Consideration
33 The critique of Capt Boucaut-Jones of the amended statement of claim had a dual aspect. Counsel submitted first, that the statement of claim did not comply with the pleading rules as it did not plead the material facts necessary to make out the causes of action on which the FWO relies. Secondly, counsel contended that the conspiracy pleaded in [68] of the amended statement of claim was not the kind of conspiracy to which s 550(2)(d) refers.
34 Rule 16.02(1)(d) of the Federal Court Rules 2011 (pursuant to which the amended statement of claim was filed) requires a pleading to state the material facts on which a party relies which are necessary to give the opposing party fair notice of the case to be made against that party at trial. Rule 16.02(2) requires that a pleading not be evasive or ambiguous, or be likely to cause prejudice, embarrassment or delay in the proceeding, or fail to disclose a reasonable cause of action.
35 In my opinion, counsel for Capt Boucaut-Jones has made good the submission that the statement of claim fails to disclose a reasonable cause of action in relation to the alleged aiding and abetting of contraventions and the alleged knowing concern in contraventions. As already noted, with the exception of [63.4] and [63.9], the amended statement of claim does not provide any particulars of the conduct said to amount to the aiding, abetting etc or the being knowingly concerned in the alleged contraventions. That is a fundamental defect.
36 To the extent that the FWO relies upon the conduct alleged in [63.9] for this purpose, I consider that that subparagraph is ambiguous and likely to cause prejudice. The word "purported" and the three expressions in quotation marks hint at an allegation that the matters to which reference was made were not actual or legitimate but do not make a firm allegation to that effect. If the FWO intends to allege that Capt Boucaut-Jones provided certificates noting matters which were not as certified, or that the certificates were false to the knowledge of Capt Boucaut-Jones, then he should say so. If the allegation is that Capt Boucaut-Jones certified as to the completion of a training program, when no such program had been provided or completed, then that should be pleaded explicitly.
37 Absent some plea or pleas of this character, there is uncertainty as to how the conduct pleaded in [63.9] can be a particular of the accessorial conduct alleged.
38 However, it does not follow that on this account the application under s 31A should be upheld. The deficiency in the pleading is capable of being rectified. I would instead give the FWO the opportunity to re-plead, in an appropriate manner, the allegation of accessorial liability to address these shortcomings.
39 Counsel's next submission related to the pleading of Capt Boucaut-Jones' knowledge of the contraventions. Counsel referred to the well-known passages in Giorgianni v The Queen (1985) 156 CLR 473 and Yorke v Lucas (1985) 158 CLR 661 establishing that intentional participation in a contravention of a provision by aiding or abetting, or by being knowingly concerned in the contravention, requires actual, rather than constructive, knowledge of the essential matters making up the contravention. In addition, counsel drew attention to the statement of Greenwood J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited ACN 004 282 268 [2009] FCA 274 at [44] that:
Accessorial liability requires a pleading of actual knowledge on the part of the accessory of each and every element of the offence or contravening conduct … and an election to engage in the relevant conduct.
In that case, a respondent was charged with having assisted in the contravention by a company of a provision in the Workplace Relations Act 1996 (Cth) requiring employers, in defined circumstances, to permit unions a right of entry. Justice Greenwood held that the applicant had to establish that the defendant "had knowledge that the permit holders enjoyed a right of entry and, notwithstanding that knowledge, he set about engaging in the contravening conduct" (at [45]). The absence of a plea of those matters meant, so Greenwood J held, that that particular allegation in the statement of claim had no reasonable prospect of success.
40 Counsel contended that in the present case, the FWO would have to prove that Capt Boucaut-Jones had knowledge that particular obligations were established by the Award, that Mr Kouka and Mr James performed work in circumstances attracting those obligations, and that DMG had failed to meet those obligations. He contended that a pleading of those matters was lacking.
41 Counsel is correct in the contention that the amended statement of claim does not contain any allegation of knowledge by Capt Boucaut-Jones of the Award or of particular provisions in it, or of the performance of work by Mr Kouka and Mr James of a kind which would attract an entitlement to the casual loading or weekend penalty rates.
42 However, I am not satisfied that this indicates that these particular claims of the FWO have no reasonable prospects of success. First, the manner in which Giorgianni and Yorke v Lucas are to be applied in a context such as the present is not settled. At the heart of the FWO's claim is an allegation that DMG sought to avoid the payment to Mr Kouka and Mr James of employment entitlements of a kind commonly found in an industrial award. In that context, there is a question as to whether it is sufficient for the FWO to establish knowledge on Capt Boucaut-Jones' part that work was being carried out to which minimum legislative protections would apply or to which the Award would apply if it were performed by employees. Alternatively, must the FWO go further and establish knowledge of the particular circumstances giving rise to the individual contraventions arising under the applicable award? These are not easy questions and, in my opinion, should be addressed in the context of a trial.
43 I add the following by way of illustration why I consider that to be appropriate. The presence of actual knowledge of the relevant circumstances required for accessorial liability may be able to be inferred from a combination of suspicious circumstances and a wilful failure to make inquiry (Giorgianni v The Queen (1985) 156 CLR 473 at 482, 487, 507-8). That may be pertinent in the present case. The FWO's allegation is that Captains Devine and Boucaut-Jones combined to create an appearance that the two men were participants in an unpaid training program, even though they were really working as employees. If the indicia of the training program said to have been provided by Captains Devine and Boucaut-Jones were a façade or pretence, it may be possible to draw an inference from the very fact of their engagement in the pretence that it had a purpose known to both. It may be able to be inferred that the purpose was to avoid paying the amounts to which the men were otherwise entitled. Entitlements with respect to payment of wages, casual loading and weekend penalty rates are often found in industrial awards. This may support a further inference as to the knowledge of Captains Devine and Boucaut-Jones. I acknowledge that there is a considerable degree of speculation and inference in all of this and much may depend on the evidence. However, it serves to indicate the desirability of caution in acceding to the present s 31A application.
44 I note that in Fair Work Ombudsman v Al Hilfi [2012] FCA 1166, Besanko J dealt with a submission similar to that made presently on Capt Boucaut-Jones' behalf. The FWO in Al Hilfi alleged that Coles Supermarkets Australia Pty Ltd had, in relation to four employees, aided, abetted, etc. the contravention of a contractor's subcontractor of various provisions in an industrial award relating to trolley collectors. Coles argued that, in order to be found liable under s 550 of the FW Act, the FWO had to establish that it knew of four matters. First, that the four employees were employed by the subcontractor in the relevant period; secondly, that the award applied to those employees; thirdly, that the work of each employee gave rise to the entitlements alleged; and finally, that the employees had not been paid their entitlements by the subcontractor. Coles argued that each of these matters should be pleaded and that such pleadings were lacking.
45 Although Besanko J considered that there was "a good deal of force" in Coles' submission, he declined to find that the FWO claim had no reasonable prospect of success, having regard to the broad terms of s 550(2)(c) and to the possibility that evidence at trial would cast light on the issue (at [44]).
46 In my opinion, a similar approach is appropriate presently for the reasons already given and for the further reason that there is a close relationship between the four different contraventions of s 45 alleged in this case.
47 In addition, while it is true that the amended statement of claim does not make any allegation of Capt Boucaut-Jones' knowledge of the Award, or of the particular award provisions alleged to have been contravened, or that work was performed in circumstances in which the casual loading and weekly penalty rates may be payable, it does in [63] allege that Capt Boucaut-Jones was aware of the obligation to pay minimum wages to employees for time worked, was aware of the work which Mr Kouka and Mr James were performing and was aware that they were not paid wages. These pleadings allege, in effect, knowledge by Capt Boucaut-Jones of the elements of at least one of the alleged contraventions of s 45. Even if the plea in [64] were struck out in relation to the alleged contraventions concerning casual loadings, weekend penalty rates and time of payment of wages, Capt Boucaut-Jones' alleged involvement in DMG's failure to pay the minimum wage would remain. He would therefore remain in the action. That is a consideration which, to my mind, points against striking out the pleading on this ground and against a conclusion that the FWO claim has no reasonable prospect of success.
48 Counsel's next submission concerned the allegation of conspiracy.
49 The essence of a conspiracy is an agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means (Ahern v The Queen (1988) 165 CLR 87 at 93). It is the former kind which is pertinent presently. Proof of such a conspiracy in the present case will require proof that Capt Boucaut-Jones concurred with, or assented to, a scheme or plan to effect the alleged contraventions of s 45 and either agreed to participate in the scheme or plan, or actively encouraged Capt Devine to implement it (R v Henderson and Panagaris (1984) 37 SASR 82 at 91-2).
50 Counsel referred to the absence of any pleading of knowledge by Capt Boucaut-Jones of the existence or application of the Award, let alone of the requirements imposed by the Award with respect to minimum wages, casual loadings, penalty rates and the time at which wages are to be paid. Counsel emphasised that the conspiracy to which s 550(2)(d) refers is a conspiracy to "effect the contraventions" and not a conspiracy to achieve some more generalised object of which the contraventions may be only an incident. This indicated, he submitted, that there should be a pleading of these material facts.
51 Again, there is some force in this submission. The amended statement of claim does not include any plea of knowledge by Capt Boucaut-Jones of the Award or of its requirements (apart from, at a general level, the requirement to pay a minimum wage). With one exception (or possibly two), the amended statement of claim does not link the particular contraventions of s 45 alleged against DMG on the one hand, with the alleged conspiracy on the other.
52 The exception is the allegation in [63] that Capt Boucaut-Jones was aware of the obligation of DMG to pay minimum wages to employees for the time worked, knew that Mr Kouka and Mr James were employees, knew the work that they were performing, and knew that they were not being paid wages. The plea in [63] is prefaced by the clause "at all material times". Paragraph [63] may, therefore, be able to be understood as a pleading that Capt Boucaut-Jones had the alleged knowledge at the time of formation of the alleged agreement with Capt Devine and at material times thereafter.
53 The second possible exception arises from the reference in [68] to [65].
54 Despite the force of counsel's submission, I consider again that it is appropriate to be cautious. If the purpose of the conspiracy was to obtain the men's services but to avoid a liability to pay award entitlements, then it may not be necessary for the FWO to establish actual knowledge by Capt Boucaut-Jones of the particular entitlements or of the performance of work giving rise to those entitlements. Whether or not that is so is a matter appropriately addressed at trial.
55 There is an additional reason for caution. For the reasons given at the outset, I am reluctant to engage in a detailed analysis of the applicant's witness statements. However, the witness statements of Mr Kouka and Mr James suggest that evidence may be given at the trial to the effect that they were given certificates by the Adelaide Nautical College certifying as to their completion of training programs in circumstances in which they had not received any training from Capt Boucaut-Jones, or apparently from anyone else, let alone someone acting for or on behalf of the Adelaide Nautical College. It also appears that there may be evidence from Mr Kouka to the effect that he was cautioned by Capt Boucaut-Jones not to tell investigators that he was working but, instead, to say that he was undertaking training; that on one occasion he was given money by Capt Boucaut-Jones, apparently on behalf of Capt Devine; and that on another occasion Capt Boucaut-Jones provided him with some blank note books and pens which he could produce if questioned about the training he was undertaking. Mr James has deposed that he did not come to Australia with the intention of undergoing training but, instead, that he came here to work, and that that is what he did. Mr Kouka has deposed that he expected to work and undergo training, but that he did not receive any training.
56 Counsel for Capt Boucaut-Jones submitted that these passages in the foreshadowed evidence could be given a benign explanation. That may well be so and, at a trial, that benign explanation may well be accepted. However, that is not the issue presently. As outlined earlier, on an application of the present kind all reasonable inferences from the foreshadowed evidence should be drawn in favour of the non-moving party.
57 Counsel for Capt Boucaut-Jones then made some submissions concerning the proposed evidence of the FWO. It was said that the evidence would not establish that any conduct of Capt Boucaut-Jones was "intentionally aimed" at DMG's conduct in not paying wages, or that he had a close involvement in DMG's omission to pay wages, or that Capt Boucaut-Jones had the intention of effecting a contravention of s 45 of the FWA, and so was not sufficient to establish accessorial liability. It was said that the foreshadowed evidence of Mr Kouka, in particular, was unsatisfactory and ambiguous and, in any event, was not supported by other evidence proposed to be led by the FWO. Finally, it was said that the foreshadowed evidence would not make out the various particulars alleged in [63].
58 As noted earlier, in some cases, a consideration of foreshadowed evidence will be necessary in order to determine a s 31A application. However, in the present case, that is neither necessary nor desirable. For the reasons given earlier, I consider that the Court should adopt presently the same attitude to the s 31A application as it would if the same submissions were made in the context of a no case to answer submission. The possibility that further evidence will be adduced at trial by the cross-examination of the FWO's witnesses, or by DMG and Capt Devine themselves, makes it inappropriate for the Court to determine, at this stage, the sufficiency of the FWO's evidence against Capt Boucaut-Jones.
59 Capt Boucaut-Jones' remaining complaints are appropriately addressed in the context of his critique of the adequacy of the pleading in the statement of claim.