(1) To what extent was the Federation bound by the allegations made in its further amended claim and its reply below?
108 The submissions advanced on behalf of REX concerning the state of the written claims before the court below are relevant to several issues. The main issues concern: (1) whether in relation to the claims of contravention of s 340 and 343 of the FW Act the Federation made allegations in the proceeding which engaged the rebuttable evidentiary presumption in s 361 of the FW Act on which the Federation sought to rely; and (2) whether the primary judge erred in permitting the Federation to depart from the basis for its claims, and in particular the claim that REX contravened s 345 of the FW Act by knowingly or recklessly making false or misleading representations.
109 Jurisdiction was conferred on the Federal Circuit Court of Australia in relation to the Federation's claims by s 566 of the FW Act. Section 567 of the FW Act provided that the jurisdiction was to be exercised in the Fair Work Division of the Federal Circuit Court if, inter alia, "an application is made to the Federal Circuit Court under this Act". Section 551 of the FW Act provided that a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.
110 At the time the proceeding was commenced in the Federal Circuit Court, the relevant legislation governing its procedure was the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court Rules 2001 (Cth). The Act, which was also the enabling legislation for the Rules, was repealed effective 1 September 2021 by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth).
111 Section 3(2) of the Federal Circuit Court of Australia Act included the following as objects of the Act -
(a) to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and
(b) to enable the Federal Circuit Court of Australia to use streamlined procedures; and
(c) to encourage the use of a range of appropriate dispute resolution processes.
112 Section 10A of the Federal Circuit Court of Australia Act provided for two Divisions of the Federal Circuit Court: the General Division; and the Fair Work Division. In relation to the Fair Work Division, s 10A(3) provided as follows -
Fair Work Division
(3) The following jurisdiction of the Federal Circuit Court of Australia is to be exercised in the Fair Work Division:
(a) jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
(b) jurisdiction that is incidental to such jurisdiction.
Note: Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Circuit Court of Australia in relation to matters arising under that Act.
113 Section 50(1) of the Federal Circuit Court of Australia Act provided for the commencement of proceedings by way of application without the need for pleadings -
50 Proceedings may be instituted by application
(1) Proceedings may be instituted in the Federal Circuit Court of Australia by way of application without the need for pleadings.
(2) Subsection (1) has effect subject to the Rules of Court.
114 Part 45 of the Federal Circuit Court Rules applied to proceedings in the Court to which the FW Act applied: r 45.03. In addition, Chapters 1 and 3 of the Rules applied to proceedings to which the FW Act applied to the extent that they were relevant and were not inconsistent with Chapter 7. Within Chapter 1 of the Rules were r 4.01 and r 4.02, which provided -
4.01 Application
(1) Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the approved form.
…
4.02 Content of application
An application must precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought.
115 Rule 45.08 of the Rules made provision for applications alleging contraventions of the general protection provisions in Part 3-1 of the FW Act -
45.08 Application in relation to other alleged contraventions of Fair Work Act general protections
An application for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3-1 of the Fair Work Act other than that mentioned in rule 45.06 must:
(a) be in accordance with the approved form; and
(b) be accompanied by a claim in accordance with the approved form.
Note 1: Sections 545 and 546 of the Fair Work Act state the orders the Court may make.
Note 2: Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Note 3: An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.
116 Rule 45.06 which is referred to in the above rule related to dismissal from employment in contravention of a general protection provision, and is not relevant.
117 Rules 4.01 and 45.08 referred to the "approved form". This term was defined in the Dictionary to the Rules as -
approved form, for a provision of these Rules, means a form approved by the Chief Judge under subrule 2.04(1A) for the provision.
118 Rule 2.04, referred to in the definition of "approved form", relevantly provided -
2.04 Forms
(1A) The Chief Judge may approve a form for a provision of these Rules.
…
(1) Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.
…
119 The Form 4 containing the Federation's further amended claim has the appearance of a court-approved form. Part G of the form was titled "Contravention(s) alleged". In the left margin the following text appeared -
19. What are the grounds for the claim that adverse action against the applicant has been taken, threatened or organised contrary to the Fair Work Act?
(Set out in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim)
1. Specify the 'adverse action'
2. If relying on s 340 specify the workplace right
3. If relying on s 351 specify the attribute in s 351(1)
120 The purposes of pleadings are well-known. They include giving the opposing party notice of the issues that are in dispute, and identifying the issues for adjudication at trial. It is frequently the case that allegations in a pleading are capable of both further refinement and greater generalisation. Whether an allegation in a pleading is adequate is therefore often a question of fact and degree, and involves considerations of practical justice: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 (Gleeson CJ).
121 Section 50 of the Federal Circuit Court Act provided that an application to the court could be brought without pleadings. The court could order that the proceeding continue on pleadings, but no order for pleadings was made in this case. The claims and responses that the parties filed evolved as their cases developed. The initial Form 4 filed by the Federation set out the allegations in a manner that approached the form of a pleading, because the Form required numbered paragraphs. Although the initial response that was filed on behalf of REX did not take on the appearance of a conventional pleading, later documents did. The reply filed on behalf of the Federation cited r 16.33 of the Federal Court Rules, which was picked up by r 1.05(3)(b) of the Federal Circuit Court Rules. However, we do not think much turns on that feature of the reply.
122 Although there was no order made for pleadings, the Federation was required by r 4.02 of the Federal Circuit Court Rules to state precisely and briefly the orders that were sought, and the basis for which the orders were sought, and r 45.08 required that the claim be made in accordance with the approved form. The Federation's further amended claim was structured and detailed, and extended to 47 numbered paragraphs. There was nothing preventing the Federation from alleging in its further amended claim any facts that were necessary to engage any evidentiary presumptions in s 361 of the FW Act, if they were to form part of the basis for its claims. And the fact that the claims and the responses, and the reply reached a particular level of refinement is relevant to identifying at a practical level what allegations were made in the application, and on what issues the parties joined. However, it was always the case that pleadings were not required by the Rules, and that no order for pleadings was made.
123 We agree with the primary judge's assessment at J [26] that the relevant question raised by the submissions of counsel for REX was not whether the documents filed by the parties were pleadings or not, but whether REX was denied procedural fairness. The primary judge's focus on procedural fairness was in accordance with observations of Gordon J in Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702; 173 IR 378, which was an appeal from a decision of the Federal Magistrates Court of Australia in a proceeding where there were no pleadings. At [23] her Honour stated (inter alia) -
… a party to proceedings in the Federal Magistrates Court must be put on notice of the case against it and have an opportunity to respond. … It is a fundamental principle of justice that a Court must not determine an issue that is not raised by the pleadings, or in the evidence or submissions before it.
124 There is also a further issue, which is whether the Federation in its application made allegations that engaged s 361 of the FW Act, and if so, what those allegations were. That is an important issue, because the content of such allegations would frame any rebuttable evidentiary presumptions that arose.
125 The primary judge held at J [27] that there were respects in which the case that the Federation advanced at trial was different from the case disclosed in its Form 4 further amended claim. We agree with that assessment, and we also agree that the clearest example was the claim that REX had contravened s 345 of the FW Act by knowingly or recklessly making false representations about workplace rights. On appeal, the representations that were alleged by the Federation to have been conveyed by the Letter were re-cast yet again. It might be said that there were some similarities between the different ways in which the Federation advanced its claim that s 345 had been contravened, but in this context words are important. An allegation of a contravention of s 345 is a serious allegation, and for the following reasons, the shifting terms of the Federation's allegations involved no mere pleading nicety, but were significant to the fair conduct of the trial.
126 In order to engage s 345 of the FW Act it must be shown that a false or misleading representation was made "knowingly or recklessly". The state of mind required by s 345(1) attaches to the false or misleading quality of the representation, not the act of the making of the representation. What is required is that a false or misleading statement is made knowing it to be false, or being recklessly indifferent as to its truth: BHP Coal at [161]. An allegation that REX made statements knowing them to be false invokes the idea that is expressed in the tort of deceit: Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 (Forrest v ASIC) at [22] (French CJ, Gummow, Hayne and Kiefel JJ); see also, Banditt v The Queen [2005] HCA 80; 224 CLR 262 at [1]-[3] (Gummow, Hayne and Heydon JJ) in relation to the term "reckless". Returning to Forrest v ASIC, at [26] their Honours stated -
It is fundamental, and long established, that if a case of fraud is to be mounted, it should be pleaded specifically and with particularity. A pleading of fraud will necessarily focus attention upon what it was that the person making the statement intended to convey by its making. And the pleading must make plain that it is alleged that the person who made the statement knew it to be true or false or was careless as to its truth or falsity.
127 The questions raised by the Federation's claim that REX contravened s 345 of the FW Act directed attention to whether the Letter conveyed the alleged representations, whether those representations were about workplace rights, and what REX intended to convey by the Letter. In these circumstances, to permit the Federation to depart from the basis on which the orders that it sought had been alleged with some precision in its further amended claim by relying on different representations in its written opening, was liable to cause prejudice to REX, and at least some forensic disadvantage. The forensic disadvantage was liable to arise because REX had prepared its affidavit evidence-in-chief well prior to the service of the Federation's written opening.
128 Upon counsel for REX objecting to the Federation departing from the case that had been advanced in its further amended claim, it would have been open to the primary judge to determine whether an amendment was necessary, to invite the Federation to apply for leave to amend its claim and, and if so, to determine whether it should be permitted: see, Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ), citing Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446 (Stephen, Mason and Jacobs JJ). Upon hearing such an application, it was otherwise open to the primary judge to rule upon what case the court would permit the Federation to advance, and to evaluate the question of prejudice at that point. The primary judge did not take that course, but left the resolution of the objections that were raised until his Honour's reasons for judgment. There are no hard and fast rules, but where there are serious allegations advanced that include some that are tantamount to fraud, it is usually desirable that there be some certainty as to the basis on which the trial is to be conducted: see the observations of the Full Court in ABCC v Hall at [50] (Tracey, Reeves and Bromwich JJ).
129 The primary judge held in his reasons for judgment after the hearing at J [28] that REX was not denied procedural fairness, and at that point permitted the Federation to pursue the case that was outlined in its opening. The principal reason was, as his Honour held at J [30], that in the circumstances REX suffered no material loss of opportunity to meet the case that had been advanced by the Federation in its opening. The primary judge was likely better placed than this court to make that evaluation, and therefore we afford some weight to the primary judge's views. However, we observe that while decision-makers commonly express their reasons sequentially, they often review the whole case before writing anything: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [14] (Gleeson CJ). We cannot help but think that the primary judge's conclusions on the question of prejudice might have been influenced by his Honour's rejection of the Federation's claims. Further, because the parties accepted at trial that his Honour was bound by authority not to consider any evidentiary presumptions that arose under s 361 of the FW Act, his Honour had no occasion to consider whether any allegations engaged s 361, and if so, the content of those allegations where there was some difference between the Federation's pleaded case, and its written opening. In our view, it would have been preferable for his Honour to rule at the outset of the hearing upon REX's objections to the Federation's case as opened.
130 We need not consider further the question whether there was any error by the primary judge in permitting the Federation to depart from the case it had alleged in its further amended claim in relation to the alleged contravention of s 345 of the FW Act. That is because for the reasons we give later, we agree with the primary judge's conclusion that the Letter did not convey any false or misleading representations about workplace rights in any of the ways alleged by the Federation.
131 This brings us to the question whether s 361 of the FW Act was engaged in relation to the claims of threats to take adverse action (s 340 and s 342) and action with intent to coerce (s 343). Ordinarily, an applicant bears the onus of proving each element of an alleged contravention of a statutory norm. However, s 361 to which we referred at [29] above has the effect, if its conditions are engaged, that the burden of proof of those facts which are subject to the provision rests on the person against whom the allegation is made: Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; 263 CLR 551 (Esso v AWU) at [58] (Kiefel CJ, Keane, Nettle and Edelman JJ). When engaged, s 361 applies both to an allegation of a particular reason for which action was taken, and an allegation that action was taken with a particular intent. In that respect, in ABCC v Hall the Full Court at [24] approved the following statement of Bromberg J in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; 232 IR 290 at [230] relating to an alleged contravention of s 343 -
230 Section 343(1) is a provision which, in the words of s 361, depends upon action taken "for a particular reason or with a particular intent". The intent which s 343(1) deals with has two aspects. The first aspect is addressing the nature or character of the intent. The particular intent required is an intent to coerce. The second aspect of the requisite intent is addressing the purpose or reason of the action taken. The purpose or reason for the taking of the action must be to have the other person (or third person) do or not do one of those things specified by paras (a) and (b) of s 343(1). The first aspect may be characterised as a "particular intent" and the second as a "particular reason" within the meaning of those terms in s 361(1).
132 Before s 361(1) of the FW Act is engaged, the particular reason or the particular intent must be alleged in the application. In ABCC v Hall, the Full Court discussed at [13]-[15] what has to be alleged in the following passages that were cited with approval by the Full Court in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268 (Auimatagi v ABCC) at [136]-[139] -
13 Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to "prove otherwise" than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant's application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word "particular" in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: "2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. ... 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial". See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.
14 It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VR 731 at 738-739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a "particular reason" and it does not extend to a "particular intent", both of which are covered by s 361. Section 360 therefore only applies to the "particular reason" component of s 361.
15 The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that "taking that action for that reason or with that intent would constitute a contravention of this Part". This precondition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), "would constitute a contravention of that Part".
133 In relation to a proceeding conducted on pleadings, the Full Court in ABCC v Hall held at [19] -
19 Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Pt 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173, "[a] material fact is one which is necessary to formulate a complete cause of action. … Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet."
134 The Full Court later stated at [26] -
26 … It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an "intent to coerce" creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener's intent.
135 The appeal in ABCC v Hall was from a judgment of a judge of the Federal Court of Australia in a proceeding commenced by an originating application accompanied by a statement of claim. The words "an application in relation to a contravention of this Part" in s 361 were held to apply to those documents, as amended: see [27]-[29].
136 As we mentioned at [47] above, in relation to the allegation of a threat to take action with intent to coerce, the Federation submitted to the primary judge in its written opening that pursuant to s 361 of the FW Act, REX bore the onus of showing that, when threatening to take action, it did not have an intention to negate choice. That submission must be assessed with submissions made by counsel for the Federation during oral opening, where counsel submitted to the primary judge -
… your Honour will be aware of the decision in ABCC v Hall (2018) 277 IR 75, which says this, in summary: you need to plead the intent to negate choice, which is one of the two elements of coercion - the other, of course, being whether the conduct was unlawful, unconscionable or illegitimate - to engage the section 361 reverse onus. There's two difficulties for my client with that. The first one, of course, being we're bound by the decision in Hall - well, your Honour is. The second is whether there is a distinction that arises where the parties are not operating on the basis of pleadings and we are not, your Honour, operating on the basis of pleadings.
We have a claim and a response. They are not the same as statements of claim and defences. They're not pleaded in the way required by the rules. They're not traversed in the way required by the rules. There is an open question and there are some single judge decisions on this point, but there is an open question about whether in that situation the reverse onus attaches and that is a question that your Honour will need to consider. It doesn't attach where formal pleadings were not ordered, which is this case, then - I withdraw that. If Hall applies in the situation where formal pleadings were not ordered, which is this case, then my client has the whole of the onus.
If I persuade your Honour that in a court that doesn't typically operate on pleadings in this jurisdiction, read with the public purpose of the Act and the protective nature of the provisions, that the reverse onus should properly attach, then my learned friend has - client has the onus on the element of intent to negate choice. Because your Honour will need to determine that issue for practical purposes I'm assuming that my client has the onus and that's the way the case will be conducted, but your Honour will be called on to answer that question in due course.
137 On appeal, counsel for REX sought to rely upon the above passage as a concession by the Federation that no particular intent to coerce had been pleaded that would engage s 361. In our judgment, by the above submissions counsel for the Federation at trial accepted, in relation to the claim of contravention of s 343 of the FW Act, that no allegations of intention to negate choice or conduct that was unlawful, unconscionable or illegitimate had been pleaded. That submission was consistent with the submissions of counsel for the Federation at trial that there had been no order for pleadings, and that the documents that the parties had filed were not to be seen as pleadings. However, we do not construe the above passage as a concession that s 361 of the FW Act could not otherwise be engaged by the Federation. Counsel for the Federation appears to have left that question open for the primary judge to determine.
138 The claim which the Federation advanced against REX by its further amended claim is set out under [46] above. There was no allegation in the Federation's further amended claim that there was any intent to negate choice, and there was no express allegation that the action was unlawful, and no allegation that the action was unconscionable, or illegitimate. However, by its written opening the Federation alleged an intention to negate choice, and in relation to whether the action was unlawful, the Federation at [49] of its written opening at trial relied on the conduct as constituting unlawful adverse action. Alternatively, the Federation alleged at [50] that the conduct of REX in issuing the Letter was both illegitimate and unconscionable. At [54] of its written opening at trial the Federation alleged reasons for which the threat to take action against the cadets was unconscionable or illegitimate.
139 The issue raised by s 361 of the FW Act and whether it is engaged is whether in an application it is alleged that a person took or was taking action for a particular reason or with a particular intent. Where the point is in issue, this is a question of fact. In a proceeding conducted on pleadings, the inquiry will usually focus on the contents of the pleadings, as it was in ABCC v Hall, and in Auimatagi v ABCC. However, not all cases are conducted on pleadings. In this court, concise statements are sometimes employed in civil penalty proceedings: see, Employment and Industrial Relations Practice Note (E&IR-1) dated 20 December 2019 at [4.1] to [4.4]; Australian Securities and Investment Commission v Westpac Securities Administration Ltd [2019] FCAFC 187; 272 FCR 170 at [185] (Allsop CJ). A concise statements is not a pleading, and may not amount to a comprehensive statement of all the matters that must be established in order for a claim or defence to succeed. The allegations in a concise statement may be supplemented in other ways, including by making an order for pleadings, or particulars, or by statements of facts, issues and contentions, or by written opening submissions filed in advance of the hearing to expose the issues: Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 153 ACSR 522 at [144] (McKerracher and Colvin JJ). The same reasoning applies to claim forms filed in the Federal Circuit Court. They are not pleadings, and as occurred in this case, better notice of the allegations in the proceeding may be achieved by providing for the filing of written opening submissions.
140 Therefore, what is important is not the medium in which the allegations are made, but whether the allegations are made in the application. That is because for the purposes of s 361(1)(a), the reference to "an application in relation to a contravention of this Part" is a reference to the proceeding, and not to any particular document filed in the proceeding. In order to engage s 361(1)(a) there must usually be some document in the proceeding by which the applicant makes clear what the case is about, which includes the identification of any particular reason or particular intent that is relied on in order to engage s 361 that relevantly conforms with the guidance given by the Full Court in ABCC v Hall at [13]-[19].
141 At trial, and again on appeal, REX maintained that the Federation was to be held to its pleadings. As we stated at [57] above, counsel for REX submitted to the primary judge that "[t]he scope of this trial is to be determined by the pleadings, and only the pleadings". That is an approach that a party may be entitled to maintain where there are pleadings: Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; 189 FCR 356 (Betfair) at [51] (Keane CJ, Lander and Buchanan JJ). Even then, as the Full Court observed in Betfair at [55] -
An announcement of that kind by a party misstates that party's capacity to direct the course of the proceedings. The course of proceedings is in the control of the Court. That control is to be exercised for the attainment of a just outcome. There will obviously be cases where a pleaded case does not raise an important fact for attention. If that remains the position at the end of the case, the case may be lost on that basis, so far as it depends on that fact. Sometimes it would be unfair to allow a party to amend a case, or a pleading, to raise a new matter which could have been, but was not, raised earlier. On the other hand, mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party.
142 In this case, it is inescapable that the proceeding below did not proceed on pleadings. The Federation was entitled to commence the proceeding under s 50(1) of the Federal Circuit Court of Australia Act without pleadings. There was no order for pleadings. There was no acceptance at trial by the Federation or by the court that the hearing would proceed as if the documents that had been filed were to be treated as pleadings. Indeed, in the absence of any order for pleadings, had the primary judge accepted the full force of the submissions of counsel for REX, and concluded following the hearing that the Federation was, in effect, strictly confined to any facts alleged in its further amended claim, there may have been a denial of natural justice to the Federation.
143 Having reviewed the Federation's further amended claim, its written opening, and the transcript of the hearing, in our judgment the matters which the Federation alleged in the application included the allegations in the Federation's written opening. In relation to the claim of threatened action with intent to coerce, the claims made in the written opening were in large part an elaboration of the comparatively terse allegations that had been made in [45] of the further amended claim. In relation to the reasons on which the Federation relied as engaging the relevant items in s 342 of the FW Act, we do not consider that there was any substantial difference between those that were alleged at [39] and [44] of the further amended claim, and the terms of the written opening.
144 As we mentioned earlier, upon the issue being raised by counsel for the Federation it was open to the primary judge at the outset of the trial to rule upon what issues were to be tried. It was equally open to counsel for REX to make an application to the primary judge for such a ruling, and to make any other consequential applications. Instead, counsel for REX maintained that the Federation was bound by its pleadings in circumstances where the proceeding was not the subject of pleadings.