Federal Court of Australia

Soukhodoev v SG Fleet Australia Pty Ltd [2023] FCA 1672

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), the following claims pleaded by the applicant in the Amended Statement of Claim filed on 28 November 2023 (ASOC) against the Fourth Respondent be summarily dismissed:

(a)    the claim and cause of action that the Fourth Respondent was involved in and therefore an accessory to an alleged contravention of s 351 of the Fair Work Act 2009 (Cth) (FW Act) pursuant to s 550 of the FW Act as constituted by the pleadings in paragraphs 164, 169 and 186 of the ASOC;

(b)    the claim and cause of action asserting an estoppel constituted by the pleading in paragraph 49 of the ASOC as against the Fourth Respondent;

(c)    any part of all claims and causes of action against the Fourth Respondent pleaded in paragraph 169 of the ASOC to the extent that they assert liability on the basis that she “ought to have known” the matters pleaded against her to propound a case of accessorial liability under s 550 of the FW Act; and

(d)    the claim and cause of action that the Fourth Respondent “knowingly” made a false or misleading representation(s) in contravention of sections 345 and 550 of the FW Act as constituted by the pleadings in paragraphs 165, 169 and 185 of the ASOC.

2.    The applicant file and serve a marked-up version of the ASOC to reflect the orders made in Order 1, by 31 January 2024. This version of the ASOC will include a notation to the effect that the version of the ASOC indicates the claims that have been summarily dismissed in accordance with Order 1.

3.    The Fourth Respondent’s summary dismissal application filed on 17 October 2023 be otherwise dismissed.

4.    Costs be reserved.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised and edited from the transcript)

SHARIFF J:

INTRODUCTION

1    The applicants are former employees of the first respondent (SG Fleet). On 9 March 2022, SG Fleet terminated the applicants’ employment. The applicants commenced these proceedings by way of an Originating Application and Statement of Claim filed on 12 September 2022. They have since filed Amended Statements of Claim, respectively, on 25 and 28 November 2022 (ASOC). The second, third and fourth respondents are current or former employees of SG Fleet. Ms Davis is the fourth respondent.

2    By an interlocutory application filed on 17 October 2023, Ms Davis sought orders pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a) of the Federal Court of Australia Rules 2011 (Cth) (FC Rules) that the part of each of the proceedings comprised of the claims made by the applicants against her be summarily dismissed.

3    On 31 October 2023, I made orders that Ms Davis’ interlocutory application be listed before me for hearing on 18 December 2023 with an estimate given by the parties of two hours for that hearing. I also made orders for the filing and service of written submissions prior to that hearing. As things came to pass, the hearing of the interlocutory application far exceeded the estimated two hours for which it was listed. In part, the reason for this is that it took some time during the course of argument to understand the applicants’ various claims and, additionally, the applicants’ legal representative sought an opportunity to provide further materials to the Court. I allowed this to occur and adjourned the matter part heard to the morning of 20 December 2023. Upon the resumed hearing, the applicants provided supplementary written submissions and I heard further oral argument for the better part of half a day.

4    Separately to the orders that I made on 31 October 2023 relating to the interlocutory application, I also made orders in preparation of these proceedings for a final hearing and adjusting earlier orders that had been made by Cheeseman J in that regard. Pursuant to these orders, as at the time that I heard the interlocutory application, the parties had each filed in large part the evidence upon which they wished to rely in the substantive proceedings. The remaining evidence to be relied upon by the parties, including expert evidence, was due to be filed by 22 December 2023. Subject to compliance with those orders, the matter is, as I understood it at the time, ready for trial, and my understanding in this regard has not changed.

5    The substantive proceedings are listed for final hearing before me between 29 July 2024 and 2 August 2024.

6    In view of the fact that both parties have substantially filed their evidence to be relied upon for trial, and the prospect that the applicants may wish to further amend the ASOC (as I refer to further below), I decided that a expeditious disposition of Ms Davis’ application would enable both parties to have sufficient time to take any other steps they wished to take in advance of the trial. In the result, other than in one respect, I have only upheld Ms Davis’ interlocutory application by dismissing so much of the claims made against her that the applicants accepted that they would no longer press and have otherwise dismissed her application. The one matter in respect of which the applicants made no concession relates to the apparent claim against Ms Davis based on estoppel by convention, which I deal with later in these reasons.

7    In order to understand Ms Davis’ application for summary dismissal, it is necessary to make some sense of the claims that have been pleaded against her. The ASOC, in so far as they relate to Ms Davis, are identical. Other than one aspect, the whole of the applicants’ claims against Ms Davis are accessorial to the claims the applicants propound against SG Fleet. The applicants plead that Ms Davis was a person involved in the alleged contraventions by SG Fleet of ss 45, 340, 345 and 351 of the Fair Work Act 2009 (Cth) (FW Act) by reason of the operation of s 550 of that Act.

BACKGROUND

8    The background to the claims is that the applicants elected not to obtain vaccinations against the “Novel Coronavirus (2019-nCoV)”, known as COVID-19, and that various of their legal rights and entitlements were infringed by conduct on the part of SG Fleet and its employees. Without being exhaustive, the relevant claims against SG Fleet are as follows.

9    First, it is claimed that SG Fleet did not undertake “Mandatory Award Consultation” (as defined in the ASOC) pursuant to applicable clauses of the Clerks Private Sector Award 2020 (Award) and thereby contravened s 45 of the FW Act. Clause 38 of the Award deals with consultation about major workplace changes in production, program, organisation structure or technology that are likely to have significant effects on employees. It is not in dispute that the Award applied to the applicants’ employment, but there is a dispute as to whether cl 38 of the Award was engaged as alleged and, if so, the sufficiency of the consultation that is said to have occurred.

10    Second, the applicants claim that SG Fleet engaged in adverse action in contravention of s 340 of the FW Act which involves allegations that the applicants exercised various workplace rights. These include that the applicants had workplace rights within the meaning of ss 341(1)(a) and (b). The applicants also claim that they had a right pursuant to s 341(1)(c)(ii) to complain and/or inquire in relation to the matters set out in the ASOC at [158(b)]. It is contended that the applicants exercised or proposed to exercise these rights and that by reason of the exercise of one or more of these rights, SG Fleet took the following adverse action against the applicants: (a) suspension of the applicants on 22 November 2021 by lockout and disabling swipe pass access to the workplace, (b) threatening an unlawful stand down as a disciplinary measure, (c) standing the applicants down without pay, (d) excluding the applicants from the workplace prior to the announcement of a vaccination policy, (e) standing the applicants down with pay, (f) threatening the applicants with disciplinary action if they attended the workplace, (g) threatening the applicants with termination of their employment, and (h) terminating the employment of the applicants.

11    Third, the applicants contend that SG Fleet contravened s 345 of the FW Act by making the “First and Second 2008 Employment Agreement Representations” (as defined in the ASOC), being representations by conduct and other acts that are said to have conveyed a knowingly false or reckless representation as to the contract or instrument that governed the employment of the applicants.

12    Fourth, the applicants contend that SG Fleet contravened s 351 of the FW Act by terminating their respective contracts of employment by reason of a physical disability.

13    With one exception, the case against Ms Davis is that she was involved in these four contraventions within the meaning of s 550 of the FW Act. That claim is pleaded in the ASOC at [169] as follows:

The Fourth Respondent was a person involved in the contraventions of ss 45, 340, 345 and 351 of the Fair Work Act by the First Respondent.

PARTICULARS

a.    The Fourth Respondent aided, abetted, counselled or procured the contraventions in her role as People and Culture Advisor of the First Respondent:

i.    as a person responsible for engaging in Mandatory WHS Consultation for the First Respondent;

ii.    as a person responsible for engaging in Mandatory Award Consultation for the First Respondent;

iii.    by making the First 2008 Employment Agreement Representation;

iv.    by giving the Applicants a direction, on 16 December 2021, to continue working whilst wearing masks and gloves, as pleaded in paragraph 136.b;

v.    by restricting information from the Applicants during the purported consultation period as pleaded in paragraph 126.b;

vi.    by hindering the possibility of consultation as pleaded in paragraph 126.c.

b.    At all relevant times the Fourth Respondent knew or ought to have known of:

i.    the requirement of Mandatory WHS Consultation;

ii.    the requirement of Mandatory Award Consultation;

iii.    the abovementioned political opinions of the Applicants; and

iv.    the protection of those opinions in the relevant contract of employment.

c.    The Fourth Respondent was directly or indirectly, knowingly concerned in or party to the contravention:

i.    The Applicant repeats the particulars at a and b above.

d.    Further particulars may be provided.

14    The one claim made against Ms Davis that arises outside of the FW Act is based in estoppel. The claim is not entirely clear to me, but it is pleaded that by certain conduct engaged in by SG Fleet and assumptions engendered by it (including by reason of the operation of certain obligations alleged by the applicants such as applicable Codes of Conduct), Ms Davis is estopped from resiling from certain “premises” that operated as between Ms Davis and SG Fleet, which it is claimed that the applicants relied upon. This claim is ultimately pleaded in the ASOC at [49] as follows:

In the premises, the First Respondent, Second Respondent, Third Respondent and Fourth Respondent are estopped from departing from the premise that the Applicants were not, at all material times, in breach of their contractual obligations to the First Respondent by reason of the Applicants voluntarily participating in the political process as individuals and not having received a COVID-19 vaccination.

15    Ms Davis contended that all the claims against her should be dismissed.

16    In support of their respective positions, and somewhat unusually, the parties sought to rely at the hearing of the interlocutory application upon the evidence that had been filed to date in the substantive proceedings. Ms Davis sought to rely upon aspects of the evidence that had been filed by the applicants to contend that, taken at its highest, this evidence did not make out the case that had been pleaded by the applicants. For their part, the applicants sought to rely upon the evidence filed by the respondents to contend that there were contested issues of fact. I expressed to both parties my reluctance at this stage to descend into an examination of the evidence and the parties’ rival contentions about it. I expressed to both parties my concerns that they were inviting me to conduct a preliminary trial involving an examination of the evidence in circumstances where a final hearing was already listed before me. I raised with Mr Meehan SC, who appeared with Mr D Lloyd of Counsel for the respondents, that an invitation to examine the evidence suggested that there were triable issues of fact.

17    I invited the parties to carefully consider their positions in relation to the evidence to be read, but ultimately allowed them to read such of the evidence as they wished to rely upon as the argument unfolded before me. As a result, during the hearing, the following evidence was read:

(a)    Affidavit of Natalia Soukhodoeva affirmed on 19 July 2023;

(b)    Affidavit of Viktor Soukhodoev affirmed on 10 August 2023;

(c)    Affidavit of Grace Davis affirmed on 10 October 2023;

(d)    Affidavit of Jane Clifton affirmed on 10 October 2023;

(e)    Affidavit of Marisa Picone affirmed on 10 October 2023;

(f)    Affidavit of Robert Pinkas Blau affirmed on 10 October 2023;

(g)    Affidavit of Holly Gretton affirmed on 17 October 2023; and

(h)    Affidavit of Holly Gretton affirmed on 14 December 2023.

18    In addition, the applicants tendered a bundle of correspondence (Exhibit A1). The applicants relied upon this correspondence in part to demonstrate the delay and prejudice occasioned by Ms Davis’ application, and also to point out that many of the criticisms made about the ASOC had not been previously raised by the respondents.

19    I read the parts of the evidence to which reference was made in the parties’ respective submissions (including schedules to those submissions) and some of the brief references made to the evidence in oral submissions. I did not regard the evidence as particularly helpful in the resolution of the questions before the Court and, as I explain, in many respects I am satisfied that resolution of the evidentiary issues raised by the claims made in the ASOC is a matter for trial. In coming to the conclusions that I have, I have taken into account the correspondence between the parties and, in particular, I have given weight to the fact that the matter is listed for a final hearing and, as mentioned, as the parties are substantially progressed in the preparation for that hearing, there are many matters that should await trial.

20    During the hearing on 18 December 2023, I raised a number of matters with Mr Weinberger, who appeared for the applicants, in respect of which he was not in a position to assist the Court. In the interests of affording the applicants procedural fairness, I gave Mr Weinberger some further time to address these matters and adjourned the hearing of the application to 20 December 2023. At the commencement of the hearing on 20 December 2023, Mr Weinberger provided me with a supplementary written submission that sought to identify some further matters in support of the various positions he had advanced on the applicants’ behalf.

APPLICABLE PRINCIPLES

21    Section 31A of the FCA Act empowers the Court to give summary judgment when the Court is satisfied that there is no reasonable prospect of successfully prosecuting the proceeding, or part of the proceeding, even if the Court does not conclude that the proceeding or part thereof is hopeless or bound to fail. As the plurality in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 stated at [53], s 31A departs radically from earlier tests, such as those considered in General Steel Industries v Commissioner of Railways (1964) 112 CLR 125.

22    The following principles emerge from the joint judgment of Hayne, Crennan, Kiefel and Bell JJ in Spencer at [58]-[60]:

(a)    no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content;

(b)    in many cases where a party has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by section 31A;

(c)    nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim;

(d)    the Federal Court may exercise power under s 31A if, and only if, it is satisfied that there is “no reasonable prospect” of success.

23    In Australia Securities and Investment Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256, Reeves J considered the applicable principles, including the post-Spencer authorities. His Honour’s examination of the authorities has been cited with approval in numerous subsequent authorities including most recently by the Full Court in Wilson v Victoria [2023] FCAFC 204 at [24].

24    In Cassimatis, Reeves J stated at [46] that:

… [Section] 31A has lowered the bar, or softened the test, for summary judgment, or summary dismissal, as compared to that set by earlier summary judgment or summary dismissal regimes… The critical question… is whether… [the applicant] has “reasonable” prospects of successfully prosecuting [the] proceedings… [T]he moving party… bear[s] the onus of persuading the court of this criterion… [T]he determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial…

25    Unsurprisingly, each case will turn upon its own particular circumstances. As Reeves J stated at [47]-[48]:

Accepting there can be no “hard and fast” rule about this, as a general principle… the moving party on an application for summary dismissal… is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceeding relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned are complex…

Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.

26    Whilst s 31A sets a lower bar, any summary determination has to be approached with caution: Cassimatis at [50]. The Court retains a discretion at all times as to whether to determine the proceedings summarily or to refer them to trial: Cassimatis at [50].

27    The applicants contended that I should take this last matter into account in the exercise of my discretion and refer the matter to trial. It was contended on behalf of the applicants that there had been delay on the part of Ms Davis in bringing her interlocutory application and that, in circumstances where the parties were well advanced towards preparation of the final hearing, I should not entertain the grant of summary dismissal of any part of the application.

28    There was some force in the contentions advanced by the applicants. The proceedings are at a stage where both parties have filed and served respective lay evidence upon which they wish to rely and pursuant to the orders I have made, which I can only infer or assume have been complied with, the parties have or will shortly have filed all their respective expert evidence. In circumstances where the matter is ready for final hearing, there do appear to me to be several matters which in the proper exercise of my discretion should await trial. Having said that, there were some other matters where it was obvious to me that a different course should be taken.

THE PROSPECT OF STRIKE OUT, REPLEADING and ADJOURNMENT

29    Ms Davis did not seek a strikeout of any part of the ASOC. Rather, she sought summary dismissal of all or part of the causes of action that have been pleaded against her.

30    During the course of the argument before me, I raised with Mr Meehan whether it was open to the Court to strikeout some or parts of the paragraphs of the ASOC in circumstances where no such orders were sought. Mr Meehan submitted that it would be open for me to do so, but that the only relief sought by Ms Davis was an order for summary dismissal.

31    I also raised with Mr Weinberger whether a practical course available to me was to strike out parts of the pleading and allow his clients to replead those parts subject to the consent of the respondents or leave of the Court. Mr Weinberger resisted this course. Mr Weinberger contended that his clients were not met with a claim for strikeout, as opposed to one for summary dismissal. Mr Weinberger further contended that to the extent that any paragraphs of the ASOC were deficient, it had always been the applicants’ intention to seek to amend the pleadings once all the evidence had been filed. Whether that is an intention that accords with the practice and procedure of this Court is a matter that I do not need to decide. The fact is that there was no application made by the applicants for leave to replead. When I raised this with Mr Weinberger, it was put on behalf of the applicants that I should adjourn the hearing of Ms Davis’ application for summary dismissal to enable the applicants to replead their case. Mr Meehan informed me that the respondents opposed the adjournment and submitted that I ought to proceed to decide Ms Davis’ application.

32    I did not grant the adjournment for a number of reasons.

33    First, the interlocutory application was filed on 17 October 2023 and I shortly thereafter made orders for the hearing of that application, including orders for the filing of written submissions. Ms Davis’ written submissions in support of her application were filed on 13 November 2023. The applicants filed written submissions in reply on 15 December 2023 in which they did not accept any deficiency in the case pleaded against Ms Davis. The applicants had ample opportunity (if they so wished) to respond to the application by seeking to replead their case, having been met with the application and later with written submissions. They did not do so. In those circumstance, I did not consider it appropriate to delay dealing with Ms Davis’ application.

34    Second, any application for leave to replead the amended statement of claim would need to conform with the principles in Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175. I did not consider it a proper exercise of my discretion to permit the applicants to be granted an adjournment to make such an application. Ms Davis would need to be afforded procedural fairness in respect of any proposed amendments and having filed her interlocutory application, she is entitled to have it determined. Granting the applicants an adjournment would occasion delay and expense. The costs of the present application would be foregone, fresh costs would be incurred in having to respond to any amended pleading and there would need to be further hearing days found in the future. This course also assumes that Ms Davis would withdraw her application for summary dismissal, which is not an assumption I can make given that Mr Meehan’s instructions were to oppose the application for an adjournment on the basis that Ms Davis wished to have her application heard and determined.

35    Third, the applicants may at any time make an application to amend the ASOC. It is open to the applicants to make such an application, but as I indicated to Mr Weinberger, any such application would need to be supported by evidence and address the applicable principles relating to amendments, including but not limited to Aon.

36    Fourth, I had expressly raised with Mr Weinberger the prospect of the Court dealing with Ms Davis’ application in a practical way by striking out parts of the ASOC and permitting the applicants to replead them subject to the consent of the respondents or leave of the Court. Mr Weinberger on behalf of the applicants resisted that course. The alternative course that Mr Weinberger raised was not one I considered to be in the interests of justice in circumstances where Ms Davis had filed an application that she was entitled to have determined in circumstances where that application had been listed for hearing two months in advance.

37    In addition to the above matters, I raised with Mr Weinberger the fact that, in substance, the applicants were content to proceed to trial on the basis of their current pleadings and that this had to follow from the applicants’ resistance to Ms Davis’ application for summary dismissal. Mr Weinberger repeated that whilst the applicants may wish to make some amendments to the ASOC once all the evidence is filed, and referred to other ways in which the ASOC could be improved, their position is that the ASOC was not deficient in any respect.

38    Stepping back from these contentions, the position of the applicants must be understood within the context of where the proceedings have arrived at in terms of case management. As it presently stands, the parties have filed and served their lay evidence, with some expert evidence that may or may not be filed shortly, and, as a result, the matter is ready for trial. But for the interlocutory application made by Ms Davis, the applicants, seemingly, have been prepared to go to trial on their current pleadings. I intend to approach the disposition of this application on that basis.

39    As Ms Davis did not make an application to strike out any part of the ASOC and the applicants made no application to replead the ASOC, they are not matters I need to decide.

CONSIDERATION

The Consultation Claim

40    The first claim made against Ms Davis is that she was an accessory to SG Fleet’s contravention of the consultation obligations contained in the Award.

41    Ms Davis accepts that the Award applied to the employment of the applicants and contained an obligation to consult with them if the conditions giving rise to that obligation existed. In order to narrow the issue in dispute, Ms Davis accepted for the purpose of the application that it was unnecessary for it to be established that she had knowledge of the particular Award, the clause of that Award pertaining to consultation or its specific terms.

42    However, Ms Davis contended that in order to establish accessorial liability, it must be shown that there was a practical connection between her and SG Fleet’s alleged contravention of the consultation terms of the Award, together with knowledge on her part of the essential elements of the contravention: see EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; (2018) 282 IR 86; Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365; Fair Work Ombudsman v Hu [2019] FCAFC 133; (2019) 289 IR 240. The applicants did not dispute these principles. The applicants also accepted that they would need to establish that Ms Davis had actual knowledge of the essential ingredients of the contravention. In this regard, the applicants relied upon Devine Marine at [177] where it was stated that actual rather than imputed knowledge is required.

43    In relation to the consultation claim, Ms Davis contended that the applicants’ claim at its highest was not that SG Fleet had not consulted at all, but was a complaint about the sufficiency of that consultation. Ms Davis contended that there was no evidence that it was her responsibility or role to engage in consultation on behalf of SG Fleet pursuant to cl 38 of the Award, if in fact that clause was engaged. In support of these contentions, Ms Davis pointed to the evidence that she had filed to date wherein she deposes that she did not have any involvement in the process of consultation in relation to the matters that are impugned by the applicants.

44    For their part, the applicants contended that Ms Davis’ evidence (including her denials) is in issue and is to be tested during cross-examination. The applicants pointed to evidence which they submitted demonstrated that Ms Davis was involved in the consultation process. As noted above, whilst I have had regard to the evidence, all I can conclude at this stage is that there is a contest about whether Ms Davis was involved in the process of consultation and, if she was, the extent of her involvement.

45    The applicants also contended that there were other matters that warranted further investigation. I do not know what this submission means. As I raised with Mr Weinberger, if it means that discovery will be sought on a case that is not pleaded, more would need to be done.

46    In any event, the applicants contended that it was sufficient that they establish, as they currently plead, that Ms Davis had a particular role, including as a “People and Culture Advisor”, which gave her responsibilities over human resources activities for and on behalf of SG Fleet. The applicants further contended that Ms Davis was, for relevant points in time, the direct manager of the two applicants. The applicants contended that Ms Davis had knowledge of the requirements of consultation by reason of her position and that she was one of SG Fleet’s employees who was involved in consulting with the applicants at various meetings. As a result, the applicants claimed that, by combination of these pleaded matters and other parts of the ASOC, there is a triable case as to whether Ms Davis was involved in the alleged failure to consult or its insufficiency.

47    I am not satisfied at the present stage that this claim against Ms Davis has no reasonable prospects. It seems to me that the question of Ms Davis’ involvement and knowledge as it relates to the alleged contraventions pertaining to consultation will turn on what she knew and did by reason of her position. Ms Davis has filed evidence addressing these matters. The applicants seek to challenge that evidence, as well as seeking to draw inferences from various matters including the nature of her position and her involvement in some of the meetings with the applicants. I am satisfied that the resolution of these issues is a matter that should await trial. I therefore decline to summarily dismiss the consultation claim as it relates to Ms Davis. Nothing in what I have reasoned should be taken as meaning that I am satisfied that the case that is being propounded by the applicants satisfies the necessary elements, legal and factual, that would need to be established for proof of accessorial liability. These are matters that should be properly ventilated in the usual course at trial.

The Adverse Action Claims

48    I next turn to the adverse action claims.

49    Ms Davis contended that the adverse action case that has been pleaded against her does not specify the necessary elements to make good that case. As a starting position, Ms Davis pointed to the fact that it is not alleged in the ASOC that she was involved in the decisions to terminate, to stand down with or without pay, to exclude the applicants from the workplace or to threaten them with disciplinary action (including the threat as to termination of employment). Ms Davis also contended that the pleadings did not disclose that Ms Davis had knowledge of the applicants’ exercise of their asserted rights. Ms Davis submitted that the evidence filed to date in the proceedings did not establish that Ms Davis had actual knowledge of these matters, or any actual involvement in the instances of adverse action that have been pleaded.

50    In response, the applicants pointed to various paragraphs of the ASOC which they sought to thread together to submit that they have pleaded the integers for making good the accessorial liability claim against Ms Davis in relation to the various adverse actions that have been pleaded. Without being exhaustive, and being as brief as I need to be, it appears that the basis of these contentions is that: (a) Ms Davis had roles and responsibilities in her employment with SG Fleet that included management of human resources, (b) Ms Davis was the direct line manager of the applicants during relevant periods of time, (c) Ms Davis had knowledge of the contents of the Award, (d) Ms Davis was involved in oral discussions relating to the stand down of the applicants, (e) Ms Davis was either the author of, or party to, various communications sent to the applicants, and (f) inferences could be drawn from these and other matters, including other communications to which she was copied, and the timing of certain events, that Ms Davis was involved in each of the instances of adverse action that have been identified in the pleading. This included that she was copied into an email that indicated to the applicants that they were in breach of relevant policies and that disciplinary action might be taken against them.

51    I will put to one side whether all of these matters have been properly pleaded or whether they are sufficient to establish a case of accessorial liability against Ms Davis. At the current stage of the proceedings, given that the applicants rely upon inferences to be drawn from facts, including inferences as to the so-called accessorial conduct and accessorial knowledge of Ms Davis, I am not satisfied that it would be an appropriate exercise of my discretion to summarily dismiss this aspect of the proceedings. In any event, I am not presently satisfied that this aspect of the accessorial liability claim has no reasonable prospects.

52    In coming to these conclusions, I am not expressing a view as to whether the case that the applicants have advanced to me orally is one that has been properly articulated or is one that is likely to succeed or fail. It is simply one which, at this stage, I am not satisfied is one that has no reasonable prospects.

The Misrepresentation Claims

53    I next turn to the misrepresentation claims under s 345 of the FW Act.

54    Ms Davis contended that the conduct that is alleged to have given rise to this contravention is one that was insufficient to establish accessorial liability on her part. Pointing to such of the evidence as had been filed at the date of hearing, Ms Davis submitted that all that occurred, taking the applicants’ case at its highest, was that one of the applicants requested Ms Davis to provide her with a copy of both the applicants’ employment contracts, to which Ms Davis responded without making any oral or other representation. Ms Davis contended that there is no evidence to show that she knew that the relevant agreement that she provided to one of the applicants was not the applicable agreement. Ms Davis further contended that, to the extent that the applicants rely upon a case of a reckless misrepresentation, the applicable authorities require that state of mind to be determined subjectively and not objectively. It was, therefore, contended that on the present state of the evidence, there is insufficient probative evidence to establish that Ms Davis was in any way reckless.

55    The applicants submitted that Ms Davis’ evidence is in dispute and they wish to test it. The applicants contended that the question of whether Ms Davis was reckless is a matter for trial.

56    At this stage it would be inappropriate for me as the trial judge to evaluate the evidence beyond observing that the parties have rival views about the veracity of Ms Davis’ account. The resolution of the factual controversies will have some impact upon the characterisation of Ms Davis’ conduct and whether, once properly characterised, the conduct could give rise to a contravention of s 345 of the FW Act by SG Fleet and by Ms Davis as an accessory. Again, in the exercise of my discretion, I consider that these are matters that should be left to trial and I am not at this stage satisfied that the accessorial liability claim against Ms Davis on these matters has no reasonable prospects. I therefore decline to summarily dismiss this aspect of the claim.

The Physical Disability Claim under s 351 of the FW Act

57    I turn next to the claim under s 351 of the FW Act.

58    In relation to this claim, Ms Davis contended that in order to establish that she was an accessory to a contravention of s 351 of the FW Act, it would be necessary to prove that she had participated in the dismissal of the applicants with knowledge of the relevant circumstances of the alleged physical disability on the part of the applicants. Ms Davis contended that the ASOC does not identify Ms Davis as having been involved in the decision to terminate the applicants’ employment. Further, Ms Davis contended that no proper pleadings have been advanced in the ASOC as to the identification of the physical disability, let alone that Ms Davis had knowledge of it.

59    In their written submissions, the applicants countered Ms Davis’ contentions by asserting that the fact that the applicants did not have a vaccination for COVID-19 gave rise to a disability. When I pressed Mr Weinberger as to the basis of these contentions and how the absence of vaccination gave rise to any relevant disability within the meaning of that word in the FW Act, Mr Weinberger initially indicated that he would obtain some instructions on the matter. After doing so, Mr Weinberger informed the Court that his clients would no longer press paragraph 164 of the ASOC in the interest of resolving the application and moving things forward (T95.13-36; T127.13-17).

60    When I pressed Mr Weinberger as to why it should not then follow that the cause of action against Ms Davis based upon the alleged contravention of s 351 should not be dismissed, Mr Weinberger stated that there was a separate cause of action that had been pleaded that the Respondents had contravened s 351 by engaging in adverse action by reason of the applicants’ political opinion. In support of this contention, Mr Weinberger, in a piecemeal way, attempted to identify any references to political opinion that were contained in the ASOC. However, the only reference to a contravention of s 351 in the ASOC is located at [164] which asserts as follows:

Further and in the alternative, the First Respondent terminated the employment of the Applicants because of a physical disability in contravention of section 351 of the Fair Work Act.

61    Contrary to Mr Weinberger’s submissions, I was not satisfied that a claim for contravention of s 351 on the basis of the applicants’ political opinion had been pleaded.

62    Mr Weinberger further contended that if the claim under s 351 of the FW Act was dismissed, it would deprive the applicants of some other case that may have been pleaded within the ASOC or that the applicants may seek leave to plead. At this stage, the contention is a theoretical one. It is a matter for the applicants whether they wish to make some other application to bring a different claim under s 351 of the FW Act that is not presently pleaded. My observation in this regard is not an invitation to replead (though that course is open to the applicants at any time should they wish, subject to leave of the Court), but to reinforce that the only pleaded case in the ASOC is that which relates to an alleged contravention of s 351 on the basis of a physical disability. In circumstances where the applicants have informed me that they do not press this claim, I am satisfied that it should be dismissed. The order I made reflected that I am only dismissing the claim that has been pleaded.

The Estoppel by Convention Claim

63    I next turn to the claim of estoppel by convention.

64    Ms Davis contended that the claim, such as it is, based on an estoppel by convention is misconceived. In support of this contention, Ms Davis pointed to the fact that she was not a party to the applicants’ employment contracts and is not pleaded to have engaged in any relevant conduct. In response to these contentions, the applicants submitted that Ms Davis did not need to be privy to the contractual relationship with the applicants in order for the estoppel to arise. Mr Weinberger submitted that all that was necessary to establish an estoppel by convention was to show that Ms Davis had engaged in some conduct or made representations that affected the private legal rights of the applicants. In supplementary written submissions, which Mr Weinberger amplified in oral submissions, reliance was placed upon the following extract from Halsbury’s Laws of Australia (LexisNexis Butterworths) at [190-275] (citing GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50 at [426]):

…Of estoppel by convention, the New Zealand Court of Appeal said the following in National Westminster Finance NZ Ltd v National Bank of NZ Ltd [1996] 1 NZLR 548 at 550:

“The authorities show that for an estoppel by convention to arise the following points must be established by the party claiming the benefit of the estoppel (the proponent):

(1)     The parties have proceeded on the basis of an underlying assumption of fact, law, or both, of sufficient certainty to be enforceable (the assumption).

(2)     Each party has, to the knowledge of the other, expressly or by implication accepted the assumption as being true for the purposes of the transaction.

(3)     Such acceptance was intended to affect their legal relations in the sense that it was intended to govern the legal position between them.

(4)     The proponent was entitled to act and has, as the other party knew or intended, acted in reliance upon the assumption being regarded as true and binding.

(5)     The proponent would suffer detriment if the other party were allowed to resile or depart from the assumption.

(6)     In all the circumstances it would be unconscionable to allow the other party to resile or depart from the assumption.”

I should add that I consider that this statement of the law sufficiently identifies the law of this country as well, save that in Australia the assumption of law may well be limited to one relating to “private legal rights”: Elsea Holdings Ltd v Butts (1986) 6 NSWLR 175 at 188ff; Riseda Nominees Pty Ltd v St Vincent’s Hospital (Melbourne) Ltd [1998] 2 VR 70 at 77; Government Employees Superannuation Board v Martin, above. This qualification is not of present moment in that, insofar as the conventional understanding in question was one of law, it related to private legal rights.

65    Relying upon this passage, Mr Weinberger contended that as SG Fleet and Ms Davis had taken no adverse action against the applicants in the past, the applicants were entitled to assume that in respect of their private legal rights and their statutory rights they would have the freedom to continue in their employment without adverse action being taken against them by reason of their involvement in political activities or expressions of political opinions.

66    Mr Weinberger further contended that the pleading of an estoppel by convention was not a claim in and of its own right, but was an adjunct to the other claims made by the applicants under the FW Act.

67    I have attempted to understand Mr Weinberger’s contentions both legally and factually. Paragraph 49 of the ASOC asserts an estoppel as against the respondents including Ms Davis to the effect that they are estopped from departing from the premise that the applicants were not at all material times in breach of their contractual obligations. The basis for that pleading has, as its foundational source, that each of the respondents including Ms Davis had their own obligations to SG Fleet. Whatever might be the metes and bounds of an estoppel by convention and the underlying legal relations or private legal rights between various parties, I have been taken to no authority that supports the proposition that a party who is not privy to a contract of employment or a legal relationship with the applicants can be estopped by reason of an estoppel by convention. Nor have I been taken to any authority that would support the proposition that the conduct as between Ms Davis and SG Fleet could give rise to an estoppel that could be availed of by the applicants in some form of third party reliance. To the extent that Mr Weinberger relied upon the existence of the applicants’ private legal rights under the FW Act, Ms Davis is not a party to those legal rights such as they are.

68    I do not accept Mr Weinberger’s contention that there is no particular claim based upon estoppel by convention against Ms Davis. In the way that the pleading has been cast, the estoppel case against Ms Davis appears to be advanced either in its own right or as a necessary integer to other claims. I have received no satisfactory assistance as to how the latter operates. The effect of the pleading in the ASOC at [49] is to assert against Ms Davis that she is estopped. This is a claim against her. I am satisfied that in the way that it has been pleaded it is misconceived. I am not satisfied that the claims against Ms Davis based on an estoppel by convention have any reasonable prospect of success. They will therefore be dismissed.

Other Matters

69    I turn now to other matters.

70    In coming to the conclusions I did in relation to the applicants’ claims against Ms Davis under s 345 of the FW Act, I observed that it is claimed that Ms Davis was an accessory to both a knowingly false, as well as reckless, misrepresentation. When I pressed Mr Weinberger as to the basis upon which the applicants made a claim that Ms Davis was involved in a knowingly false or misleading representation, he informed me that his instructions were not to press this aspect of the claim (T94.42-47). As a result, I will summarily dismiss so much of the case against Ms Davis as asserts that she was an accessory to a knowingly false or misleading representation.

71    Another matter that arose during the course of argument was that in pleading accessorial liability against Ms Davis, the ASOC asserts that Ms Davis is liable based on something less than actual knowledge. Specifically, it is asserted that liability could be established upon either actual knowledge or matters that Ms Davis “ought to have known of”. I pressed Mr Weinberger to take me to any authority that supported the proposition that a person in Ms Davis’ position could be made liable as an accessory on the basis of not actual knowledge but knowledge that she ought to have held. In supplementary written submissions, Mr Weinberger submitted that a known class of category in which knowledge might be inferred is the instance of “wilful blindness”. Ultimately, Mr Weinberger informed me that the applicants did not press the words “ought to have known” as part of their accessorial liability case against Ms Davis (T143.34-38). In those circumstances, I will summarily dismiss that part of the claim pleaded against Ms Davis that she was liable as an accessory on the ground that she “ought to have known of” certain matters as particularised in paragraph 169 of the ASOC.

DISPOSITION

72    Having regard to the foregoing, I made orders on 22 December 2023 reflecting these reasons.

73    Ms Davis has had some success in her application to summarily dismiss parts of the claim against her. I reserve the question of costs bearing in mind the operation of s 570 of the FW Act.

Associate:

Dated:    2 February 2024

SCHEDULE OF PARTIES