Federal Court of Australia

Delpachitra v University of Technology Sydney [2023] FCA 18

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to file a second further amended statement of claim is refused.

2.    I will hear the parties as to any further orders.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

Overview

1    On 25 January 2022, Besanko J ordered the applicant’s further amended statement of claim dated 19 March 2021 be struck out: Delpachitra v University of Technology Sydney [2022] FCA 22 (strike out decision).

2    Subsequently, the applicant applied for leave to file a second further amended statement of claim pursuant to r 16.53 of the Federal Court Rules 2011 (Cth) (FCR), ultimately in the form of the annexure to the applicant’s outline of submissions filed 6 May 2022.

3    The sole issue in this case is whether leave should be granted to file the second further amended statement of claim.

4    It is for the reasons that are set out below that leave to file the second further amended statement of claim is refused.

5    The applicant made a complaint against the respondent to the Australian Human Rights Commission (AHRC) in relation to the matters the subject of these proceedings. The complaint was terminated pursuant to s 49PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

6    The originating application was brought under the AHRC Act. As part of his submissions, counsel for the applicant referred to s 46PR of the AHRC Act which provides that the Court is not bound by technicalities or legal forms. Besanko J dealt with the same submission in the strike out decision at [10] holding that in his Honour’s view the correct position was as stated by Robertson J in Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 at [8]. In that matter, his Honour considered that s 46PR did not prevent the appropriate application of the relevant rules of the Court which, in part, provide procedural fairness to other parties, and in the case of the respondent, in terms of being faced with a clear statement of the material facts said to found the claims against it.

7    Counsel for the applicant accepted that the relevant rules as to pleadings apply, as appropriate, to provide procedural fairness to the respondent.

Principles

8    There is no dispute between the parties concerning the relevant principles. Although this is an application to file an amended statement of claim, nonetheless the principles applicable to a strikeout are relevant since leave to amend will not be granted if, amongst other things, the pleading is liable to be struck out.

9    In the strikeout decision, Besanko J summarised the position at [7] on the question of strikeout and [44] on the question of leave to amend:

[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).

[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).

The proposed second further amended statement of claim

10    The pleading now proposed to be filed is different both in form and substance to that which Besanko J ordered be struck out. The applicant continues to press causes of action based on alleged contraventions of s 9(1), alternatively s 9(1A) and ss 15(1)(a), 1(b), and/or (2) of the Racial Discrimination Act 1975 (Cth) (RDA): at [37]-[45]; further or in the alternative for contraventions of ss 14, 18(1), 18(2), 56 and 57 of the Age Discrimination Act 2004 (Cth) (ADA): at [46]-[56]. The applicant has now introduced a cause of action for a contravention of s 50 of the Fair Work Act 2009 (Cth) (FWA): at [57]-[66].

Pleaded Background

11    The following matters are taken from the proposed pleading.

12    The applicant is of Sri Lankan ethnicity, was at all material times an Australian citizen, and was employed by the respondent from 30 May 2016 until 31 May 2019. The respondent is an Australian University which, from in or about 1994, established and continues to operate an overseas business school known as “SHU-UTS SILC Business School” (SHU-UTS Business School) in conjunction with Shanghai University, Shanghai, China. It is alleged that the respondent is, “… in a partnership or joint-venture with Shanghai University, through a partnership or joint-venture known as ‘Sydney Institute of Language and Commerce’ or ‘SILC’, comprising a partnership between the respondent, UTS:Insearch and Shanghai University (the SILC Partnership)”.

13    On or about 25 March 2016, the respondent offered, and the applicant accepted, a three year fixed term contract of employment for the applicant to work in Shanghai in the position of Director and Professor of the SHU-UTS Business School (UTS Contract).

14    The term of the UTS Contract was from 1 May 2016 until 31 May 2019. The applicant was employed on a full-time basis with the UTS Contract covering the applicant for a 0.2 fractional appointment and an employment contract from Shanghai University covering the remaining 0.8 of the applicant’s full-time employment. It was a condition of the applicant’s employment with the respondent that he enter into a contract with Shanghai University, which he did on or about 18 March 2016 (first Shanghai University Contract).

15    The term of the first Shanghai University Contract was from 1 June 2016 to 31 May 2019.

16    As at the date of the UTS Contract, there was an applicable UTS Enterprise Agreement between the respondent and its employees (2014 UTS Enterprise Agreement). The 2014 UTS Enterprise Agreement was replaced with effect from 27 December 2018 (2018 UTS Enterprise Agreement) such that it was in place at the end of the applicant’s fixed term of employment under the UTS Contract.

17    The applicant alleges a term of the 2018 UTS Enterprise Agreement had the effect that if the respondent decided to continue the position occupied by the applicant on a fixed term basis, the applicant will be offered further employment in that position, having been employed through a merit selection process and provided his performance in the position had been satisfactory. I deal with that allegation below.

18    The applicant alleges his employment pursuant to the UTS Contract and the first Shanghai University Contract was in the nature of a joint or tripartite employment arrangement between the respondent, Shanghai University, and the applicant in connection with the SILC Partnership.

19    The applicant alleges his employment with the respondent under the UTS Contract and his employment with Shanghai University under the first Shanghai University Contract were interrelated and his ongoing employment in his position for a further term was “… conditional and dependent upon his ongoing employment with both the respondent and Shanghai University …”.

20    From in or about 16 October 2018, the applicant was in correspondence with representatives of the respondent in relation to his continuing employment after 31 May 2019 in the position he then occupied.

21    The applicant alleges that on 1 February 2019 he was told by the UTS Provost and UTS’ Deputy Vice-Chancellor International that they were satisfied with the applicant’s work in Shanghai and they would take steps toward having him re-contracted for his position in Shanghai until his 65th birthday on 18 February 2020.

22    On or about 3 March 2019, the applicant received a new contract from Shanghai University (second Shanghai University Contract) for employment for the period 1 June 2019 – 19 February 2020 in the same role and for the same remuneration.

23    The applicant pleads that on 11 April 2019, he received an email from the Deputy Dean of the UTS Business School (Sydney) (Deputy Dean) in which he was advised the respondent would issue him an employment contract for a fixed term ending on 18 February 2020 but on the basis that from 1 July 2019 the applicant would be required to relocate to Sydney and perform duties which were different to those he was performing in his role in Shanghai. The applicant pleads that these terms are not acceptable to him.

24    The applicant alleges that on 30 April 2019 he received an email from the UTS Provost advising him that a contract was not being issued to the applicant by SILC, or the respondent, notwithstanding the execution of the second Shanghai University Contract and that “… the best way forward was for the employment relationship to end on 31 May 2019 in line with the UTS Contract”.

25    The applicant alleges the employment relationship between him and the respondent ended on 31 May 2019.

Pleaded cause of action - parties’ submissions and consideration

26    The respondent opposes leave being granted. It submits that in reality, when different versions of the proposed pleading are counted, this is the eighth iteration of the pleading. In fairness to the applicant, some of those iterations have addressed corrections to previous versions but the point remains valid that the pleading the applicant now seeks leave to file is at least the fourth iteration of the statement of claim.

27    The respondent submits that if leave is not granted, the proceeding should be dismissed. Alternatively, the applicant should be granted leave to plead only those paragraphs that are not prejudicial or embarrassing and are capable of sustaining an arguable case against the respondents.

Strike out decision - issues not addressed

28    The respondent refers to [54] and [55] of the strike out decision and two issues that arise from those paragraphs. First, that insofar as the applicant pleaded it was necessary for the respondent to procure the employment of the applicant with Shanghai University, that only dealt with the period 2016 - 2019 and not to the possibility of renewal of the applicant’s employment (contract renewed issue). Second, if the plea seeks to engage s 15(2) of the RDA, that plea appeared to have been abandoned before Besanko J (s 15(2) RDA issue).

29    The applicant submits that [16] of the proposed pleading addresses those issues. The respondent submits that that paragraph does not do so.

Contract renewal issue

30    As to the first issue, Besanko J observed at [54] and [55] that:

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.

31    The applicant submits the chapeau to [16], which pleads that the applicant’s employment with the respondent under the UTS Contract and with Shanghai University were interrelated and his ongoing employment for a further term was conditional and dependent upon his ongoing employment with the respondent and Shanghai University, addresses this issue. In support of that plea, the applicant pleads seven sub-paragraphs. None of those sub-paragraphs provide support for the allegation in the chapeau insofar as it pleads ongoing employment by the respondent and Shanghai University.

Section 15(2) RDA issue

32    Section 15(2) of the RDA provides:

(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.

33    The applicant refers to the proposed [41] where in the chapeau to that paragraph it is pleaded that the respondent contravened, amongst other sections, s 15(2):

(a)    In its own right; and/or

(b)    As a partner and agent of Shanghai University pursuant to the SILC partnership; and/or

(c)    In purporting to act on behalf of Shanghai University as an employer in connection with the SILC partnership; and/or

(d)    By reason of the respondent’s vicarious liability for the acts of Shanghai University.

34    In support of that allegation, the applicant submits that the pleading at [41.3], that the first limb of s 15(2) is satisfied, because the respondent was a person concerned with procuring employees for an employer, namely Shanghai University. I am not convinced that is correct, but in any event, there is a more fundamental problem.

35    The applicant submits the second limb of s 15(2) is addressed by [41.4], which pleads that the respondent and Shanghai University treated the applicant less favourably in relation to his position that another person or persons in the same circumstances. Those persons are referred to in [38.7.7] and are persons who, at least in part, are of Chinese descent or national or ethnic origin.

36    It is clear that the applicant specifically pleads s 15(2) and does not disclaim it. However, the fundamental problem with the plea is that there is no basis identified in the pleading to support the allegation in [16] that the procurement of the applicant’s employment extended beyond the period 2016 - 2019. Section 15(2) will only have work to do if the respondent was engaged in procuring the employment of the applicant for the period after 31 May 2019. Since that is not the case, s 15(2) is not engaged.

37    A further issue with the pleading is that the respondent submits that it is not clear that [38.7.7] - [38.7.9] of the pleading amounts to a comparator.

38    The applicant refers to Wotton & Ors v Queensland (No 5) and Anor [2016] FCA 1457, (2016) 352 ALR 146 [539]-[542] (Mortimer J) and submits that [38.7.7] provides the necessary comparator.

39    The applicant refers to the pleading at [22.2] which alleges that the UTS Dean had a conversation with the applicant on 31 January 2019 in which he is alleged to have said words to the effect:

Do you really want to work in Shanghai? I would like to 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.

40    When taken together, the pleading at [22.2] and [38.7.7] - [38.7.9] may be understood as pleading a comparator.

41    Nonetheless, the problem to which I have referred above remains. The two issues identified by Besanko J in [54] and [55] of the strike out decision remain unresolved.

FWA claim

42    The respondent raises two categories of objection in relation to the Enterprise Agreement Claim. The first being to [10], [59] and [60] and the alleged construction of the Enterprise Agreement, and the second to the allegation of an implied term in the Enterprise Agreement.

Paragraphs 10 and 59

43    The respondent’s first complaint refers to the applicant’s reliance on cl 43.18 of the Enterprise Agreement. The applicant pleads that the effect of that cl in [10] and [59] as being that in terms of its operation as between the applicant and the respondent, the clause had the effect that if the respondent decided to continue the position occupied by the applicant on a fixed term basis, the applicant would be offered further employment in the fixed term position, having been employed through a merit selection process and provided there had been satisfactory performance by him in the position.

44    In its written submissions, the respondent sets out cl 43.18:

43.18    If the University decides to continue a position on a fixed-term basis, the incumbent staff member will be offered further employment in the fixed-term position if the staff member was employed through a merit selection process and there has been satisfactory performance in the position.

45    The respondent submits that before the clause can have any operation it must be established that the respondent “decided to continue a position on a fixed term basis” but the applicant has not pleaded any such decision. On that basis, it submits that the claims premised on this allegation cannot succeed.

46    The applicant submits that since it pleaded the applicant was employed through a merit selection process and that there had been satisfactory performance, the second and third limbs of the clause are satisfied.

47    As to the first limb, the applicant refers to [62.2] where it is pleaded that the position occupied by the applicant was to be continued on a fixed-term basis.

48    I accept there is no pleading that a decision was made to continue the position on a fixed-term basis however, it is pleaded in [62.2] that the position occupied by the applicant was to be continued on a fixed-term basis. It has also been pleaded that the position previously occupied by the applicant was offered to another person. On that basis, it seems to me that the applicant relies on inference for the decision to continue the applicant’s position on a fixed-term basis. That is not surprising as such a decision is likely to have been the subject of internal discussions to which the applicant, at least at this stage, may not be privy.

49    Under those circumstances, if indeed it be the case that the applicant relies on inference to establish the decision required by cl 43.18, the applicant should plead it.

Paragraph 60

50    The applicant then turns to the pleading at [57] and s 50 of the FWA which provides that a person must not contravene a term of an enterprise agreement before pleading a construction of cl 43.18 of the Enterprise Agreement at [60] that:

60.1    Any further employment contract required to be offered to the applicant pursuant to [clause 43.18] of the Enterprise Agreement would be on reasonable terms, including for a duration that was reasonable in all of the circumstances; and

60.2    If the applicant (sic respondent) was required to offer the applicant a further employment contract pursuant to [clause 43.18] of the Enterprise Agreement, the respondent will take all reasonable steps to procure a contract for the applicant with Shanghai University on reasonable terms, including for a duration it was reasonable in all of the circumstances (and being for the same duration is the further contract required to be offered by the respondent to the applicant pursuant to [clause 43.18]).

51    The respondent submits there are a number of problems with [60].

52    First, the respondent submits the reference to the term “operating” in any way is ambiguous and embarrassing in circumstances where cl 43.18 contains no such word. I do not accept that submission. Whereas it might be termed clumsy, nonetheless it is readily apparent on the pleading that it is alleged the clause has a particular effect.

53    Second, the respondent alleges that no material facts are identified to support the applicant’s construction of cl 43.18, nor is there any legal basis to read the words in the clause in the way for which the applicant contends.

54    The applicant submits enterprise agreements to be construed having regard to the objects of the FWA. So much so may be accepted. I do not consider that it is unarguable that the objects of the FWA set out in ss 3 and 171 are such as to support the construction of cl 43.18 for which the applicant contends. So too, it is clear that a flexible approach should be taken to the construction of enterprise agreements and that such an approach should be taken to the construction of cl 43.18 of the 2018 UTS Enterprise Agreement: Amcor Ltd Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241, [96] (Kirby J).

55    Third, the respondent submits the text of the Enterprise Agreement does not support the applicant’s case such that is not reasonably arguable in the sense that no part of cl 43 imposes any limitation on the terms of fixed term employment where that type of employment can be offered. That may or may not be the case but is a matter which will have to await any hearing.

56    Fourth, the respondent submits the pleaded operation of the clause is vague. There is force in this submission, in particular the reference in [60.1] to employment on “reasonable terms” including for a “duration it was reasonable in all the circumstances”. The same criticism may be made in relation [60.2]. The pleading ties in with that in [64] which alleges that the period of employment offered from 1 June 2019 to 18 February 2020 was not of a reasonable duration for the purposes of cl 43.18 but that a period from 1 June 2019 to 18 February 2021 was of a reasonable duration. However, no basis is advanced for that position. Further, the reference to employment on “reasonable terms” leaves open a vast array of different terms without any identification of what those terms might be.

57    The applicant submits that at trial he will contend that the further employment to be offered should be on the same terms as a previous contract of employment for a period of time that is “reasonable in the circumstances”. That does not advance the matter from the applicant’s perspective.

58    The pleading in [60] is vague and I am not prepared to grant leave to the applicant to plead [60] in its current form.

Implied term

59    The applicant pleads in [61] that it is implied into cl 43.18 of the 2018 UTS Enterprise Agreement, insofar as it applies between the applicant and the respondent, that terms as per those referred to in [60.1] and [60.2] applied because they “… are necessarily or properly implied by the language used in [cl 43.18] (in the context of the 2018 UTS Enterprise Agreement as a whole); were necessary for the reasonable and effective operation of the 2018 UTS Enterprise Agreement and [cl 43.18] in the circumstances of the case; or alternatively because those terms:

(a)    Were in all circumstances reasonable and equitable;

(b)    Were necessary to give business efficacy to [cl 43.18] or for the reasonable or effective operation of [cl 43.18];

(c)    Are so obvious that it “goes without saying”;

(d)    Are capable of clear expression; and

(e)    Do not contradict the express terms of the 2018 UTS Enterprise Agreement.

60    To that extent, the applicant pleads the requirements for the application of a term into a contract identified by Lord Simon of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 282-283. The second requirement referred to by the applicant relating to business efficacy does not reflect accurately what his Lordship said, which was that for a term to be implied, amongst other things, “it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it”.

61    Further, on the issue of business efficacy, in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 345-346 Mason J observed that the implication of a term is one which it is presumed parties would have agreed upon had they turned their minds to it such that the deficiency in the expression of the consensual agreement is caused by the failure of the parties to direct their minds to a particular eventuality and to make explicit provision for it.

62    It is against that background the respondent submits that it is not the role of courts to import or imply terms into an enterprise agreement. In the context of an award, Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182, 184 observed that a court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award, and that deciding what an existing award means is a process quite different from deciding what might fairly be put into an award.

63    On that basis, the respondent submits that the construction of an enterprise agreement is not undertaken on the footing it is some form of bargain between agreeing parties but rather on the basis that an enterprise agreement has a legislative character: Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCA 152, [88]-[89] (Jessup Tracey and Perram JJ); Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2022] FCAFC 50, [28] (Besanko, Bromberg and Wheelahan JJ).

64    The applicant relies on Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 and McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499, [102]-[106] (Siopis J) and submits it remains arguable that a term may be implied into a certified/enterprise agreement either on contractual principles or otherwise.

65    I do not accept that submission insofar as it is directed at implication of terms on contractual principles. In Australian Licence Aircraft Engineers Association, Besanko J, with whom Bromberg and Wheelahan JJ agreed, said: at [28], [29]:

28    The Full Court of this Court observed in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 (TWU v Coles) that, although the observations in Kucks were made in dealing with the construction of awards, they apply equally to industrial agreements subject to one additional observation. Enterprise agreements are agreements in name only and their construction should not proceed on the premise that they are a form of bargain between agreeing parties (TWU v Coles at [40]; Toyota Motor Corp Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 at [88]–[89]). In other words, because of the circumstances in which they are made and the consequences of contravention (i.e., penal consequences for contravention: s 50 of the FW Act), enterprise agreements have a legislative character.

29    The main guides to construction are text, context and purpose and there is utility in bearing in mind the facts as they are known at the time the instrument is drafted (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J; at [30] per Gummow, Hayne and Heydon JJ; at [64] and [96] per Kirby J; at [129]–[131] per Callinan J; TWU v Coles at [46]; see also Herzfeld P and Prince T, Interpretation (2nd ed, Lawbook Co, 2020) at [16.160] et seq)

66    The applicant submits that the pleading should stand as the law on the implication of a term of an enterprise agreement is unsettled. I do not accept that submission. There are at least three decisions of the Full Court of this Court which proceed on the basis that enterprise agreements have a legislative character; that they are agreements in name only; and their construction should not proceed on the premise they are a form of bargain between agreeing parties. Once that position is reached, the statement by Mason J in Codelfa Construction, to which I have referred above, excludes any possibility of a term being implied into an enterprise agreement on contractual principles.

67    Accordingly, I do not consider the claim for a term to be implied into the 2018 UTS Enterprise Agreement based on contractual principles is arguable and if pleaded is likely to be struck out. Accordingly, I am not prepared to grant leave to plead the implication of terms into cl 43.18 on that basis.

68    The applicant submits further that independently of contractual implications, the applicant’s claim under the Enterprise Agreement is not limited to the implication of terms in the sense that at [63] it alleges a breach of cl 43.18 by the respondent failing to offer the applicant further employment. That is a pleading based upon the applicant’s construction of the clause and is one which, subject to what I have said above about [60], I would be prepared to allow.

RDA claim

69    The respondent objects to [37] and [38]. It submits that the combination of [37] and [38] are one or more of evasive, ambiguous, and/or likely to cause prejudice, embarrassment and/or delay, within the meaning of FCR 16.02(2).

70    The allegations in [37] and [38] allege a contravention of s 9(1) of the RDA by the respondent in its own right and/or as a partner and agent of Shanghai University pursuant to the SILC Partnership and/or by reason of the respondent’s vicarious liability for the acts of Shanghai University pleaded in [44.4].

71    No complaint is made about the pleading of vicarious liability per se.

72    The respondent submits that the use of the conjunction “and/or” in [37] means that the respondent must plead to 31 different combinations of subparagraphs.

73    In Wotton at [530], Mortimer J observed that s 9(1) of the RDA may be seen as having a conduct-based limb and an outcome-based limb, with the outcome-based limb directing attention to the actual outcome of the conduct-based limb.

74    The applicant has pleaded in [37] both the conduct based limb and the outcome based limb contained in s 9(1). The allegations in [37.1] - [37.4] pick up the conduct based limb by references to acts of distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin. The allegations in [37.5] plead the outcome based limb by referring to the purpose or effect of the alleged actions in [37.1] - [37.4].

75    I do not consider that pleading the conduct based and outcome based limbs contained within s 9(1) in this fashion, albeit using conjunctives, leads to the pleading offending the requirements of FCR 16.02(2). However, given how the applicant has chosen to plead the two limbs contained within the section, the pleading of material facts in [38] to support those two limbs is such as to offend FCR 16.02(2)(d) in the sense that it is likely to cause prejudice and/or embarrassment and/or delay: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]-[24] (Edmonds J). That is because there is no link between each of the facts pleaded in [38] to either of the limbs pleaded in [37], and in relation to the conduct limb in particular, no reference back to which aspect of the conduct about which complaint is made. I accept that in some cases the link may be obvious but that is not the case in relation to a number of the 21 pleaded sub-paragraphs in [38].

76    Contrary to the applicant’s submissions, I do not accept that having chosen to plead the limbs of s 9(1) in [37] as it has done, it is not necessary for each of the material facts to be pleaded by reference to each individual strand in [37.1] to [37.4]. The respondent should not be required to guess which of the material facts applies to which of the conduct limbs.

77    The applicant refers to the observations of Mortimer J in Wotton at [530]. I do not consider her Honour’s observations assist the applicant.

78    I am not prepared to grant leave to the applicant to plead [38] in its current form.

79    In view of my conclusion in relation to [38], it is unnecessary to deal with the respondent’s objections to [37] and [38] in [2] of its submissions filed on 20 April 2022.

80    Paragraphs 39 and 40 allege a contravention of s 9(1A) of the RDA. That section does not identify a contravention. Its purpose is to identify what a “… distinction based on, or an act done by reason of, the other person’s race, colour, dissent or national or ethnic origins.” comprises for the purposes of s 9(1). Since I am not prepared to grant leave to the applicant to plead a contravention of s 9(1) in its current form, it follows that I am not prepared to grant leave to the applicant to plead [40] of the pleading in its current form.

ADA claim

81    The respondent objects to the pleading in [47], [48], [49] and [50].

[47] and [48]

82    The respondent repeats its submissions in relation to [37] and [38] in respect of [47] and [48].

83    The applicant has adopted the same approach to pleading the alleged contravention of s 18(1) of the ADA as it took to pleading the alleged contravention of s 9(1) of the RDA.

84    Each of the matters in s 18(1)(a), (b) and (c) are pleaded in [47]. As I have noted above, I do not consider that pleading the various components of the section in this fashion offends the requirements of FCA 16.02(2), however once again, the vice in the pleading is with the allegations in [48]. Once again, there is no attempt by the applicant to link what it alleges are the material facts in [48] to support the contraventions pleaded in [47] to each of the contraventions.

85    It is for the same reasons that I have set out above in relation to the claim under s 9(1) of the RDA that I am not prepared to grant leave to the applicant to plead [48] in its current form.

Comparator

86    A further flaw in the pleading in relation to the alleged contravention of s 18(1) concerns the required comparator. The respondent repeats its submissions in relation to a comparator as set out above at [37] in relation to the pleading of a contravention of s 15(2) of the RDA.

87    Paragraphs 48.25 - 48.29 allege what are described as material facts and conduct by the respondent or by Shanghai University, (as the case may be) in support of the allegation in [47] that the respondent contravened s 18(1) of the ADA. That section provides:

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.

88    The applicant submits those paragraphs provide the required comparator.

89    I do not consider the pleading at [48.25] - [48.29] achieves that result. The applicant pleads, to the extent he is able (and about which I make no criticism), the identities of persons who were employed in the applicant’s position, the length of any term of employment and alleges less favourable terms. To that extent, the applicant relies on the mere fact of the employment of a younger person as amounting to discrimination for the purposes of s 18(1). Without more, I do not consider the pleading as sufficient to support the allegation in [47] that the respondent contravened s 18(1).

90    Further, the difficulty for the applicant, to which I referred above in terms of there being no basis identified in the pleading to support the allegation in [16] that the applicant’s ongoing employment for a further term was conditional and dependent upon his ongoing employment with both respondent and Shanghai University, remains.

91    Accordingly, I would not grant leave to plead a contravention of s 18(1) of the ADA as currently pleaded.

[49] and [50]

92    These two paragraphs plead a contravention of s 18(2), which insofar is relevant provides:

(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)    …

(c)    …

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

93    The pleading in [49], [49.1] and [49.2] reflects the chapeau to s 18(2) and the matters in s 18(2)(a) and (d) respectively.

94    The respondent submits that s 18(2)(a) and (d) refers only to existing employment and not to a contract of employment not entered into by the parties.

95    The applicant submits that the subsections can extend to terms or conditions of employment or detriment, as the case may be, to an employee who is on a fixed-term contract in respect of a prospective new or extended contract of employment.

96    I accept the respondent’s submissions. The consideration of the text and context of s 18(2)(a) & (d) refers to an existing contract of employment such that I consider that it is not arguable s 18(2) applies.

97    I observe that in any event there is a further issue with this plea. Section 14 of the ADA defines direct discrimination. Section 15 defines indirect discrimination. The alleged discrimination is pleaded in [51] as direct. The pleading in [52] relies on the matters pleaded in paragraphs [48.1] and [48.3] - [48.29]. I have found, in relation to the alleged contravention of s 18(1), that the pleading in those paragraphs does not provide the required comparator and consequently, the plea in relation to the contravention of s 18(2), which relies on the same pleading by way of cross-reference, suffers from the same problem.

98    Still further, the reference in [50] to material facts being those matters pleaded in [48.1] and [48.3] - [48.29] is such as to offend against FCR 16.02(2)(d). Once again, the respondent should not be required to guess which of the material facts relates to which of the pleaded sub paragraphs of s 18(2).

99    Since I am not prepared to grant leave to plead [49], it follows that I am also not prepared to grant leave to plead [50], [51] or [52].

Conclusion

100    The effect of my decisions in relation to the various paragraphs of the proposed second further amended statement of claim to which the respondent objects is that the applicant will not be granted leave to file the proposed pleadings. I am prepared to give the applicant a further opportunity to re-plead the statement of claim but not so as to include s 18(2) of the ADA or an implied term in relation to cl 43.18 of the 2018 UTS Enterprise agreement in [61] on the basis of contractual construction principles.

101    I will hear the parties to any further orders arising out of these reasons.

Associate:

Dated:    20 January 2023