Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957

Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957 | Case summary | Zoe

[56]

Sections 94(1) and (2) of the SDA are as follows:
- (1) A person shall not commit an act of victimisation against another person.
  - Penalty:
  - (a) in the case of a natural person--25 penalty units or imprisonment for 3 months, or both; or
  - (b) in the case of a body corporate--100 penalty units.
- (2) For the purposes of subsection (1), a person shall be taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
  - (a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
  - (b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or
  - (c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
  - (d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or
  - (e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
  - (f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
  - (g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
- or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
The definition of "unlawful discrimination" in s.3 of the AHRC Act includes conduct that is an offence under s.94 of the SDA (see Lee v Smith & Ors [2007] FMCA 59 at [211]).
Section 14(2)(d) of the SDA provides:
- It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:
  - (d) by subjecting the employee to any other detriment.
Ms Davidson seeks declarations, damages and an apology from each respondent.
It appears that there are, in essence, two aspects to Ms Davidson's claims in these proceedings. She alleges that each of the respondents has engaged in victimisation and discrimination. The first aspect is a claim that after her employment was terminated by McCanns (in relation to which she commenced the 2008 proceedings) Mr Brown engaged in a course of conduct (described below as the "conciliation conduct" and the "dinner party conduct") that amounted to victimisation within s.94(1) of the SDA (the "Mr Brown conduct") that constituted unlawful discrimination under the HREOC Act. She claimed that Mr Brown engaged in this conduct as an agent for Baker and McKenzie and as an agent and within the scope of the retainer between himself and Baker and McKenzie and McCanns so that Baker and McKenzie and McCanns could also be said to have engaged in the victimisation said to constitute unlawful discrimination. In the points of claim it is also contended that "in acting as pleaded" in relation to the Mr Brown conduct, McCanns discriminated against Ms Davidson by reason of her sex (treated her less favourably "than they would have treated a person of the opposite sex in circumstances that were the same or not materially different" by subjecting her to a detriment within s.14(2)(d) of the SDA) and that this discrimination by McCanns was "caused, instructed, aided and/or permitted" by Mr Brown and Baker and McKenzie.
The other aspect of the claims is that, contrary to its commitment, McCanns did not pay Ms Davidson her "legal entitlements" (the McCanns action) and that Mr Brown and Baker and McKenzie "caused, instructed, aided and/or permitted" this act by McCanns and were consequently taken to have done the same act under s.105 of the SDA as persons involved in an unlawful act.
Ms Davidson filed points of claim on 12 January 2009. The respondents filed responses and points of defence.
By amended applications in a case filed on 26 March 2009 by the first respondent and jointly by the second and third respondents orders are sought dismissing certain parts of the points of claim pursuant to rule 13.10 of the Federal Magistrates Court (FMC) Rules or striking out parts pursuant to Order 11 rule 16 of the Federal Court Rules. Further, and in the alternative, the respondents seek that the applicant's claims for relief in both her application and the points of claim as against each respondent be permanently stayed or dismissed pursuant to rule 13.10 of the FMCA Rules.
The main concerns expressed in relation to the points of claim relate to the adequacy of the pleading of the basis for the allegations that McCanns and Baker and McKenzie engaged in the Mr Brown conduct and that Mr Brown and Baker and McKenzie were taken to have done the McCanns action.
There is some overlap between the matters raised by the first respondent and those raised 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.
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. The applicants in each of these proceedings have sought that the proceedings be consolidated or heard at the same time. That issue is yet to be determined.

[57]

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 apply to a "claim for relief" in points of claim.
Rule 13.10 of the FMC Rules is as follows:
- The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
  - (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
  - (b) the proceeding or claim for relief is frivolous or vexatious; or
  - (c) the proceeding or claim for relief is an abuse of the process of the Court.
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.
Rule 13.10 is usually invoked to summarily dismiss proceedings as a whole or claims for relief made in an application. The respondents contended 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 prospect of successfully prosecuting the proceeding or 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").
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 to apply rule 13.10 according to its terms rather than to resort to the provisions of the Federal Court Rules that apply to strike out 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.
The Federal Court has highlighted the distinction between striking out pleadings and summary dismissal. This distinction is relevant both to the question of whether rule 13.10 is applicable to points of claim as well as to the wider alternative claim that all the applicant's claims for relief in her application against each respondent should be permanently stayed or dismissed under rule 13.10.
As Lehane J observed in Anthony Vasyli v Aol International Pty Limited and Anor [1996] FCA 1713 at [17] in relation to Order 20 rule 2 of the Federal Court Rules (as it stood at the time), even if pleadings may be stuck out in their entirety under Order 11 rule 16 of the Federal Court Rules "[i]t is a significant additional step...to shut an applicant out by dismissing the proceedings" under a provision for summary dismissal such as rule 13.10 (rather than giving the applicant the opportunity to replead).
Lindgren J explained in relation to the Federal Court Rules and s.31A of the Federal Court of Australia Act 1976 (Cth) in White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298; [2007] FCA 511 at [47]:
- The central concern of both O 20 r 2(1)(a) and s 31A is different from that of O 11 r 16, which empowers the Court to strike out pleadings. For example, evidence may disclose that a person has or may have a "reasonable cause of action" or "reasonable prospects of success", yet the person's pleading does not disclose this. In such a case O 11 r 16 empowers the Court to strike out the pleading but O 20 r 2(1)(a) would not empower the Court to order a stay or dismissal, and s 31A(2) would not empower the Court to give judgment for the respondent against the applicant.
His Honour continued:
- A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.
In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 in referring to the principles relevant to summary dismissal under s.31A of the Federal Court of Australia Act (see Rares J in Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 236 ALR 720; [2006] FCA 1352 at [31] - [48]) Jacobson J stated at [32] - [33]:
- ... summary dismissal applications are to be determined on the pleadings and any evidence before the Court; but at the heart of the exercise is the assessment on incomplete materials, of the prospects of success if the matter proceeds to a final hearing; Boston Commercial at [38], [48].
- It would be wrong to determine the application on a narrow approach to the pleadings where, as here, there is evidence, albeit incomplete, and perhaps at this early stage, ambivalent, which may at a final hearing, and with amended pleadings, produce a verdict for the applicant.
Of particular relevance is the view of French J (as he then was) in Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401 that s.31A of the Federal Court of Australia Act "is not a vehicle for simply striking out parts of pleadings that are deficient" (at [21]). While his Honour was considering s.31A of the Federal Court of Australia Act, rule 13.10 reflects the approach taken in s.17A of the Federal Magistrates Act 1999 (Cth) (FMA) (the equivalent of s.31A). French J explained his views in Fortron at [19] - [21] as follows:
- The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding.
- In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. For example, if a cause of action depends critically for its success upon the presence of the defendant at a particular place, at a particular time and the defendant is able to show, on affidavit, that he or she was not at that place at the particular time and there is no evidence to contradict that "alibi" then the judgment may be made that the proceeding has no reasonable prospect of success. In such a case judgment may be given for the defendant. Alternatively, if a defence is pleaded which depends critically for its success upon the defendant's denial that it was a party to a contract, then an affidavit by the applicant exhibiting the contract with the defendant's signature on it, supported by affidavits from witnesses to the execution of the contract by the defendant may be sufficient to support a judgment under s 31A. Of course, if the defendant were to file an affidavit in reply indicating that the material in the applicant's affidavit evidence was disputed, then it is unlikely that a finding could be made that the defendant had no reasonable prospect of success.
In reaching this conclusion French J departed from the views of Heerey J in Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; [2006] FCA 458 at [5] - [6] that s.31A of the Federal Court of Australia Act was introduced to establish a lower standard for strikeout applications.
In Vivid Entertainment LLC and Others v Digital Sinema Australia Pty Ltd and Others (2007) 209 FLR 212; [2007] FMCA 157 Denver FM also found (at [29]) that, s.17A of the FMA, like s.31A of the Federal Court of Australia Act has "nothing to do with striking out pleadings". His Honour suggested that s.17A:

[59]

In Balding v Ten Talents Pty Ltd & Anor (2007) 162 IR 17; [2007] FMCA 145 at [32] Lucev FM agreed with the views of French J and adopted them as applicable to summary dismissal applications under rule 13.10(a) of the FMC Rules notwithstanding that rule13.10 is not in identical terms to s.31A of the Federal Court of Australia Act. I agree and am not persuaded that rule 13.10 is a vehicle for dealing with deficient pleadings.
For the sake of completeness I indicate that I am of that view notwithstanding that the FMC Rules contain no direct equivalent to Order 11 rule 16 of the Federal Court Rules. While the FMC Rules originally made no provision for points of claim or pleadings, rule 4.05(2) (inserted in 2007) now permits proceedings to be commenced by application and a statement of claim or points of claim instead of by application accompanied by an affidavit. In that context a Note to rule 4.05 refers to the fact that s.43(2) of the FMA "provides for the Rules of Court made under the ... Federal Court of Australia Act 1976 to apply, with necessary modifications, to the practice and procedure of the Federal Magistrates Court for particular jurisdictions of the Court if the Rules are insufficient. Those Rules may be used to direct how pleadings are to be dealt with in the Federal Magistrates Court, if subrules 4.05 (2) and (3) apply."
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 to inform the respondents in advance of 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.
Notwithstanding that the proceedings in this instance are human rights proceedings to which Part 41 of Chapter 5 of the FMC Rules applies (so that proceedings must be commenced by an application in accordance with the approved form and rule 4.05 does not apply to such application), I am of the view that where the parties use pleadings or points of claim it is appropriate under rule 1.05(2) to have regard to the Federal Court Rules which deal specifically with pleadings in relation to any application to strike out pleadings or points of claim. Of course it is also open to a party to seek summary dismissal of a proceeding or claim for relief in an application (in which case rule 13.10 will apply). Rule 13.10 is apt to apply to proceedings and claims made in an application as distinct from paragraphs of pleadings or points of claim (see White Industries at [44] per Lindgren J).

[62]

I note that for the purposes of the Federal Court Rules, a pleading is defined not to include 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.
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:
- The fundamental thing to understand about the strike-out rule, which the language of O 11 r 16 itself makes clear, is that the rule is concerned only with the adequacy of the pleading (or to be more precise, the allegations and the causes of action asserted therein) as a matter of law. The rule does not permit or allow consideration of facts or evidence outside the pleadings: Dey v Victorian Railways Cmrs [1949] HCA 1; (1949) 78 CLR 62 at 91 and 109 ; [1949] HCA 1; [1949] ALR 333 at 347-8; see also General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 ; [1964] HCA 69; [1965] ALR 636 at 638 (General Steel). Indeed, as counsel for ANZ, Mr Archibald QC, correctly noted in his submissions, the court must, for purposes of deciding the strike-out motion and deciding whether a pleading discloses a reasonable cause of action, assume the truth of the allegations in the statement of claim and draw all inferences in favour of the non-moving party because the question is whether those allegations, even if proved, cannot succeed as a matter of law: General Steel at CLR 129; ALR 638.
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] FCR 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).
However, difficulties in distinguishing 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 further 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 or inadequate or to seek to address deficiencies in some other way.
The need for 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 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 pleading (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 for pleadings. In that context Lander J stated that the need for caution in summarily dismissing proceedings was even more obvious in the Federal Magistrates Court (and see Rana at [75]).
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]:
- There is in one sense a tension between the emphasis in this Court's Act and Rules which can be broadly said to require that matters proceed expeditiously and with as little formality as possible on the one hand and on the other hand, the requirement imposed by authority of long standing that pleadings adequately disclose the material facts alleged so as to enable the Respondents fairly to understand the case put against them.
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 the 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 and Ives at [13]). Moreover the need for informality does not extend to indulgences which may be likely to result in appellable error.
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 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. His Honour stated that the philosophy of the Act and intention of the Attorney-General at the time of introduction of the Bill establishing this court could not be ignored, Gordon J observed at [23]:
- It is true that 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.
On the other hand, if pleadings 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. That concern is of particular relevance where proceedings are, as in this case, based on legislation with detailed, specific provisions containing internal alternatives.
Having regard to the objectives in s.42 of the FMA and the discretionary nature of the Court's power to control pleadings or points of claims, these observations are in point.
It is appropriate to consider first whether any part of the points of claim should be struck out under Order 11 rule 16 of the FMC Rules. 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).
Similarly 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 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).
In the 2009 proceedings Ms Davidson alleges that each of the respondents engaged in victimisation and discrimination on the basis of what may be described as two separate kinds of conduct:
- (1) The non-payment by McCanns of what was alleged to be Ms Davidson's termination entitlement on 9 February 2007 or at any time following (the McCanns action referred to in paragraph 11 of the points of claim). It appears to be alleged that this conduct is both an unlawful act by McCanns as an employer within s.14(2)(d) of the SDA and also an act of victimisation by McCanns within the meaning of s.94(1) of the SDA, in each case caused, instructed, aided and/or permitted by Mr Brown and Baker and McKenzie.
- (2) What may be called the Mr Brown conduct, which is said to take two forms:
  - (a) the "Conciliation conduct" (paragraph 15 of the points of claim) which relates to alleged conduct of Mr Brown at a conciliation meeting at HREOC (now the Australian Human Rights Commission) on 22 January 2008. He is said to have failed to acknowledge Ms Davidson's presence, ignored her when she attempted to introduce herself and made rude and flippant comments about her complaint. It is alleged that this was an act of victimisation by Mr Brown and "through him" by Baker and McKenzie and "by retainer and agency" by McCanns which was intended to and subjected or threatened to subject Ms Davidson to a detriment on the ground she had made a complaint under the SDA.
  - (b) the "Dinner Party Conduct" (paragraph 23 of the points of claim) which refers to a conversation Mr Brown was said to have had with a colleague of the applicant at a dinner party in relation to her prospects of success in the 2008 proceedings against McCanns. This is also said to be conduct of Mr Brown amounting to an act of victimisation and "through him" Baker and McKenzie and "by retainer and agency" conduct by McCanns.

[67]

The first respondent seeks that paragraph 5 be dismissed or struck out. In the alternative, it seeks, as do the second and third respondents, that 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.
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 5 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 5, 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 should be struck out.
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.
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 retainer to provide advice in relation to employment related matters, including to initiate or defence actions and potential actions in a number of fora. 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.
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 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.
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 McCanns and Baker and McKenzie may be relevant to the 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 conciliation conduct and the dinner party conduct) was conduct by him and "through him" by Baker and McKenzie "and by retainer and agency" by McCanns (for example paragraphs 16 and 24) and on this basis it was said that the relevance of the general retainer was apparent.
This part of the points of claim is central to the applicant's contentions in relation to the liability of McCanns for the Mr 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 McCanns has engaged in victimisation under s.94 of the SDA, conduct constituting unlawful discrimination under the HREOC Act and, in addition, that McCanns has committed acts of discrimination against the applicant in s.14(2)(d) by subjecting her to a detriment that in turn is said to have been conduct "caused, instructed, aided and/or permitted" etc by Mr Brown and Baker and McKenzie who are similarly said to have done the alleged unlawful acts in s.14(2)(d) of the SDA within s.105 of the SDA.
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.
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). However there is not sufficient detail in the points of claim to enable the respondents to know with any precision what case they have to meet in this respect. The subsequent references to "by retainer and agency" are at too great a level of generality.
Paragraph 5 is of cardinal importance to the applicant's claims, in particular in relation to the alleged Mr Brown conduct. 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 as discussed further below, the later references to "by retainer and agency" should be struck out, but the applicant should have the opportunity to plead 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.
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, I am not satisfied that the claims for relief in the application against McCanns to the extent that they rely on paragraph 5 should be summarily dismissed at this stage, albeit the respondents would not be precluded from pursuing any application for summary dismissal of the proceeding or claims for relief in the application after the applicant has the opportunity to amend the points of claim.

[73]

Paragraph 12 of the points of claim is as follows:
- The failure by the First Respondent to fulfil the commitments expressed in the 2 February Letter was conduct by the First, Second and Third Respondents, which was intended to, and did, subject the Applicant to a detriment on the ground that the Applicant had:
  - (a) proposed to make a complaint under the Sex Discrimination Act 1984 (Cth) or the Human Rights and Equal Opportunity Commission Act 1986 (Cth); and or
  - (b) reasonably proposed to assert her rights under the Sex Discrimination Act 1984 (Cth) or the Human Rights and Equal Opportunity Community Act 1986 (Cth).
In essence the second and third respondents sought that paragraph 12 be struck out and the reference to "and caused, instructed, aided and/or permitted by the Second and Third Respondents" be struck out in paragraph 11. If that were not to be done, then at the least, in relation to paragraph 11 the applicant ought to be required to plead the material facts on which the applicant relied to make such a serious allegation.
In relation to the words "and caused, instructed, aided and/or permitted by the Second and Third Respondents" in paragraph 11 it was suggested that this part of the points of claim was not otherwise supported by any allegation of fact in the points of claim. It was said that to suggest that a lawyer was liable in circumstances where a client acted in accordance with advice from the lawyer (if that were the case) in the absence of some clearly particularised allegation of mala fide on the part of the lawyer, or that the lawyer was in some way in control of the conduct of the client, so that it could be suggested that Baker and McKenzie and Mr Brown "caused, instructed, aided and/or permitted" McCanns to act as it was said to have done was novel and that if successful this claim would turn the law, including the law of privilege, on its head.
It was also contended that insofar as the applicant seemed to be asserting that the liability of the second and third respondents arose by virtue of the retainer, there was no explanation for this and that it would appear to be without foundation insofar as what was being alleged was that the second and third respondents "caused, instructed, aided and/or permitted" the first respondent not to pay the applicant her "legal entitlements", so that this part of the points of claim should be struck out.
Similarly it was said that, at the least, the reference in paragraph 12 to the second and third respondents should also be struck out on the basis that the claim in paragraph 12 against the second and third respondents followed from the allegation in paragraph 11 that Baker and McKenzie and Mr Brown "caused, instructed, aided and/or permitted" McCanns not to pay Ms Davidson her "_legal entitlement_s".
More generally, counsel for the first respondent contended that the whole of paragraph 12 should be struck out on the basis that it was bad in form and incapable of being pleaded to by the respondents and that if it was struck out would follow that the same should apply to paragraphs 7 to 11. These contentions were supported by counsel for the second and third respondents.
The first respondent contended that it was unable to respond and could not properly understand what was being alleged in paragraph 12. There were said to be no particulars provided as to what the "commitments" were that the first respondent failed to honour, how it was that the applicant had been subjected to "a detriment" and by what conduct the first respondent had "intended to" and then subjected the applicant to "a detriment" and hence that paragraph 12 was embarrassing.
It was submitted that if what was being alleged was a complaint of victimisation under s.94 of the SDA (which is consistent with the reference to conduct in paragraph 11 and paragraph 28 of the points of claim), there was an obligation on the part of the applicant to identify the facts, matters and circumstances relied on in order to assert that the applicant proposed to make a complaint or to assert her rights under the SDA or the HREOC (now AHRC) Act, and then how it was that the first respondent had subjected her to "a detriment" in circumstances where that was a substantial or operative factor in the first respondent's decision-making and then to properly identify the detriment.
Counsel for the first respondent also pointed out that while paragraph 12 asserted a causal connection between the detriment and the applicant's proposal to make a claim under the SDA and the HREOC Act, ultimately it was not pleaded with respect to the victimisation provisions in relation to which relief was sought in paragraphs 28 and 29 of the points of claim (which refer to paragraphs 11, 14, 15 and 20 - 23), so that it was difficult to see how paragraph 12 bore any relevance to what was ultimately claimed by the applicant in these proceedings.
Counsel for the applicant submitted that one needed to read the allegation in paragraph 12 in conjunction with what was pleaded in the paragraphs preceding, in particular from paragraphs 8 to 11.
The applicant submitted that the matters, facts and circumstances that gave rise to the allegation in paragraph 12 were apparent from the preceding four paragraphs, and that ultimately, whether or not that made out an allegation that the applicant proposed to make a complaint under the SDA was a matter that should be left for the trial, but that the factual basis for that allegation was contained in the points of claim. In particular it was said that paragraph 10 supported or gave rise to the allegation of a detriment on the ground that the applicant had proposed to make a complaint under the SDA or reasonably proposed to assert her rights under the SDA or HREOC Act (now the AHRC Act).
These paragraphs do not sufficiently identify the manner in which the second and third respondents are each said to have "caused, instructed, aided and/or permitted" McCanns not to pay Ms Davidson her "legal entitlements". In particular, it is not clear whether paragraphs 8 to 10 are intended to assert this or whether, as appeared from the applicant's submissions, the retainer between the first and second and third respondents is in some way relied upon. The part of paragraph 11 in relation to the second and third respondents simply asserts a conclusion in terms of s.105 of the SDA (presumably on the basis that the conduct alleged is said to be discrimination by McCanns within s.14(2)(d) of the Act). While this would not of itself lead to striking out of the pleading, the facts have been pleaded with too great a level of generality, such that the second and third respondents cannot know with any precision what case they have to meet.
It appears from paragraph 28 of the points of claim that paragraph 11 is also relied on to assert an act of victimisation by the first, second and third respondents. There is authority that suggests that ss.105 and 106 of the SDA do not provide for vicarious liability for victimisation contrary to s.94 of the SDA (see Taylor v Morrison & Ors [2003] FMC 1879 in which it was suggested at [22] that there were substantial arguments that common law principles of vicarious liability applied to such claims and Lee v Smith at [211] - [213]). Counsel for the applicant contended, but did not establish in these proceedings, that s.105 could apply because the HREOC Act (now the AHRC Act) meant that victimisation was unlawful discrimination within Part II of the SDA.
In any event, whether the applicant intends to allege statutory vicarious liability for both discrimination and victimisation or to rely on the common law, the parts of paragraphs 11 and 12 that refer to the second and third respondents, even when read in the context of paragraphs 8 to 11, should be struck out. However the applicant should have leave to replead to clarify the material facts on which the claim that the second and third respondents each "caused, instructed, aided and/or permitted" McCanns not to pay Ms Davidson her "legal entitlements" is based. The recital of negotiations and correspondence between Baker and McKenzie and the applicant's solicitors is not sufficient to plead the case that the second and third respondents each have to meet.
The respondents are also entitled to understand exactly when it was said the applicant proposed to make a complaint or assert rights and what were the rights that were to be asserted. The pleading is at too greater level of generality. However the applicant has sought leave to replead aspects of this part of the points of claim. Rather than striking out the whole of paragraph 12 in its application to the first respondent, I consider it is appropriate that the applicant have leave to amend the points of claim to address the issues raised by the first respondent as well as the opportunity to replead the material facts relied on in relation to the second and third respondents.

[74]

Paragraphs 14 to 16 of the points of claim are as follows:
- 14. On 22 January 2008, the Applicant, together with her legal representatives, met with Mr Reg Davidson, Chief Financial Officer of the First Respondent, and the Second Respondent at the premises of HREOC in an attempt to conciliate the matter.
- 15. During the course of this conciliation, the Second Respondent ("Conciliation Conduct"):
  - (a failed to acknowledge the presence of the Applicant;
  - (b) ignored the Applicant when she attempted to introduce herself to him;
  - (c) ignored the Applicant when she read her account of the subject matter of her complaint; and
  - (d) made rude and flippant comments about the Applicant's complaint.
- 16. The Conciliation Conduct was conduct by the Second Respondent, and through him, the Third Respondent, and by retainer and agency, by the First Respondent, which was intended to, and did, subject, or threaten to subject the Applicant to a detriment on the ground that the Applicant had made a complaint under the Sex Discrimination Act 1984.
The first respondent sought orders dismissing or striking out paragraph 15 and the second and third respondents sought that paragraphs 14 to 16 be dismissed or struck out.
The basis on which it was contended that these paragraphs and the underlying claims should be dismissed is that the conduct alleged in paragraph 15 and relied on in paragraph 16 was conduct which occurred during conciliation before the Human Rights and Equal Opportunity Commission (as it then was) and that there was an agreement between the parties that it was confidential and in the nature of a without prejudice discussion. The respondents contended that what occurred in the conciliation on 22 January 2008 was privileged for the purposes of s.131(1) of the Evidence Act, and that the paragraphs should be struck out or dismissed on the ground that they related to privileged discussions. It is apparent that the respondents sought not only that these paragraphs be struck out but also that the claims for relief should be permanently dismissed against all of the respondents insofar as they were based on these allegations. Section 131(1)(a) of the Evidence Act provides that evidence is not to be adduced of "a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute".
It was in that context that reliance was placed on an affidavit of Reginald Davidson, Chief Financial Officer of McCanns sworn on 18 March 2009 as to an agreement between the parties about the confidentiality of the conciliation meeting.
The respondents referred to the fact that the applicant had not relied on any evidence to disprove the existence of such an agreement and submitted that as a consequence the court should accept that this part of the points of claim and the claims for relief should be stayed, dismissed or struck out as they purported to disclose or related to matters that occurred during discussions that were privileged. It was said that the claim for relief in this respect should be dismissed or stayed as lacking reasonable prospects of success. Hence it was said that it followed that all of paragraphs 13 - 16, under the heading "The First Complaint" should be struck out.
Apart from the argument based on s.131(1) of the Evidence Act, the respondents contended that in paragraph 15 no fact was alleged that would constitute rude and flippant comments, and that the allegations in paragraphs 13 - 16 rose no higher than an allegation that the applicant was not acknowledged by the solicitor for McCanns at the conciliation hearing in circumstances where she was represented by her own solicitor. It was submitted that the conciliation conduct alleged could not reasonably be considered as subjecting the applicant to, or threatening to subject the applicant to, a detriment on the ground that she had made a complaint under the SDA.
In relation to the allegation that the communications were privileged pursuant to s.131(1) of the Evidence Act, counsel for the applicant submitted that the exclusion in s.131(2)(j) of the Evidence Act would be in point. That subsection provides that the exclusion in s.131(1) does not apply if "the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty". It was submitted that assuming that s.131(1) did apply, albeit it was said to relate to the adducing of evidence and not to determining whether one would strike out points of claim, reliance would be placed by the applicant on the exemption in s.131(2)(j) on the basis that a communication was made in the furtherance of a commission of an offence, notwithstanding that these proceedings are not a prosecution. It was submitted that it was open for the court to determine in the final hearing whether the "offence" of victimisation had been made out.
The applicant submitted that the court should not, at this stage, strike out the allegations as they related to the conciliation conduct simply on the basis that evidence of that was confidential and would be excluded at the hearing, as it was arguable that the exemption in s.131(2)(j) would apply so that the evidence could be adduced.
Insofar as it was contended that these paragraphs lacked a reasonable prospect of success or disclosed no reasonable cause of action, it was submitted that this was not a Court of strict pleading (see O'Connor v Ross & Anor (No.1) [2002] FMCA 210 at [13]) and that when one considered the matters pleaded in paragraphs 14 - 16 in light of the detriment said to have been sustained as a consequence of the conduct pleaded in paragraph 26, these were the central factual bases that made up the claim of victimisation relied upon by the applicant.
The applicant submitted that the circumstances that were said to give rise to the alleged victimisation were set out and properly pleaded in paragraph 15 as conduct of the second respondent. It was submitted that the claim that no "detriment" had been pleaded could not be maintained as the detriment was set out in paragraph 26 (which refers to "significant stress, anxiety, hurt, humiliation and embarrassment"). It was also suggested that this issue could have been resolved between the parties by a request for particulars as to what parts of the claim set out the material factual basis for other allegations. Ultimately, it was contended that whether the facts pleaded in paragraphs 15 and 16 and the detriment rose high enough to make out the claim of victimisation was a matter to be determined at the trial.
In relation to the submission that paragraph 15 did not allege factors that would constitute rude and flippant comments, it was said that this was not a basis to strike out parts of the points of claim and that evidence would have to be adduced by the applicant in order to make out that allegation.
I note in relation to the application to strike out this part of the points of claim as disclosing no reasonable cause of action, that, as Finkelstein J pointed out in Imobilari at [4], Order11 rule16 "is concerned only with the adequacy of the pleading_...as a matter of law. The rule does not permit or allow consideration of facts or evidence outside the pleadings"_.
While the prohibition on the adducing of evidence in s.131(1) of the Evidence Act is widely expressed and does not appear to allow for any discretion to overcome the exclusion in circumstances outside the specified exceptions in s.131(2), it is necessary to bear in mind that it is a prohibition on the adducing of evidence. The operation of the exclusion would have to be considered in relation to the particular evidence in issue (and whether that was a "communication" or "document" within s.131(1)(a) or (b)). Given the possible availability of an exception in s.131(2) (notwithstanding that paragraph (j) refers to "commission" of an offence), I am not persuaded that paragraph 15 should be struck out as disclosing no reasonable cause of action. This issue should not be determined until after the evidence in question is filed.
In the alternative, it was submitted that the claims for relief based on the conciliation conduct should be summarily dismissed as lacking reasonable prospects of success. I have borne in mind that rule 13.10 imposes a lower standard than that imposed in General Steel Industries Inc. v Commissioner of Railways (N.S.W) and Others (1964) 112 CLR 125; [1964] HCA 69 where the requirement was expressed in terms of whether the action was "manifestly groundless" or "obviously untenable".
However as Tamberlin J stated in Hicks v Ruddock [2007] FCA 299 at [13]:

[76]

I do have some concern about the utility of allowing this part of the proceedings to go to trial (see Boston Commercial Services) given the nature of the claims and the fact that it may emerge when the affidavit evidence of the applicant is filed that s.131(1) of the Evidence Act is clearly applicable and that s.131(2) does not apply. I have also borne in mind that in Bender v Bovis Lead Lease Pty Ltd (2003) 175 FLR 446; [2003] FMCA 277 McInnis FM ruled at a preliminary stage that in proceedings under the HREOC Act and SDA an applicant could not rely upon evidence in an affidavit of statements made at a HREOC conciliation hearing held "in private" under s.46PK(2) of the HREOC Act (now the AHRC Act) (see rule 15.29 of the FMC Rules). McInnis FM had regard to s.46PS(2) of the HREOC Act (now the AHRC Act) which prevents the President of the Commission from including in any written report on a terminated complaint anything said or done in the course of conciliation proceedings including anything said or done in a conference. His Honour was of the view that to permit the applicant to rely on such evidence would be inconsistent with the spirit and intent of the HREOC Act (at [34] and also see Treacy v Williams [2006] FMCA 1336). However that is a matter that should be determined after the affidavit evidence is filed (see rule 15.29 of the FMC Rules).
Further, subject to the application of s.131(1) of the Evidence Act and the issue of whether what was said at a HREOC conciliation conference can be relied on, and also having regard to the need for flexibility and s.42 of the FMA, what was allegedly said by way of comments can be sufficiently disclosed by evidence in these proceedings. The issue of whether the alleged conduct would be considered as subjecting the applicant to a "detriment" on the ground that she had made a complaint under the SDA is a matter for the hearing.
Having regard to the fact that there are limits on the scope of s.131(1) of the Evidence Act and the exceptions in s.131(2), Mr Davidson's evidence is not such as to reasonably exclude the possibility that facts essential to the success of this part of the claim will be able to be established (see Foxtron Automotive Treatment Pty Ltd v Jones (No 2) at [20]). The respondents have not met the heavy onus of establishing that the claim for relief has no reasonable prospects of success.
However, as discussed in relation to paragraph 5 of the points of claim, I accept the first respondent's submissions that that part of paragraph 16 which reads "and by retainer and agency, by the First Respondent" should be struck out. This paragraph (with paragraph 5) is the basis for allegations of both victimisation and discrimination by McCanns in relation to the conciliation conduct of Mr Brown.
Paragraph 29 relevantly pleads that in "acting as pleaded" in paragraphs 14 and 15 and also the paragraphs relating to the dinner party conduct, the first, second and third respondents "committed acts of victimisation" against the applicant. Paragraph 31 pleads that in "acting as pleaded" in each of paragraphs 14 to 16 (and 20 to 24) the first respondent, "caused, instructed, aided and/or permitted by the Second and Third Respondents, by reason of the Applicant's sex namely female, treated the Applicant less favourably than they would have treated a person of the opposite sex in circumstances that were the same or not materially different" (which by paragraph 32 is said to constitute discrimination by the first respondent "caused, instructed, aided and/or permitted by the Second and Third Respondents"). These paragraphs do not sufficiently clarify the bases for these claims.
The pleadings in relation to the first respondent and the conciliation conduct is at such a level of generality that the first respondent cannot know the case it has to meet. This part of paragraph 16 should be struck out, but the applicant given leave to replead in relation to the material facts that are said to form the basis for the allegations against McCanns in relation to the conciliation conduct.

[77]

Paragraph 24 of the points of claim is as follows:
- The Dinner Party Conduct was conduct by the Second Respondent, and through him, the Third Respondent, and by retainer and agency, by the First Respondent, which was intended to, and did, subject, or threaten to subject the Applicant to a detriment on the ground that the Applicant had brought proceedings under the Human Rights and Equal Opportunity Act 1986 and Sex Discrimination Act 1984.
The first respondent seeks that the part of paragraph 24 which reads "...and by retainer and agency, by the First Respondent" should be dismissed or struck out. The second and third respondents seek that paragraph 24 be struck out as against the third respondent (that is, by striking out the words "and through him, the Third Respondent").
The first respondent contended that it could not plead to paragraph 24 as it was unintelligible and vexatious. In written submissions objection was taken to various parts of the points of claim that asserted that the first respondent was liable "by retainer and agency". There was said to be a failure to identify the basis upon which the first respondent may at law be liable for the conduct of its agent. It was also suggested that s.94 of the SDA (the victimisation provision) was intended to be limited to acts by the person who subjected or threatened to subject another person to any detriment, consistent with the fact that while the SDA contemplated third party liability for aiding and abetting an unlawful act (at s.105) and vicarious liability for the acts of employee or agent (at s.106), those provisions related only to unlawful conduct under Part II of the Act, not to Part IV in which s.94 appears. It was contended that Ms Davidson had not sufficiently pleaded the basis upon which the first respondent may be liable for conduct within s.94.
These submissions were repeated in oral submissions for the first respondent. It was contended that while paragraph 24 sought to make McCanns liable for the dinner party conduct as pleaded in paragraph 23 (being alleged to be a conversation between Mr Brown and a Mr Titterton at a dinner party in relation to the applicant's prospects of success in her claims against McCanns), the pleadings failed to assert the facts, matters and circumstances upon which it could be said that McCanns, by its agency or retainer, was liable for such alleged conduct. In addition, while it was asserted that this somehow subjected the applicant to a detriment under the Act, the points of claim failed to say how it was that McCanns could be liable for this.
Counsel for the first respondent referred to the fact that the claim for relief relied on with respect to paragraph 24 (and also paragraph 16), was in paragraph 31 which related to discrimination (not paragraph 29 which related to victimisation) and seemed to plead that the first respondent was "caused, instructed, aided and/or permitted by the Second and Third Respondents, by reasons of the Applicant's sex namely female, [to treat her] less favourably than they would have treated a person of the opposite sex in circumstances that were the same or not materially different". However there was said to be a failure to identify the facts, matters and circumstances upon which this could be alleged.
With respect to the claim against McCanns based on paragraph 24, reliance was also placed on the evidence of Mr Davidson, in a second affidavit sworn on 18 March 2009, that he had "not instructed or authorised" Baker and McKenzie to discuss the applicant or details of the proceedings with any person not directly concerned with the proceedings, and that he was "not aware" of the dinner party conduct.
In these circumstances it was submitted that not only had there been a failure to identify how it was that McCanns authorised, instructed or permitted the dinner party conduct, but also that there was clear evidence from the first respondent that there would be and could be no evidence of that kind.
The second and third respondents contended that paragraph 24 of the claim should also be struck out as against Baker and McKenzie as lacking reasonable prospects of success, or as failing to disclose a reasonable cause of action. It was submitted that the facts pleaded in respect of the dinner party conduct concerned events of a private, not professional, nature and were well outside the scope of any normal retainer by a solicitor. (See Walmsley, Abadee and Zipser, Professional Liability in Australia (2002) at 3.120 to 3.130).
In oral submissions counsel for the second and third respondents clarified that it was submitted the words "and through him, the Third Respondent" should be struck out, insofar as what was pleaded was that through the Mr Brown conduct, Baker and McKenzie subjected, or threatened to subject, the applicant to a detriment. It was submitted that the general context in which a solicitor acts for a client did not include a conversation at a dinner party, and that on the face of the pleading the conduct alleged was well outside of what might be regarded as the general scope of the solicitor's authority, so that to make an allegation against Baker and McKenzie by simply alleging "through him" in relation to Mr Brown, was entirely deficient. In the alternative, if the allegation was to be made, the material facts which were relied upon to make that allegation ought to be identified, or the allegation should not be made and it should be struck out.
Counsel for the applicant contended that the applicant did not by this proceeding seek to prosecute the first, second or third respondents for an offence under the Act. Rather it was alleged that the conduct engaged in amounted to victimisation under s.94(2) and that such conduct was unlawful discrimination that had been the subject of the complaint to HREOC within the HREOC Act (now the AHRC Act).
Insofar as the first respondent sought to strike out the words "... and by retainer and agency, by the First Respondent", it was submitted that this paragraph needed to be read in conjunction with paragraph 5 where it was pleaded that the second and third respondents were, at all material times, the solicitors for the first respondent, and that whether the scope of the retainer did extend to authorise the particular conduct of the second and third respondents was a matter to be properly determined upon the evidence adduced at the trial. There was said to be nothing objectionable about the allegation that was made.
There is a distinct lack of clarity about this aspect of the points of claim. The reference to the first respondent should be struck out, notwithstanding the need to consider this part of the points of claim in conjunction with paragraph 5 (as to which see above), paragraph 29 (which alleged that in acting as pleaded in paragraphs 20 to 23 the respondents committed acts of victimisation) and paragraph 31 which pleads "[f]urther" that in acting as pleaded in paragraphs 20 to 24 the first respondent "caused, instructed, aided and/or permitted by the Second and Third Respondents" treated the applicant "less favourably than they would have treated a person of the opposite sex in circumstances that were the same or not materially different".
The dinner party conduct allegedly engaged in by Mr Brown is said to constitute both victimisation by Mr Brown and "through him" Baker and McKenzie for which the McCanns is liable "by retainer and agency" and also discrimination by the McCanns apparently within s.14(2)(d) that was caused etc by the second and third respondents. The material facts asserted as the basis on which the first respondent may at law be liable for the conduct of its agents (or liable under s.94) has not been pleaded.
As discussed above in relation to paragraph 5 I am of the view that this part of paragraph 24 should be struck out in relation to the first respondent but that the applicant should have leave to replead.
I also agree that the pleading is deficient and should be struck out in relation to the second respondent insofar as it does not set out the material facts relied on to make the allegations against Baker and McKenzie in relation to the dinner party conduct, but I am of the view that the applicant should have leave to amend the points of claim to identify the material facts relied in this respect.
However I am not satisfied that the claim for relief in the application based on the dinner party conduct should be summarily dismissed. While there is much force in the respondents' submissions (and I have had regard to Mr Davidson's evidence), on balance I consider while the pleadings are deficient, it is appropriate that the applicant, who appears to rely on a general retainer or agency to assert liability on the part of McCanns, should have the opportunity to plead a reasonable cause of action in this respect in amended points of claim (see White Industries at [47]).

[79]

Paragraph 28 pleads that in acting as pleaded in paragraph 11 the first, second and third respondents committed an "act of victimisation" against the applicant within the meaning of s.94(1) of the SDA. Paragraph 29 states that "[i]n acting as pleaded in each of paragraphs 14, 15 and 20 to 23, the First, Second and Third Respondents committed acts of victimisation against the Applicant within the meaning of subsection 94(1) of the Sex Discrimination Act 1984 (Cth)".
The respondents submitted that the allegation in paragraph 28 was unintelligible and should be struck out as not disclosing a reasonable cause of action or dismissed as lacking reasonable prospects of success. The submissions in relation to paragraph 11 were said to apply equally to paragraph 28. In addition it was submitted that no allegation of fact was made of any conduct described in s.94(2) of the SDA, an essential requirement for the allegation of victimisation.
The first respondent submitted generally in relation to the claim of victimisation that in paragraphs 28 and 29 Ms Davidson had failed to plead the basis upon which this conduct constituted victimisation, in that she failed to plead the facts, matters and circumstances on which she alleged that she proposed to make a complaint, or reasonably proposed to assert her rights under the anti-discrimination legislation prior to suffering the alleged act of victimisation and the facts, matters and circumstances by which the act of victimisation was taken for a prohibited reason, that was a "substantial and operating factor" (see Penhall-Jones v NSW [2007] FCA 925 at [69]; Lina Obieta v New South Wales Department of Education and Training and Ors [2007] FCA 86 at [240]; Huang v University of New South Wales & Ors [2008] FMCA 11 at [120]; Damiano & Anor v Wilkinson & Anor [2004] FMCA 891 at [22]). In addition, it was contended that the facts, matters and circumstances on which Ms Davidson alleged that she had suffered some detriment as a result of the act of victimisation, and the basis upon which McCanns was liable for the alleged conduct were not pleaded.
It was acknowledged that there could be a civil claim in relation to acts within s.94(2) as unlawful conduct within the meaning of s.3 of the then HREOC Act (see O'Connor v Ross). However it was submitted that it was not clear from the pleading how it was that the allegation of victimisation was brought. Nor was it said to be clear how McCanns could be said to be liable (as the person who engaged in the act of victimisation under the Act was not identified) or how the conduct, taken at its highest, could constitute victimisation.
Indeed, it was submitted in relation to paragraph 28 that, taken at its highest, there was no reasonable prospect of success that the applicant would be able to prove that there was a causal relationship between the asserting or bringing of claims and the act complained of (the McCanns conduct), such that the victimisation occurred, or that there was any detriment.
Counsel for the second and third respondent pointed out that in the application of 12 January 2009 the applicant sought a declaration in respect of all the respondents having engaged in conduct contrary to s.94(1) of the SDA. It was suggested that the Court would not have jurisdiction in respect of either of the second or third respondents for a claim under s.94(1) of the SDA. Counsel for the applicant explained that victimisation under s.94(1) of the SDA was relied on as constituting unlawful discrimination under ss.3 and 46PO of the then HREOC Act. Leave was sought (and granted) to amend the points of claim to make this clear.
The applicant also contended that the facts, matters and circumstances on which it was alleged that Ms Davidson proposed to make a complaint, or reasonably proposed to assert her rights under the legislation referred to in paragraph 28, were pleaded in paragraph 11 when read in context with the earlier paragraphs which set out the factual basis on which it was said that the victimisation was pleaded as constituting the withholding of particular benefits which had been the subject of discussions. It was also said that it was apparent from these earlier particulars that the applicant reserved her rights in relation to what she said was discriminatory conduct and that this was an assertion of the rights that she possessed.
The applicant submitted that it was clearly asserted that as a consequence of this assertion of rights, the commitment to provide the particular redundancy benefits had not been met. These facts and circumstances were said to adequately set out the basis of the victimisation claim in paragraph 28. The detriment was said to be clearly observable or understandable from the factual pleading, in particular, paragraph 11. Again, it was said that whether these allegations did make out a claim for victimisation under the Act was a matter for the hearing but that it could not be said that the allegation was clearly untenable such that it should be struck out at this stage. The applicant submitted that the same could be said in relation to the facts, matters and circumstances in relation to whether the act of victimisation was for a prohibited reason and was a substantial and operating factor.
Subject to what is said elsewhere in relation to the points of claim in relation to the second and third respondents in relation to the McCanns action, and bearing in mind the need for flexibility and s.42 of the FMA, I accept that from the points of claim as a whole it is apparent that the applicant's allegation is that the detriment she sustained as a consequence of the claimed "victimisation" pleaded in paragraph 28 was the non-payment of benefits under a contract as pleaded in the earlier paragraphs. The suggested deficiencies in form are not such as to satisfy me that paragraph 28 should be struck out, given that the applicant seeks (and should have) leave to amend the points of claim to clarify the basis for the claim. However, as set out above, in light of the fact that the references to the second and third respondents in paragraph 11 should be struck out, the references to them in paragraph 28 are irrelevant and for that reason embarrassing and should also be struck out. If the applicant does replead in relation to the material facts constituting the basis for alleged liability of the second and third respondents for the McCanns action it will be a simple matter to also replead paragraph 28 in this respect.
Paragraph 29 was the subject of similar submissions. It relates to the Mr Brown conduct. There is nothing in paragraphs 14, 15 or 20 to 23 to support the references to acts of victimisation by the first respondent. The references to the first respondent in paragraphs 16 and 24 have been struck out. The reference to the first respondent in paragraph 29 should be struck out as irrelevant and hence embarrassing. The same cannot be said in relation to the third respondent insofar as paragraphs 14 to 16 have not been struck as sought, although there is no reference to the third respondent in paragraphs 20 to 23. Leave should be given to replead this paragraph to reflect this.
Otherwise, subject to what is said above in relation to paragraphs 14, 15 and 20 - 23, the manner in which the material facts and circumstances that gave rise to the alleged act of victimisation consisting of the conciliation conduct and the dinner party conduct are set out in the points of claim (and see paragraphs 26 and 27) is not such as to justify striking out the points of claim (subject to clarification of the material facts forming the basis on which the first and third respondents are said to be liable for the alleged acts of victimisation).
Nor am I satisfied that the claims underlying paragraphs 28 and 29 have been shown to have no reasonable prospects of success based on the suggested inadequacy of the points of claim.

[80]

These paragraphs appear under the heading "Discrimination" and are as follows:
- 30. Further, in acting as pleaded in paragraph 11, the First, Second and Third Respondents, by reason of the Applicant's sex namely female, treated the Applicant less favourably than they would have treated a person of the opposite sex in circumstances that were the same or not materially different.
- 31. Further, in acting as pleaded in each of paragraphs 14 to 16 and 20 to 24, the First Respondent, caused, instructed, aided and/or permitted by the Second and Third Respondents, by reason of the Applicant's sex namely female, treated the Applicant less favourably than they would have treated a person of the opposite sex in circumstances that were the same or not materially different.
- 32. The First Respondent, caused, instructed, aided and/or permitted by the Second and Third Respondents, discriminated against the Applicant on the grounds of her sex by subjecting the Applicant to detriment as pleaded in each of paragraphs 25 to 27.
The second and third respondents sought that these paragraphs be dismissed or struck out. The first respondent sought that they be struck out in relation to the first respondent.
The second and third respondents submitted that these paragraphs provided no allegation of discrimination within the meaning of the SDA, and no particulars of facts and circumstances regarding the circumstances in which it was said any relevant discrimination occurred, and hence should be struck out. The second and third respondents contended that to the extent that paragraph 31 relied on paragraphs 14 to 16, if those paragraphs were struck out, the relevant part of paragraph 31 should correspondingly be struck out. Similarly, it was contended that parts of paragraph 31 relied on paragraphs 20 - 24 with respect to the third respondent and should be struck out if those paragraphs could not stand. Indeed, it was submitted that so far as it affected the third respondent, the whole of the claim should be struck out and that it would only be to the extent that an allegation would otherwise be made against the second respondent in respect of paragraphs 20 - 24, that paragraph 31 could stand.
In addition paragraphs 31 and 32 were said to provide no particulars of the facts and circumstances on which the applicant relied to allege that the McCanns conduct was "caused, instructed, aided and/or permitted" by alleged conduct of the second or third respondents.
The first respondent said in points of defence that paragraph 30 was "unintelligible" and "vexatious", and that the applicant did not plead the basis on which the first respondent was liable under the SDA. In oral submissions, counsel for the first respondent contended that Ms Davidson had failed to plead how it was that she was treated less favourably, who was the relevant comparator and how she was able to assert this and how the first respondent could be liable, whether it was by virtue of vicarious liability, aiding and abetting, or otherwise.
Even if that were not the case, it was submitted that paragraph 30 failed to identify the material facts which led to a conclusion that there was less favourable treatment. In Davids Holdings Pty Limited v Coles Myer Limited & Ors (1993) ATPR 41 - 227 Spender J held that it was embarrassing within the meaning of Order 11 rule 16 of the Federal Court Rules to simply plead a conclusion, rather than pleading the material facts that lead to the allegation of less favourable treatment.
In relation to paragraph 31 it was submitted that the conduct in itself was not sufficient to constitute unlawful conduct under the Act and that it was unclear how the liability of the first respondent was asserted. It was said that to the extent that it was asserted that paragraphs 14 - 16 and 20 - 24 could be relied upon to particularise that basis, there were deficiencies in those paragraphs that did not answer the first respondent's contentions. In relation to paragraph 32 it was further contended that it was unintelligible and vexatious, and that it did not plead the basis upon which the first respondent was liable under the SDA and did not plead any facts, matters or circumstances upon which it was alleged that the first respondent caused, instructed, aided and/or committed by the second and third respondents
With respect to the conciliation conduct and the dinner party conduct, there was said to be no basis upon which it could be asserted, that by virtue of retainer and agency the first respondent instructed, aided or permitted the conduct to take place and on that basis the claim for relief which was sought as a result of paragraphs 30 - 32 should be dismissed against the first respondent. .
The applicant acknowledged that the discrimination relied on in paragraphs 30 - 32, and the basis on which that discrimination was alleged needed to be repleaded. However no proposed amendment is before the Court.
In relation to the pleading of conclusions it is relevant to have regard to what Drummond J stated in Queensland v Pioneer Concrete:

At a glance

Court

Decision date

Source

Judgment (88 paragraphs)

Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957 (1 October 2009)

Parties

Legislation Cited (8)

Cases Cited (23)