Federal Court of Australia

Forshaw v Qantas Airways Limited [2023] FCA 957

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 16.21 of the Federal Court Rules 2011 (Cth), the following paragraphs of the amended statement of claim dated 22 December 2022 be struck out, namely paragraphs:

(a)    78 and 79;

(b)    80A through 80D; and

(c)    83, 87 and 91.

2.    The respondent’s interlocutory application dated 10 February 2023 otherwise be dismissed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant, Ms Forshaw, is a pilot. She is employed by the respondent (“Qantas”), which operates a well-known Australian airline. By an originating application dated 25 October 2022, she moves the court for relief principally in the form of declarations and penalties for what she claims was conduct in which Qantas engaged in contravention of various provisions of pt 3-1 of the Fair Work Act 2009 (Cth) (the “FW Act”).

2    That conduct is described in an amended statement of claim dated 22 December 2022 and it is to that document that the following reasons pertain. By an interlocutory application dated 10 February 2023, Qantas moves for orders under r 16.21 of the Federal Court Rules 2011 (the “Rules”) that the amended statement of claim (the “ASOC”) be struck out in its entirety; or, alternatively, that identified parts of it be struck out. It is said that the ASOC is likely to cause prejudice, embarrassment or delay, fails to disclose a reasonable cause of action, and is otherwise an abuse of the court’s process. It contends that, having failed, despite request and opportunity, to address the deficiencies by which the present application is animated, the applicant should be denied leave to re-plead.

3    For the reasons that follow, I am satisfied that it is appropriate to (and I will) make orders striking out some parts of the ASOC to which Qantas’s application pertains. Ms Forshaw should (and will) have an opportunity to recast her pleading.

The legislative framework

4    The ASOC purports to charge Qantas with having contravened two provisions of pt 3-1 of the FW Act, namely ss 340 and 351. It is prudent to map out those sections and others that pertain to them.

5    Part 3-1 of the FW Act is entitled, “general protections”. Amongst other things, it serves to prohibit identified species of conduct when engaged in for identified reasons. Of present relevance is the concept of “adverse action”. Sections 340 and 351 both prohibit (in different ways) the taking of “adverse action” that is actuated by proscribed reasons.

6    Relevantly, s 342(1) identifies as follows the circumstances in which an employer is understood to take “adverse action” against an employee:

7    Conceptually, “adverse action” includes threats to take action of the kind referred to in s 342(1) of the FW Act: FW Act, s 342(2).

8    Section 340 of the FW Act is concerned to prohibit the taking of adverse action against a person because of (amongst other things) his or her possession of a “workplace right”. For present purposes, it is unnecessary to set out what is contemplated by the statutory conception of “workplace right”. It suffices, instead, to record the injunction to which s 340(1) gives effect:

340 Protection

(1)     A person must not take adverse action against another person:

(a)     because the other person:

(i)     has a workplace right; or

(ii)     has, or has not, exercised a workplace right; or

(iii)     proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)     to prevent the exercise of a workplace right by the other person.

9    Section 351 of the FW Act prohibits adverse action (or types of adverse action) that is taken for other reasons. It provides, relevantly:

351 Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

...

10    Section 361 of the FW Act looms large for present purposes. It provides as follows:

361 Reason for action to be presumed unless proved otherwise

(1)     If:

(a)     in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)     taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

11    Section 793 of the FW Act serves, for identified purposes, to attribute to bodies corporate certain types of conduct and states of mind. It provides as follows:

793 Liability of bodies corporate

Conduct of a body corporate

(1)     Any conduct engaged in on behalf of a body corporate:

(a)     by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)     by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)     If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

(a)     the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

The ASOC

12    Excepting formalities, the ASOC commences by recounting some statistics about Qantas’s workforce (and, specifically, the engagement of women within it) and some findings that are said to have featured in “a review of the workplace culture among mainline pilots and onshore cabin crew” that Qantas commissioned in 2018. Thereafter, it proceeds to outline a series of events that are specific to Ms Forshaw; specifically, events in which she and other named employees of Qantas are said to have been involved and that are later relied upon for the purposes of establishing the various statutory transgressions upon which her claim rests. For present purposes, it is unnecessary to particularise those pleas here.

13    After progressing through that course, the ASOC makes a generalised allegation about the conduct of the other Qantas employees whose alleged conduct is earlier described. Specifically, paragraph 65 of the ASOC pleads as follows, namely:

By reason of s.793 of the FW Act, Qantas is liable for the conduct of Captain Darryl Brick, Michael Hodge, Brad Calvert and Malcolm Campkin-Smith as pleaded in this statement of claim.

14    The ASOC then turns to chart some “Contraventions of s 340 of the Fair Work Act 2009 (Cth)”. That section of the pleading begins by alleging that, by reason of various communications, Ms Forshaw should be understood, in each case, to have exercised a “workplace right” of the kind to which s 340 of the FW Act refers. It then proceeds to identify what are said to be instances of “Adverse action”. Three such instances are identified and it is convenient at this juncture to replicate in full what is said of them:

Repercussions Threat

72.     By the conduct pleaded in paragraph 54(a)(vii) above:

(a)     Captain Brick threatened to alter Ms Forshaw’s position to her prejudice within the meaning of Item 1(b) of the table in s 342(1) of the FW Act; and

(b)     Captain Brick threatened to injure Ms Forshaw in her employment within the meaning of Item 1(b) of the table in s 342(1) of the FW Act (the Repercussions Threats).

73.     By reason of the matters in paragraphs 65(a) and 72 above, Qantas took adverse action against Ms Forshaw within the meaning of s 342(1) of the FW Act.

Training Review Outcome Threat

74.     By the conduct pleaded in paragraphs 54(f) and 54(h) above:

(a)     Captain Brick threatened to alter Ms Forshaw’s position to her prejudice within the meaning of Item 1(b) of the table in s 342(1) of the FW Act; and

(b)     Captain Brick threatened to injure Ms Forshaw in her employment within the meaning of Item 1(b) of the table in s 342(1) of the FW Act.

75.     By reason of the matters in paragraphs 65(a) and 74 above, Qantas took adverse action against Ms Forshaw within the meaning of s 342(1) of the FW Act.

Commencement of Training Review Process

76.    By the conduct pleaded in paragraph 55(a) above:

(a)     Captain Brick altered Ms Forshaw’s position to her prejudice within the meaning of Item 1(b) of the table in s 342(1) of the FW Act; and

(b)     Captain Brick injured Ms Forshaw in her employment within the meaning of Item 1(b) of the table in s 342(1) of the FW Act.

77.     By reason of the matters in paragraphs 65(a) and 76 above, Qantas took adverse action against Ms Forshaw within the meaning of s 342(1) of the FW Act.

15    The references to “paragraph[ ]65(a)” are self-evidently in error. They are to be read, instead, as references to paragraph 65.

16    The ASOC then alleges (by paragraph 78) that each of the three instances of adverse action alleged in paragraphs 73, 75 and 77 was actuated, or partly actuated, by Ms Forshaw’s having exercised any one or more of the workplace rights that she was earlier said to have exercised. That sets up what is alleged by paragraph 79, which reads as follows, namely:

79.    By reason of:

(a)    the matters in paragraphs 73 and 78 above, Qantas contravened s 340 of the FW Act; and/or

(b)     the matters in paragraphs 75 and 78 above, Qantas contravened s 340 of the FW Act; and/or

(c)     the matters in paragraphs 77 and 78 above, Qantas contravened s 340 of the FW Act.

17    Thereafter, the focus of the ASOC shifts to s 351 of the FW Act. Five contraventions of that section are alleged and it is convenient to separate them into two groups: the first comprising what is alleged at paragraphs 80A to 80D (to which I shall refer, hereafter and collectively, as the “Workplace Culture Plea”); and the second comprising the remaining four alleged contraventions (hereafter and collectively, the “Specific s 351 Pleas”).

18    Paragraphs 80A to 80D of the ASOC should be replicated in full:

80A.     By reason of [various matters identified earlier in the ASOC] (or any combination of the matters pleaded in those paragraphs), the Qantas workplace in which Ms Forshaw was employed was a workplace that was hostile to women (Sexist Culture).

80B     The Sexist Culture had the effect of:

(a)     injuring Ms Forshaw in her employment with Qantas; and /or

(b)     discriminating against Ms Forshaw compared to male employees of Qantas.

Particulars

1.     Ms Forshaw was denied the quiet enjoyment of her profession

2.     Ms Forshaw was subjected to improper conduct in the performance of her duties

3.     Ms Forshaw was required to perform at a higher standard during training compared to her male counterparts without being awarded better results

4.     Ms Forshaw suffered stress, anxiety and humiliation

5.     Further particulars provided below in respect of the specific conduct engaged in by each of Captain Brick, Michael Hodge, Brad Calvert and Malcolm Campkin-Smith

80C     By creating the Sexist Culture, failing to prevent the existence of the Sexist Culture and / or allowing the Sexist Culture to continue, Qantas took adverse action against Ms Forshaw within the meaning of s.342 of the FW Act.

80D     In contravention of s.351 of the FW Act, the adverse action pleaded in 80C above was taken because of Ms Forshaw’s sex.

19    Thereafter, the ASOC focuses upon the alleged conduct of four Qantas employees (to which reference is made earlier in that document). In each of the four cases, it is (or, in one case, is meant to be) said that:

(1)    the employee subjected Ms Forshaw to conduct that injured her in her employment, prejudicially altered her position as an employee and was relevantly discriminatory;

(2)    by reason of that conduct and “the matters in paragraph[ ]65” (in truth, reference is made to non-existent subparagraphs of paragraph 65; but that is, in each case, an obvious typographical error upon which little presently turns), Qantas should be understood to have taken adverse action against Ms Forshaw; and that

(3)    that adverse action “…was taken because of the reason, or because of reasons including the reason, that Ms Forshaw was female” and, therefore, was engaged in in contravention of s 351 of the FW Act.

Principles to be applied

20    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.

…

21    In Weddall v Rasier Pacific Pty Ltd [2023] FCA 59, I made the following observations about some “basic points of principle” applicable to the exercise of the power conferred by r 16.21:

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).

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.

…

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).

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.

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).

22    Those observations apply equally here and are not controversial.

Application

23    It is convenient in this section to maintain the triadic structure of the ASOC; and to consider whether it is appropriate to strike out each of:

(1)    the parts of the ASOC that pertain to the s 340 contraventions alleged against Qantas (above, [14]-[16]);

(2)    the parts of the ASOC that pertain to the Workplace Culture Plea (above, [18]); and

(3)    the parts of the ASOC that pertain to the Specific s 351 Pleas (above, [19]).

24    I shall address each—albeit not in that order.

The Workplace Culture Plea

25    Qantas complains that the Workplace Culture Plea is drawn in a way that fails properly to articulate a sound cause of action and is, in significant ways, premised upon conclusions that are not said to be established by material facts elsewhere pleaded.

26    I accept that that is so. There are multiple dimensions to that conclusion.

27    First, paragraph 80A of the ASOC is inherently indistinct. It posits that the “workplace in which Ms Forshaw was employed was…hostile to women”. What constitutes a “workplace that was hostile to women” is unsatisfactorily imprecise. A workplace—at least as a physical location—cannot exhibit hostility. Conceivably, a workplace might exhibit or possess other characteristics that accumulate to a point that might colloquially constitute hostility; but what might those characteristics be? And wouldn’t it depend, in any event, upon potentially all manner of circumstances? Hostility is, after all (and for present purposes), open to subjective interpretation. How can any respondent—even one as large and well-resourced as Qantas—sensibly respond to such an inherently nebulous allegation?

28    Upon the court’s posing of those interrogatories (or analogues of them) at the hearing of the application, counsel for Ms Forshaw maintained that what is or is not a “workplace that was hostile to women” is “a matter for submissions”. It is, he maintained, open to Qantas simply to deny what is alleged and for the parties to then air, at trial, such competing submissions as they may wish regarding whether or not the circumstances to which paragraph 80A of the ASOC refers suffice to qualify Ms Forshaw’s workplace as one “…that was hostile to women”.

29    That submission is self-evidently unsound and liable to summary rejection. It is no answer to a charge that a pleading is impermissibly vague to say that it is open to the opposing party merely to deny what is alleged and, thereafter, to let things play out as they may in submissions. Such a contention sets at nought the ideal that pleadings should enable parties to understand—and to have an opportunity to meet—the case or cases that are advanced against them. If the applicant wishes (as, of course, she may in the usual run of things) to place a label upon something—here, the workplace within which she works—it must be a label that can be understood and that lends itself to intelligible rejoinder. In order that a respondent might admit or deny that such a label is apt, it must first know what it means. So, too, must the court. Paragraph 80A of the ASOC is, in that sense, self-evidently inadequate.

30    But that isn’t the only problem.

31    Paragraph 80A of the ASOC merely serves to establish the state of affairs that is said to contextualise the injury or discrimination that, in each case, is said to suffice as the effect of adverse action under s 342(1) of the FW Act: ASOC, [80B]. It is paragraph 80C that identifies the conduct that is said to have given rise to that state of affairs (and, thereby, to have visited that injury or discrimination). That conduct is said to assume one or more of three forms. It is said, first, that Qantas “creat[ed]” a workplace that was hostile to women; second, that it “fail[ed] to prevent the existence” of such a workplace; and, third, that it “allow[ed]” such a workplace to exist. It is by those instances of conduct—the creation, the failure to prevent and/or the tolerance of a hostile workplace—that Qantas is said to have visited the adverse action upon which this aspect of the ASOC rests.

32    The problems with paragraph 80C are numerous. The suggestion that a body corporate has created, allowed or failed to prevent something is inherently conclusory. Other than by process of legal fiction, bodies corporate cannot engage in conduct. They cannot create or allow or fail to prevent anything. Assuming that it can be established, the creation, allowance or failure to which 80C of the ASOC refers can only have arisen from the conduct of natural persons. For present purposes, that conduct—which is to say the acts or omissions of those people—may be attributed to Qantas by means of s 793(1) of the FW Act (and, potentially, by other means); but it is only by such a process of attribution that conduct might attach directly to the body corporate.

33    Here, the creation of, tolerance of and/or failure to prevent the existence of a workplace that was hostile to women is attributed solely to Qantas. The ASOC does not plead any material facts that are capable of establishing that attribution (whether by application of s 793(1) of the FW Act or otherwise). Who it was that is said to have done or not done the things that resulted in the creation, tolerance or failure that is alleged is wholly unexplained, as is the nature of their agency or relationship to the alleged corporate wrongdoer. Neither Qantas nor the court can know how it is put that Qantas did or did not do the things that it is said to have done or not done.

34    Counsel for Ms Forshaw sought to answer that criticism in two ways. First, he submitted that the creation, tolerance or failure is necessarily to be inferred from what is pleaded at paragraph 80A of the ASOC: in other words, that it may be said, by reason of its existence, that a workplace that was hostile to women was created, tolerated or not prevented. Second, he contended that s 361(1) of the FW Act serves to relieve his client of any need to identify the human agents whose conduct is to be attributed to Qantas. I shall address each contention in turn.

35    There is a logical attraction to the first contention but, ultimately, it is circular. Qantas is entitled to know not merely what the state of affairs that is said to have existed was; but also how it is said to have existed as a consequence of conduct properly attributable to it. It is no answer to say that, because the state of affairs existed, it should necessarily follow that Qantas created, tolerated or failed to prevent it. Perhaps that might be so; but so to find would require the establishment of other material facts, none of which is pleaded. Moreover, the facts that might suffice to establish the creation of the state of affairs to which 80A of the ASOC refers may or may not be the same facts by which Qantas is said to have tolerated or failed to prevent it. It cannot be left to Qantas to guess what those other facts might be. Nor is it under any obligation to identify them itself, even assuming that it is well placed (or, perhaps, better placed than Ms Forshaw) to do so. Qantas is entitled to know the material facts by reason of which Ms Forshaw intends to attribute to it the conduct that paragraph 80C alleges. Ms Forshaw is obliged to plead them.

36    It might be accepted that those conclusions present difficulties for Ms Forshaw—indeed any applicant. It may well be the case that Ms Forshaw’s proper basis for pleading that Qantas created, tolerated or failed to prevent what it is said to have created, tolerated or failed to prevent arises only from the existence of what she says was created, tolerated or not prevented. Perhaps it will be difficult for her to identify the human agents through whose conduct—whether acts or omissions—the court might find that Qantas created, tolerated or failed to prevent the state of affairs to which she points.

37    Three responses spring immediately in answer to that proposition. First, that difficulty is not a basis upon which the court might properly deny Qantas its entitlement to know, with precision, the case that is mounted against it (including in connection with how conduct is to be attributed to it). Second, Ms Forshaw has had available to her a raft of processes under the Rules by which she might, if she needed to, obtain answers to any such difficult questions. Third, in circumstances where, as here, it is to be alleged that particular conduct was at least partly actuated by an identified reason, it is difficult (though perhaps not necessarily impossible) to see how an applicant might have a proper basis for saying so in the absence of knowing by whom that conduct was undertaken.

38    I turn, then, to the application of s 361(1) of the FW Act. Counsel for Ms Forshaw submitted that, by operation of that provision, his client is not obliged to identify the human agents by whose conduct Qantas might be said to have done or not done the things that paragraph 80C of the ASOC attributes to it. The effect of that section, he contended, is that it suffices for Ms Forshaw simply to allege as she has; and that it then falls to Qantas to address it as best it can.

39    That contention is plainly wrong and I reject it. Before explaining why, something should be said about the reasoning of this court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (Greenwood, Flick and Rangiah JJ; “BHP Coal”), upon which Ms Forshaw heavily relied. That matter concerned an application for leave to appeal from orders made under r 16.21 of the Rules. Relevantly, the primary judge had there resolved to strike out parts of a pleading in a matter that, as here, involved allegations that a respondent had contravened a provision of pt 3-1 of the FW Act. In part, those orders were made in circumstances where the applicant had alleged that the incorporated respondent had engaged in conduct with an identified state of mind; but did not identify the person or persons whose intent or state of mind was said to be attributable to it.

40    The application for leave to appeal was dismissed. Nonetheless, the court was moved to address one aspect of the primary judge’s reasoning. Their Honours observed (at [69]-[70]) as follows:

Where an applicant alleges that a respondent has contravened s 340(1)(a)(i) through the operation of s 362(1) of the FWA by reason that the respondent took action with intent to coerce another person to engage in adverse action, s 361(1) imposes an onus on the respondent to prove that it did not have that intent. In this case, BMA has the onus of proving that it did not intend to coerce BHP Coal into engaging in adverse action against its employees. Rule 16.03(2) of the Rules provides that a party need not plead a fact if the burden of proving the fact does not lie on that party. Thus, while the applicant’s pleading must raise an allegation that BMA took the action with intent to coerce, it is not required to plead the identities of the persons whose intent is to be attributed to BMA. Assuming that r 16.43(1) applies, it requires that a party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies. However, there can be no requirement to provide particulars of facts which r 16.03(2) does not require to be pleaded.

It follows that the primary judge erred in striking out paragraph 40 of the ASOC on the basis that it did not identify the person or persons whose intent was to be attributed to BMA. Despite that error, any appeal would necessarily fail because her Honour was correct to strike out paragraph 40 for the reason that it depended on and went with paragraph 29 of the ASOC.

41    Plainly, those comments were made in obiter and are not binding for present purposes. Nonetheless, I should record two observations about them.

42    First, they do not engage with the issue with which the court is here confronted. The full court’s observations concerned the state of the pleading as to the corporate respondent’s state of mind, rather than its conduct. Insofar as concerns paragraph 80C of the ASOC, the court is concerned solely with the latter.

43    Second (and with respect), neither of s 361(1) of the FW Act or r 16.03(2) of the Rules operates to relieve an applicant in a general protections matter of his or her obligation to prove (and, therefore, properly to plead) that a respondent’s conduct was at least partly animated by a reason or state of mind that pt 3-1 relevantly proscribes. Their Honours appear not to have been alerted to the conclusions of Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463. Speaking of predecessor provisions, their Honours there observed (at 501 [109]):

Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507.

44    Those observations are consistent with what was said more recently in TechnologyOne Ltd v Roohizadegan (2021) 174 ALD 224, 284 [221] (Rangiah, White and O’Callaghan JJ).

45    Section 361(1) of the FW Act does not operate to qualify, nor to relieve an applicant of, the obligation to plead with orthodox precision the case that is to be advanced against a respondent. Instead, it operates to facilitate, by means of a rebuttable presumption, the proof of one aspect of such a case (namely, the state or states of mind by which identified conduct is said to have been at least partly actuated): Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 [161]-[162] (Branson J). Contrary to the effect of Ms Forshaw’s submission, the statutory presumption does not serve to suspend the ordinary conventions of procedural fairness so as to require that a respondent should make its own sense of a case advanced vaguely against it.

46    An applicant in a matter commenced under pt 3-1 of the FW Act must plead, in the usual way, the conduct in which a respondent is said to have engaged. In the case of corporate respondents, that endeavour necessarily requires the identification of the human actors whose conduct is said to be relevantly attributable, and of the agency or other circumstances that suffice to associate that conduct as conduct of the body corporate. Paragraph 80C of the ASOC quite obviously fails in those regards.

47    With those conclusions stated, it is unnecessary that I should venture any additional opinion about what appears at paragraph 80D of the ASOC. Qantas submits that:

…there is no basis for the circular and unparticularised allegation in [80D] that Qantas created the Sexist Culture, failed to prevent the Sexist Culture or allowed the Sexist Culture to continue. There are simply no facts alleged as to how that conduct could have been because of Ms Forshaw’s sex. It makes no sense as it is alleged (presumably) that this was the culture of the workplace, not a culture developed because of Ms Forshaw’s sex. A mere disparate impact on a person because of an attribute is not sufficient for a claim pursuant to s 351 (as opposed to indirect discrimination pursuant to the Sex Discrimination Act 1984 (Cth)).

48    There may or may not be something to that complaint; but, whatever might be said of it, it is not something that should, of itself, sound in orders under r 16.21 of the Rules. It would be a question to be determined at the trial whether Qantas engaged in conduct because, or for reasons that include that, Ms Forshaw is a woman.

49    As it is, none of the interdependent parts of the Workplace Culture Plea is salvageable. It is, in its entirety, likely to cause prejudice, embarrassment or delay, and it fails to disclose a reasonable cause of action. It should (and will) be struck out in its entirety.

The s 340 contraventions

50    Qantas complains that the parts of the ASOC that pertain to the s 340 contraventions alleged against it (above, [14]-[16]) are deficient in two key respects. First, it notes that paragraphs 72, 74 and 76 of the ASOC each purport to attribute to Captain Brick conduct amounting to adverse action, despite the FW Act not contemplating that an employee might subject a co-worker to adverse action. Second, it takes issue with paragraph 78 of the ASOC, which purports to identify the reason—or, at least a reason—why Qantas took the adverse action to which each of paragraphs 73, 75 and 77 refers. It is said that Ms Forshaw has attempted to “aggregate all knowledge and the subjective intent of all the individuals and somehow combine that knowledge and conduct”.

51    By its written submission, Qantas complained as follows, namely:

To properly disclose a cause of action, the ASOC must identify the state of mind of each of the individuals that s 793 is then relied upon to attribute to Qantas. It does not. It must at least allege, that each of the individuals took adverse action because of a prohibited reason and then allege that the conduct of the individuals and their relevant state of mind is conduct and the state of mind of Qantas. It does not. It is not for Qantas to attempt to unpick the allegations to work out what is alleged. This is particularly so where each individual breach of the FW Act is a civil penalty provision. An amalgam of allegations to be unpicked by Qantas does not adequately set out a cause of action or provide a clear delineation of the matters in issue.

52    Ms Forshaw contends that Qantas’s complaints proceed upon an unduly “narrow and pedantic approach to the pleading”, the meaning of which, she submits, is “abundantly clear”. She also relies upon the observations made in BHP Coal (above, [40]).

53    Something should be said about the operation of s 793 of the FW Act. For present purposes, it has two functions. The first is to attribute to a body corporate conduct that is engaged in on its behalf by certain types of people. The second is to attribute to a body corporate, in respect of such conduct, the state of mind with which those people partook of that conduct.

54    Section 793 of the FW Act does not attach upon bodies corporate any form of liability for instances of conduct or the states of mind that actuate them. On the contrary, s 793 serves only to deem that certain conduct engaged in, and certain states of mind possessed by, others should stand, in certain circumstances, as the conduct and states of mind of bodies corporate. Liability that might thereafter attach to any such attributed conduct (with or without the attributed state of mind that actuated it) attaches directly, not vicariously.

55    That being so, the suggestion at paragraph 65 of the ASOC that s 793 of the FW Act serves to make Qantas “liable for the conduct of [its employees]” is unsound. Counsel for Ms Forshaw did not contend otherwise; instead, he maintained that it should be—and, in truth, is—understood only as a suggestion that the conduct of those employees is, for present purposes, to be treated as conduct of Qantas’s.

56    That may be so. Perhaps the worst that may be said of paragraph 65 of the ASOC is that it is inelegantly loose in its terms. It is not obviously in question that the employees referred to were, in fact, employees of Qantas; nor that their conduct, assuming that it occurred, was conduct that is properly attributed to Qantas under s 793(1) of the FW Act. To the extent that paragraph 65 is called upon by paragraphs 73, 75 and 77 of the ASOC, it seems a stretch to think that there is much scope for confusion as to why.

57    As much may be illustrated by example. Paragraph 72 of the ASOC (above, [14]) pleads to the effect upon Ms Forshaw of conduct that is said to have been engaged in by Captain Brick. There is nothing unclear or deficient about what is there pleaded. To the extent that Qantas suggests otherwise, I do not agree.

58    The next paragraph then alleges that, “[b]y reason of the matters in paragraphs 65[ ]and 72 above, Qantas took adverse action against Ms Forshaw”. Again, I discern no real ambiguity to what is alleged. Paragraph 65 is called upon to establish that Captain Brick’s conduct was also Qantas’s conduct; and, because that conduct is said to have visited upon Ms Forshaw the effects that paragraph 72 attributes to it, it was conduct that amounted to adverse action.

59    Insofar as Qantas complains about any aspect of what has been analysed to this point, its complaint is unfounded.

60    Things get a little trickier at paragraph 78 of the ASOC. There, it is said that the “…adverse action pleaded in paragraphs 73, 75 and 77” was actuated or partly actuated by Ms Forshaw’s exercise of one or more identified workplace rights. That adverse action, of course, assumes the form of the conduct in which Qantas is said to have engaged (in each case, through the agency of Captain Brick). Although paragraph 78 of the ASOC does not identify the human agent who possessed the state of mind by which Qantas’s conduct is said to have been at least partly actuated, there appears to be really only one person who might qualify in that regard: namely, Captain Brick.

61    With that stated, there is at least some force to Ms Forshaw’s contention that Qantas’s complaints proceed upon an unduly narrow or pedantic approach to the ASOC. Nonetheless, I am inclined to accept that Ms Forshaw should make clear what I have assumed in the preceding paragraph: namely, that the proscribed reasons that paragraph 78 of the ASOC attributes to the adverse action that Qantas is alleged to have taken against her inured in the state of Captain Brick’s mind (or, as the case may be, in the mind or minds of whomever else she might nominate). In the absence of that clarity, I accept that paragraph 78 of the ASOC is likely to cause prejudice, embarrassment or delay, and fails to disclose a reasonable cause of action.

62    In that regard, I adapt an observation earlier stated. An applicant in a matter commenced under pt 3-1 of the FW Act must, in the usual way (and whether with or without the assistance of facilitative processes prescribed by the Rules), plead the state of mind by which it is alleged that a respondent engaged in identified conduct. In the case of corporate respondents, that endeavour necessarily requires the identification of the human actors whose state of mind is said to be relevantly attributable, and the agency or other circumstances that suffice to associate that state of mind as the relevant state of mind of the body corporate. Nothing in the FW Act or the Rules—including s 361(1) and r 16.03—serves to relieve an applicant of that elementary pleading obligation. As has been noted, s 361(1) merely assists an applicant to prove that which is alleged.

63    I should be careful not to overstate the observations in the preceding paragraph. What is said there concerns the manner in which an applicant must plead allegations of breach of a general protection under pt 3-1 of the FW Act. How such an allegation must then be proved or disproved is another question with which these reasons do not engage. It might well be that s 361(1) of the FW Act operates in some matters such that proof of the reason or reasons by which particular adverse action was animated may, in an evidential sense, properly extend beyond what is pleaded. That is a question that can be left for consideration at a later time.

64    I turn, then, to consider what orders should be made in relation to the s 340 allegations. Although it should, to appropriate the phraseology employed by counsel for Ms Forshaw, be “tidied up”, I am not minded to strike out paragraph 65 of the ASOC. Likewise, I do not consider it necessary to strike out any of paragraphs 72 to 77 of the ASOC. Paragraph 78 should (and will) be struck out for the reasons identified above (at [61]). Paragraph 79, which is dependent upon paragraph 78, should (and will) also be struck out.

The Specific s 351 Pleas

65    Qantas’s complaints about the Specific s 351 Pleas are equivalent to those advanced in respect of the s 340 allegations. Ms Forshaw’s resistance to those complaints is similarly equivalent.

66    I am led to equivalent conclusions. As has been noted, there are four discrete allegations made in paragraphs 81 to 92A of the ASOC. Each pertains to an individual employee, and to conduct in which he is said to have engaged against or in respect of Ms Forshaw. In each case (other than the last, which Ms Forshaw accepts is erroneously incomplete), the ASOC alleges:

(1)    that conduct engaged in by the individual (established earlier in the pleading) had the effect of injuring Ms Forshaw in her employment, prejudicially altering her position as an employee, and/or discriminating against her;

(2)    that, by reason of paragraph 65 of the ASOC, that conduct amounted to adverse action that Qantas took against Ms Forshaw; and

(3)    that that adverse action was taken because, or for reasons that included that, Ms Forshaw is a woman.

67    The pleading appears somewhat incomplete or amiss. Paragraph 87, for example, refers to “adverse action pleaded in paragraph 85(a)” having been taken on account (or partly on account) of Ms Forshaw’s gender. Paragraph 85(a) doesn’t allege any such adverse action. It is likely that the reference was intended to be a reference to paragraph 86 (which does). Paragraph 91 contains a similar infelicity.

68    Leaving that to one side, there is not really much in the way of ambiguity about most of what is pleaded in each of the Specific s 351 Pleas. Ms Forshaw describes the effect of conduct engaged in by agents of Qantas, attributes that conduct to Qantas, and then describes what is so attributed as adverse action. Infelicities aside, I discern no real reason for complaint to those extents.

69    However, as with the s 340 contentions, things get a little trickier when the ASOC purports, in each of the four instances, to attribute a reason as to why the adverse action was taken. Paragraph 83 of the ASOC, for example, concerns conduct that is said to have been engaged in by Mr Michael Hodge. That conduct is attributed to Qantas and is alleged to qualify as adverse action. Paragraph 83 of the ASOC then baldly asserts that Qantas’s adverse action was taken because, or for reasons that included that, Ms Forshaw is a woman. Nothing is said of Mr Hodge’s state of mind.

70    Again, the scope for confusion seems limited; but it isn’t nothing. It seems difficult to see how Qantas’s reason or reasons for doing that which Mr Hodge is said to have done might have resided anywhere other than in the mind of Mr Hodge. The same may be said of the other conduct and the other employees who are said to have engaged in it. In each case, the ASOC pleads that Qantas engaged in that conduct because Ms Forshaw is a woman (ASOC, [87] and [91]—the final instance of conduct is mistakenly incomplete but, as is addressed below, it is intended that a similar suggestion should be made in respect of it).

71    As with the s 340 contraventions, I am inclined to accept that Ms Forshaw should make clear what I have assumed: namely, that the reason or reasons for which the conduct constituting each of the Specific s 351 Pleas is said to have been actuated (or partly actuated) were formed in the mind of the individual who is said, in each case, to have effected it on Qantas’s behalf. In the absence of that clarity, I accept that the relevant passages of the ASOC (specifically, paragraphs 83, 87 and 91) are likely to cause prejudice, embarrassment or delay, and fail to disclose reasonable causes of action against Qantas.

72    The relief that should be granted should be limited to those paragraphs of the Specific s 351 Pleas that purport to identify the reason or reasons for which Qantas is said to have visited adverse action upon Ms Forshaw: specifically, paragraphs 83, 87 and 91. As I have said, I do not consider that the remainder of what is pleaded, in respect of each instance of relevant conduct, is unclear to a point that warrants relief under r 16.21 of the Rules.

73    I should say something about paragraph 92A of the ASOC. Counsel for Ms Forshaw accepted that that part of the ASOC is mistakenly incomplete, in that paragraph 92A simply ascribes certain characteristics to conduct said to have been engaged in by Captain Brick. There are no further pleas that establish that that conduct was engaged in also by Qantas, nor that it sufficed to amount to adverse action or was taken because of, or for reasons that included, a reason proscribed by s 351(1) of the FW Act. It is apparent that Ms Forshaw intends to assert as much and she should have that opportunity.

Disposition

74    Qantas submits that Ms Forshaw should not be granted leave to re-plead the case that she hopes to agitate against it. That position is advanced on the footing that Ms Forshaw has already had one occasion to amend her pleading and has steadfastly declined Qantas’s invitations to do so again.

75    Ordinarily, a litigant against whom relief is granted under r 16.21 of the Rules will be afforded an opportunity to re-plead: Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1102, [46] (O’Callaghan J). I am satisfied that that is the course that should be adopted here. The present matter does not present as one in which the court cannot “…discern the germ of a case concealed within inadequately drafted pleadings”: Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081, [89] (Flick J). On the contrary, there is no present basis upon which the court might properly infer that no reasonable cause of action exists. In that regard, the distinction between the existence of a cause of action and the pleading of a cause of action must be borne in mind: White Industries v Federal Commissioner of Taxation (2007) 160 FCR 298, 309 [47] (Lindgren J).

76    It will suffice that I make the orders referred to earlier in these reasons. Ms Forshaw should redraw her pleading and make an application for leave to file it in its further amended form. The parties should confer and, if possible, agree upon orders to that end; and, thereafter, as to such further case-management directions as might be appropriate. In the event that they are unable to reach agreement on the filing of a further pleading or other orders, they should jointly advise my chambers and a hearing will be convened to address those issues.

77    Section 570 of the FW Act likely precludes the court from making any order for costs in relation to Qantas’s interlocutory application dated 10 February 2023. In submissions, Qantas did not ask for one; although the application itself does. The parties can inform my chambers in due course what, if any, application is made for costs. For now, I will not make any order in that regard.

Associate:

Dated:    16 August 2023