Practice and procedure - Application to strike out statement of claim - Whether claim outside endorsement on writ - Whether exemplary damages available for breach of contract - Claim under s 51AC of Trade Practices Act - Relevant connection between supply of services and alleged unconscionable conduct - Turns on own facts

Trade Practices Act 1974 (Cth), s 51AC

Adamson v West Perth Football Club Incorporated [1979] FCA 81; (1979) 27 ALR 475

Boase v Seven Network (Operations) Ltd [2004] WASC 245

Butler v Fairclough [1917] HCA 9; (1917) 23 CLR 78

Coyne v Commercial Equity Corporation Ltd & Ors (1998) 20 WAR 109

Gray v Motor Accident Commission (1998) 196 CLR 1

Hospital Contributions Fund of Australia v Hunt (1983) 44 ALR 365

Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110

Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2001] FCA 1056

Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584

Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233

Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71

Chandler v Water Corp [2001] WASC 166

Macgregor v Macgregor [2004] WASC 237

1 MASTER NEWNES: This is an application by the defendants to strike out the further amended statement of claim, or certain parts of it, on the grounds that it does not disclose any reasonable cause of action or, alternatively, that it may prejudice, embarrass or delay the fair trial of the action.

2 The statement of claim in the action has been the subject of a previous, successful, application to strike it out: Boase v Seven Network (Operations) Ltd [2004] WASC 245. In the latest statement of claim, the claim under s 52 of the Trade Practices Act 1974 (Cth), which was the substantive issue on the earlier application, has been abandoned and the plaintiff's claim is now framed in contract and under s 51AC of the Trade Practices Act.

3 In the course of argument on this application on 24 March 2005, counsel for the plaintiff conceded that further amendments were necessary to the statement of claim and sought an opportunity to make those amendments. I ordered that the plaintiff file and serve any further minute of re-amended statement of claim by 30 March 2005 and that the defendants file and serve any supplementary submissions in opposition to the new minute by 4 April 2005. Those steps have been duly taken and it is therefore necessary now to have regard to the minute of 30 March 2005, rather than the existing statement of claim.

4 The first substantive complaints of the defendants relate to pars 9 to 12 of the minute. Those pleas must be read with conjunction with par 5 of the minute. The relevant pleas are in the following terms:

"5. At all material times it was a term of the Plaintiff's Contract of Employment that he comply with the Policies stipulated or adopted by the First and Second Defendants and further such Policies were and each of them was as and from the date each such Policy was adopted a term of the Plaintiff's Contract of Employment.

...

9. In implementing the Policies the First Defendant represented in writing to, inter alia, its employees including the Plaintiff and it was thereby a term of the Plaintiff's Contract of Employment:

Seven Network (Operations) Limited is committed to providing a safe workplace for all employees .... at the Seven Network we fulfil our Corporate and Legal Occupational Health and Safety responsibilities, whilst striving to promote continuous improvement in the health and safety of our working environment....

while State and Federal Occupational Health and Safety (OH&S) legislative requirements govern the minimum standards required of our OH&S system, we will ensure that the company's OH&S system achieve above standard results for identification, assessment and elimination (or if not reasonably practical, control) of risks and the provision of:

premises, plant, systems work and working environment that is safe and without risk to health....

information, instruction, training and supervision to ensure the health and safety of all staff....

adequate facilities for the welfare of all employees we make this commitment to all employees and stake holders of our business, as a display of our commitment to fulfil our duty of care as well as our statutory obligations'.

10. The First Defendant represented, inter alia, to its employees including the Plaintiff and it was thereby a term of the Plaintiffs Contract of Employment that as part of an Equal Employment Opportunity policy implemented by the First Defendant pursuant to the Occupational Health and Safety Policy referred to in paragraph 9 hereof that:

'Seven Network Limited is committed to the provision of a workplace free of discrimination and harassment. The company is committed to providing a pleasant working environment for all employees and encouraging good working relationships between employees.... The company will endeavour to ensure that in the application of all company policies, practices and procedures no discrimination takes place and that all employees enjoy equal access to opportunities within the company.... The company will endeavour to ensure that no.... harassment occurs in the workplace.... The company is committed to achieve the following EEO objectives:

.... the responsibility for implementing EEO within the company lies with every manager'.

11. The First Defendant represented, inter alia, to its employees including the Plaintiff and it was thereby a term of the Plaintiffs Contract of Employment that as part of the Occupational Health and Safety Policy referred to in paragraph 9 hereof the First Defendant implemented and applied in respect of its employees engaged in work for the Second Defendant a Workplace Harassment policy that:

'At Seven, we believe that all employees are entitled to working in an environment in which they can enjoy their work and their relationships with their colleagues, free from unwanted harassment of any kind. It is against company policy and a breach of Equal Opportunity Laws to harass an employee .... harassment will not be tolerated by the company ... harassment will usually be repeated behaviour, but can also consist of a single act. Harassment has the effect of offending, humiliating or intimidating the person that to whom it is directed. It makes the working environment unpleasant sometimes even hostile.... harassment often involves an abuse of power, for example a manager may harass a person whom they are supervising.... it is the company's legal responsibility to ensure that harassment does not happen in the workplace. If it does occur, complaints of harassment will be taken seriously by the company. A complaint will be investigated in a sympathetic, fair and confidential manner. Action will be taken to make sure that the harassment stops... it is part of the role of managers and supervisors to ensure that harassment does not occur in the workplace... when managers observe harassment happening in the workplace, they must takes steps to stop it and warn the person involved of the consequences if the offending behaviour continues. Managers and supervisors are also responsible for ensuring that all staff are aware that harassment will not be allowed in the workplace and that complaints will be dealt with in accordance with the terms of the company's Grievance Handling Policy'.

12. At all material times the First Defendant was responsible for implementing in respect of its employees, inter alia, including the Plaintiff, a Grievance Policy and thereby represented and it was a term of the Plaintiffs Contract of Employment:

'At the Seven Network we are committed to providing a pleasant work environment for all employees.

If you make a complaint, it will be investigated in a fair and impartial manner. No judgments or assumptions will be made, and no action will be taken until the investigation is complete. If a complaint is made against you, your rights will be protected and you will be given an opportunity to tell your side of the story'."

5 The defendants submitted that it is not clear from the pleading what are the contractual terms said to be incorporated into the contract of employment. I accept that submission. The plea in par 5 is that, when implemented, "policies stipulated or adopted" by the defendants become a term of the contract. What is pleaded in par 9 as constituting a term of the contract is not the policy that was adopted, but a representation allegedly made by the first defendant when implementing the policy, that representation itself becoming a term of the contract. On the face of the minute, the terms or effect of the policy itself, which par 5 pleads became a term of the contract, are not pleaded. A similar lack of clarity as to what constitutes representations as to the policy and what are said to be the terms of the policy itself, exist in pars 10, 11 and 12 of the minute. In par 10 the plaintiff again pleads a representation (which it is said thereby became a term of the contract) as to an equal opportunity employment policy, implemented pursuant to the policy referred to in par 9. It is not clear from the pleading whether in par 10 the representation and the equal opportunity employment policy itself (pleaded in par 5 to be a term of the contract) are said to be one and the same, although if that is what is intended (and I understood from counsel for the plaintiff that it is), it is not apparent why par 10 is pleaded in terms of a representation. If they are not the same, once again the terms or effect of the policy are not pleaded, although par 5 pleads that the policy became a term of the contract. Similar problems arise in relation to pars 11 and 12. It is simply not clear from the pleading what is said to be a representation as to a policy (and "thereby" a term of the contract) and what is said to be the policy itself.

6 Moreover, there are statements in the passages set out in each of pars 9, 10, 11 and 12 - for instance, statements as to the first defendant's belief, as to the legal effect of "Equal Opportunity Laws" and as to the effect of harassment on the person to whom it is directed - that it would appear would plainly not be incorporated as terms of the agreement between the plaintiff and the first defendant.

7 The terms of the contractual provisions relied upon by the plaintiff must be pleaded with sufficient precision and clarity that the defendants know the case they must meet. I do not consider that the minute currently achieves that objective.

8 The next objections by the defendants were to pars 27 and 28 of the minute. Those pleas are as follows:

"27. The conduct of the First Defendant referred to in paragraphs 23, 24, 25 and 26 was in breach of the contract of engagement between the Plaintiff and the First Defendant in that:

27.1 the Plaintiff's attempts referred to in paragraphs 17 and 19 hereof to identify and eliminate bullying and harassment of fellow employees in the workplace resulted in the Plaintiff being suspended; and

27.2 the Plaintiff was not given a fair or reasonable opportunity to defend himself against the complaint made against him.

28. By the letter referred to in paragraph 25 hereof the Plaintiff's ongoing employment with the First Defendant has been adversely affected."

9 The defendants say, first, that the claim as pleaded goes beyond the claim endorsed on the writ and, secondly, in any event, par 27 is in its terms embarrassing.

10 On the first point, it is the case that the endorsement on the writ is solely in respect of claims under the Trade Practices Act. No claim for breach of contract is made. It is well established that the ambit of the statement of claim is to be determined by reference to the terms of the endorsement on the writ. If the statement of claim, or a proposed amendment of it, exceeds the endorsement on the writ, the statement of claim will be struck out or leave to amend it refused (as the case may be), unless the endorsement is amended: Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584 at 597; Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233.

11 As the writ currently stands, pars 27 and 28 of the existing statement of claim fall outside it and must be struck out. For the same reason, leave to amend the statement of claim in terms of pars 27 and 28 of the minute (which are in the same terms as those paragraphs in the existing statement of claim) must be refused.

12 I also accept the defendants' submissions that pars 27 and 28 do not appear to be relevant to any claim for relief. The only reference to either of those pleas causing loss or damage is the allegation in par 33 that, by reason of the matters alleged in pars 25 and 26, "the plaintiff has suffered distress and damage as referred to in par 28 hereof". The reference to par 28 appears to be an error as there is no allegation in that paragraph that the plaintiff has suffered distress and damage. Indeed, there does not appear to be any plea in the statement of claim which, in terms at least, pleads that the plaintiff has suffered distress and damage. In my view, pars 27 and 28 are therefore embarrassing. It also follows that par 33 is embarrassing.

13 The defendants objected to par 29 on the ground that it does not disclose any reasonable cause of action. Paragraph 29 pleads a claim against the second defendant. To explain the claim against the second defendant it is necessary to refer also to pars 1 and 29A of the minute. The relevant pleas are therefore as follows:

1.1 was formerly employed by the Second Defendant and as and from a date and time not known to the Plaintiff thereafter by the First Defendant for a period in aggregate in excess of 28 years;

1.2 at all material times was employed by the First Defendant; and

1.3 at all material times, pursuant to his employment by the First Defendant has acted as the Chief Pilot of the Second Defendant.

...

29A. As part of the performance of the Plaintiff's duties as Chief Pilot of the Second Defendant the Second Defendant supplied services (within the meaning of that term in the Trade Practices Act 1974) to the Plaintiff being:

29A.1 access to the Second Defendant's premises;

29A.2 access and use of the Second Defendant's helicopter;

29A.3 possession and use of computers, mobile telephones and other equipment; and

29A.4 directions from the Second Defendant's Managing Director the said Wharton.

29. As and from 6 April 2004 the Second Defendant has acted in a manner that is unconscionable as against the Plaintiff in the manner set out in paragraph 32 hereunder contrary to section 51AC(1)(b) of the Trade Practices Act."

32.1 as and from 5 May 2004 monitored the Plaintiff's telephone calls;

32.2 on or about 5 May 2004 carried out or caused to be carried out covert surveillances and following of the Plaintiff, the Plaintiff's wife and members of the Plaintiff's family; and

32.3 purported to demand the return 'for safekeeping, servicing and necessary upgrades' a desktop computer provided to the Plaintiff by the Second Defendant."

15 The relevant parts of s 51AC of the Act are as follows:

"(1) A corporation must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person ...; or

(b) the acquisition or possible acquisition of goods or services from a person ...;

engage in conduct that is, in all the circumstances, unconscionable."

16 It is provided in s 51AC(3) that, without any way limiting the matters to which the Court may have regard for the purpose of determining whether a contravention of subs (1) or (2) has occurred in connection with the supply or possible supply of services to a person, the Court may have regard to the matters set out in that subparagraph. Section 51AC(4) is to the same effect in connection with the acquisition or possible acquisition of services.

In Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2001] FCA 1056, Lindgren J said, at [260]:

"Both the context internal to s 51AC and the legislative history to which I have referred, teach that the expression 'in connection with' in s 51AC requires that the conduct impugned 'accompany', 'go with' or 'be involved in' the supply of the goods or services, and that it is not sufficient that, as alleged in the present case, such a supply be the occasion of unconscionable conduct of the supplier directed to an unrelated third party with which the supplier has no dealings at all."

17 An appeal against the decision of Lindgren J was dismissed. On appeal, in Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110, Heerey J (with whom Black CJ and Tamberlin J agreed) said (at 141):

"[114] As a matter of language s 51AC(1) is directed not to conduct in trade or commerce generally, but rather to conduct in trade or commerce in connection with a particular kind of transaction, namely the supply or acquisition of goods or services to or from a person (other than a listed public company). This may be contrasted with s 52(1) which simply provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

[115] That s 51AC(1) is concerned only with conduct in relation to dealings between the corporation in question and a particular kind of person (a person other than a listed public company) is confirmed by s 51AC(3) and (4). In each case some 12 factors which may be taken into account are stipulated. It is true that they are non-exclusive but they are all concerned with dealings between 'supplier' and 'business consumer' (subs (3)) or between 'acquirer' and 'small business supplier' (subs (4)). They contemplate that the Court is engaged in the task of determining whether there has been a contravention of s 51AC(1), and thus are confined to a particular kind of transaction, namely the supply or acquisition of goods or services as between stipulated categories of person.

[116] The conclusion that s 51AC is not concerned with the impact of conduct on third parties is confirmed by the legislative history: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (No 2) (2000) 96 FLR 491 at 494-496. In the present case his Honour (at 52,362-52,363 [255]-[259]) recounts in detail the legislative history. It is not necessary to repeat that history in these reasons. In my view it shows convincingly that the present s 51AC can be traced back to the original recommendation of the Swanson Committee in 1976 that unconscionable conduct be prohibited "to give the Act a greater ability to deal with the general disparity between buyers and sellers".

18 The second defendant says that the conduct alleged by the plaintiff was not, and is not alleged to be, conduct in trade or commerce and it does not concern a dealing between a "supplier" and a "business consumer" as required by s 51AC(1). It argued in the alternative that the alleged conduct does not "accompany", "go with" or "be involved in" the alleged services pleaded in par 29A.1 to par 29A.4.

19 As I understand the plaintiff's case, it is that the second defendant supplied services to the plaintiff and, from 6 April 2004, acted toward the plaintiff in a manner that is unconscionable, contrary to s 51AC(1)(b), by doing the acts pleaded in par 32. On that basis, it is alleged that the second defendant, in "connection with ... the acquisition or possible acquisition of ... services from a person", engaged in unconscionable conduct.

20 The plea in par 29A that the alleged conduct was contrary to s 51AC(1)(b) appears to be an error. The plea in par 29A is that the second defendant supplied services to the plaintiff, not that the plaintiff supplied services to the second defendant. Indeed, there may well be a difficulty with a plea that services were supplied by the plaintiff to the second defendant, as that may constitute an employer/employee relationship by way of a contract of service which, by virtue of s 4(1) of the Act is excluded from the operation of s 51AC(1)(b): see Adamson v West Perth Football Club Incorporated [1979] FCA 81; (1979) 27 ALR 475 at 505. It may be that s 51AC(1)(a) is intended to be referred to.

21 In any event, I accept the defendants' submission that, as pleaded, the conduct alleged in par 32 is not relevantly related to the supply of the services pleaded in par 29A.

22 In the first place, there is no obvious temporal connection. It is not pleaded when the services were allegedly supplied to the plaintiff or when the alleged conduct of the second defendant occurred. I might also add that there appears to be something of an inconsistency between the plea in par 29 that the second defendant acted as alleged "as and from 6 April 2004", and the pleas in pars 32.2 and 32.2 that the second defendant engaged in the alleged unconscionable conduct from 5 May 2004.

23 Secondly, there is no specific connection alleged between the supply of services and the alleged conduct. How (if at all) the alleged conduct is said to "accompany", "go with" or "be involved in" the supply of the services does not appear. It is, I think, clear that it is not sufficient simply to show that the person who engaged in the conduct happened to be a supplier of services to, or an acquirer of services from, the person against whom the conduct was directed. It must be pleaded and proved that there was a relevant connection between the conduct in question and the supply or acquisition of the services.

24 In my view, as it stands the plea in par 29 does not disclose an arguable cause of action, or at the least is embarrassing, and should be struck out.

25 The defendants also submitted that the claim was untenable because on the pleading the alleged services were not supplied in trade or commerce between the plaintiff and the second defendant. As pleaded in par 1.3 of the statement of claim, the plaintiff "pursuant to his employment by the First Defendant has acted as Chief Pilot of the Second Defendant." In par 29A it is alleged that "[a]s part of the performance of the Plaintiff's duties as Chief Pilot of the Second Defendant" the second defendant supplied the alleged services to the plaintiff. The "services" are related to the performance of the duties of Chief Pilot; that is, the performance of duties by the plaintiff pursuant to his contract of employment by the first defendant. It was submitted there was, therefore, no supply of services by the second defendant, or acquisition of services by the plaintiff, in trade or commerce. Any dealings in trade or commerce were between the defendants, to which the plaintiff was at best a third party. The fact that a third party, who stands outside the relationship of supplier and acquirer, is affected does not give the third party a cause of action under s 51AC: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (supra).

26 The plaintiff's counsel argued that this case was distinguishable from Monroe Topple where the supplier had no dealings with the person who claimed to have been the subject of the alleged unconscionable conduct. In the present case the plaintiff was the direct recipient of the services concerned and stood in a direct relationship with the supplier of the services.

27 In the end, I do not consider that this is a matter appropriately to be determined on a pleading application. In that regard it is necessary to bear in mind that a pleading will only be struck out at this stage if it is plainly unarguable. Moreover, a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospital Contributions Fund of Australia v Hunt (1983) 44 ALR 365 at 373. This is an area of some complexity where there is relatively little by way of judicial guidance currently available. It is not therefore appropriate to attempt to resolve at the pleading stage issues of the nature raised.

28 I accept the defendants' complaint that pars 31 and 31 of the minute, which plead certain alleged conduct of the first defendant on 19 April 2004, are not relevant to any relief claimed. They therefore raise a false issue and are embarrassing.

29 The defendants' next complaint related to par 33B of the minute, which pleads that the first defendant, by the conduct alleged in par 33A, acted in contumelious disregard of the plaintiff's rights and the plaintiff claims exemplary damages. The defendants say that no claim for exemplary damages is made in the writ and, in any event, no such claim lies for a contumelious disregard of the rights of the plaintiff in a breach of contract claim.

30 I consider that the claim for exemplary damages is not maintainable. It is well established that exemplary damages are not available to a plaintiff in a claim for breach of contract. In Butler v Fairclough [1917] HCA 9; (1917) 23 CLR 78 Griffiths CJ said at 89:

"The measure of damages in an action for breach of contract is well settled. It is such loss as may fairly and reasonably be considered as arising according to the usual cause of things or may reasonably be supposed to be in the contemplation of the parties at the time of making the contract as the probable result of breach. The motive or state of mind of a person who is guilty of a breach of contract is not relevant to the question of damages for the breach, although if the contract itself be fraudulent, the question of fraud might be material ... A breach of contract may be innocent, even accidental or unconscious. Or it may arise for a wrong view of the obligations created by the contract. Or it may be wilful, and even malicious and committed with the express intention of injuring the other party. But the measure of damages is not affected by any such considerations. A statement which alleged that the defendant wilfully or maliciously or fraudulently committed a breach of contract would not gain any additional effect from the vituperative epithets, which would indeed be as irrelevant to the case as the ancient averment that the person accused of an offence acted at the instigation of the devil."

31 See also Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71 at 80; Coyne v Commercial Equity Corporation Ltd & Ors (1998) 20 WAR 109 at 121-2; Gray v Motor Accident Commission (1998) 196 CLR 1 at 6.

32 It follows that the claim for exemplary damages must be struck out.

33 The defendants objected to pars 5 and 6 on the ground that the pleading is not adequately particularised in that it does not give any particulars of the contract of employment, and specifically, does not say whether the alleged terms of the contract pleaded in pars 5 and 6 are alleged to be express or implied and, if the latter, on what basis it is alleged they are to be implied. I accept that objection. I do not consider that these are matters properly left to a request for further and better particulars. They are central to the plaintiff's case and should be included in the statement of claim.

34 The next objection by the defendants was to par 7 and pars 13 to 22 of the statement of claim. The defendants say first, that the matters pleaded fall outside the scope of the endorsement on the writ and, secondly that in any event they are surplusage as merely background facts or evidence and should be struck out on that basis.

35 I do not accept that the matters pleaded should be struck out as surplusage. Some, at least, of those matters are necessary to make explicable the balance of the allegations in the statement of claim. To the extent that the matters pleaded go beyond that, they are not, in my view, of such a nature as to cause embarrassment and to warrant them being struck out.

36 I do, however, accept that if the claim for breach of contract is to be maintained it will be necessary for an amendment to be made to the endorsement on the writ. As I have mentioned, the endorsement of claim refers only to claims under the Trade Practices Act, not to any claim for breach of contract. It appears that the matters alleged in par 7 and pars 13 to 22 are substantially, if not entirely, relied upon for the breach of contract claim. In the absence of an amendment to the endorsement of the writ, the whole of the breach of contract claim must be struck out.

37 The next objection by the defendants was to par 23 of the statement of claim, which pleads that the first defendant did certain acts "in a manner humiliating and damaging to the plaintiff's reputation". The defendants say that those words are irrelevant to any claim in contract and raise a false issue. They should therefore be struck out.

38 It appears that par 23 is pleaded in support of a claim for breach of contract. It does not appear that there is any relief sought based on an allegation that the acts pleaded were done in a manner "humiliating and damaging to the plaintiff's reputation". The plea in par 33, to which I have already referred, which alleges that the plaintiff has suffered stress and damage, refers to conduct which occurred after that alleged in par 23. It therefore appears that the passage complained about is not relevant to any matter in issue and I accept that it raises a false issue. I would therefore strike it out.

39 For the reasons I have given, it follows, in my view, that the claim for breach of contract is not maintainable as, among other things, it falls outside the scope of the endorsement on the writ. The claim under s 51AC of the Trade Practices Act, as it is currently pleaded, does not disclose a reasonable cause of action.

40 In the circumstances, I consider the appropriate course is to refuse leave to amend in terms of the minute of 30 March 2005 and to strike out the statement of claim of 11 January 2005. I would allow the plaintiff to file a further minute of proposed statement of claim within a time to be determined. I will hear the parties on the question of costs and on the time within which any fresh minute should be filed and served.