.4.    The Respondent’s acts as alleged in paragraphs 31.1 or 31.2 had the purpose or effect of nullifying the Applicant’s right to exercise on an equal footing his right to work.

Particulars

32.    The Respondent expressed its preference for a ‘Chinese person’ in the Applicant’s position.

33.    The Respondent employed a ‘Chinese person’ in the position of Director and Professor, UTS Business School Programs (Shanghai).

34.    By its actions pleaded in paragraphs 9,11, 12, 13, 26, 27 and 29 the Respondent has acted in contravention of section 9 of the Racial Discrimination Act 1975 (Cth) (as amended) in that it has:

34.1.    Discriminated against the Applicant by excluding him from a further contract as Director and Professor, UTS Business School Programs (Shanghai) based on his race or national or ethnic origin.

34.2.    Discriminated against the Applicant by preferring another person on the basis of his race or national or ethnic origin for employment in the position of Director and Professor, UTS Business School Programs (Shanghai).

35.    By its actions pleaded in paragraphs 9,11, 12, 13, 26, 27 and 29 the Respondent has acted in contravention of section 15 of the Racial Discrimination Act in that it has:

35.1.    By reason of his race or national or ethnic origin failed to employ the applicant on the work which was available in the position of Director and Professor, UTS Business School Programs (Shanghai) and for which he was qualified,

35.2.    By reason of his race or national or ethnic origin failed to offer the Applicant the position of Director and Professor, UTS Business School Programs (Shanghai).

35.3.     By reason of the Applicant’s race or national or ethnic origin treated the Applicant less favourably than another person equally qualified for the position of Director and Professor, UTS Business School Programs (Shanghai)

35.4.     By reason of his race or national or ethnic origin, the Respondent has not renewed or extendied [sic] the Applicant’s contract for the position of Director and Professor, UTS Business School Programs (Shanghai) in circumstances where the Applicant had a reasonable expectation that his contract would be renewed in the ordinary course given:

35.4.1.    The previous assessment of the Applicant’s performance by the Respondent.

35.4.2.    The communications made to the Applicant in advance of the expiry of his contract , including but not limited to those communications referred to in paragraph 22.

35.4.3.    The practice of academic staff being employed in China after the age of 65.

35.4.4.    The Respondent’s act as alleged in paragraph 35.4 had the purpose or effect of impairing the Applicant’s right to exercise on an equal footing his right to work.

35.4.5.    The Respondent’s acts as alleged in paragraph 35.4 had the purpose or effect of nullifying the Applicant’s right to exercise on an equal footing his right to work.

35.5.    By it’s [sic] exercise of a preference for a ‘Chinese person’ for the position of Director and Professor, UTS Business School Programs (Shanghai) the Respondent has acted to the detriment of the Applicant by not renewing or extending his contract for the position of [sic] in circumstances where the Applicant had a reasonable expectation that his contract would be renewed in the ordinary course given:

35.5.1.    The previous assessment of the Applicant’s performance by the Respondent.

35.5.2.    The communications made to the Applicant in advance of the expiry of his contract , including but not limited to those communications referred to in paragraph 22.

35.5.3.    The practice of academic staff being employed in China after the age of 65.

35.5.4.    The Respondent’s act as alleged in paragraph 35.5 had the purpose or effect of impairing the Applicant’s right to exercise on an equal footing his right to work.

35.5.5.    The Respondent’s acts as alleged in paragraphs 35.5 had the purpose or effect of nullifying the Applicant’s right to exercise on an equal footing his right to work.

The Alleged Contraventions of the AD Act

32    The applicant relies principally on ss 14 and 18 of the AD Act, which relevantly provide as follows:

14 Discrimination on the ground of age—direct discrimination

For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:

(a)    the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and

  (b)    the discriminator does so because of:

(i)    the age of the aggrieved person; or

(ii)    a characteristic that appertains generally to persons of the age of the aggrieved person; or

(iii)    a characteristic that is generally imputed to persons of the age of the aggrieved person.

…

18 Discrimination in employment

(1)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s age:

(a)    in the arrangements made for the purpose of determining who should be offered employment; or

(b)    in determining who should be offered employment; or

(c)    in the terms or conditions on which employment is offered.

(2)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s age:

(a)    in the terms or conditions of employment that the employer affords the employee; or

(b)    by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

33    The following are allegations taken from the FASOC.

34    During the relevant period of his employment with the respondent, the applicant held a valid foreign work permit which was called an “A category Chinese visa” and for which there were and are no limitations with respect to age restricting the applicant’s capacity to obtain, renew or continue to hold a valid visa.

35    On 16 October 2018, the applicant received an email from the UTS Deputy Dean which said: “Hi Sarath, an issue about your contract has been brought to my attention, that we need to discuss. Your current contract expires at the end of May next year, and to my understanding for it to be renewed you will need a further work permit. I have also been informed that last year Chinese Foreign Expert Bureau enforced a maximum working age of 65 for the issue of visas. This will clearly have implications for you given that you turn 64 next year. Sorry to drop this on you, but were you aware of this? Perhaps we can discuss on the phone tomorrow …”.

36    On 17 October 2018, the applicant sent two emails to the UTS Deputy Dean in reply to the 16 October 2018 email, by which the applicant brought to the UTS Deputy Dean’s attention that the applicant was aware of an academic colleague over the age of 65 who was working in China on a category A visa.

37    On 14 February 2019, the applicant received an email from the UTS Deputy Dean which said that: “… I can confirm that UTSI and the DVC International, in conjunction with the Business School Dean have recommended to the (Shanghai) University that your contract be extended until your 65th birthday in February 2020. Beyond that it is recognised that any further extensions would require special permission from the SHU and Chinese government …”.

38    The allegations with respect to the respondent’s conduct surrounding the expiration of the term of the applicant’s employment contract and the arrangements going forward are repeated.

39    I turn now to the important allegations that the respondent contravened ss 8, 14, 16 and 18 of the AD Act.

40    The critical paragraphs are paras 37 to 45 and they are in the following terms:

37.    In breach of section 18(1) of the Age Discrimination Act 2004 (Cth) the Respondent has :

37.1.    As an employer

37.2.    Discriminated against the Applicant on the ground of his age

37.3.    In making arrangements for the purpose of determining who should be offered employment, in the role of Director and Professor, UTS Business School Programs (Shanghai).(section 18(1)(a)), or

37.4.    In determining who should be offered employment in the role of Director and Professor, UTS Business School Programs (Shanghai). (Section 18(1)(b))

37.5.    In the [sic] determining the terms of a contract which would be offered to the Applicant. in the role of Director and Professor, UTS Business School Programs (Shanghai). (section 18(1)(c)).

38.    In breach of section 18(2) of the Age Discrimination Act 2004 (Cth) the Respondent discriminated against the Applicant on the ground of his age

38.1.    In the terms of [sic] conditions that the Respondent afforded to the Applicant (section 18(2)(a)).

38.2.    By subjecting the Applicant to a detriment (section 18(2)(d)).

39.    In breach of section 14 of the Age Discrimination Act 2004 (Cth) the Respondent discriminated against the Applicant by:

39.1.    Treating or proposing to treat the Applicant less favourably than, a person of a different age (section 14(a)).

39.2.    And the Respondent did so because of the Applicant’s age (section 14(b)(i)).

Particulars

40.    The Respondent claimed that the Applicant was unable to renew his Chinese Visa because of the Applicant’s age.

41.    The Respondent offered a contract only until 31 December 2019 because of the Applicant’s age.

42.    The Applicant was not precluded from working in the role of Director and Professor, UTS Business School Programs (Shanghai) because of his age.

43.    The Applicant was able and prepared to work in the role of Director and Professor, UTS Business School Programs (Shanghai).

44.    The Applicant re-states his pleading at paragraph 20 and 23 herein.

45.    By its actions pleaded in paragraphs 26, 27 & 29 the Respondent has acted in contravention of sections 8, 14, 16 and 18 of the Age Discrimination Act 2004 (Cth) (as amended) in that it has:

45.1.    Discriminated against the Applicant based on his age, by not offering him employment on a further contract as Director and Professor, UTS Business School Programs (Shanghai).

45.2.    Discriminated against the Applicant, based on his age, by purporting to offer him employment at a lower grade and in Sydney and not as Director and Professor, UTS Business School Programs (Shanghai).

45.3.    Discriminated against the Applicant, based on his age, by offering a contract only until 3 December 2019.

45.4.    Discriminated against the Applicant, based on his age, by requiring him to relocate to Australia, which was detrimental to the Applicant.

45.5.    The Applicant relies on the presumption at Section 16 of the Age Discrimination Act Act [sic] 2004.

The Applicant’s Application

41    On 27 May 2021, the applicant provided to the Court a schedule of proposed amendments (the schedule). Counsel for the applicant in oral submissions the next day indicated that the applicant sought leave to amend the FASOC to reflect the contents of the schedule. Counsel for the respondent noted that the schedule had been provided to the respondent late the previous evening and that the respondent had had very little time to address the matter.

42    Counsel for the applicant in the course of oral submissions identified a number of further matters in respect of which the applicant would seek leave to amend the FASOC and the Court ordered that the applicant file and serve, within five days, a further schedule of proposed amendments. The applicant provided to the Court a further schedule of proposed amendments on 2 June 2021 (the further schedule). As I have said, on 8 June 2021, the respondent filed a written submission in response to the schedules indicating the extent to which the orders sought on the respondent’s Interlocutory application are pursued in the event that the amendments are allowed.

43    As described above, the applicant had had three opportunities prior to the hearing of the respondent’s Interlocutory application to address the appropriate pleading of his case. That means that r 16.53 of the Rules applies and it provides as follows:

Unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading.

Rule 16.51 makes provision for a party to amend a pleading once, at any time before the pleadings close, without the leave of the Court.

44    The starting point is that leave to amend should be granted unless the pleading is liable to be struck out or the matter the amendment would raise is unlikely to succeed (Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 176 FCR 66 at [21]–[22] per Kenny J). There is a broad discretion under r 16.53 (University of Sydney v ResMed Ltd (No 5) [2012] FCA 232 at [14] per Stone J) and relevant matters include the importance of the amendment to the party applying for it, the stage of the proceeding at which leave to amend is sought, the explanation for any delay in applying for leave and the potential for loss of public confidence in the legal system if the Court is seen to accede to applications made without adequate explanation or justification (see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [30] per French CJ; at [111]–[114] per Gummow, Hayne and Crennan JJ, Kiefel J (as her Honour then was) and Bell J).

ANALYSIS

45    As will appear, my conclusion is that the FASOC should be struck out in its entirety because of deficiencies in what I have identified as the critical paragraphs, being paras 30 to 35 with respect to the claim under the RD Act and paras 37 to 45 with respect to the claim under the AD Act. The proposed amendments to those paragraphs contained in the applicant’s schedules of proposed amendments do not cure those deficiencies and in fact, in some cases exacerbate them. For that reason, I would not allow the proposed amendments to the critical paragraphs.

46    It may be of assistance to the parties if I indicate that I would have allowed the proposed amendments to paragraphs unrelated to the critical paragraphs, had there not been the deficiencies in the critical paragraphs I will identify below. I would have allowed the following amendments:

(1)    Schedule:

(a)    Para 1;

(b)    Para 2;

(c)    Para 3;

(d)    Para 4;

(e)    Para 8;

(f)    Para 9;

(g)    Para 10;

(h)    Para 15;

(i)    Para 16;

(j)    Para 17;

(k)    Para 18; and

(l)    Para 21;

(2)    Further schedule:

(a)    Paras 2 and 3;

(b)    Paras 5 and 6;

(c)    Para 9;

(d)    Para 11; and

(e)    Para 12.

47    The remainder of these reasons will address the following matters:

(1)    Pleadings concerning the alleged relationship between the applicant, the respondent and Shanghai University;

(2)    Pleadings alleging breach of the RD Act;

(3)    Pleadings alleging breach of the AD Act; and

(4)    Pleadings with respect to the claim for exemplary damages.

Pleadings Concerning the Alleged Relationship between the Applicant, the Respondent and Shanghai University

48    The respondent’s complaint with respect to this matter is that the principal employment relationship pleaded in the FASOC is that between the respondent and the applicant and the alleged “mirror contract” with Shanghai University does not prove employment by Shanghai University at all. Counsel for the respondent submitted that the test of employment is a multi-faceted one and is not pleaded at all and in that connection, counsel referred to the decision of the High Court in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 (Hollis v Vabu).

49    The applicant proposes to amend paras 5 to 7 of the FASOC to include references to the terms of the First UTS Contract and the First Mirror Shanghai University Contract which are said to establish that the tripartite relationship between the applicant, the respondent and Shanghai University was one of dual employment (schedule paras 5 to 7). This allegation rests in particular on a clause of the First UTS Contract which provided that the First UTS Contract covered the applicant for the equivalent of a 0.2 fractional appointment and that the First UTS Contract would be complemented by, and operate in conjunction with, an employment contract from Shanghai University the signing of which was a condition of the applicant’s employment with the respondent and which covered the remaining 0.8 of the applicant’s full-time employment. There is also proposed to be included reference to the First Mirror Shanghai University Contract and the description therein of Shanghai University as “Employer” and of the applicant as “Employed Foreign Expert or Professional”. Counsel for the applicant submitted that a relationship of dual employment is “clearly provided for” and that the test in Hollis v Vabu does not apply to this situation.

50    The respondent maintains in its submission in response to the proposed amendments that the “indicia” of employment should be pleaded with respect to Shanghai University.

51    In my opinion, it is sufficient for the applicant to allege that he had a contract of employment with Shanghai University. As Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ explained in Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 392 ALR 39 (at [101]):

… The analysis in Hollis v Vabu affords no assistance, even by analogy, in the resolution of a question as to the character of an employment relationship, where there is no reason to doubt that the terms of that relationship are committed comprehensively to the written agreements by which the parties have agreed to be bound.

52    There is a related matter which although not the subject of detailed submissions by the parties, warrants consideration. The applicant’s claim for compensation relates to both his employment with the respondent and alleged employment with Shanghai University and is based on a loss of his base salary under the Second Mirror Shanghai University Contract from May 2019 to May 2021. It seems to me that it must be implicit in these pleadings that the respondent’s conduct is in some way to be attributed to Shanghai University and yet that, and the basis for it, is not expressly pleaded.

53    The applicant proposes to amend para 2.4 of the FASOC so that there is an allegation that the respondent operated the UTS Business School “in conjunction with” Shanghai University (schedule para 1). It does not seem that this plea on its own addresses the matter I have identified.

54    The applicant also proposes to amend para 5.1 of the FASOC so that there is an allegation that in order to pursue its collaboration with Shanghai University, it was necessary for the respondent to procure the employment of the applicant with and for Shanghai University (schedule para 5).

55    There are problems with this plea. First, it is arguably a plea only as to matters pertaining to the period between 2016 and 2019 and not as to the possibility of renewal of the applicant’s employment. That is to say, there seems to me to be a distinction between the contract of employment and any further contract of employment. Secondly, if it is a plea seeking to engage s 15(2) of the RD Act the problem with that is that reliance on s 15(2) seems to have been disclaimed, a matter which I will discuss further below.

56    I note that the proposed amendments to para 7 of the FASOC include removing para 7.3 which contains a plea of a joint venture agreement between the respondent and Shanghai University (schedule para 7). Putting to one side the fact that again, the applicant seems to seek to withdraw this allegation, there is no plea that any joint venture agreement continued. Finally, I note that it may be possible to infer from the allegations in paras 12 and 13 that the respondent is alleged to have been acting on behalf of Shanghai University in that it is alleged that the role of Director and Professor, UTS Business School Programs (Shanghai) was filled “by the respondent”.

57    In my opinion, it is not clear from the relevant paragraphs in the FASOC what the applicant’s case is with respect to the relationship between the respondent and Shanghai University. It should be made clear whether it is alleged that insofar as the First Mirror Shanghai University Contract and the Second Mirror Shanghai University Contract are concerned, the respondent was a person acting or purporting to act on behalf of Shanghai University (s 15(1) of the RD Act), or a person concerned with procuring employees for Shanghai University (s 15(2) of the RD Act), or on some other basis there was some connection between the respondent and Shanghai University.

Pleadings Alleging Breach of the RD Act

58    The respondent makes two complaints with respect to paras 30 and 31 of the FASOC, which allege breaches of s 9(1) and (1A) of the RD Act respectively. Those paragraphs are set out above.

59    First, there is a complaint that s 9(1) and (1A) are “mutually exclusive” and so one must be pleaded in the alternative to the other and the two cannot be pleaded as separate breaches. Counsel for the respondent in oral submissions referred to the authorities on that point and they include Australian Medical Council v Wilson [1996] FCA 1618; (1996) 68 FCR 46 (Wilson) (at 55 per Heerey J (with whom Black CJ agreed)) and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (at 392–393 per Dawson and Toohey JJ; at 400–402 per McHugh J). The applicant proposed to amend para 31 of the FASOC to make clear that s 9(1A) is pleaded in the alternative to s 9(1) (schedule para 11). This proposed amendment would have cured the deficiency identified by the respondent.

60    Secondly, the respondent submitted that paras 30 and 31 of the FASOC go no further than stating the elements of the relevant test and that no material facts are pleaded. With respect to para 30, the respondent referred to the five-step test under s 9(1) as set out in Wilson (at 73 per Sackville J). The respondent submitted that para 30 merely expresses at an equivalent level of generality each of the five limbs of that test. This complaint is also levelled at para 31 and, in particular, para 31.1 in that the requirement or condition alleged must be (but is not) pleaded as a material fact. To the extent that the necessary material facts might be found in paras 32 to 33, the respondent submitted that particulars are not pleadings and that if they are pleadings, it is ambiguous whether they are new material facts or a repetition of material facts already pleaded.

61    Counsel for the applicant submitted that “the allegations are made in relation to 30 and 31 and then particulars are provided from 32 through to 35”. The applicant proposes to amend para 35.1 so that there is an allegation that the respondent required the applicant to comply with a requirement that he must be of Chinese ethnicity (schedule para 12). Counsel for the respondent submitted in reply that the bare pleadings of law in paras 30 and 31 had not been remedied and the respondent in its submission in response to the proposed amendments submitted that the proposed amendment to para 35.1 is embarrassing and pressed its complaints with respect to paras 30, 31 and 32 to 35.

62    There was also an issue raised as to whether the applicant relies on s 15(2) of the RD Act in para 35 of the FASOC.

63    As I have indicated above, it is not clear what the applicant’s case is with respect to the relationship between the respondent and Shanghai University. There is an allegation in para 35 of the FASOC that the respondent has acted in contravention of s 15 of the RD Act. The respondent submitted that the applicant has not identified precisely which subsections of s 15 are relied upon in the FASOC, although it has been indicated in correspondence from solicitors for the applicant that he relies on s 15(1)(a) and (b), and (2). The applicant proposes to amend para 35 the FASOC so that there is an allegation that the respondent has breached s 15(1)(a) and (b) of the RD Act (schedule para 13). That would seem to expressly disclaim reliance on s 15(2), yet counsel for the applicant appeared to suggest that s 15(2) was still relied upon. In my opinion, any existing ambiguity which attended a failure to plead the subsections of s 15 the respondent is alleged to have breached is exacerbated by a plea tending to disclaim reliance on s 15(2) when in fact, the applicant appears to continue to rely on that subsection.

64    The respondent also submitted that the applicant’s alleged “reasonable expectation” of employment in para 35.4 is ambiguous. This allegation must be addressed by the applicant. As presently pleaded, it is not clear how a reasonable expectation of employment is relevant to the allegations of contravention of s 9(1) and (1A) of the RD Act.

65    In my opinion, the current formulation of the pleadings alleging breach of the RD Act gives rise to ambiguity and is likely to cause embarrassment to the respondent (r 16.21(1)(c) and (d) of the Rules). I note that r 16.02(3) provides that a pleading may raise a point of law. However, the difficulty with paras 30 and 31 is that it is not clear how those paragraphs relate to paras 34 and 35. In fact, it is not clear what para 34 adds to paras 30 and 31 and that is particularly so in circumstances where the applicant proposes to amend paras 30 and 31 so that the same eight paragraphs which are relied on in para 34 are also relied on in paras 30 and 31, being paras 8, 9, 11, 12, 13, 26, 27 and 29 (further schedule paras 7 and 8). I have identified the deficiencies with respect to para 35 above. Furthermore, the respondent should not be required to guess which of the particulars in paras 32 and 33 and (so the applicant says) paras 34 and 35 correspond with which allegations in paras 30 and 31 and, in particular, which of the particulars correspond with which limbs of the test of contravention of s 9(1) as pleaded in para 30.

66    In the circumstances, the appropriate order is that paras 30 to 35 be struck out.

Pleadings Alleging Breach of the AD Act

67    The respondent in its submission in response to the proposed amendments presses its complaints with respect to the claim under the AD Act. The respondent’s submission is that the claim under the AD Act has no prospects of success and ought to be struck out in whole without leave to re-plead or further amend. As I have identified, the critical paragraphs with respect to the claim under the AD Act are paras 37 to 45. Those paragraphs are set out above.

68    First, the respondent submits that the plea at para 18 goes only to the applicant’s belief or understanding of the relevant visa requirements and so is irrelevant. I think that when read together with para 15, it is clear that the allegation is that there were in fact no visa conditions of the kind contended by the respondent.

69    The second complaint concerns paras 37 to 39 of the FASOC which contain allegations of breaches of ss 14 and 18(1) and (2) of the AD Act. The complaint is again that these paragraphs are bare pleadings of law. The respondent submits that the applicant has not proposed amendments which make clear the material facts relied upon, and it gave as an example the alleged “arrangements” in para 37.3. In my view, there are similar difficulties with para 38.1 with respect to the alleged “terms or conditions”. The respondent submits with respect to para 39 that it is unclear what part of the pleadings is relied upon to prove the circumstances relevant to determining less favourable treatment by reference to an appropriate “comparator” (s 14(a) of the AD Act; see Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [242]–[243] per Mortimer J).

70    The third complaint is with respect to paras 40 to 44 of the FASOC and the respondent submits that it is unclear whether those paragraphs are pleadings or particulars and particulars cannot be pleadings and that if they are pleadings, it is uncertain whether they are new material facts or a repetition of material facts already pleaded, save for para 44.

71    The fourth complaint relates to para 45 of the FASOC. The respondent submits that para 45 is a rolled up pleading of breaches of a number of provisions of the AD Act, including s 16 which is not a breach provision. The respondent submits that para 45 suffers the same lack of clarity regarding how the matters pleaded at paras 20 and 23 and picked up at para 44, are relied upon in relation to each of the limbs of the test for direct discrimination on the ground of age in employment.

72    In my opinion, and for the reasons I have given in relation to the pleadings alleging breach of the RD Act, paras 37 to 45 should be struck out. It is not clear how paras 37 to 39 relate to paras 40 to 43, 44 and 45 in that those latter two paragraphs also rely on paras 20 and 23, and 24A and 26, 27 and 29 respectively (further schedule para 10). This makes the pleading ambiguous and likely to cause embarrassment to the respondent.

73    The respondent contended that the claim under the AD Act was untenable and that was put on a number of bases, but, in particular, on the basis that prior to the proposed amendments being put forward by the applicant, para 5.2 of the FASOC under the heading, “Particulars of Exemplary Damages” contained an allegation that the respondent’s reliance on the applicant’s age was a “ruse”. The respondent submitted that this amounted to an admission and was inconsistent with any assertion that age caused the respondent to act as alleged. In my opinion, whilst the matter gave rise to an internal inconsistency tending to undermine the AD Act claim, that has been dealt with by the proposed amendment to para 5.2, that is, proposed para 5.4, so that it is clear that the matter is pleaded in the alternative (schedule para 19). I note that it would seem that proposed para 5.2 as per the schedule would also need to be pleaded in the alternative to overcome the same difficulty.

Pleadings with Respect to the Claim for Exemplary Damages

74    The respondent presses its complaint with respect to paras 3.1 to 3.6 of the FASOC which it says are unaffected by any of the applicant’s proposed amendments. The respondent submitted that its understanding is that those paragraphs particularise the claim for exemplary damages in paras 4 and 5 under the heading, “Remedy sought”. The basis for an award of exemplary damages is said to be that the respondent’s breach was a particularly egregious one in the circumstances including where the applicant relinquished a position at Flinders University and relocated to Shanghai to take up employment with the respondent. The respondent submits that paras 3.1 to 3.6 do not support a claim for exemplary damages in circumstances where all that is alleged is that the applicant left a previous position to take up employment with the respondent.

75    The applicant did not clearly identify his submission with respect to paras 3.1 to 3.6 and seemed to suggest that they support the case on liability or at the very least that they establish that a contract of employment was entered into by the applicant and the respondent. Counsel for the applicant in oral submissions said that paras 3.1 to 3.6 had been included in response to a request for further and better particulars.

76    In my opinion, unless there is some new matter not previously referred to, paras 3.1 to 3.6 should be struck out as they are irrelevant and are therefore likely to cause embarrassment to the respondent (r 16.21(1)(d) of the Rules; see Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22] per Edmonds J; Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 at [18] per Tamberlin J). The proposed amendment to the chapeau of para 3 (schedule para 2) has the effect that there is no longer reference to any alleged negotiation. Insofar as there is a claim for exemplary damages, it is particularised elsewhere.

Conclusion

77    As I have said, my conclusion is that the FASOC should be struck out in its entirety because of the deficiencies in the critical paragraphs which I have identified. However, it seems to me that the applicant could plead an arguable case and I would not make an order precluding him from seeking leave to file a further statement of claim.

78    I will hear the parties as to costs.

Associate:    

Dated:    25 January 2022