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Wylie v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 959 (1 October 2009)

Last Updated: 27 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WYLIE v McCANN WORLDGROUP PTY LTD & ORS

HUMAN RIGHTS – Sex Discrimination Act 1984 – interim application.

PRACTICE & PROCEDURE – Whether Court has power to “dismiss” parts of points of claim under rule 13.10 of the Federal Magistrates Court Rules – application of Order 11 rule 16 of the Federal Court Rules to points of claim – whether amendment of points of claim is appropriate where pleadings at a high level of generality.

Federal Magistrates Act 1999 (Cth), ss.42, 50
Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission) Act 1986 (Cth), ss.3, 46PO
Sex Discrimination Act 1984 (Cth), ss.4A, 5, 7, 7A, 7B, 7C 7D, 14, 52, 94, 105, 106

Federal Magistrates Court Rules, rr.1.05, 13.10
Federal Court Rules, O.11 r.2, O.11 r.16

Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 40,883 (41-434)
Beach Petroleum NL and Another v Johnson and Others (1991) 105 ALR 456
Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191; [1979] FCA 80
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413
Coe v Commonwealth of Australia & Anor (1979) 53 ALJR 403; [1979] HCA 68
Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd and Others (1998) 157 ALR 135
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Dart v Norwich Union Life Australia Limited [2002] FCA 168
Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957
Davis v Commonwealth (1986) 61 ALJR 32; [1986] HCA 66
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc. v Commissioner of Railways (N.S.W.) and Others (1964) 112 CLR 125; [1964] HCA 69
Imobilari Pty Ltd (ACN 091 464 729) v Opes Prime Stockbroking Ltd (in liq) (recs and mgrs apptd) (ACN 086 294 028) and Others (2008) 252 ALR 41; [2008] FCA 1920
Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1283; (2008) 78 IPR 51
Ives & Ors v Kilvington Girls Grammar Ltd & Anor [2008] FMCA 1414
Kernel Holdings Pty Ltd v Rothmans Of Pall Mall (Australia) Pty Ltd [1991] FCA 417; (1991) 217 ALR 171
Lee v Smith & Ors [2007] FMCA 59
Liberty USA Pty Ltd v Telstra Corporation Limited and Telecom Technologies Pty Ltd [1994] FCA 1284
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Multigroup Distribution Services Pty Limited v TNT Australia Pty Limited [1996] FCA 1758
Murex Diagnostics Australia Pty Limited v Chiron Corporation and Another (1995) 55 FCR 194; [1995] FCA 1040
National Mutual Property Services (Australia) Pty Ltd and Others v Citibank Savings Ltd and Others (1995) 132 ALR 514; [1995] FCA 1628
Pancontinental Mining Ltd v Posgold Investments Pty Ltd and Others (1994) 121 ALR 405; [1994] FCA 983
Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 42,821; [1999] FCA 499
Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559
Re Mark Turner v Kinian Pty Ltd [1992] FCA 396
Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195
Rogers v Asset Loan Co Pty Ltd (ACN 107 746 798) and Others (2008) 250 ALR 82; [2008] FCA 1304
Saffron v Commissioner of Taxation (1991) 30 FCR 578; [1991] FCA 363
Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378; [2008] FCA 702
Taylor v Morrison & Ors [2003] FMCA 79
White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298; [2007] FCA 511

Applicant:
SIMONE ALEXIS WYLIE

Respondent:
McCANN WORLDGROUP PTY LIMITED (ACN 000 154 889)

Second Respondent:
PAUL BROWN

Third Respondent:
BAKER AND McKENZIE
(ABN 32 266 778 912)

File Number:
SYG 70 of 2009

Judgment of:
Barnes FM

Hearing dates:
24 March 2009 & 22 June 2009

Delivered at:
Sydney

Delivered on:
1 October 2009

REPRESENTATION

Counsel for the Applicant:
Mr J Darams

Solicitors for the Applicant:
Harmers Workplace Lawyers

Counsel for the First Respondent:
Ms E Raper

Solicitors for the First Respondent:
Baker and McKenzie

Counsel for the Second and Third Respondents:
Mr J Fernon SC

Solicitors for the Second and Third Respondents:
Baker and McKenzie

ORDERS

(1) On or before 2 November 2009 the applicant file and serve either:

or

(ii) amended points of claim in which the applicant repleads the facts, matters and circumstances relied on with respect to each allegation of discrimination by the first respondent.
(2) Paragraphs 75 to 76 of the points of claim be struck out.
(3) The part of paragraph 86 of the points of claim which reads “and through him, the Third Respondent, and by retainer and agency, by the First Respondent” be struck out.
(4) The applicant have leave to file and serve amended points of claim on or before 2 November 2009.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 70 of 2009

SIMONE ALEXIS WYLIE

Applicant


And


McCANN WORLDGROUP PTY LIMITED
(ACN 000 154 889)

First Respondent


PAUL BROWN

Second Respondent


BAKER AND McKENZIE
(ABN 32 266 778 912)

Third Respondent


REASONS FOR JUDGMENT

  1. These are proceedings to strike out or dismiss points of claim or claims for relief. On 12 January 2009 Ms Wylie commenced proceedings against three respondents, McCann Worldgroup Pty Limited (McCanns), Mr Brown and Baker and McKenzie under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) (now the Australian Human Rights Commission Act 1986 (Cth) or AHRC Act), alleging that McCanns engaged in conduct contrary to s.14 of the Sex Discrimination Act 1984 (Cth) (SDA) and breached the applicant’s contract of employment and also that the first, second and third respondents engaged in conduct contrary to s.94(1) of the SDA.
  2. The grounds of the application are as follows:
  3. The applicant seeks damages, declaratory relief and other orders in relation to the first respondent, and declaratory relief and an apology from the second and third respondents. The applicant filed points of claim on 12 January 2009.
  4. The first respondent and the second and third respondents filed responses and points of defence. By an application in a case filed on 26 March 2009 the first respondent seeks orders that certain parts of the points of claim be dismissed as against the first respondent pursuant to rule 13.10 of the Federal Magistrates Court Rules or struck out pursuant to Order 11 rule 16 of the Federal Court Rules.
  5. By application in a case filed on the same day the second and third respondents seek orders that certain parts of the points of claim be dismissed as against them pursuant to rule 13.10 or struck out pursuant to Order 11 rule 16. Further, and in the alternative, the second and third respondents seek orders that the applicant’s claims for relief made in both her application and points of claim as against the second and third respondents be permanently stayed or dismissed pursuant to rule 13.10 of the FMCA Rules.
  6. The applications in a case were heard at the same time as similar applications in relation to separate proceedings brought by another former employee of McCanns (for whom the same solicitors act) alleging unlawful discrimination under s.46PO of the AHRC Act against the same respondents (see Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957). The applicants have sought that the proceedings be consolidated or heard at the same time. That issue is yet to be determined.
  7. Apart from the breach of contract claim (in relation to which no issues were raised in the applications in a case before the court) Ms Wylie’s claim against McCanns is that it discriminated against her in her employment on the grounds of her sex and/or pregnancy or family responsibilities. She alleges both direct and indirect sex discrimination and discrimination on the ground of pregnancy and that each kind of discrimination is unlawful discrimination by McCanns pursuant to s.14(2) of the SDA. In addition Ms Wylie alleges that the termination of her employment constituted unlawful discrimination by McCanns on the grounds of her family responsibilities pursuant to s.14(3A) of the SDA.
  8. Section 14(2) of the SDA is as follows:
  9. Section 14(3A) provides:
  10. Section 5 of the Act makes provision in relation to direct discrimination (i.e. treating less favourably) and indirect discrimination (i.e. by imposing a condition, requirement or practice) on the ground of sex. Section 7 contains comparable provisions in relation to pregnancy, while s.7A deals with direct discrimination on the ground of family responsibilities (defined in s.4A of the Act). Sections 5 and 7 have effect subject to ss.7B and 7D under which the person who did an act may prove that it does not constitute discrimination in certain circumstances (i.e. reasonableness in relation to indirect discrimination or taking special measures intended to achieve equality).
  11. Ms Wylie also claims that following termination of her employment by McCanns, Mr Brown, a partner in Baker and McKenzie, the solicitors for McCanns, engaged in a course of conduct (the Paul Brown Conduct) said to constitute an act of victimisation against her in breach of s.94(1) of the SDA. The conduct complained of is said to consist of statements and advice in a telephone conversation between Mr Brown and Ms Wylie on or about 17 November 2006.
  12. The Paul Brown conduct is said to be conduct by Mr Brown and “through him” Baker and McKenzie and “by retainer and agency” McCanns, which was intended to and subjected the applicant to a determinant on the ground that she had asserted or proposed to assert her rights under the then HREOC Act and SDA and/or that she had made an allegation that McCanns had done an unlawful act under Part II of the SDA. This is described as the victimisation claim.
  13. However, in addition, the points of claim base a discrimination claim against McCanns and, possibly, Mr Brown and Baker and McKenzie on this conduct. It is alleged that by the Paul Brown conduct McCanns, “caused, instructed, aided and/or permitted by” Mr Brown and Baker and McKenzie, treated Ms Wylie less favourably than they would have treated a person of the opposite sex and discriminated against her on the ground of her sex by subjecting her to a detriment (see ss.5(1) and 14(2)). Under s.105 of the SDA “[a] person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.”
  14. The first respondent took issue both with the manner in which direct and indirect discrimination were pleaded and also with the pleading of the basis on which McCanns was said to be liable for or to have engaged in the Paul Brown conduct. The second and third respondents took issue with the parts of the pleading that relate to liability on their part for discrimination and with aspects of the pleading of the victimisation claim.
  15. There is some overlap in the matters raised by the first respondent and by the second and third respondents. Counsel for the first respondent and for the second and third respondents relied, to some extent, on each other’s submissions and in some respects similar submissions were made in this matter and in the Davidson matter.

Rule 13.10 and points of claim

  1. The respondents submitted that as there are no express provisions in relation to pleadings in the FMC Rules (in contrast to those in the Federal Court Rules), rule 13.10 of the FMC Rules could be applied to stay or dismiss a “claim for relief” in points of claim.
  2. Rule 13.10 of the FMC Rules is as follows:
  3. The respondents contended that parts of the points of claim could and should be dismissed pursuant to rule 13.10 of the FMC Rules as against each respondent on the basis that the applicant had no reasonable prospect of successfully prosecuting the claims for relief in the parts of the points of claim in issue.
  4. Rule 13.10 is usually invoked to summarily dismiss proceedings as a whole or claims for relief made in an application. The respondents contended however that rule 13.10 was not so limited and that the reference to “or in relation to any claim for relief in the proceeding” was an indication that it could be used to stay or dismiss any claim for relief in points of claim. It was pointed out that the test in rule 13.10 (no reasonable prospects of successfully prosecuting the claim) was a lower bar to meet than that contained in Order 11 rule 16 of the Federal Court Rules (“no reasonable cause of action ... or other case appropriate to the nature of the pleading”).
  5. The respondents submitted that, as stated in rule 1.05(1) of the FMC Rules, “[i]t is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules” and hence that it was appropriate for this court to apply rule 13.10 according to its terms rather than to resort to the provisions of the Federal Court Rules that apply to pleadings. It was conceded that if this argument was not accepted, regard should be had to Order 11 rule 16 of the Federal Court Rules pursuant to rule 1.05(2) of the FMC Rules under which the court may apply the Federal Court Rules in whole or in part and modified or dispensed with as necessary.
  6. For the reasons outlined in Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957 at [14] – [30] in relation to the same argument, I am of the view that rule 13.10 is not a vehicle for dealing with deficient pleadings or points of claim and that under rule 1.05(2) of the FMC Rules regard should be had to Order 11 rule 16 of the Federal Court Rules in relation to any application to strike out pleadings or points of claim. I accept that where there is a failure to plead a reasonable cause of action there may also be no reasonable prospect of successfully prosecuting a claim for relief in the application. However the concepts are distinct (see White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298; [2007] FCA 511 at [47]).
  7. In this case the first respondent seeks only that parts of the points of claim be dismissed or struck out. This is an application to which, in my view, rule 13.10 has no direct relevance. However the second and third respondents seek, in the alternative to such orders, that the applicant’s claims for relief in her application as against the second and third respondents be permanently stayed or dismissed pursuant to rule 13.10 of the FMC Rules. These claims are considered below.

Order 11 rule 16

  1. Order 11 rule 16 of the Federal Court Rules, provides that:
  2. Pleadings or points of claim are intended to contain a summary of the material facts on which a party relies as constituting a cause or causes of action and must have sufficient particularity that the respondents know in advance the case that they have to meet (see Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd and Others (1998) 157 ALR 135 at 143, per Drummond J). Points of claim may not be pleadings in a technical sense, but while they are more informal than pleadings, they are intended to serve the same purpose, that is, to identify the real issues as Beaumont J suggested in Saffron v Commissioner of Taxation (1991) 30 FCR 578; [1991] FCA 363 in relation to statements of fact, issues and contentions.
  3. I note that a pleading, for the purposes of the Federal Court Rules, is defined as not including an application, notice of motion, or an affidavit (Order 1 rule 4) so that Order 11 rule 16 does not permit the striking out of an application.
  4. The distinction between the basis on which pleadings will be struck out and the consideration of an application for summary dismissal was addressed by Finkelstein J in Imobilari Pty Ltd (ACN 091 464 729) v Opes Prime Stockbroking Ltd (in liq) (recs and mgrs apptd) (ACN 086 294 028) and Others (2008) 252 ALR 41; [2008] FCA 1920 at [4] as follows:
  5. It has also been said that the discretionary power to strike out portions of pleadings should be applied sparingly and only in a clear case (see Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191; [1979] FCA 80 and Liberty USA Pty Ltd v Telstra Corporation Limited and Telecom Technologies Pty Ltd [1994] FCA 1284. It must be plain and obvious that impugned portions of the pleadings are unarguable before they will be struck out (Murex Diagnostics Australia Pty Limited v Chiron Corporation and Another (1995) 55 FCR 194; [1995] FCA 1040).
  6. The distinctions between allegations of material fact which must be pleaded, particulars which must be pleaded and those which need not be but may be requested and evidence of the material facts pleaded and particularised (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [54] per Heydon J) should not lead to an inflexible approach to this issue. As Drummond J observed in Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 42,821; [1999] FCA 499 at [14] “a respondent does not have an absolute right in every case to insist upon the applicant pleading ... every material fact necessary to show the existence of a complete cause of action.” His Honour referred at [15] – [17] to the fact that Order 11 rule 16(a) provides for striking out a pleading which discloses no “reasonable” cause of action. Moreover, as von Doussa J noted in Beach Petroleum NL and Another v Johnson and Others (1991) 105 ALR 456 at 466,: “[t]echnical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past.” In Queensland v Pioneer Concrete Drummond J referred at [18] to the fact that judges of the Federal Court had dealt with challenges to the adequacy of pleadings “in a more flexible way than would be required by a strict application of [the] rules” (and see generally [18] – [22]). It is consistent with such flexibility to grant leave to file amended points of claim where points of claim are defective.
  7. The need for such flexibility has been said to be of particular relevance where proceedings are commenced in this court. In Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 Lander J referred to s.42 of the Federal Magistrates Act 1999 (Cth) (the FMA) which provides: “In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”, and to s.50 which provides that proceedings can be instituted in the court by way of application without the need for pleadings (subject to the Rules of the Court) and to other parts of the FMA reinforcing the policy of informality and efficiency of process in this court (at [23] – [25]). While under the Act, the Rules of Court may make provision for pleadings, at the time the FMC Rules were considered in Rana there was no provision in the FMC Rules for pleadings. I note that in that context Lander J stated that the need for the exercise of caution in summarily dismissing an application was even more obvious in the Federal Magistrates Court (see Rana at [75]).
  8. While parties may, since 2007, choose to use pleadings or points of claim, as Burchardt FM pointed out in Ives & Ors v Kilvington Girls Grammar Ltd & Anor [2008] FMCA 1414 at [12]:
  9. Hence in considering applications to strike out points of claim or parts thereof regard must be had to the court’s obligation under s.42 of the FMA to proceed “without undue formality and ... [to] endeavour to ensure that the proceedings are not protracted”. This obligation must be balanced against the need to have regard to the primary function of pleadings to state with sufficient clarity the case that must be met by respondents and in that way to afford them procedural fairness (see Multigroup Distribution Services Pty Limited v TNT Australia Pty Limited [1996] FCA 1758 at [2] per Burchett J and Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664; [1982] HCA 70 and Ives at [13]). Moreover, the need for informality does not extend to indulgences which may be likely to result in appellable error.
  10. While pleadings or points of claim may now be adopted in proceedings in this Court, there are still no specific provisions in the FMC Rules akin to Order 11 of the Federal Court Rules. In Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378; [2008] FCA 702, Gordon J, on appeal from this court, referred to the remarks of Lander J in Rana at [34] in finding that the philosophy of the Federal Magistrates Act and the intention of the Attorney-General at the time of introduction of the Bill establishing this court could not be ignored. In considering a ground of appeal to the effect that a particular contention was not an issue raised on the pleadings, in evidence or in submissions Gordon J stated at [23]:
  11. Conversely, if points of claims are at too great a level of generality, difficulties arise for respondents (and for the court) in identifying every issue raised in a particular case. This concern is of particular relevance where proceedings are based, as in this case, on legislation which contains detailed, specific provisions with internal alternatives.
  12. It is appropriate to consider first whether any part of the points of claim should be struck out under Order 11 rule 16. In several respects the respondents rely on contentions that impugned parts of the points of claim have a tendency to cause “embarrassment” within Order 11 rule 16(b). Embarrassment in this context has been said to include a pleading that “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” (Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 40,883 (41-434) per Carr J). It must be considered in light of the fact that the court will be circumspect in exercising its discretion to strike out a pleading (Davis v Commonwealth (1986) 61 ALJR 32; [1986] HCA 66).
  13. Further, under Order 11 rule 16 a reasonable cause of action is one which has some chance of success if regard is had only to the allegations and the pleadings relied on (see National Mutual Property Services (Australia) Pty Ltd and Others v Citibank Savings Ltd and Others [1995] FCA 1628; (1995) 132 ALR 514 at 529; [1995] FCA 1628 and also see Dart v Norwich Union Life Australia Limited [2002] FCA 168 at [31]). The power to strike out under this provision is to be exercised sparingly and only where there is a manifestly untenable case, as considered by French J (as he then was) in Re Mark Turner v Kinian Pty Ltd [1992] FCA 396.

Paragraph 5 of the points of claim

  1. Paragraph 5 of the points of claim is as follows:
  2. In the application in a case the first respondent seeks that paragraph 5 or the part of paragraph 5 that reads “...in relation to employment-related matters, including to initiate or defend actions and potential actions in a number of fora” be dismissed or struck out. The second and third respondents also seek dismissal or striking out of this part of paragraph 5.
  3. Paragraph 5 of the points of claim was not addressed in the first respondent’s written submissions. In oral submissions it was clarified that McCanns sought to have the concluding part of paragraph five dismissed or struck out on the basis that it failed to identify what facts, matters and circumstances were relied upon to suggest that the retainer the first respondent had with the second and third respondents was of the nature pleaded and gave rise to the liability subsequently asserted. It was contended that the mere assertion of a relationship of retainer was insufficient to prove the allegations made in the points of claim. As clarified in oral submissions, the application relates not to the whole of paragraph five, but rather to the concluding words. In its points of defence the first respondent said that any retainer in relation to any other matter and/or in any other fora was not relevant in these proceedings, was embarrassing and that this part of the paragraph should be struck out.
  4. The respondents each contended that paragraph 5 did nothing to inform the court of the essential facts upon which the applicant set out this aspect of its claim and that it was not to the point that the applicant may be able to make out certain matters at the trial, as paragraph 5 did not plead with sufficient specificity the matters apparently intended to be asserted.
  5. Counsel for the second and third respondents added that the applicant had not specified, explained, or made clear the relevance or application to the various allegations that were made of the matters pleaded in paragraph 5 concerning the general retainer. As there was no explanation of the relevance of the general retainer between the first respondent and the second and third respondents it was contended that the allegation that the second or third respondents were the solicitors for McCanns in other proceedings was irrelevant and should be struck out as embarrassing.
  6. Counsel for the applicant submitted that the part of paragraph 5 in issue was a matter of fact that had been pleaded and that whether or not the applicant could ultimately establish it, was something that should be left to the trial. It was submitted that that the allegation went to the heart of a number of further allegations made in the points of claim in relation to the second and third respondents on the basis that the second respondent (who is a partner of the third respondent) and the third respondent were engaged by the first respondent, not only in the particular proceedings but in a number of employment matters, and that in those circumstances the second and third respondents were agents of the first respondent, such that the principal (McCanns) would be liable for the acts of its agent.
  7. It was contended that in paragraph 5 of the points of claim the applicant was setting up the factual basis from which it was intended to prosecute various other allegations in the points of claim, that factual allegations as to the scope of the retainer between the McCann’s and Baker and McKenzie may be relevant to determination of this issue, and that whether or not the applicant could make out this contention should be left to the trial. It was pointed out that elsewhere in the points of claim it was asserted that certain conduct of Mr Brown (the Paul Brown conduct referred to in paragraph 55) was conduct by him and through him by Baker and McKenzie “and by retainer and agency” by McCanns (paragraphs 86) and on this basis it was said that the relevance of the general retainer was apparent.
  8. This part of the points of claim is central to the applicant’s contentions in relation to the liability of McCanns for the Paul Brown conduct. Seen in the context of the orders sought in the application, the points of claim purport to assert that McCanns is liable “by retainer and agency” for the alleged conduct of Mr Brown and on that basis that McCann’s has engaged in victimisation under s.94 of the SDA constituting unlawful discrimination under the AHRC Act (paragraph 86) and, in addition, that by the Paul Brown conduct McCanns committed an act of discrimination against the applicant by subjecting her to a detriment that in turn is said to have been conduct “caused” etc by Mr Brown and Baker and McKenzie (paragraphs 75 to 76 and 87).
  9. Hence the linchpin of a significant part of the applicant’s claim depends on what is pleaded elsewhere in very general terms as “by retainer and agency”. The only clarification of this concept is the part of paragraph 5 in issue, which asserts that Mr Brown and Baker and McKenzie were retained by McCanns to provide advice in relation to employment-related matters including to initiate or defend actions and potential actions in a number of fora.
  10. I am not persuaded that the existence of a retainer of the nature alleged is wholly irrelevant in the sense referred to by Gibb J in Coe v Commonwealth of Australia & Anor (1979) 53 ALJR 403; [1979] HCA 68 at [40] given the basis for the applicant’s contentions as explained in submissions. I have borne in mind that the question is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action, but whether it would be open to the applicant on the points of claim taken as a whole to prove facts at the trial that would constitute a cause of action (Pancontinental Mining Ltd v Posgold Investments Pty Ltd and Others (1994) 121 ALR 405; [1994] FCA 983).
  11. I do not consider it appropriate at this stage that the part of the paragraph in question should be struck out as irrelevant or otherwise embarrassing. However there is not sufficient detail in the points of claim as a whole to enable the respondents, particularly the first respondent, to know with any precision what case they have to meet in relation to the Paul Brown conduct. As discussed further below, certain later parts of the points of claim should be struck out, but the applicant should have the opportunity to replead the material facts which, if proved, would support both those claims and the general statements made in this part of the points of claim, in particular in relation to the relevance of a general retainer between McCanns and Baker and McKenzie and Mr Brown to the allegation that McCanns “by retainer and agency” engaged in the Mr Brown conduct.
  12. Having regard to the manner in which the submissions in relation to paragraph 5 proceeded (that is, on the basis of an application to strike out or dismiss part of the points of claim and the fact that the applicant should have leave to replead), I am not satisfied that to the extent the claims for relief in the application as against Mr Brown and Baker and McKenzie rely on paragraph 5 such claims should be summarily dismissed at this stage.

Paragraphs 70 to 74

  1. The first respondent sought orders dismissing or striking out paragraphs 70 to 75 of the points of claim.
  2. It is convenient to consider first paragraphs 70 to 74 of the points of claim which appear in that part of the points of claim headed “DISCRIMINATION ON THE GROUNDS OF SEX, PREGNANCY, AND/OR FAMILY RESPONSIBILITIES” under the subheading, “Direct Discrimination” and are as follows:
    1. Such conduct constituted unlawful discrimination pursuant to section 14(2)(a), (b), (c) and (d) of the SDA.
  3. The first respondent contended generally that it was interchangeably asserted through the points of claim that the allegations concerning paragraphs (a)(d) of s.14(2) the SDA related to Ms Wylie’s sex or pregnancy. Ms Wylie also claimed discrimination on the basis of both direct and indirect discrimination. The SDA is very clear as to the statutory basis on which it can be asserted that there was either direct or indirect discrimination (see s.5(1) and s.5(2) of the Act). It was submitted that where it was claimed that discrimination was on the basis of pregnancy or potential pregnancy, s.7 deals with how one can assert one’s claim with respect to discrimination on that ground, either on the basis of direct discrimination (s.7(1)), or indirect discrimination (s.7(2)) and that the SDA was also prescriptive in terms of the manner in which an employee may assert discrimination on the grounds of family responsibilities (see ss.14(3A) and 7A of the SDA). The first respondent contended that it was necessary for an applicant to properly plead under s.14 how the alleged discrimination arose in the context of employment, how it was discrimination on the ground of one of the statutory attributes, how it fell within the statutory tests as they applied to direct and indirect discrimination and also how the first respondent was said to be liable for the conduct.

Paragraph 70

  1. Paragraph 70 of the points of claim asserts direct discrimination (that McCanns treated Ms Wylie less favourably on the grounds of her sex and/or pregnancy than it treated or would have treated a man or a person who was not pregnant in the same, or not materially different circumstances) in that after the birth of her children her performance and remuneration were allegedly not reviewed; her position was not kept open; she was not required to attend management meetings; and was allegedly informed by the first respondent that she could not take any “client-facing” roles.
  2. The first respondent contended that these were bald assertions and did not identify the basis upon which McCanns was said to be liable for direct discrimination. It was contended that the vague assertion in paragraph 70 “[b]y reason of the matters referred to above,” did not provide any proper particulars for the factual basis upon which the four alleged incidents of discrimination were alleged. It was said to be insufficient, as the first respondent had to, by guesswork but with no certainty, attempt to identify the time period. It was submitted that the first respondent was unable to respond to unparticularised assertions in circumstances where the facts, matters, and circumstances relied upon with respect to each of these allegations were not set out.
  3. Counsel for the applicant pointed out that earlier in the points of claim, various factual matters were pleaded in relation to the applicant’s pregnancies and her responsibilities as carer for her children. It was submitted that these earlier parts of the points of claim formed the basis for the allegations made in the following paragraphs.
  4. In oral submissions counsel for the applicant referred in detail to particular paragraphs in the points of claim relevant to the allegations in paragraph 70. However this process made it apparent that the relationship between the facts relied on in various earlier parts of the points of claim and the particular allegations in relation to the separate subparagraphs in paragraph 70 required clarification. In addition, whether matters were relied on in support of allegations of discrimination on the ground of sex or on the ground of pregnancy is not apparent.
  5. The points of claim adopt something of a narrative form (see Beach Petroleum NL and Another v Johnson and Others (1991) 105 ALR 456 at 466 per von Doussa J). While bearing in mind the need for flexible application of the rules in relation to pleading in this court, the applicant has not identified with particularity which parts of the points of claim she relies on with respect to each allegation in paragraphs 70(a) to (e). This is not of itself necessarily a basis on which the paragraph should be struck out embarrassing. However I accept that, as discussed further below, these issues must be clarified further whether in the points of claim or otherwise, by setting out the facts, matters and circumstances relied on by the applicant with respect to each of the allegations in the manner described by counsel for the first respondent.

Paragraph 71

  1. In paragraph 71 of the points of claim it is contended that such conduct constituted unlawful discrimination pursuant to s.14(2)(a), (b) and/or (d) of the SDA.
  2. As counsel for the first respondent contended, not only is “[s]uch conduct” unidentified, but also the points of claim do not disclose the factual basis on which the conduct is said to fall within each of paragraphs (a), (b) and/or (d) of s.14(2) of the SDA. It appears on the face of the points of claim that all such conduct is said to fall within each of paragraphs (a), (b) and/or (d). If this is not what is intended it should be clarified, although the fact that this paragraph pleads a conclusion is not of itself a basis to strike it out. As Drummond J stated in Queensland v Pioneer Concrete at [20] – [21]:
  3. The issue is whether the pleading is at too great a level of generality so that the first respondent does not know the case it has to meet and if so, how best to address this deficiency. It is necessary to consider first the remaining paragraphs in this part of the points of claim.

Paragraph 72

  1. The first respondent also contended that paragraph 72 of the points of claim was a vague assertion that “[b]y reason of the matters referred to above” Ms Wylie suffered various forms of treatment, including termination of her employment and receiving insufficient redundancy payments. It is asserted in the same paragraph that this was less favourable treatment on the basis of Ms Wylie’s sex and/or pregnancy. No factual basis is asserted for how the alleged comparison could be made to the treatment of a man or a person who was pregnant.
  2. Counsel for the applicant submitted that the allegation in paragraph 72 was less favourable treatment on the ground of sex and/or pregnancy, and that the differential treatment was sufficiently identified in subparagraphs (a) to (d) of paragraph 72 of the points of claim (that the first respondent terminated the applicant’s employment shortly after her return from a second period of maternity leave; alleged that her position had been made redundant; offered a significantly lower redundancy package; and did not offer her any employment in the alternative determination of her employment on the ground of redundancy). It was said that this paragraph should be read in conjunction with the circumstances pleaded elsewhere, specifically the allegation in paragraph 69 that pregnancy and caring for babies and young children were characteristics that appertain generally to females.
  3. However I agree with the submissions of counsel for the first respondent that there is an element of confusion and embarrassment in this part of the pleadings as the underlying facts, matters and circumstances are not pleaded, it is not clarified how it is that the conduct relied on was by virtue of the applicant’s sex (within the meaning of s.5 of the SDA) or her pregnancy (within the meaning of s.7) and nor is it identified how the first respondent is liable for that conduct.
  4. As the first respondent submitted, there is a lack of detail in this part of the pleadings. The narrative form of the points of claim, the level of generality and lack of reference to material facts, matters and circumstances on which claims in relation to specific applicable provisions of the SDA are based makes it difficult to identify the material facts in relation to particular issues intended to be relied on by the applicant under the SDA so that the first respondent knows the case it has to meet.

Paragraph 73

  1. The first respondent took similar issue with paragraph 73 as that taken with paragraph 71, in that it was characterised as a bald assertion suggesting unlawful conduct within all the paragraphs of s.14(2) of the SDA, without identification with any particularity of what that conduct was, how it constituted one or more of the bases under that section and how it was that the first respondent was liable for that conduct. This was said to give rise to a level of embarrassment and unintelligibility such that the first respondent could not plead to it. On this basis it was contended that this paragraph should be struck out.
  2. The applicant submitted generally that the matters pleaded in paragraph 73 were of their nature clear having regard to the SDA and the earlier points of claim so that there could be no misunderstanding by the first respondent. However this submission does not address the concerns raised by the first respondent about the absence of particularity, how particular conduct is said to come within one or more of the paragraphs of s.14(2) and how it is alleged that McCanns was liable for that conduct.

Paragraph 74

  1. Paragraph 74 of the points of claim pleads (as an alternative) that the conduct set out in paragraph 72(a) (that the first respondent terminated the applicant’s employment shortly after her return from her second period of maternity leave) constituted unlawful discrimination pursuant to s.14(3A) of the SDA (under which it is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee).
  2. The first respondent submitted that this paragraph should be struck out because no facts, matters or circumstances giving rise to the claim were alleged; no claim of actual discrimination was asserted; no allegation was made identifying which part of s.4A of the SDA (which identifies the scope of “family responsibilities”) applied or what the alleged “less favourable treatment” was and how it fitted within s.7A of the SDA. It was also submitted that no legal basis upon which the first respondent was liable was alleged and that no comparator was identified.
  3. Counsel for the applicant submitted that it would be a matter for the hearing as to whether the facts that were pleaded gave rise to a contravention of the SDA and that there was no requirement for there to be any specific pleading of comparators in this context. It was pointed out that in other paragraphs the points of claim pleaded the applicant’s responsibility for the care of her first and then both children from specific dates, that pregnancy and caring for babies are characteristics that appertain generally to females and also that paragraph 74 refers to the circumstances in paragraph 72(a). However, even if resort is had to the earlier paragraphs of the points of claim, the factual basis giving rise to the claims against McCanns within any particular subparagraph of s.7A(b) is not asserted.
  4. There are several ways in which the deficiencies in these paragraphs could be addressed, bearing in mind the obligation to proceed without undue formality and to endeavour to ensure the proceedings are not protracted. One alternative would be to strike out these parts of the points of claim as embarrassing, but give leave to the applicant to file amended points of claim akin to formal pleadings. However both the objectives of ensuring that the first respondent knows in advance the case it has to meet and that all issues intended to be raised for determination are properly identified by the applicant (and not left to be discerned on the evidence ultimately before the court from narrative points of claim and general references to discrimination on several bases provided for under the SDA) may be met by requiring the applicant to complete a schedule in relation to each claim of discrimination.
  5. The points of claim are written in a narrative form and do not properly address the purpose of points of claim in proceedings of this nature. Instead of addressing the lack of specificity simply by a general order for amended points of claim, I am of the view that it may be preferable to require the applicant to file and serve a schedule setting out in tabular form at least the following in relation to each allegation of discrimination under the SDA intended to be relied upon:
    1. the date of the alleged discriminatory conduct;
    2. the nature of the alleged discriminatory conduct;
    1. the section(s) of the SDA alleged to be breached;
    1. the person(s) alleged to have engaged in the conduct;
    2. identification of any vicarious or other secondary liability by date, party and activity.
  6. Such a schedule should include all incidents of alleged discriminatory conduct, including those asserted in paragraphs of the points of claim other than paragraphs 70 to 74 and could include other matters of relevance.
  7. However in the alternative it should be open to the applicant at this stage to replead paragraphs 70 to 74 (with particulars if appropriate) if she prefers to proceed on that basis. Hence I propose to order, in the alternative, either that the applicant file and serve such a schedule or that she have leave to file amended points of claim repleading the facts, matters and circumstances relied on with respect to each allegation of discrimination by the first respondent.
  8. As discussed below, the same approach should be taken to the other allegations of direct or indirect discrimination by McCanns. As the applicant has conceded that paragraphs 75 and 76 should be repleaded to address certain matters those paragraphs should be struck out, but given that the applicant should be able to choose which method to adopt I consider that it is not necessary to formally strike out paragraphs 70 to 74 or 77 to 85.

Paragraphs 75 and 76

  1. Paragraph 75 reads:
  2. Paragraph 76 is that:
  3. Paragraph 87 is an allegation that by reason of the Paul Brown conduct (referred to earlier in the points of claim) the applicant suffered detriment that is particularised as hurt, humiliation, stress, anxiety and embarrassment and caused her to not further pursue her rights under the HREOC Act (as it then was) or the SDA.
  4. The Paul Brown conduct is described in paragraph 55, which refers to a telephone call alleged to have been made by Mr Brown to the applicant on or about 17 November 2006, in which he allegedly stated that he had been informed of Ms Wylie’s situation by her neighbour, advised her to write a letter to McCanns, advised her as to the content of that letter and allegedly stated that she should not consider commencing legal proceedings if the letter failed to achieve the desired outcome as McCanns would “bury” her in paperwork.
  5. The first respondent contended that these claims were unintelligible, vexatious and that paragraph 75 should be struck out, that the applicant did not assert how the alleged Paul Brown conduct was unlawful conduct within the meaning of the SDA, failed to plead how McCanns by the Paul Brown conduct treated the applicant less favourably and that no causal link was pleaded at all, either in law or in fact. It was contended that Ms Wylie failed to plead the basis upon which McCanns could be liable for the conduct of Mr Brown or Baker and McKenzie. It was submitted that not only should these paragraphs be struck out as unintelligible and vexatious, but also that it could be said that they failed to disclose any reasonable prospect of success for any cause of action.
  6. In relation to paragraph 76 it was similarly submitted that Ms Wylie failed to plead the basis on which McCanns discriminated against Ms Wylie, or how it could be liable for the conduct of Mr Brown or Baker and McKenzie and that the paragraph should be struck out. The assertion of discrimination was said to be at large and without reference to a statutory basis. It was also submitted that the reference to a detriment in paragraph 87 failed to identify the relevant infringing conduct giving rise to the detriment.
  7. The second and third respondents agreed with these submissions and sought orders dismissing or striking out the parts of each of paragraphs 75 and 76 that read “caused, instructed, aided and/or permitted by the Second and Third respondents”.
  8. Paragraphs 75 and 76 appear to assert that McCanns engaged in the Paul Brown conduct (which is elsewhere pleaded as victimisation) and that in so doing McCanns also discriminated against Ms Wylie on the grounds of her sex (although there is no reference to any provision of the SDA in these paragraphs). On this basis it appears that the second and third respondents are also said to have discriminated against Ms Wylie as having caused, instructed, aided, and/or permitted McCanns to treat Ms Wylie less favourably.
  9. Counsel for the applicant sought leave to amend these parts of the points of claim to refer specifically to the basis upon which it was said that this conduct amounted to unlawful discrimination, although there is no proposed amendment before the court.
  10. These paragraphs do not disclose any reasonable cause of action against McCanns in relation to the “Paul Brown conduct”. No basis is pleaded for any liability to be imposed on McCanns for the conduct of the second (or third) respondent(s) or for how McCanns by such conduct treated the applicant less favourably etc.
  11. It is not possible for each of the respondents to respond to such claims as pleaded. I agree with the submissions of the respondents that these paragraphs should be struck out. If it is intended to rely on the existence of a general retainer this is not clear and in any event would need to be pleaded with more specificity. In addition, it is not clear on the points of claim as a whole whether it is intended to plead that the second and third respondents also engaged in direct discrimination by virtue of s.105 of the SDA. The applicant sought leave to amend this part of the points of claim in certain respects. I consider that she should have the opportunity to address all the deficiencies by filing amended points of claim. The discriminatory conduct alleged in these paragraphs should also be included in any schedule.

Paragraphs 77 to 85

  1. The first respondent also sought that paragraphs 77 to 85 be dismissed or struck out. These paragraphs appear under a heading “Indirect Discrimination” and are as follows:
  2. The first respondent submitted in essence that the claim for indirect discrimination was intelligible and vexatious. Counsel for the first respondent referred to the fact that indirect discrimination is defined in s.5(2) of the SDA which specifies with particularity its constituent elements, namely that the discriminator imposes or proposes to impose a condition, requirement or practice that has or is likely to have the effect of disadvantaging persons of the same sex as the aggrieved person (and see ss.7B, 7C and 7D).
  3. It was said that Ms Wylie’s claim of indirect discrimination made various broad unparticularised claims about Ms Wylie being required to work full-time or work part-time, but in non-client facing roles, and about other workplace relation conditions. However it was contended that Ms Wylie had failed to plead in paragraphs 77 to 82, the facts, matters and circumstances for each alleged condition, requirement or practice or the facts, matters and circumstances relied on to allege that such condition, requirement or practice was imposed upon the applicant; the identification of the base group for each alleged condition, requirement or practice; the sub-pools relied upon for the purpose of each alleged condition, requirement or practice; and the facts, matters and circumstances relied upon to allege that a substantially higher proportion of persons without the applicant’s alleged attributes could comply with such requirements.
  4. It was also submitted that the bald assertion at paragraph 83 that the conditions were likely to have the effect of disadvantaging women without pleading the statistical or other factual basis upon which this was said to be based was insufficient and that paragraph 84 was not a proper allegation of indirect discrimination within the meaning of s.5(2) with reasonable prospects of success, as it failed to identify the facts, matters and circumstances corresponding with the constituent elements of the SDA definition of indirect discrimination.
  5. Furthermore, it was contended that an assertion of an additional ground of discrimination on the ground of pregnancy was made without identification of whether this was on the basis of direct or indirect discrimination and how the conduct fell within s.7.
  6. Moreover, while paragraph 85 asserted discrimination on the basis of s.14(2)(a), (b), (c) and/or (d) of the SDA the points of claim failed to assert the underlying factual basis for each assertion. It was submitted that the references to paragraphs 77 to 82 did not inform the first respondent of the case it was required to meet.
  7. It was also noted in relation to paragraph 85 (as with the Wylie points of claim generally) that there was no identification of how it could be said that the first respondent was liable, whether by virtue of s.106 of the SDA or otherwise. There was no identification as to who the alleged perpetrator was, save for the first respondent, in terms of imposing these conditions, for example whether it was by the imposition of a policy or by virtue of a person employed by the first respondent for whom it was to be alleged that the first respondent was vicariously liable. The first respondent was said not to be in any position to properly understand the case that it was required to meet in this respect because there was no identification of the person acting on behalf of the first respondent who was said to have engaged in this conduct.
  8. The first respondent contended that striking out such paragraphs would lead to the striking out of claims for relief with respect to those matters (although the orders sought relate to the points of claim not to the application).
  9. It was acknowledged that that there was some latitude provided in relation to pleadings in this court in relation to discrimination matters. It was submitted however that in circumstances where there was no underlying factual basis provided and no attempt at all to identify very clearly how these potential claims could fall within the legislation these parts of the pleadings should be struck out as there was no basis upon which the first respondent could be given the opportunity to know what the case was that it was being required to meet.
  10. Counsel for the applicant contended that the factual basis for the allegations in this part of the points of claim was clear from other paragraphs in the points of claim. For example, in relation to paragraph 77 (the full-time condition) there was said to be a specific pleading at paragraph 25 based on the nature of the work undertaken before the applicant went on her first period of maternity leave, as pleaded in paragraphs 17 and 18. It was contended that the applicant would bring evidence as to the fact that this was a full-time role and the nature of the role and that whether it was full time was something upon which submissions would be made and inferences could be drawn. Counsel for the applicant submitted that as a matter of pleading there was nothing deficient with the allegation as currently pleaded, albeit whether or not ultimately the applicant could establish her case would depend on the evidence adduced in the proceedings.
  11. Similarly, in relation to paragraph 78 (the condition, requirement or practice described as a part-time condition), the applicant submitted that the factual basis for this allegation appeared elsewhere in the points of claim, there being a specific allegation in relation to information alleged to have been given to the applicant in August 2006; in paragraph 31 the description of the position of Universal Development Manager as not being a client-facing role; in paragraph 50(b) a specific allegation that in October 2006 Mr Cressall told the applicant that she could not apply for any client-facing roles as she was employed part time and that persons working in client facing roles were required to work full time. It was submitted that the facts, matters and circumstances made out the allegation pleaded in paragraph 78 and that it was clear from each of those paragraphs that there was a time period referred to in the points of claim.
  12. In relation to paragraph 79 (the redundancy condition) it was submitted that the evidence that might go to establish this allegation was likely to be inferential, based upon which particular employees had their employment terminated at a particular time in 2006 and whether the roles of those employees were client-facing roles but that this should not lead to the court striking out this part of the points of claim at this stage of the proceedings.
  13. In relation to paragraph 80 (the allegation in relation to imposition of a workload condition) it was submitted that a specific pleading in relation to this applicant and that condition appeared in paragraph 29 of the points of claim, which specified the time at which this occurred; and in paragraph 33 there was a pleading by the applicant that despite regularly working on her days off, she was only ever paid for having worked three days a week.
  14. In relation to paragraph 81 (the review condition) the applicant submitted that the factual matters that went to that were in part pleaded in paragraphs 35 and 38, specifically paragraph 38(c) in which it was alleged that the applicant did not receive a performance review for the period between her return from the first maternity leave and her second period of maternity leave, and that a request for a review of her pay sometime after July/August 2005 was refused on the basis that she was departing for maternity leave.
  15. In relation to paragraph 82 (the hostile work environment allegation) it was contended that the applicant would seek to make good that allegation by providing direct evidence of conversations the applicant had or was witness to, and that submissions would be made on a combination of those factors as to whether or not they created a hostile working environment for women. It was submitted that this was not an occasion to strike out those parts of the pleadings as it was clear that what was relied upon were the essential elements of the alleged discriminatory conduct.
  16. On this basis it was submitted that the conduct relied on for the purposes of paragraphs 84 and 85 was clear, in that the facts pleaded in earlier paragraphs read in conjunction with the conditions described in paragraphs 77 to 82 were the factual matters the applicant would rely on to make out the case that such conditions had, or were likely to have, the effect of disadvantaging women and were not reasonable in the circumstances. It was submitted that the concerns raised by the first respondent were matters to be addressed in evidence and not something that needed to be specifically pleaded at this time.
  17. The fact that the applicant relies on discrimination on the basis of sex and/or pregnancy and asserts that each kind of discrimination occurred in each of the four ways specified in s.14(2) may have implications for future conduct of the case and the relief available (see Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd and Others (1993) 46 FCR 301). There are a number of matters which must be established if an applicant is to prove indirect discrimination (see for example, s.5(2) and 7(2) of the SDA). While the points of claim plead that the first respondent required the applicant to comply with a requirement or condition, it is necessary for the applicant to indicate precisely the requirement or condition that is said to have been required as otherwise the remaining aspects of s.5(2) or s.7(2) cannot be addressed. Nor can the reasonableness of a condition, requirement or practice (see ss.7B and also s.7D) be addressed if the requirement or condition is not identified precisely.
  18. Insofar as the first respondent contends that these points of claim express a conclusion where the facts from which that conclusion is drawn are not stated, in some respects, as the applicant submitted, the relevant material facts are set out elsewhere in the points of claim. I bear in mind that, as Drummond J noted in Queensland v Pioneer Concrete, a respondent does not have an absolute right in every case to insist upon the applicant pleading every fact necessary to show the existence of a complete cause of action, provided a substantial case is presented. However the applicant’s oral submissions demonstrated that it was by no means obvious which parts of the points of claim provided the basis for the later conclusions.
  19. Insofar as the first respondent’s contention was that the whole of the claim for indirect discrimination was vexatious because both direct and indirect discrimination is alleged, an incident (or incidents) of alleged discrimination may be pleaded as direct or indirect discrimination in the alternative. The same set of facts can be relied on to allege direct discrimination, indirect discrimination in the alternative, even if such provisions are mutually exclusive (a matter that I was not addressed). The same may be said for allegations of discrimination on the basis of sex, or discrimination on the basis of pregnancy (see paragraph 84 of the points of claim). This part of the claim has not been shown to be vexations.
  20. However I accept the first respondent’s submissions that (as in relation to the allegations of direct discrimination) the factual basis relied on in relation to each intended allegation of indirect discrimination is not clear and is pleaded at too high a level of generality to enable the first respondent to know the case that it has to meet. Again, rather than strike out the points of claim with leave to replead, I propose to require a schedule in tabular form to be filed and served (modified if necessary to reflect the fact that the allegations relate to the imposition of conditions) in relation to each allegation of indirect discrimination, its date, nature, the section of the SDA alleged to be breached, the person(s) alleged to have engaged in the conduct and identification of any vicarious liability or other secondary liability by date, party and activity. It may be that such a schedule could usefully extend to address other matters. Again, if the applicant prefers, she may file amended points of claims repleading these parts of the points of claim.

Paragraph 86

  1. Paragraph 86 appears under the hearing “Victimisation”. It states:
  2. The first respondent sought that the part of paragraph 86 which reads “and by retainer and agency, by the First Respondent” should be dismissed or struck out on the basis that no facts, matters or circumstances were pleaded as to how McCanns was liable for the conduct of Mr Brown and/or Baker and McKenzie “by retainer and agency”. The second and third respondents sought that the whole of the paragraph should be struck out.
  3. The first respondent contended that Ms Wylie had failed to plead the basis upon which McCanns could be liable under s.94 of the SDA, which is as follows:
  4. The first respondent also relies on the fact that Mr Reg Davidson, the chief financial officer of the first respondent, had by his affidavit sworn on 18 March 2009, denied that he had instructed or authorised any person employed by the Baker and McKenzie to discuss the applicant or the proceedings in a manner not directly connected with the conduct or resolution of the proceedings; that he was not aware of the dinner party conduct; did not instruct or authorise it to occur; and was not aware of any other person from McCanns doing so. It was submitted that in the face of this evidence, and in circumstances where no facts, matters or circumstances were pleaded in support of the claim, this part of paragraph 86 should be struck out or dismissed as lacking any reasonable prospects of success.
  5. Counsel for the applicant submitted in relation to the first respondent’s contentions that whether or not the retainer itself gave rise to the liability of the applicant was a matter for evidence.
  6. Further, in relation to whether persons other than the second respondent may be liable for unlawful discrimination consisting of victimisation, even if the first or third respondents could not be vicariously liable for acts of victimisation by another under ss.105 or 106, the applicant asserted that reliance would be placed on principles of agency in relation to the first respondent and vicarious liability of an employer for the acts of an employee in the course of his or her employment in relation to the third respondent.
  7. However I agree with the respondents’ contentions that the points of claim are deficient in that facts, matters or circumstances are not pleaded in support of the claim in relation to liability of McCanns in such a way as to enable the first respondent to know the case it has to meet. The assertion “by retainer or agency” does not identify how by such retainer or agency McCanns could be liable for the Paul Brown conduct.
  8. Even if paragraph 86 was not to be struck out as a whole on this basis, that part of the paragraph which reads “and by retainer and agency, by the First Respondent” should be struck out, but with leave to replead.
  9. Counsel for the second and third respondents raised more far-reaching concerns about paragraph 86. First, reliance was placed on rule 13.10 in relation not only to the points of claim but also to the underlying claims for relief in the application as against the second and third respondents. In submissions the second and third respondents sought that the whole of paragraph 86 be struck out as embarrassing and as failing to disclose a reasonable cause of action or that the underlying claims for relief be dismissed or stayed as lacking reasonable prospects of success.
  10. Counsel for the second and third respondents referred to the fact that the applicant sought declarations that conduct was engaged in by each respondent contrary to s.94(1) of the SDA. It was contended that the court had no jurisdiction in relation to prosecutions for breach of s.94 and that the aiding and abetting and vicarious liability provisions in the SDA (ss.105 – 106) did not apply to s.94. On this basis it was submitted that the whole of the proceedings against the second and third respondents should be permanently stayed or dismissed pursuant to rule 13.10 of the FMC Rules.
  11. It was also said that if there was some basis upon which it was alleged that the third respondent was liable for conduct alleged against the second respondent that would need to be set out.
  12. The second and third applicants also submitted that the detriment referred to in paragraph 86 and that the material facts relied on to allege that the applicant had asserted or proposed to assert a right under the HREOC Act or the SDA or that she had made an allegation that McCanns had done an unlawful act under Part II of the SDA (in subparagraphs of paragraphs (a) and (b)) were not adequately pleaded.
  13. In relation to the detriment alleged, it was said that the applicant had failed to plead the facts by which it was alleged that the applicant did not further pursue her rights (cf paragraph 87).
  14. In relation to subparagraphs (a) and (b) of paragraph 86 the respondents submitted that while in paragraph 86 reference was made to a conversation of 17 November 2006 there were said to be no particulars or material facts pleaded as to how it was that at the time of the conversation of 17 November 2006 the applicant had asserted, or proposed to assert, the claims in subparagraphs (a) or (b) of paragraph 86, that that was within the knowledge of the second respondent and/or the other respondents, and that by virtue of this the applicant was subjected to a detriment.
  15. It was contended that on the applicant’s own pleadings the first time the issue of the possibility of an assertion or proposed assertion of rights under the relevant legislation arose was after the alleged Paul Brown conduct (that is, in a letter sent to the first respondent three days after the alleged Paul Brown conduct, as pleaded in paragraph 56).
  16. Counsel for the applicant contended that victimisation constituted unlawful discrimination under the HREOC Act (now the AHRC Act), that the essential facts constituting the alleged detriment were set in paragraph 87 and that it was particularised sufficiently to enable the second and third respondents to understand the case they had to meet in that respect.
  17. It was acknowledged that it was necessary to clarify the basis for the assertions in subparagraphs (a) and (b) of paragraph 86. However counsel for the applicant referred to the fact that in the statement Ms Wylie made to HREOC she claimed that she told Mr Brown in the course of the telephone conversation that she thought the way she was treated was unfair and that she felt discriminated against. It was submitted that the appropriate way to deal with any issue as to what conduct or what assertion was made was for particulars to be provided, as it was said to be clear that the basis for the conduct complained of in paragraph 86 was Mr Brown’s conduct described in paragraph 55. The applicant should have the leave sought to address the issues in relation to subparagraphs (a) and (b) of 86.
  18. Insofar as the respondents seek summary dismissal, in White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298; [2007] FCA 511 at [58] – [59], Lindgren J suggested that a test in terms such as in rule 13.10 was a test of whether the prospect was real and not fanciful or merely arguable (also see Rogers v Asset Loan Co Pty Ltd (ACN 107 746 798) and Others (2008) 250 ALR 82; [2008] FCA 1304 and Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1283; (2008) 78 IPR 51). However in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 at [59], Greenwood J suggested that the court would rarely be satisfied that there was no reasonable prospect of successfully prosecuting a claim, except in the most transparent of cases, on the strength of the conclusion that an applicant’s statement of claim was deficient in whole or in part, having regard to the fact that leave to replead might reveal material or facts, within a properly identified legal framework, that on proof, gave rise to a recognised remedy. In Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Gilmour J at [6] pointed out that in a case where evidence could “give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading”.
  19. Such remarks are in point. In particular, as counsel for the applicant pointed out while this court has no jurisdiction in relation to prosecutions, there is a distinction between the offence of victimisation and victimisation as unlawful discrimination within the AHRC Act. The definition of “unlawful discrimination” in s.3 of the AHRC Act includes conduct that is an offence under s.94 (see Lee v Smith & Ors [2007] FMCA 59 at [211]).
  20. I am not satisfied that at this stage the claims for relief based on victimisation as unlawful discrimination (as appears to be intended to be relied on) should be struck out. I note in that respect that in Lee v Smith & Ors [2007] FMCA 59 Connolly FM considered that common law principles of vicarious liability and agency could apply to make persons liable for victimisation by employees or agents (and see Taylor v Morrison & Ors [2003] FMCA 79).
  21. Further, while the material facts that the applicant asserted or proposed to assert a right under the HEROC Act or the SDA and that she had made an allegation that McCann had done an unlawful act under Part II of the SDA were not pleaded with any specificity I am not satisfied that leave to replead might not reveal material or facts within a properly identified legal framework that on proof gave rise to a recognised remedy. I am not satisfied that the second the third respondent have met the onus of establishing that there is no reasonable prospect of successfully prosecuting the claim in this regard, whether based on the issue of jurisdiction in relation to victimisation or otherwise.
  22. However there remains the issue of whether material facts providing the basis for the asserted liability of the first and third respondents have been sufficiently pleaded. Consistent with what is stated above, I am of the view that this part of paragraph 86 is not adequately pleaded. This paragraph does not sufficiently identify the material facts which if proved would support the claims that “through him” Baker and McKenzie engaged in the Paul Brown conduct or that McCanns did so “by retainer and agency” (as to which see the discussion in relation to paragraph 5 above). This part of paragraph 86 should be struck out, but the applicant should have the opportunity to plead the material facts which if proved would support both these claims, in particular in relation to the relevance of a general retainer between McCanns and Baker and McKenzie and Mr Brown to the allegation that McCanns “by retainer and agency” engaged in the Paul Brown conduct.
  23. In conclusion, there are deficiencies in the points of claim. One area of concern is the absence of pleading of material facts to provide the basis for the manner in which the respective respondents are each alleged to be liable for conduct of another respondent. The respondents must each be put on notice of the case against each of them and have an opportunity to respond. The applicant should, however, have the opportunity to replead in this respect.
  24. I have borne in mind that this is the first occasion on which the points of claim have been subject to judicial scrutiny. The applicant has sought the opportunity to replead some, but not all of the points of claim in question. I am of the view that the preferable course at this stage, in the interests of the administration of justice, is to order that certain parts of the points of claim be struck out, but that the applicant have leave generally to file and serve amended points of claim to address the issues raised by the respondents.
  25. The other area of concern is the pleading in relation to the claims of discrimination made against the first respondent. While counsel for the applicant provided some clarification in oral submissions, it is important that there be a clear written record sufficiently identifying the factual matters and issues not clearly addressed in the pleadings. Hence the need either to amend the points of claim or for the suggested schedule, to enable the first respondent to determine the case it has to meet and also to ensure that all the alleged instances of discrimination and the manner in which such matters are said to be within the various parts of the SDA are identified.
  26. I will hear the parties in relation to appropriate directions to progress this matter and on the question of costs.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Barnes FM


Associate:


Date: 1 October 2009

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