Federal Court of Australia

Weddall v Rasier Pacific Pty Ltd [2023] FCA 59

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ amended statement of claim dated 28 October 2021 be struck out in its entirety.

2.    The respondents’ amended interlocutory application dated 12 November 2021 otherwise be dismissed.

3.    Within 14 days of the date of these orders, the parties are to confer and, if possible, agree upon, a minute of orders that otherwise reflects the court’s reasons for judgment herein.

4.    In the event that no such agreement is possible, the parties advise the court accordingly and the matter be listed for case management on a date to be fixed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The first to fourth applicants are current or former drivers associated with the rideshare service known as “Uber”. The fifth applicant is an incorporated association that purports to represent them. The respondents are bodies corporate that are each associated with the management of the Uber rideshare service within Australia.

2    By an amended originating application dated 28 October 2021, the applicants charge the respondents with having contravened various provisions of the Fair Work Act 2009 (Cth) (the “FW Act”). Central to those allegations is the notion that each of the first-to-fourth applicants was engaged to perform work as an Uber driver pursuant to a contract or contracts of employment. That central claim finds expression with many others in an amended statement of claim dated 28 October 2021 (the “ASOC”). It is (or, in due course, will be) disputed; but, presently, a more immediate issue has arisen as to the manner in which the ASOC seeks to prosecute the causes of action that the applicants hope to press.

3    By an amended interlocutory application dated 12 November 2021, the respondents move the court for relief in the form of summary judgment or, alternatively, for orders dismissing certain parts of the amended originating application. In the further alternative, they seek orders striking out the whole or parts of the ASOC.

4    For the reasons that follow, I accept that the ASOC should be wholly struck out and there shall be orders to that effect. The respondents’ quest for summary dismissal of part or all of the amended originating application must be dismissed.

The applicants’ claims

5    Before embarking upon an analysis of the respondents’ claims to interlocutory relief, it is prudent first to map out the various species of claim that the applicants pursue by their amended originating application.

6    As has been said, each of the first-to-fourth applicants is a current or former Uber driver. Each maintains that he or she was engaged to that end as an employee of “one or more of the [f]irst-[f]ourth [r]espondents”. Each seeks declaratory relief to record that asserted reality.

7    Additionally—and in consequence of that conclusion (if it be correct)—the applicants charge the respondents with having contravened ss 535, 536, 345 and 357 of the FW Act. In some cases, it is alleged that the contraventions in question were “serious contraventions” (which is a statutory concept to which attention will shortly turn). The applicants seek relief in the nature of declarations and the imposition of pecuniary penalties.

8    It is necessary to explore each of the statutory injunctions that are said to have been trespassed upon. Sections 535 and 536 of the FW Act concern obligations to make, keep and provide certain employment records. Those obligations are imposed upon “national system employers” in respect of “national system employees”. Those concepts need not be explored in detail: it suffices for present purposes to record that each is premised upon the existence of an employment relationship. Thus, relevant employers are required:

(1)    by s 535(1) of the FW Act, to make and, for seven years, keep such employee records as are prescribed by the Fair Work Regulations 2009 (Cth) (hereafter, “FW Regulations”); and

(2)    by s 536(1) of the FW Act, to provide to relevant employees periodic pay slips that meet the requirements of the FW Regulations.

9    The applicants maintain that the respondents, to the extent that each employed any of them, failed to honour those obligations and, thereby, are liable to the relief claimed.

10    Section 345 of the FW Act concerns misrepresentations about “workplace rights”. It provides (and, at material times, provided) as follows:

345    Misrepresentations

(1)    A person must not knowingly or recklessly make a false or misleading representation about:

(a)    the workplace rights of another person; or

(b)    the exercise, or the effect of the exercise, of a workplace right by another person.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

11    Section 341(1) of the FW Act concerns what is meant by the phrase “workplace right”. It provides (and provided) as follows:

341    Meaning of workplace right

…

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

12    Section 357 of the FW Act concerns the making of misrepresentations about the nature of an employee’s engagement. It provides (and provided) as follows:

357    Misrepresenting employment as independent contracting arrangement

(1)    A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

Note:     This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:

(a)    did not know; and

(b)    was not reckless as to whether;

the contract was a contract of employment rather than a contract for services.

13    Sections 535(1), 536(1), 345(1) and 357(1) are (and were) all “civil remedy provision[s]”: FW Act, s 539(1). This court has jurisdiction to make any order that it considers appropriate if satisfied that a person has contravened such a provision: FW Act, s 545(1). That includes orders imposing pecuniary penalties: FW Act, s 546(1).

14    Standing to pursue remedies relating to the contravention of civil remedy provisions is conferred by s 539(2). Relevantly for present purposes, an application that alleges the contravention of either or both of ss 535(1) and 536(1) of the FW Act may be brought by an employee. Insofar as concerns alleged contraventions of ss 345(1) and 357(1) of the FW Act, an application may be brought by an employee or an “industrial association”. In either case, any such employee must have been somebody who was affected by the contravention alleged: FW Act, s 540(1). In the case of applications by industrial associations, the association in question must either have been affected by the contravention that is alleged or be entitled to represent the industrial interests of somebody who was: FW Act, s 540(6).

15    “[I]ndustrial association” is defined to include “…an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be)…”: FW Act, s 12.

16    Section 550 of the FW Act expands the reach of civil remedy provisions. It provides (and provided) as follows:

550    Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

…

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

17    Section 557A of the FW Act is also significant. It establishes the concept of “serious contravention” and relevantly provides (and provided) as follows:

557A    Serious contravention of civil remedy provisions

(1)    A contravention of a civil remedy provision by a person is a serious contravention if:

(a)    the person knowingly contravened the provision; and

(b)    the person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

…

Systematic pattern of conduct

(2)    In determining whether the person’s conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to:

(a)    the number of contraventions (the relevant contraventions) of this Act committed by the person; and

(b)    the period over which the relevant contraventions occurred; and

(c)    the number of other persons affected by the relevant contraventions; and

(ca)    the person’s response, or failure to respond, to any complaints made about the relevant contraventions; and

(d)    except if the provision contravened is section 535—whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and

(e)    except if the provision contravened is section 536—whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.

…

Involvement in a serious contravention

(5A)    A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

(a)    the principal’s contravention was a serious contravention; and

(b)    the involved person knew that the principal’s contravention was a serious contravention.

Application for a serious contravention order and alternative orders

(6)    If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.

…

18    The primary issue arising under the amended originating application concerns whether the first-to-fourth applicants were engaged as employees, as the applicants maintain, or as independent contractors, as is put against them. For the applicants, failure on that central question will necessarily mean that their claims to relief will also fail.

19    Recognising that, the ASOC alleges that each of the first-to-fourth applicants is or was an employee of “…one or more of the [f]irst-[f]ourth [r]espondents”. It goes on to suggest that each of the respondents is or was a “national system employer” in respect of each of the first-to-fourth applicants. At the outset, then, the pleading is apparently self-contradictory, in that it simultaneously contemplates that each of the first-to-fourth applicants might not have been (on the one hand) but also was (on the other) employed by each of the respondents.

20    Leaving that to one side, the ASOC proceeds to make a large number of allegations in support of the central conclusion upon which the action substantially rests (namely, that the first-to-fourth applicants were employees). Those pleas traverse matters such as the written terms pursuant to which each of the first-to-fourth applicants was engaged, what they understand is the size and nature of the Uber business in Australia, how and why they came to pursue work as Uber drivers, the various steps that they took or were required to take to that end, the guidelines by which they are or were required to abide when working as Uber drivers, the circumstances in which they fulfilled their duties as Uber drivers, what they understand to be the nature of the Uber business (including its marketing activities and the manner in which it allocates work to its drivers) and many other topics.

21    The ASOC then culminates in allegations that each of the respondents contravened each of the four civil remedy provisions that are outlined above (namely, ss 535(1), 536(1), 345(1) and 357(1)). In the case of ss 535(1) and 536(1), it is said that the contraventions were “serious contravention[s]” within the meaning given to that phrase by s 557A(1) of the FW Act. In each case, the allegations proceed upon the footing that each of the first-to-fourth applicants was an employee of “one or more of the [f]irst-[f]ourth [r]espondents”.

22    It is prudent to explore the nature of the statutory contraventions that are alleged against the respondents in some (though not minute) detail. Insofar as concerns ss 535(1) and 536(1) of the FW Act, the applicants’ allegations are straight-forward (although, as will be seen, they remain objectionable). The ASOC repeats the suggestion that “…the [f]irst-[f]ourth [a]pplicants were, at all material times, employees of one or more of the [f]irst-[f]ourth [r]espondents…” In consequence, it is said that each of the respondents was obliged to but did not make, keep or provide records of the kind to which those sections are directed.

23    The ASOC then alleges that the contraventions of those sections (ss 535 and 536 of the FW Act) were serious contraventions in that they were committed knowingly and as part of a systematic pattern of conduct. Those constituent allegations are the subject of separate pleas, the apparent purpose of which is to establish the knowledge and pattern that the applicants must establish if they are to successfully cast the alleged contraventions as “serious contravention[s]”. It is convenient to replicate those parts of the ASOC:

109A.    The [a]pplicants aver that the [r]espondents knew of the contraventions of ss 535 and 536 as they knew that the matters pleaded above at [17]-[98] demonstrate that the [a]pplicants are or were employees of one or more of the [f]irst-[f]ourth [r]espondents but continued to assert the contrary to deprive the [f]irst-[f]ourth [a]pplicants of the ordinary incidents and protections of employment including those mandated by ss 535 and 536 of the FW A[ct]. The [r]espondents also knew that one or more of the [r]espondents have never made or kept complying employee records in respect of the [f]irst-[f]ourth [a]pplicants or issued complying pay slips.

109B.    The foregoing formed part of a systematic pattern of conduct in that the contravention of ss 535 and 536 related to more than one [a]pplicant and employee, and the contraventions have been ongoing; and despite knowing that the [a]pplicants are or were employees of one or more of the [f]irst-[f]ourth [r]espondents, the [r]espondents have repeatedly asserted that they (and other Uber drivers) are or were not employees in:

a.    the Services Agreement (as pleaded at [29] – [30]);

b.    the Service Fee Addendum, which suggests that drivers pay Uber a “service fee” rather than Uber paying the drivers for their undertaking of journeys as part of Uber’s business;

c.    the Community Guidelines in which drivers are referred to as “driver-partners” as if to imply an arms-length commercial relationship between Uber and the drivers;

d.    the public press, including social media.

24    Save insofar as concerns accessorial liability (to which attention will shortly return), the allegations of breach of s 345(1) are contained within a single paragraph of the ASOC, which it is convenient to replicate:

109C.    The [a]pplicants aver that, by virtue of the matters pleaded at [109Ba.]-[109Bd.] above, one or more of the [f]irst-[f]ourth [r]espondents knowingly or recklessly falsely or misleadingly represented to them, and to the world at large, that the [f]irst to [f]ourth [a]pplicants, and other Uber drivers, did not have the workplace rights of employees by knowingly or recklessly falsely or misleadingly representing to them that they are not or were not employees. Such a representation was false or misleading by reason of the matters pleaded at [17]-[98] above as the [f]irst to [f]ourth [a]pplicants were employees and entitled to the workplace rights afforded to employees. One or more of the [f]irst-[f]ourth [r]espondents accordingly contravened and continues to contravene s 345 of the FW A[ct].

25    The same is true of the allegations of breach of s 357 of the FW Act. The ASOC repeats the now familiar suggestion that each of the first-to-fourth applicants was employed by “…one or more of the [f]irst-[f]ourth [r]espondents” and maintains that, each of them having made representations to the contrary (including in the written terms by which the first-to-fourth applicants were engaged), the respondents should be understood to have contravened s 357(1) of the FW Act.

26    There is then some reliance placed upon s 550 of the FW Act. The ASOC alleges that, insofar as any of them might not have employed any of the first-to-fourth applicants, the respondents were nonetheless “involved in” (within the meaning given to that phrase by s 550 of the FW Act) the statutory contraventions that were committed by the “one or more” other respondents that did. Again, it is convenient to replicate in full the matters that are traversed in support of that allegation:

110.    To the extent any of the [f]irst-[f]ourth [r]espondents is found not to be an employer of the [f]irst-[f]ourth [a]pplicants, the [a]pplicants aver that it was nevertheless involved in the employer’s serious contraventions, or contraventions, of ss 535 – 536 of the FW A[ct], and in the contraventions of s 345 and s 357 of the FW A[ct], within the meaning of s 550 of the FW A[ct], in that it:

a.    aided, abetted, counselled or procured the serious contraventions, or contraventions, by espousing the misclassification of Uber drivers as independent contractors and by promoting and/or proliferating a business model which wrongly classifies Uber drivers as independent contractors in the manner set out at [17]-[98] and [109B] above; or

b.    induced the serious contraventions, or contraventions, by promoting and/or proliferating a business model which wrongly classifies Uber drivers as independent contractors in the manner set out at [17]-[98] and [109B] above; or

c.    has been, in any way, by act or omission, directly or indirectly knowingly concerned in or party to the serious contraventions, or contraventions, by its Directors and/or General Manager or equivalent most senior employee from time to time developing in concert with, and/or agreeing to proliferate in Australia, the business model developed by Uber’s Global CEO from time to time, presently Mr Dara Khosrowshahi, which knowingly exercises a high degree of control over Uber drivers and/or integrates them into Uber’s business while simultaneously misrepresenting to them and to the world at large that they are not employees thereby depriving them of the ordinary incidents of employment…

27    With that analysis complete, attention can turn to the interlocutory relief for which the respondents now move.

The present application

28    The respondents’ interlocutory application of 12 November 2021 is supported by an affidavit sworn on 26 October 2021 by Mr Trent Daniel Sebbens, a solicitor in the employ of the respondents’ solicitors. By way of resistance to it, the applicants rely upon two affidavits: one affirmed by the first applicant on 26 November 2021; and one affirmed on that same day by a financial analyst, Mr Jason Ward. Additional documentary evidence was adduced without objection.

29    The application proceeds on four alternative and cascading bases. At its apex, it seeks orders in the nature of summary judgment dismissing the applicants’ amended originating application. In the alternative, it seeks that certain aspects of that originating process be dismissed. In both cases, the relief that is sought is sought pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (hereafter, the “FCA Act”) and/or r 26.01 of the Federal Court Rules 2011 (Cth) (hereafter, the “Rules”).

30    Absent judgment in one of those forms, the respondents move the court for orders requiring that the ASOC be struck out in its entirety. In the alternative, they seek that certain parts of it be struck out.

31    The concerns that animate the respondents are neatly summarised in the introductory observations of the written submissions upon which they relied:

The [a]pplicants’ claims are each wholly dependent upon the existence of an employment relationship between the [f]irst to [f]ourth [a]pplicants and one, some or all of the [r]espondents.

However, the [a]pplicants’ express position is that they are unable to identify a particular employer and how that particular party is responsible for the conduct relevant to the determination of that employment relationship. Despite this, the [a]pplicants’ case is apparently that one, some or all of the [r]espondents are the relevant employers.

Further, impermissibly, the pleaded allegations of serious contravention (s 557A) and involvement in contraventions (s 550) are no more than a recitation of the statutory text. In other respects, the pleadings are lengthy and embarrassing; they are replete with submissions and irrelevant or scandalous matters. The [a]pplicants’ claims seek to make serious allegations as to knowledge, akin to allegations of dishonesty; the [r]espondents are entitled to receive clear and precise pleadings of all material facts. That is more so the case where, as here, the proceedings seek the imposition of civil penalties.

In addition, the claims made and relief sought by the [f]ifth [a]pplicant are not available either due to it not having standing to seek such relief and/or it not being a representative party for the purpose of these proceedings.

The [r]espondents informed the [a]pplicants of these deficiencies by correspondence over some months and invited the [a]pplicants to re-plead. On 28 October 2021, the [a]pplicants filed an Amended Originating Application (AOA) and an Amended Statement of Claim (ASOC). However, the amendments in the ASOC do not cure the deficiencies with the [a]pplicants’ claim. Rather, the [a]pplicants amended to include two additional allegations – that the [r]espondents made false or misleading representations about the [a]pplicants’ workplace rights in contravention of s 345, and that the [r]espondents represented to the [f]irst to [f]ourth [a]pplicants that the contract of employment was a contract for services in contravention of s 357. These additional allegations suffer from similar deficiencies to those already identified, and additional ones.

The [a]pplicants’ case (now contained in the ASOC) fails to disclose any reasonable cause of action against each and all of the Respondents. The [a]pplicants have no reasonable prospect of successfully prosecuting such a claim against the [r]espondents and as such the proceedings should be summarily dismissed.

Alternatively, the pleadings should be struck out as they are embarrassing, ambiguous, scandalous and liable to cause delay and prejudice to the [r]espondents.

(references omitted)

32    It is convenient to split the analysis that follows into two parts: the first dealing with the respondents’ claims to relief under s 31A(2) of the FCA Act; the second dealing with their quest to have the ASOC (or parts of it) struck out.

Summary judgment

33    Section 31A of the FCA Act relevantly provides as follows:

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless;

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

…

34    Rule 26.01 of the Rules is similarly entitled “Summary judgment”. It relevantly provides that:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

…

35    The court’s discretion to award summary judgment (in whole or in part) calls for consideration as to whether there exists a “…more than ‘fanciful’ prospect of success”: Spencer v Commonwealth (2010) 241 CLR 118, [25] (French CJ and Gummow J, with whom Heydon, Hayne, Crennan, Kiefel and Bell JJ agreed in the result). The existence of such prospects need not be apparent merely from an applicant’s pleading: White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298, 310 [47] (Lindgren J). At issue is whether there is a reasonable (or not fanciful) prospect that an applicant might succeed in prosecuting a cause of action; not whether he, she or it has properly adumbrated such a cause faithful to the rules that govern pleadings.

36    Presently, the respondents advance four reasons why the applicants have no reasonable prospect of success on the whole or various parts of their claim. It is convenient to address each in turn.

1. Employment by “one or more” of the respondents

37    The respondents contend that the applicants have no reasonable prospect of establishing that they are or were employed by “one or more” of the respondents. That is said to be apparent not merely from the applicants’ repeated adherence within the ASOC to that inherently unclear allegation; but also from their admission that they are “…unable to identify one specific [r]espondent as their employer due to the opaqueness of Uber’s corporate structure [which] prevents the [a]pplicants from knowing which of the [r]espondents or other entity/ies of the Uber Group…” employs or employed the first-to-fourth applicants.

38    The respondents’ submission is simple enough: how might it be said that the applicants have a reasonable prospect of establishing the employment relationships upon which the statutory contraventions that they allege ineludibly turn if they can’t even allege something as elemental as the identity of the employing entity or entities?

39    As will later be seen in the context of the respondents’ alternative strike-out request, the applicants’ failure to allege with proper precision which of the respondents is said to have employed each of the first-to-fourth applicants is very plainly unacceptable. It might well be the case that that question of identity is not easily answered; but that does not excuse the applicants from their obligation to plead their case properly. If there are multiple entities by which the applicants have a proper basis for alleging that the first-to-fourth applicants are or were employed, then those allegations may properly be put (which is to say, not in the rolled-up, ambiguous and internally inconsistent way that finds repeated expression in the ASOC).

40    In any event, the “opaqueness” of Uber’s corporate structure is not a particularly compelling basis upon which to accept some want of clarity as to which of the respondents might properly be alleged to be the employing entity or entities. It is, of course, trite to observe that the first-to-fourth applicants necessarily perform or performed their work as Uber drivers pursuant to contracts: either contracts of employment or contracts for services. In either case, those contracts were executed by parties, one of whom was, in each case, one of the first-to-fourth applicants. In circumstances where the relationship to which each such contract gave rise was the subject of at least some documentation, it is difficult to understand how the first-to-fourth applicants are unable to identify the entity or entities with which they each contracted.

41    In the context of summary judgment, though, that doesn’t much matter. The central allegation that the applicants wish to agitate is plain: namely, that each of the first-to-fourth applicants is or was an employee. It seems unrealistic to suggest—perhaps the point that there is no reasonable prospect that the applicants might succeed in establishing—that each of the first-to-fourth applicants was simultaneously employed by more than one of the respondents. Nonetheless, if there is a proper basis for alleging that each was employed by one or, alternatively, another or, alternatively another, etc; of the respondents, then those are alternative allegations that might properly be pressed.

42    The nature of the contractual relationship (or, as the case may be, relationships) that, in becoming an Uber driver, each of the first-to-fourth applicants entered will fall to be determined on the evidence presented at trial (assuming that it is properly pleaded beforehand). It is conceivable—which is to say that there is a sufficiently reasonable (or non-fanciful) prospect—that the applicants will be able to establish that they were, at law, engaged pursuant to contracts of employment rather than contracts for services. Although it might (and I stress, might) be said that there is no reasonable prospect that any of the first-to-fourth applicants is or was employed simultaneously by more than one of the respondents, I am not presently persuaded that there is no reasonable prospect that each was employed by any one of them. That will turn upon how the applicants properly particularise the relevant contracts, which is a task upon which they have regrettably yet to embark.

43    There is a further dimension to this aspect of the respondents’ application. By written submissions advanced (with leave) after the hearing of the interlocutory application, the respondents contend that the applicants have no reasonable prospect of establishing that any of the first-to-fourth applicants was employed by any “one or more” of the respondents.

44    That contention rests upon an analysis of recent decisions of the High Court, namely: Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd (2022) 398 ALR 404 (hereafter, “Personnel Contracting”); ZG Operations Australia Pty Ltd v Jamsek (2022) 398 ALR 603 (hereafter, “Jamsek”). By them, the High Court has made clear that the character of a working relationship is to be determined according to the rights and liabilities that are established by the contractual terms that govern it. Where contractual validity is assumed or not controversial, extra-contractual considerations have no bearing upon the assessment: Personnel Contracting, 420-421 [59] (Kiefel CJ, Keane and Edelman JJ, with whom Gordon J agreed at 447-448 [172]-[173], Steward J dissenting in the result).

45    The respondents submit that the ASOC does not identify rights or obligations that are (first) rooted in contract and (second) sufficient to constitute the first-to-fourth applicants as current or former employees. Instead, the ASOC appears to rely upon various extra-contractual circumstances—principally focused upon how, in practice, the work of Uber drivers is or was carried out—that are said to accumulate in favour of that conclusion.

46    There is considerable force to that submission. Even accounting for the unorthodox way in which the ASOC is framed (about which more is said below), it is apparent that the applicants’ pleading seeks to establish the employment relationships upon which their causes of action rely otherwise than through analysis of applicable contractual terms. If that is the only way in which the applicants hope to establish it, then it would seem likely that they lack the reasonable prospects that the respondents claim are missing.

47    All the more is that so when regard is had, even at this early juncture, to the written terms of the so-called “Services Agreement” to which the ASOC refers (and about which evidence was led for the purposes of resolving the respondents’ interlocutory application). That instrument, so the respondents maintain, constitutes the only contract to which the first-to-fourth applicants were relevantly party. The rights and obligations that it creates are not, they say, sufficient to constitute the resultant contractual relationships as employment relationships. The respondents identify an array of Services Agreement terms that are said to support that conclusion.

48    It is not necessary that I should now lay out and consider each of those contractual features. It suffices to observe (without now needing to decide the point) that there appears to be much force to the respondents’ submission. By its terms (and by the rights and obligations that they establish), the Services Agreement appears to point very much against the existence of any employment relationship. If it were in the terms of that instrument alone that the applicants intend to establish otherwise, then it would seem likely (again, I say without needing to decide the point) that they lack the reasonable prospects that the respondents maintain are absent.

49    That, though, remains at this juncture to be seen. As has been observed, the applicants are yet to properly particularise the contracts that lie at the centre of their claims. The terms thereof, written or otherwise—and the rights and obligations to which those terms give rise—have not properly been identified. However regrettable that might be, it cannot safely be said now that the applicants lack reasonable prospects of establishing the existence of contracts and contractual terms that suffice to constitute the first-to-fourth applicants as current or former employees. In my judgment, that remains the case notwithstanding the opportunity that the respondents have extended to the applicants to address the very shortcomings that I accept attend their pleading. Whether it might still remain the case in the event that any further amended statement of claim is attended by equivalent shortcomings is a matter that can be assessed if or when necessary.

2. Misrepresentations about “workplace rights”

50    The respondents further maintain that the applicants have no reasonable prospect of establishing the making of representations in contravention of s 345(1) of the FW Act. What is alleged bears repeating: the applicants’ complaint is that the respondents represented “…to them that they are not or were not employees”. That, it is alleged, was a representation to the effect that the first-to-fourth applicants did or do not “have the workplace rights of employees”.

51    The allegation as pleaded is quite obviously deficient. It does not identify any workplace right about which the respondents are said to have commented, even indirectly. Instead, it proceeds upon the footing that a representation to the effect that a person is not an employee is a representation about that person’s workplace rights. That is, at best, a dubious proposition. Regardless, in order that there might be a contravention of s 345(1) of the FW Act, there must be a “…requisite kind of connection between the alleged representations and [an] identified workplace right”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091, [250] (Mortimer J). Here, no such right is identified, let alone linked with a specified representation.

52    The allegation is also deficient inasmuch as it fails to articulate beyond bald assertion how the representation in question is said to have been made with knowledge of or reckless disregard as to its falsity. No facts are identified that might suffice to establish knowledge or recklessness, and the plea does not nominate which of those alternatives is relied upon. In that form, it is “rolled up and duplicitous”: Retail & Fast Food Workers Union Inc v Tantex Holdings Pty Ltd (2020) 299 IR 56, 71 [46] (Logan J).

53    Those are not, however, reasons warranting summary judgment at this point. The applicants, perhaps with minds focused by the reasoning set out above, should instead have an opportunity to reflect upon what they have alleged and to refine it into a form that does not suffer the same deficiencies.

3. Misrepresentation about employment status

54    The respondents next complain that the applicants lack a reasonable prospect of establishing any contravention of s 357(1) of the FW Act. That is said to be so because the ASOC fails properly to identify any representation on that score.

55    Whether or not that is so can be cast to one side for present purposes. It is clear enough that the applicants maintain that each of the first-to-fourth applicants is or was engaged as an employee Uber driver; and that, by maintaining to the contrary, the respondents should each be understood to have contravened s 357(1). The manner in which the allegation is presently cast is very plainly problematic; but the essence of the allegation is apparent and, for that reason alone, summary judgment should not now be granted.

4. Claims by the fifth applicant

56    The respondents submit that the amended originating application should be dismissed insofar as relief is claimed by the fifth applicant. That is said to be warranted on two counts: first, because the fifth applicant lacks standing to pursue remedies relating to contraventions of ss 535 and 536; and, second, because it is not apparent that it has standing to pursue remedies relating to contraventions of ss 345(1) and 357(1).

57    The first basis is not controversial. Standing to pursue remedies relating to contraventions of ss 535 and 536 does not extend to industrial associations such as the fifth applicant (see above, [14]). Although it does not, in terms, differentiate between relief sought by the first-to-fourth applicants (on the one hand) and the fifth applicant (on the other), the amended originating application nonetheless acknowledges that any pecuniary penalty that the court is minded to impose in relation to contraventions of ss 535 and 536 of the FW Act could be made payable to the former rather than the latter. Plainly, it could not be made payable to the latter. With that acknowledged, there is no warrant to entertain summary judgment on this narrow front.

58    Unlike ss 535 and 536 of the FW Act, industrial associations are granted standing to seek remedies for contraventions of ss 345(1) and 357(1): FW Act, s 539(2). That conferral of standing is qualified by s 540(6): relevantly, an industrial association may only apply for remedial orders to the extent that it is entitled to represent the industrial interests of a person who is affected by the contravention that is alleged.

59    The respondents submit that the ASOC fails to establish that any such entitlement inures to the benefit of the fifth applicant. Again, there is force in that submission. The ASOC says nothing about any entitlement on the part of the fifth applicant to represent the industrial interests of any of the first-to-fourth applicants (including the third applicant, who, it might be noted, is no longer an Uber driver). That is reason enough to impugn the pleading; but should it also warrant summary judgment?

60    I think not, at least not at this juncture. Whether the fifth applicant is entitled to represent the industrial interests of the first-to-fourth applicants turns upon the existence of facts upon which the ASOC does not yet touch. Nonetheless, the scheme of the FW Act is clear enough: industrial associations that are not “organisations” (registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth)) may all the same be entitled to represent the industrial interests of employees. Such an entitlement might conceivably arise from a variety of sources; but key amongst them would or might be the fifth applicant’s constitution or rules of association, or some other instrument that regulates how it is to discharge the functions for which it has been incorporated: see generally Regional Express Holdings Ltd v Australian Federation of Airline Pilots (2017) 262 CLR 456, 468 [26] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

61    Here, the fifth applicant’s role is said to be akin to one of an industry advocate: its objects are apparently to advocate for better pay and conditions for rideshare drivers, many of whom have been admitted to the ranks of its membership. Although not yet properly articulated, those facts alone are enough to suggest that the fifth applicant might well have a prospect of establishing its standing to pursue what it seeks to pursue. That should tend against summary judgment.

62    The respondents raise a further point regarding the fifth applicant. It is said that its presence is superfluous given that the first-to-fourth applicants are each party to the matter already and are each pursuing the same remedies that it seeks. The fifth applicant, it is said, has no interest in the proceeding beyond any that is already to be advanced by the first-to-fourth applicants.

63    I do not accept those contentions. Insofar as it is entitled to represent the industrial interests of those affected by the contraventions of ss 345(1) and 357(1) that are alleged, the fifth applicant has standing in its own right to pursue orders under Div 2 of Pt 4-1 of the FW Act (including ss 545 and 546). That it might not pursue anything not already pursued by other applicants is irrelevant.

Conclusion regarding summary judgment

64    I am not persuaded that the circumstances presently warrant an order or orders for summary judgment, whole or partial. At present, the concerns that have been validly raised in connection with the case that the applicants seek to advance are rooted more in the manner in which it has been articulated than in the prospect that it might succeed. It is the case that the manner in which it has been articulated leaves much to be desired. But that is not—at least not presently—a consideration that warrants summary judgment.

Strike-out

65    In the alternative to their application for summary judgment, the respondents seek orders under r 16.21 of the Rules that the ASOC be either wholly or partially struck out.

66    Rule 16.21 of the Rules provides as follows:

16.21  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.

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

67    Before addressing the specific attacks that the respondents wage against the ASOC, it is prudent to identify some basic points of principle, none of which is presently controversial. The purpose that pleadings serve is well-understood: amongst others, they serve to identify the material facts upon which the parties intend to rely at trial and, thereby, to define the issues to be tried with clarity sufficient to enable the parties to understand—and, thereby, to have an opportunity to meet—the case or cases that are advanced against them: Dare v Pulham (1982) 148 CLR 658, 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ).

68    That fundamental objective is reflected in the terms of rr 16.02(1) of the Rules:

16.02 Content of pleadings—general

(1)    A pleading must:

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

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

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

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

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

(f)    state the specific relief sought or claimed.

…

69    A “material fact” is one the proof of which is essential to the existence of a cause of action or defence that a party seeks to advance: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 246-247 (Wilson J).

70    A pleading is “embarrassing” to the extent that it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it”: Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263, 269 [18] (Collier J). In Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905, [22]-[23], Edmonds J observed (in the context of earlier rules of the court):

Embarrassment in the context of O 11 r 16 “carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. The list is not intended to be exhaustive”: Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR 41-434.

A pleading which is internally inconsistent is embarrassing: Vasyli v AOL International Pty Ltd (NG 219/96) Lehane J, 19 August 1996, unreported. A pleading should assert the basic and constituent facts, not the evidence upon which those facts will or may be proved at trial. A pleading is defective if it simply asserts a conclusion to be drawn from the facts not stated: Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-115; and is not saved by using the words “[i]n the premises” to introduce the conclusion: Davids Holdings Pty Ltd v Coles Myer Ltd (1993) ATPR 41-227.

71    To those broad observations may be added the following, namely that:

(1)    a pleading that baldly alleges a statutory contravention by simply repeating the language employed by a relevant provision is liable to be struck out: McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409, 418 [23] (Weinberg J);

(2)    in a civil suit for the recovery of a pecuniary penalty, it is especially important that those accused of a contravention know precisely the case that is to be made against them: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298, 311 [63] (Logan, Bromberg and Katzmann JJ); and

(3)    where extensive passages within a pleading are liable to be struck out, it is within the court’s discretion to strike out the whole of the pleading and to require that the party who authored it begin afresh: Sabapathy v Jetstar Airways (2021) 283 FCR 348, 359 [33] (Logan and Katzmann JJ, with whom Flick J agreed).

72    With those elemental observations stated, attention can turn to the reasons advanced by the respondents as to why the ASOC, or parts of it, should be struck out. Four such reasons are advanced and I shall address each in turn.

1. The pleading is embarrassing

73    The respondents submit that the ASOC:

(1)    fails to plead (and only plead) the material facts that are necessary to establish the causes of action that the applicants hope to press;

(2)    pleads conclusions the truth of which rests upon other facts not asserted;

(3)    comprises of lengthy passages more in the nature of submissions than allegations of material facts;

(4)    comprises of lengthy passages that go to irrelevant and, occasionally, scandalous matters; and

(5)    fails to comply will the requirements of r 16.02 of the Rules.

74    All of those criticisms are fair. The ASOC is 35 pages long. It is written in narrative, and occasionally loaded and emotional prose, as if for consumption not by legal practitioners or the court but by industry or media. It presents as a sprawling, discursive account of all manner of concerns that the applicants wish to ventilate. With very few exceptions, its constituent paragraphs intermix submission, evidence, scandal and irrelevance; virtually always in a long-winded way that defies sensible response. It is a self-evidently, uncommonly and irretrievably deficient pleading.

75    Consider the following passages:

18.    Creating an online account required each of the [f]irst-[f]ourth [a]pplicants to upload copies of certain documents, including their respective passports, driver licenses and vehicle registration and insurance information. Either immediately, or some time, after having created their online accounts, the [f]irst-[f]ourth [a]pplicants were sent a communication by Uber, requiring them to attend an Uber “Greenlight Hub” (Uber Hub) which was a physical premises occupied by Uber, on at least one occasion…

19.    At the Uber Hubs they attended, the [f]irst-[f]ourth [a]pplicants were required by Uber to do one or more of the following:

a.    to undergo a medical examination performed by a doctor, engaged by Uber to perform such medical examinations at an “Uber Medical Suite” or Uber Hub (either at a discounted cost to the driver, negotiated by Uber, or at no cost to the driver, at Uber’s sole discretion);

b.    to provide to Uber staff at the Uber Hub a copy of a completed medical examination form, completed by their own General Practitioner;

c.    to provide a urine sample in a container given to them by Uber staff at the Uber Hub and of which Uber facilitated the testing;

d.    to answer questions asked by an Uber Hub staff member who typed their answers into a computer;

e.    to watch one or more introductory training videos;

f.    to submit their vehicle for inspection by a mechanic engaged by Uber.

20.    The [a]pplicants who did not submit their vehicle for inspection by a mechanic engaged by Uber at an Uber Hub were required by Uber to take their vehicle to one of a number of separate locations, determined by Uber, for such inspection. They booked their appointment for such inspection through Uber’s online portal. The [t]hird [a]pplicant was not required to watch introductory training videos at an Uber Hub. Instead, Uber sent him a link to five training videos which Uber required him to watch, online, before permitting him to accept journey requests.

21.    Once the [a]pplicants had fulfilled Uber’s initial requirements (a process known as “onboarding”), Uber permitted them to “go online” once they opened the Uber App. The state of being online signified that Uber would commence to allocate journey requests to the [a]pplicants.

…

37.    The [f]irst-[f]ourth [a]pplicants work for Uber for at least 20 hours per week. Prior to his unjust deactivation, the [t]hird [a]pplicant worked for Uber for 40 hours per week. The income the [f]irst-[f]ourth [a]pplicants earn from their work for Uber comprises a substantial portion, if not all, of their respective livelihoods.

…

39.    At times when the [f]irst-[f]ourth [a]pplicants log on to the Uber App, Uber requires them, as a condition of being allocated any journey requests, to take a photograph of themselves (selfie) and to send it to Uber through the App. The [a]pplicants understand this to result in Uber using Artificial Intelligence (AI) technology to match the selfie they take on any given day with an image of them retained by Uber. The [a]pplicants understand the purpose of this exercise to be for Uber to satisfy itself that only one person ever uses any given Uber driver’s login details (Driver ID). Since the advent of the covid-19 pandemic, the [f]irst-[f]ourth [a]pplicants have been required by Uber, through its App, to take a second selfie whilst wearing a face mask. The taking of a second selfie as prompted by the Uber App is a condition of drivers being allocated any journey requests by Uber. It continued to apply even when the wearing of masks inside of a commercial passenger vehicle was not required by law in any given State of Australia. It was a requirement imposed upon drivers by Uber.

40.    When Uber allocates a journey request to them, Uber provides the [f]irst-[f]ourth [a]pplicants with only the word or symbol which Uber’s customer has entered as their “username,” that person’s star rating, a map to the customer’s pick-up location and an estimate of the time it will take the driver to reach the pick-up location. The[f]irst [a]pplicant has received a journey request in the username of “*57.” The [s]econd [a]pplicant has received a journey request in the username of “Cunts.” The [f]irst-[f]ourth [a]pplicants have all received journey requests from Uber booked in usernames which bear no relationship to human names. The [a]pplicants understand that even where a customer has entered such a username into the Uber App, Uber retains accurate information such as their correct, legal name, credit card details, billing address, email address and mobile telephone number. The [a]pplicants further understand that Uber’s customers can change their usernames as frequently as they choose. This renders it impossible for drivers to identify a particular customer as someone who may previously have been violent or aggressive, or vomited in their vehicle, whose journey request the driver may wish therefore to refuse.

…

45.    The [a]pplicants are aware that where drivers are assaulted by customers, Uber refuses to provide the customer’s details to the driver in order to enable the driver to report the matter to the Police. The [a]pplicants also understand that Uber does not proactively provide this information directly to the Police.

46.    At the point at which Uber sends a journey request to the [f]irst-[f]ourth [a]pplicants, it does not provide them with the pick-up location address, only a map to reach such location. Nor does Uber provide the [a]pplicants, as a matter of course, with the customer’s desired destination. Once Uber sends a journey request to the [f]irst-[f]ourth [a]pplicants, they have approximately 8 seconds in which to decide whether or not to accept the request, having only the customer’s username, star rating, a map to their pick-up location and an estimate of the time it will take to reach the pick-up location. It is only after the [f]irst-[f]ourth [a]pplicants accept a journey request, arrive at the pick-up location and swipe “Start Trip” on the Uber App that Uber informs them of the customer’s destination. If this is a destination to which an [a]pplicant does not wish to travel, that [a]pplicant’s only option is to cancel the journey. Cancellation attracts adverse consequences for drivers, as pleaded below. The [a]pplicants understand Uber’s rationale for this to be to prevent drivers from not accepting journey requests because they do not wish to travel to the customer’s destination.

…

48.    Uber requires all drivers providing uberX services also to provide uberPool services. Through its uberPool product, Uber offers to customers the option of being transported to their destination while the driver stops to pick up and drop off others, who are unknown to one another, at various locations. uberPool fares are lower than uberX fares. However, drivers have no ability to decline to participate in the uberPool product offering. The only way Uber drivers may decline uberPool journey requests is by declining them after they have been allocated to drivers. Doing so however, has a negative impact on the driver’s statistics, which are monitored by Uber, and can lead ultimately to deactivation.

…

53.    The [a]pplicants understand that from 31 March 2021, Uber ceased permitting drivers to undertake journeys allocated to them by Uber for the transportation of members of the public, and food deliveries for its Uber Eats product. That is, drivers must select either to be Uber drivers or Uber Eats delivery people; Uber does not permit them to be both. The [a]pplicants understand this to be a reaction by Uber to the decision of the Supreme Court of the United Kingdom of Uber BV v Aslam [2021] ICR 657, handed down on 19 February 2021, in which the Supreme Court found that the Claimant Uber drivers in that case were “workers” (a statutory status entitling them to the national minimum wage, paid holiday and protection from whistleblower detriment). Following this, in March 2021, it was reported in the UK media that Uber had accepted that the Supreme Court’s decision applied to all of its drivers, not merely those who were Claimants in the case before the Supreme Court. However, Uber did not concede that the judgment applied to its Uber Eats food delivery people, instead insisting that it does not. The [a]pplicants suspect that Uber will attempt to maintain the same distinction in Australia.

…

63.    Where a driver declines to accept three journey requests allocated to them consecutively, or cancels three journey requests which they have accepted, consecutively, Uber will forcibly log them off the Uber App. The [t]hird [a]pplicant is aware that for at least 2015 and 2016, drivers in this situation would be forcibly logged off the Uber App for several minutes during which they were prevented from logging back on, accepting further journey requests and earning income. The [a]pplicants understand that, more recently, Uber has permitted drivers who are forcibly logged off to log back on immediately. However, once drivers are logged back on, Uber enforces a delay in resuming allocation of journey requests to them. Whether drivers are forced to remain logged off for any given time or are able to log back on immediately is determined solely by Uber. Uber’s enforcement of a 2-3-minute period during which drivers are not able to log back on or a delay once they have logged back on operates as a deterrent to drivers not accepting three consecutive journey requests and an obligation upon them to accept journey requests.

…

71.    Where a customer gives a 5-star rating to a driver, the Uber App will also prompt the customer to leave a tip for the driver. The amount of tip which a customer may leave for a driver is controlled entirely by Uber. Uber allows the customer to select the amount of tip the customer wishes to leave from certain pre-identified amounts such as $1, $3, and $5. The Uber App also allows the customer to select “other” and enter a different amount from those which are pre-set. However, the Uber App will not allow a customer to leave a tip of more than $50. In some cases, the Uber App will limit the amount of tip a customer is able to leave to a lower figure. By this means, Uber further limits’ drivers’ earning capacity.

…

77.    In the [a]pplicants’ experience certain young customers are prone to making false allegations of sexual harassment, verbal assault or speeding by drivers in order to obtain a free journey (when, as a result of their false report, the fare charged to them is reimbursed by Uber) or as retaliation (where a driver has insisted that they wear a mask for example) or apparently for the fun of it, knowing that Uber will accept their version of events without question. Uber’s failure properly to inform drivers of the detail of such complaints in order that they may respond has a serious impact on their earnings in the short term (when Uber determines to reimburse a fare) and in the longer term, if Uber decides to suspend or deactivate them.

…

90.    Where the [f]irst-[f]ourth [a]pplicants have undertaken long journeys which have attracted a higher fee, Uber has appeared to them to withhold payment from the drivers for a period of time of Uber’s choosing.

…

76    Though representative of the instrument as a whole, those passages are but a selection of its content.

77    In defence of their ASOC, the applicants urge the court to not “…take an unduly technical or restrictive approach to pleadings” or an approach that is “‘pedantic’…where the object of pleading is sufficiently met”. They maintain that the respondents possess a “clear and comprehensive understanding” of the case that is advanced against them and that orders to strike out the ASOC “…risk[s] stifling the development of the law”.

78    I do not accept those contentions. There is nothing unduly technical, restrictive or pedantic in requiring applicants to plead cases in ways that conform to the requirements of the Rules. Here, the respondents are entitled to know with precision what is put against them and what they must meet in order that they might successfully defend themselves. They are no less so entitled because they are bodies corporate or because they form part of a large and well-known business. Particularly is that so in an action such as the present, where the respondents are charged with having contravened important statutory protections in respect of which they face the prospect of significant pecuniary penalty.

79    Save obviously for the headline issue—namely, that the applicants allege that Uber drivers are engaged as employees—I do not accept that the respondents possess a “clear and comprehensive understanding” of the case that is advanced against them. On the contrary, in its present form, the ASOC is almost impossible to respond to.

80    Likewise, requiring that the applicants plead their case properly does not risk stifling the development of the law. If the applicants wish to agitate a case that might develop any aspect of the law, they can do so. But they must do so in the orthodox way.

81    By their written submissions in support of orders to strike out the ASOC, the respondents contend as follows (references omitted):

The pleadings utterly fail to conform with the requirements of rules 16.02 and 16.03 of the…[Rules]. The pleadings are discursive and far from brief. Significant portions of the ASOC are in the nature of submissions or conclusions unsupported by the pleading of material facts. Numerous paragraphs plead what the [a]pplicants “understand”, “are aware of” or “suspect” – such pleadings are embarrassing in circumstances where the [a]pplicants’ understanding, awareness or suspicion of matters is not determinative of or relevant to any issue raised by their claim. Many of those pleadings concern scandalous matters, matters that are irrelevant to the [a]pplicants’ claim, or matters that are properly matters of evidence. Paragraphs 53 and 54 of the pleading is a prime example of these deficiencies. These matters are so intermixed in the ASOC that the whole of the pleading is rendered bad. These are not matters to which the Respondents could, or should be required to, plead to in their defence. To do so would unnecessarily cause delay and prejudice to the [r]espondents. This is inappropriate in circumstances where a high standard of clarity and precision is required for the claims expounded by the [a]pplicants.

82    I accept those contentions. The ASOC is a very clear example of a pleading ripe for orders under r 16.21. It is so plagued by objectionable content that the only sensible course is to strike it out in its entirety.

83    Having reached that view, it is not strictly necessary that I should address the other bases upon which the respondents claim that the ASOC is vulnerable to strike out. Nonetheless, as they were the subject of considered submission, I consider that I should do so, at least at a headline level.

2. The pleading fails to disclose the causes of action that are apparently pressed

84    The respondents attack the ASOC for its lack of content. Specifically, they complain that it fails properly to identify material facts sufficient to establish several of the causes of action that are advanced. It is convenient to address each complaint separately.

Section 557A: “serious contravention”

85    The applicants seek to constitute the alleged contraventions of ss 535 and 536 of the FW Act as “serious contravention[s]” for the purposes of s 557A. The pleading asserts that the conduct that is said to constitute those contraventions was engaged in “knowing[ly]” and as “…part of a systematic pattern of conduct…in deliberately mis-identifying [the applicants] as independent contractors”.

86    Although not referred to in that paragraph of the ASOC, subsequent paragraphs proceed to address why it is suggested that the respondents possessed the knowledge that is pleaded and why the conduct in question should be thought to form part of a systematic pattern. As to the former, it is said that the respondents “knew that the matters pleaded above at [17] – [98] demonstrate that the [a]pplicants are or were employees” and that none of them made or kept “employee records”. As to the latter, it is said that the contraventions relate to multiple employees and “have been ongoing”.

87    That appears to be the sum total of what is pleaded in order to establish that the alleged contraventions were serious contraventions. There are no factual assertions that go to establishing or attributing to the respondents (or any one of them) the knowledge or state of mind of any natural persons, nor any that might assist in establishing the pattern that is alleged.

88    Again, the pleading is self-evidently deficient. It is not acceptable simply to plead, as the ASOC does, that the respondents possessed various species of knowledge (including as to the applicants’ alleged status as employees). The respondents are bodies corporate. The knowledge that attends their conduct (including their omissions) exists in the states of mind of those through whom they relevantly act. The knowledge that those people relevantly possessed may be asserted; but such an assertion requires that the facts and circumstances that establish the existence of that knowledge are identified. At present, none of that is apparent.

89    Those parts of the ASOC are, then, deficient and would have been struck out in their own right.

Accessorial liability

90    Complementary to the applicants’ primary assertion that the first-to-fourth applicants are or were each employed by “one or more” of the respondents, the ASOC also asserts that each of the respondents, insofar as it was not relevantly an employer, was nonetheless “involved in” the contraventions that are alleged. In other words, it is the applicants’ case that each of the respondents was either:

(1)    an employer in its own right and, as such, contravened the provisions that are said to have been contravened; or, otherwise,

(2)    was involved in contraventions that were committed by at least one of the other respondents.

91    In each case, it is said that the respondents—or so many of them as do or did not employ the first-to-fourth applicants—aided, abetted, counselled, procured or induced the statutory contraventions that are alleged, were directly or indirectly knowingly concerned in or party to them, or conspired “with other related entities in the Uber Group” to effect them.

92    In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (White J), this court had occasion to consider the principles that regulate accessorial liability under s 550. The following observations (made at [176]-[178]) are applicable presently:

… In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a [contravention]: Yorke v Lucas at 667 …

Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v R (1985) 156 CLR 473 at 506-[50]7 by Wilson, Deane and Dawson JJ …

The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325].

93    In Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201, Thawley J considered the application of s 550 to circumstances involving, as here, assertions that work was performed under an employment, rather than independent contractor, relationship. His Honour observed (at [28]-[29]):

Knowledge that the applicants performed their work in a particular way and were not paid as employees, whilst clearly relevant to the question, does not equate to knowledge that the applicants were, in truth, employees. Mr Dixon may have thought that the applicants were independent contractors, being what the applicants were ultimately determined to be.

A pleading that a person is “knowingly concerned” in a contravention is a serious one, akin to a pleading of dishonesty — see: Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31 at [70]. A pleading that a person was knowingly concerned in a contravention, exposing them to personal liability and seeking the imposition of civil penalties, should be drafted with some considerable care. It should plead the material facts said to establish that the person was knowingly concerned in the contravention. This includes an express identification of the elements of the contravention and an express pleading that the person had knowledge of each of the essential elements constituting the contravention. It should identify the material facts said to establish knowledge or from which such knowledge is to be inferred. The pleading should generally also identify the material facts said to constitute the relevant acts or omissions of the person which are relied upon as establishing any practical connection with or link to the contraventions (Whitby at [234], [235]) which are contended to establish the person was “knowingly concerned” within the meaning of s 550(2)(c).

94    To support the claim of accessorial liability, the ASOC proceeds to identify an array of matters about which it is alleged that “the Directors and/or General Manager and/or equivalent most senior employee from time to time of the [f]irst-[f]ourth [r]espondents” possessed relevant knowledge. Amongst those matters are the processes involved in becoming an Uber driver, the terms of the so-called “Services Agreement” (as earlier pleaded), and various circumstances that attend or typically attend engagement as an Uber driver. The ASOC then asserts that by “aggregation of actual knowledge of any or all” of those matters and by reason of their “particular experience and expertise”, each of the respondents “…had actual knowledge that the [f]irst-[f]ourth [a]pplicants were and are, in truth, employees of Uber”.

95    Again, those pleas are quite obviously objectionable and very difficult, if possible at all, for the respondents to understand and counter. If there is to be an assertion of accessorial liability, the applicants’ pleading will need to far more clearly identify and particularise the conduct that they attribute to each putative accessory (that is to say, the conduct that is said to amount to the relevant aiding, abetting, counselling, procurement, inducement, etc of the contraventions alleged), the facts and circumstances by reason of which the knowledge that must attend that conduct is said to have arisen, and the identity and role of the human agents whose conduct (that is, whose acts or omissions) and states of mind are said to be the conduct and states of mind of each corporate entity. At present, the ASOC falls well short of complying with those baseline requirements and the relevant parts are liable to be struck out accordingly.

Conclusion regarding strike-out

96    The problems that attend the ASOC (articulated above) are so numerous and pervasive that it is beyond salvage. It should and will be struck out in its entirety.

Next steps

97    The respondents have indicated that they wish to be heard on the question of costs of and pertaining to the amended interlocutory application of 12 November 2021. The parties should confer and, ideally, agree upon orders by which that debate might be had (or, better yet, resolved), as well as some timeframes for the preparation and service of future pleadings. In the absence of agreement, the matter will be listed for case management. There shall be orders accordingly.

Associate:

Dated:    8 February 2023

SCHEDULE OF PARTIES